                     FOR PUBLICATION

      UNITED STATES COURT OF APPEALS
           FOR THE NINTH CIRCUIT

 RANDALL AMADO,                                     No. 11-56420
             Petitioner-Appellant,
                                                      D.C. No.
                      v.                           2:03-cv-00078-
                                                        PA-E
 TERRI GONZALEZ, Warden,
 California Men’s Colony,
               Respondent-Appellee.                 ORDER AND
                                                     OPINION

          Appeal from the United States District Court
             for the Central District of California
           Percy Anderson, District Judge, Presiding

                     Argued and Submitted
             January 8, 2013—Pasadena, California

                        Filed July 11, 2014

     Before: William A. Fletcher and Johnnie B. Rawlinson,
     Circuit Judges, and Alvin K. Hellerstein, Senior District
                             Judge.*

                             Order;
                  Opinion by Judge Hellerstein;
                  Dissent by Judge Rawlinson


 *
  The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S.
District Court for the Southern District of New York, sitting by
designation.
2                      AMADO V. GONZALEZ

                           SUMMARY**


                          Habeas Corpus

    The panel withdrew an Opinion and Dissent filed October
30, 2013, filed a superseding Opinion and Dissent, denied a
petition for rehearing, and denied a petition for rehearing en
banc on behalf of the court, in an appeal from the denial of a
28 U.S.C. § 2254 habeas corpus petition in which the
petitioner, convicted of murder, argued that the prosecution
violated his rights under Brady v. Maryland by failing to
disclose material information that would have enabled
defense counsel to impeach the credibility of a critical
witness.

    The panel gave AEDPA deference to rulings of the
California Court of Appeal, as required by Harrington v.
Richter and Johnson v. Williams, but did not give deference
to the Superior Court’s finding of immateriality.

     The California Court of Appeal held under California
Penal Code § 1181(8) that petitioner had not established (1)
“the newly-discovered nature of the evidence,” and (2) his
counsel’s “inability to discover and produce the evidence at
trial, with the exercise of due diligence.” The panel held that
the Court of Appeal’s decision that the petitioner had not
established that the evidence was newly discovered was an
unreasonable determination of the facts. The panel held that
the Court of Appeal’s requirement of due diligence was

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

contrary to, or involved an unreasonable application of,
clearly established federal law, as determined by the Supreme
Court of the United States.

    Because the Court of Appeal’s decision did not survive
AEDPA review, the panel reviewed the constitutionality of
the petitioner’s conviction and, specifically, his Brady claim.
Reviewing de novo, the panel held that the prosecution had a
Brady obligation to produce the witness’ conviction and
probation records and that the evidence was material,
rendering the government’s failure to disclose it prejudicial.

    The panel remanded with instructions to grant the writ and
to release the petitioner unless the district attorney, within 60
days, initiates proceedings for a new trial.

    Judge Rawlinson dissented. She focused her analysis on
whether the state court’s denial of relief was objectively
unreasonable, not whether the petitioner suffered prejudice in
the first instance, and was unable to say that no fairminded
jurist could disagree that the state court’s decision applying
Brady was unreasonable. She criticized the majority’s
conducting a de novo analysis of, rather than deferring to the
state court’s interpretation of, a state statute.



                         COUNSEL

John Lanahan (argued), San Diego, California, for Petitioner-
Appellant.
4                   AMADO V. GONZALEZ

Kamala D. Harris, Dane R. Gillette, Lance E. Winters,
Kenneth C. Byrne, and David A. Wildman (argued), Office of
the Attorney General of California, Los Angeles, California,
for Respondent-Appellee.


                           ORDER

   The Opinion and Dissent filed October 30, 2013, and
appearing at 734 F.3d 936 (9th Cir. 2013), are hereby
withdrawn. They may not be cited as precedent by or to this
court or any district court of the Ninth Circuit. A superseding
Opinion and Dissent are being filed concurrently with this
order.

    With the amended disposition, Judge W. Fletcher voted to
deny the petition for rehearing and to reject the suggestion for
rehearing en banc. Judge Rawlinson voted to grant the
petition for rehearing and to grant the suggestion for rehearing
en banc. And Judge Hellerstein voted to deny the petition for
rehearing and recommended rejection of the suggestion for
rehearing en banc.

    The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on
whether to rehear the matter en banc. See Fed. R. App. P. 35.

    Accordingly, the petition for rehearing and rehearing en
banc is hereby DENIED. The court will entertain further
petitions for rehearing and rehearing en banc with respect to
the superseding Opinion.
                    AMADO V. GONZALEZ                         5

                          OPINION

HELLERSTEIN, Senior District Judge:

     Violence between street gangs is a scourge to
communities. The prosecutors who prosecute crimes
committed by these gangs perform a vital service. But
prosecutors must be vigilant that excessive zeal does not
violate a defendant’s constitutional right to a fair trial. When
that occurs, the courts must balance the needs of the
community with a defendant’s constitutional right to a fair
trial.

     Randall Amado was convicted in 1998 by a Los Angeles
jury of aiding and abetting a senseless murder in a public bus.
The prosecutor neglected, however, to discharge his
obligation to disclose material information that would have
enabled defense counsel to impeach the credibility of a
critical witness against Amado. We hold in this opinion that
the prosecution’s failure, in violation of clearly established
federal law as determined by the U.S. Supreme Court,
requires that Amado be given a new trial.

I. The Facts of Record and the Prior Proceedings

   A. The Shooting

   In 1996 and 1997, the Bounty Hunter Bloods and 118 East
Coast Crips were rival street gangs in southern Los Angeles.
Some members of the Bounty Hunter Bloods gang attended
Centennial High School, and traveled to and from school on
public bus No. 53 through neighborhoods claimed by the 118
East Coast Crips. The gang members identified themselves
6                   AMADO V. GONZALEZ

by the colors of their clothing: red for the Bloods, and blue for
the Crips. As bus No. 53 passed through the Crips’
neighborhoods, members of the Bloods gang on board
frequently taunted, flashed gang signs at, spit at, and threw
objects at Crips gang members standing at the bus stops.

    On January 15, 1997, two members of the 118 East Coast
Crips, Robert Johnson and Wilbert Pugh, decided to retaliate.
Their friend, Nicholas Briggs, overheard the two propose that
a large group of Crips board bus No. 53 and attack Bloods
members inside. Briggs testified that Johnson carried a gun
at that meeting, but that there was no discussion of shooting
anyone. Johnson and Pugh decided that the attack would
occur the next day, but Briggs had a court appearance to
attend and declined to join them.

     The following afternoon, Johnson, Pugh, and a group of
their friends met near the intersection of Imperial Highway
and Avalon Boulevard. When a No. 53 bus approached, at
about 3:20 pm, Pugh yelled “Y’all ready?” and the group
moved toward the bus as it pulled into a bus stop. Pugh and
at least one other unidentified gang member boarded the bus,
and Pugh cursed the Bounty Hunter Bloods members in the
back. One of the Crips, possibly Pugh, shouted “Shoot this
m_____ f______ bus up,” and the Crips exited. Johnson,
behind the bus, poked a gun through the rear window, aimed
at a passenger dressed in red, and fired, hitting two others.
Corrie Williams, a student at Centennial High School, was
shot in the neck and killed. Tammy Freeman, her friend, was
shot in the arm. The bus driver sped off, stopping a few
blocks away when he felt it was safe.
                   AMADO V. GONZALEZ                        7

   B. The Arrest and Prosecution

    Amado was arrested with Briggs the next night. At the
time, Amado and Briggs were drinking and smoking
marijuana in a backyard near the location of the shooting, and
across the street from Amado’s home. Johnson and Pugh fled
to Milwaukee, Wisconsin. Johnson was arrested in
Milwaukee approximately a week after the murder, and he
confessed to the shooting. Pugh was also arrested in
Milwaukee, although not until a year after the bus attack
occurred.

    Amado was indicted in Los Angeles County Superior
Court on charges of first degree murder, premeditated
attempted murder, assault with a firearm, and shooting at an
occupied motor vehicle. The prosecution accused Amado of
aiding and abetting the shooting by running with Crips gang
members to ambush and surround the bus, and by carrying a
gun to the scene.

    The court and prosecution were concerned about
intimidation of witnesses, and retaliation against those who
testified. This fear was driven in part by the fact that Pugh
was still at large at the time the proceedings began. Based on
interviews of witnesses in camera, the Superior Court ordered
that the addresses and phone numbers of witnesses be
withheld from the defense, and that the prosecution make
witnesses available for interviews by the defense at the
courthouse. Warren Hardy was one of those witnesses, but
Amado’s trial counsel, Richard Lapan, did not interview him.

    Pugh, Johnson, and Amado were tried together before two
juries, one for Johnson, the alleged shooter, and the second,
8                     AMADO V. GONZALEZ

for Pugh and Amado, the alleged aiders and abettors. While
many witnesses testified as to Pugh’s and Johnson’s roles in
the shooting, the evidence against Amado was more limited.
Two witnesses testified that Amado was part of the group that
gathered at the bus stop. John Grisson, a high school
classmate of Amado, testified on direct that he was at the
intersection of Imperial Highway and Avalon Boulevard, and
saw Amado, with others, running toward the bus. However,
when pressed on cross, Grisson testified that when he had
seen Amado with the group it had been a few minutes before
the shooting, and that he did not see Amado run toward the
bus prior to the shooting, or away from the bus after the
shooting. The second of the two witnesses, Natasha Barner,
Pugh’s girlfriend at the time of the shooting, testified that she
saw Amado, along with a crowd, “coming across the street”
toward the bus stop prior to the shooting.1 Barner said that
she did not see Amado with a gun. Barner, corroborated by
another witness, testified that she knew only that Johnson and
Pugh were members of the 118 East Coast Crips, and no
witness testified that Amado was a member of the gang.
Amado, however, did have the nickname “Bang,” which some
viewed as a gang moniker.

    Warren Hardy, who originally identified himself to the
police as Warren Collins, was the key witness against Amado.
Hardy lived less than a block from the intersection of Imperial
Highway and Avalon Boulevard. Hardy testified that, from

    1
      Contrary to the dissent’s suggestion, neither Grisson nor Barner
testified that they saw Amado board the bus. The two stated only that
Amado was among the group of six to eight teenagers at the bus stop.
According to most of the witnesses, only two teenagers boarded the bus.
Pugh was identified as one of the two. No witness testified that Amado
was the other.
                       AMADO V. GONZALEZ                                9

his balcony, minutes before the shooting and from a distance
of approximately 35 feet, he saw a short, chubby boy with
slicked-back hair and a pony-tail carrying a handgun and
trailing a group of teenagers heading towards Avalon
Boulevard. Hardy testified that he then heard gunfire, and,
shortly after, he saw several of these same teenagers run down
the street. The next night, Hardy testified, he heard several
teenagers behind his building talking and laughing about the
shooting. Hardy testified that he called the police, who
responded, found Amado and Briggs in the area where Hardy
had placed the laughing teenagers, and arrested them.

    At trial, Hardy could not identify Amado, neither as the
person who he said had carried a gun, nor as one of the
teenagers who had gathered the next night behind his
building. The best that Hardy could do was to identify
Amado’s hairstyle as similar to the hairstyle of the person he
saw with the gun. On cross examination, Hardy testified that
his vision was poor, that he could not remember key details
about what he saw behind his building, and that he did not
want to testify because he feared for his safety.

    Because of Hardy’s reluctance to testify and his lack of
memory, the prosecution called LAPD Detective Michelle
Esquivel to testify about statements Hardy made the day after
the shooting, at the time of Amado’s arrest. Esquivel, reading
from the notes she had taken while interviewing Hardy,
testified that Hardy had identified Amado as the person who
had carried a gun to the shooting.2 Esquivel quoted Hardy as


  2
    California law allows prior inconsistent statements of a witness to be
admitted into evidence, even if not made under oath. See, e.g., People v.
Ledesma, 140 P.3d 657, 710 (Cal. 2006) (affirming the trial court’s
10                       AMADO V. GONZALEZ

describing the teenager as a “light-skinned, chubby male
black . . . [with] a blue short-sleeved shirt, and his hair was
long, slicked back.” Esquivel wrote that when the police
informed Hardy that Amado and Briggs had been arrested, a
fellow detective asked if they “had the correct guys,” and
Hardy answered, “Yes.”

    During closing arguments, the prosecution emphasized
Hardy’s statement to the police that Amado carried a gun as
reliable evidence of his guilt:

         Now, what did Mr. Hardy say? Randall
         Amado or somebody that looks like him is the
         guy that he saw on January the 16th, 1997,
         carrying a gun. The only reason why he is
         going to say that, or say words to the effect of
         he’s possibly the guy that did the shooting is
         because he thinks that’s the guy who he saw
         on January the 16th, 1997, with a gun. That’s
         the only reason why you make that statement.
         The only reason. Now, why is Randall
         Amado carrying a gun to a fistfight? Is it
         because he himself thought this could possibly
         evolve into something else other than a
         fistfight? And if so, did he think in his own
         mind that the natural and probable
         consequences of agreeing to get into a fight
         could result in a shooting, so I better have
         myself armed before I go over there?


decision to allow a police officer to testify as to his prior conversation with
a witness after that witness testified that he could not remember the
conversation).
                        AMADO V. GONZALEZ                            11

   On November 30, 1998, Amado was convicted of all
charges. He was sentenced to 27 years to life in prison.

         C. Amado’s Motion for a New Trial and His Appeal

    Following his conviction, Amado moved for a new trial.
His attorney, Richard Lapan, based his motion on the failure
of the prosecution to produce a probation report on the main
witness against Amado, Warren Hardy. Lapan represented
that the probation report on Hardy came into Lapan’s
possession “after trial,”3 and that the probation report
disclosed that Hardy had pleaded guilty to committing a
robbery,4 that he was on probation for that offense, and that
Hardy had been a member of the Piru Bloods, an affiliated
Bloods gang. The prosecution had not disclosed those facts,
or given the probation report on Hardy to Amado’s counsel.
Lapan then interviewed Hardy, and Hardy wrote out a
declaration (the “Hardy declaration”) stating that he had been
convicted of robbery “out of the Long Beach court” and that
he had been a member of the Piru Bloods.5

   Amado moved for a new trial on the ground that the
prosecution had violated Brady v. Maryland, 373 U.S. 83
(1963), in failing to disclose Hardy’s probation report. At a
hearing held January 25, 1999, Lapan presented the Hardy


     3
     Lapan did not disclose how the probation report came into his
possession, stating only that he did not obtain it “until after trial.”

     4
    The record is not clear as to when Hardy was convicted. Lapan
represented to the Superior Court that Hardy plead guilty to robbery in
1996. In his declaration, Hardy said he was convicted of robbery in 1997.
 5
     The declaration was dated January 21, but lacked a year.
12                  AMADO V. GONZALEZ

declaration and represented that he had “just received
[Hardy’s] file on the robbery when he pled guilty in 1996 that
indicated he was a Piru Blood.” Lapan argued that there was
a reasonable probability that the result of the trial would have
been different had this “newly discovered evidence” been
available to impeach Hardy, and that Amado was entitled to
a new trial under Brady. The State countered that Lapan had
failed to diligently pursue information about Hardy and
therefore Amado was not entitled to a new trial, and that the
new evidence would not change Hardy’s credibility. The
State argued, based on how “the testimony played out and the
way that Mr. Hardy was found by the police and the way that
he came forward, it’s just not a situation where Mr. Hardy’s
credibility on what he testified to is going to be changed by
the introduction of this new evidence.”

    The Superior Court held that, even though Hardy’s prior
conviction should have been disclosed to the jury, doing so
would not have changed the result. The court concluded that
other witnesses had placed Amado at the scene and that Hardy
had been cross-examined vigorously as to his observations:

       Mr. Hardy is not the only person who put Mr.
       Amado at the scene. I don’t think that any
       more aggressive cross-examination—and he
       was aggressively cross-examined on behalf of
       Mr. Amado by Mr. Lapan about his
       observations and his ability to perceive, and I
       think that the jury had the benefit of
       everything that they possibly could have short
       of the information of the robbery, which in a
       perfect world they should have had. But I
       don’t know that it reaches the level that
                     AMADO V. GONZALEZ                          13

        warrants a new trial. I therefore am going to
        respectfully deny the motion before me for
        new trial.

    Amado appealed to the California Court of Appeal,
Second Appellate District. In response to concerns expressed
by the appellate court at oral argument, Amado moved to
augment the record to document that the Hardy impeachment
evidence was “newly discovered.” Defense counsel Lapan
added the Hardy declaration to the record, and his own
declaration (the “Lapan declaration”). The Lapan declaration
stated that Lapan had received no information from the
prosecution about Hardy’s criminal background and gang
affiliation and that “I did not learn until after trial that Warren
Hardy was on felony probation as a result of a robbery
conviction and that in the probation report from that offense,
Hardy stated that he was a ‘Piru Blood.’” The appellate court
granted Amado’s motion to augment the record.

    In a June 14, 2001 unpublished opinion, the California
Court of Appeal affirmed the Superior Court’s denial of
Amado’s motion for a new trial, but on different grounds.
The Court of Appeal determined that the impeachment
material on Hardy was material, thus disagreeing with the
ruling of the Superior Court. The Court of Appeal recited that
“Hardy’s declaration establishes what evidence would be
available and its materiality (relevance to impeachment).”
Nevertheless, the Court of Appeal affirmed.

    The Court of Appeal’s decision was based on California
Penal Code § 1181(8). That section provides that a party
moving for a new trial based on new evidence must establish
that the evidence was newly discovered and could not have
14                     AMADO V. GONZALEZ

been discovered with reasonable diligence.6 The Court of
Appeal held that Hardy’s declaration did not satisfy § 1181(8)
because it “does not establish that the evidence is indeed
newly discovered . . . nor does it establish that defense
counsel could not have discovered the impeaching facts in the
exercise of due diligence.” The Court of Appeal further
explained that Lapan’s oral representation to the Superior
Court, that the impeachment evidence against Hardy was
newly discovered, did not satisfy § 1181(8) because it was not
evidence, since counsel “was making argument, not testifying
under oath.” The Court of Appeal therefore affirmed the
denial of Amado’s motion for a new trial because he did not
present “any evidence to establish that the impeaching facts
about Hardy were newly discovered and could not have been
discovered and produced at trial in the exercise of due
diligence, let alone the best available evidence.” And, since
Amado failed to show that the evidence was newly discovered
and could not have been discovered with due diligence, as
section 1181(8) required, there was no showing that the
prosecution’s failure to turn over the impeachment material
violated Brady v. Maryland.7

  6
    “[T]he court may, upon his application, grant a new trial . . . [w]hen
new evidence is discovered material to the defendant, and which he could
not, with reasonable diligence, have discovered and produced at the trial.
When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing, in support
thereof, the affidavits of the witnesses by whom such evidence is expected
to be given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such
length of time as, under all circumstances of the case, may seem
reasonable.”
 7
   The Court of Appeal also affirmed the Johnson and Pugh convictions,
holding, among other things, that there was sufficient evidence to convict.
                    AMADO V. GONZALEZ                        15

    Amado filed a petition with the California Supreme Court
to review the Court of Appeal’s decision, but the Supreme
Court denied the petition. Amado thus “exhausted the
remedies available” in the California courts. See 28 U.S.C.
§ 2254(b)(1)(A).

   D. Amado’s Habeas Petition

    Amado filed a petition for a writ of habeas corpus with the
U.S. District Court, Central District of California on January
6, 2003. See 28 U.S.C. § 2254. On May 16, 2003, the
magistrate judge assigned to the case issued a Report and
Recommendation (“R & R”) recommending that Amado’s
petition be granted because the prosecution had violated
Amado’s constitutional rights under Brady. The R & R found
that “the undisclosed Brady evidence was ‘substantial and
was far more damaging to [Hardy’s] credibility than the
impeachment evidence available to the defense at trial.’”
(quoting Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir.
2002)).

    The R & R lay in the district court for more than six years
without action. On December 14, 2009, Amado filed an
application for a ruling by the district court, but 19 more
months passed before any decision. On July 20, 2011, eight-
and-a-half years after Amado filed his petition, the district
court issued an order denying Amado’s petition, and denying
as well Amado’s request for a Certificate of Appealability.
See 28 U.S.C. § 2253. Applying a deferential standard of
review, the court held that it was reasonable for the California
courts to find that the State had not suppressed evidence,
since Amado’s trial counsel had had an opportunity to speak
with Hardy, but had failed to do so. The court ruled also that
16                  AMADO V. GONZALEZ

Amado had not demonstrated prejudice “[i]n light of the
substantial evidence against Petitioner on the prosecution’s
aiding and abetting theory.”

    Amado filed a notice of appeal on August 16, 2011. This
Court granted a Certificate of Appealability on September 22,
2011 as to one issue: “whether prosecution’s suppression of
impeachment evidence violated appellant’s right to due
process under Brady v. Maryland, 373 U.S. 83 (1963).” We
have jurisdiction to hear Amado’s appeal under 28 U.S.C.
§§ 1291 and 2253.

II. Discussion

     A. Standard of Review

        1. The Requirements of AEDPA

    Under the Antiterrorism and Effective Death Penalty Act
of 1996 (“AEDPA”) federal courts apply a deferential
standard of review in habeas cases. See 28 U.S.C. § 2254. If
a claim was “adjudicated on the merits in State court
proceedings,” a writ of habeas corpus may be granted only if
the state court adjudication:

        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.
                    AMADO V. GONZALEZ                         17

28 U.S.C. § 2254(d). If the claim was not “adjudicated on the
merits” by the state court, the review is to be de novo. Pirtle
v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).

    The first step in determining whether we give deference
under § 2254(d) is to determine which state court decision we
review. Under the Supreme Court’s decision in Ylst v.
Nunnemaker, we look “to the last reasoned decision” that
finally resolves the claim at issue in order to determine
whether that claim was adjudicated on the merits. 501 U.S.
797, 804 (1991). When the last reasoned decision is a state
appellate court decision which “adopt[s]” or “substantially
incorporate[s]” lower state court decisions, we may review
those lower state court decisions as part of our review of the
state appellate court’s decision. Barker v. Fleming, 423 F.3d
1085, 1093 (9th Cir. 2005). But, where (as in this case) a
lower state court issues a decision that the state appellate
court does not agree with, we review the state appellate
court’s decision only and do not consider the lower state
court’s opinion. See id.; Towery v. Ryan, 673 F.3d 933, 944
n.3 (9th Cir. 2012).

    The next consideration is whether the decision being
reviewed is an adjudication on the merits. Under AEDPA, an
adjudication on the merits is “a decision finally resolving the
parties’ claims . . . that is based on the substance of the claim
advanced, rather than on a procedural, or other, ground.”
Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir. 2004)
(alteration in original) (quoting Sellan v. Kuhlman, 261 F.3d
303, 311 (2d Cir. 2001)).

    If a federal claim was presented to the state court and the
state court denied all relief without specifically addressing the
18                  AMADO V. GONZALEZ

federal claim, “it may be presumed that the state court
adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 131 S.Ct. 770, 784–85 (2011). In that
case, we “must determine what arguments or theories . . .
could have supported” the state court’s rejection of the federal
claim, and then give deference to those arguments or theories
under AEDPA. Id. at 786. The presumption that a court
adjudicated the claim on the merits is rebuttable, for example,
if “the state standard is quite different from the federal
standard” or “if a provision of the Federal Constitution or a
federal precedent was simply mentioned in passing in a
footnote or was buried in a string cite.” Johnson v. Williams,
133 S.Ct. 1088, 1096 (2013).

     Furthermore, if the state court decision gave reasons for
its denial of the federal claim, we consider these reasons, and
determine if the state court’s adjudication was on the merits,
or procedural. See, e.g., James v. Ryan, 733 F.3d 911, 916
(9th Cir. 2013) (noting that Johnson “does not require us to
ignore a state court’s explicit explanation of its own
decision”).

     To give deference, however, does not mean to surrender
all inquiry. Under AEDPA, the federal court must ascertain
if the state court decision “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). If factual determinations are involved,
the federal court must ascertain if the state court decision
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
Id. If the federal court finds that the state court adjudication
                    AMADO V. GONZALEZ                        19

on the merits does not withstand deferential scrutiny under
§ 2254(d), the federal court must then “decide the habeas
petition by considering de novo the constitutional issues
raised.” Frantz v. Hazey, 533 F.3d 724, 735 (9th Cir. 2008)
(en banc). This means that where a state court has
adjudicated a claim on the merits with a written decision
denying relief based on one element of the claim and
therefore does not reach the others, federal courts should give
§ 2254(d) deference to the element on which the state court
ruled and review de novo the elements on which the state
court did not rule.

        2. Recent Supreme Court                Developments
           Regarding Deference

    In two recent decisions, Harrington v. Richter, 131 S.Ct.
770 (2011), and Johnson v. Williams, 133 S.Ct. 1088 (2013),
the Supreme Court appears to have tightened the rule of
deference with regard to all elements of a claim.

    In Harrington, the defendant petitioned for habeas relief,
claiming that his counsel provided him with a constitutionally
inadequate defense. 131 S. Ct. at 783. The California
Supreme Court dismissed the habeas claim by summary
order, giving no explanation for its determination. Id. The
federal district court denied his federal habeas petition, and a
three-judge panel of this court affirmed. Id. This Court, en
banc, reversed. Id.

    The U.S. Supreme Court reversed our en banc decision
granting habeas relief. Id. at 792. The Supreme Court held
that when a state court’s order is unaccompanied by an
opinion explaining the reasons for denial of federal relief, “it
20                  AMADO V. GONZALEZ

may be presumed that the state court adjudicated the claim on
the merits in the absence of any indication or state-law
procedural principles to the contrary.” Id. at 784–85.
Accordingly, the Supreme Court said a federal habeas court
“must determine what arguments or theories . . . could have
supported” the state court’s rejection of the federal claim, and
then must give deference to those arguments or theories under
28 U.S.C. § 2254(d). Id. at 786.

     In Johnson, the defendant was found guilty of a murder in
which a co-conspirator in a robbery killed the victim. 133 S.
Ct. at 1092. On appeal, the defendant complained that the
trial judge, in excusing a juror for bias because of the juror’s
expressed intention not to follow the judge’s instructions
about felony-murder, violated both the Sixth Amendment and
an analogous provision of California law. Id. at 1092–93.
The California Court of Appeal denied the defendant’s appeal
on state-law grounds and, although citing a leading U.S.
Supreme Court case, did not discuss the defendant’s argument
under the Sixth Amendment. Id. at 1093. The defendant then
sought federal habeas review under 28 U.S.C. § 2254. Id.
The district court, applying AEDPA’s deferential standard,
denied the defendant’s petition, but this court reversed,
holding that since the state court had failed to discuss the
Sixth Amendment, AEDPA deference did not apply. 133 S.
Ct. at 1093–94.

    The Supreme Court reversed, id. at 1099, holding that
where a state-court opinion addresses some but not all of a
defendant’s claims, federal habeas courts should presume, as
Harrington requires, that the state court opinion adjudicated
                       AMADO V. GONZALEZ                               21

the federal claims, as well as the state claims, on the merits.
133 S. Ct. at 1094–97.8

         3. The Standard of Review in This Case

    In the case before us, the California Court of Appeal did
not incorporate, explicitly or implicitly, any element of the
decision of the Superior Court. The Superior Court denied
Amado’s claim because it considered the evidence that the
prosecutor failed to produce immaterial. The Court of Appeal
rejected that finding. “Hardy’s declaration,” the Court of
Appeal stated, “establishes what evidence would be available


 8
    But cf. Wiggins v. Smith, 539 U.S. 510, 534 (2003) (after finding that
a state court’s evaluation of the performance of counsel, in an ineffective
assistance of counsel claim, was unreasonable under § 2254, reviewing the
prejudice requirement for an ineffective assistance of counsel claim that
the state courts had not reached de novo); Rompilla v. Beard, 545 U.S.
374, 390 (2005) (same).

     In Harrington v. Richter, the Supreme Court did not mention Wiggins
or Rompilla. Based on the dictum of Harrington that deference under
§ 2254 applies to the adjudication of a claim, rather than a component of
a claim, the Eleventh Circuit questioned if Rompilla remains good law.
See Childers v. Floyd, 642 F.3d 953, 969 n.18 (2011) (en banc), cert.
granted, judgment vacated, 133 S. Ct. 1452 (2013). In contrast, the Sixth
and Seventh Circuits have concluded that Harrington did not change the
Supreme Court’s prior holdings. See Rayner v. Mills, 685 F.3d 631, 639
(6th Cir. 2012) (“[Supreme Court cases] mandate AEDPA deference to
both prongs when the state court decision summarily dismisses the claim
without explanation; when a state court decision relies only on one prong,
the cases mandate AEDPA deference to that prong and de novo
consideration of the unadjudicated prong.”); Sussman v. Jenkins, 642 F.3d
532, 534 (7th Cir. 2011) (“We certainly cannot assume that the Court
overruled sub silentio [in Harrington] its holding in Wiggins—a precedent
so important to the daily work of the lower federal courts.”).
22                      AMADO V. GONZALEZ

and its materiality (relevance to impeachment).” Hardy’s
habeas claim failed, the Court of Appeal ruled, not because
the evidence of Hardy’s recent felony conviction was not
material—his recent felony conviction, current probation
status, and Blood-gang affiliation clearly could have made a
difference—but because Amado’s counsel had failed to show
that the evidence was “newly discovered” and could not have
been discovered with due diligence. Hence, the court
explained, the prosecutor’s failure did not violate Brady v.
Maryland. As the Court of Appeal stated, “The record before
us does not establish the prosecution’s failure under Brady to
reveal this information to defense counsel.”

     We give AEDPA deference to these rulings of the Court
of Appeal, as Harrington v. Richter and Johnson v. Williams
require. But we do not give deference to the Superior Court’s
finding of immateriality.         Instead, deference, under
Harrington and Johnson, is owed to the Court of Appeal’s
rejection of the Superior Court’s finding. See James v. Ryan,
733 F.3d 911, 916 (9th Cir. 2013) (noting that Johnson “does
not require us to ignore a state court’s explicit explanation of
its own decision); Ylst, 501 U.S. at 804 (1991) (we look “to
the last reasoned decision” resolving a claim).9


  9
    We note that neither party addressed the issue of the proper standard
by which we are to review Amado’s habeas claim. Nevertheless, we have
the obligation to apply the correct standard, for the issue is non-waivable.
See Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009) (“We agree
with our sibling circuits that the correct standard of review under AEDPA
is not waivable.”); Brown v. Smith, 551 F.3d 424, 428 n.2 (6th Cir. 2008)
(“[A] party cannot ‘waive’ the proper standard of review by failing to
argue for it.”), overruled on other grounds by Cullen v. Pinholster, 131 S.
Ct. 1388, 1400 (2011); Eze v. Senkowski, 321 F.3d 110, 121 (2d Cir.
2003) (holding that AEDPA’s deferential standard of review applied even
                         AMADO V. GONZALEZ                                 23

    We next discuss the rule of Brady, and consider whether
the decision of the Court of Appeal “was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “was based on an unreasonable
determination of the facts in light of the evidence presented in
the State court proceeding.” See 28 U.S.C. § 2254(d).

    B. The Requirements of Brady

     Under the landmark case of Brady v. Maryland, 373 U.S.
83, 87 (1963), prosecutors are constitutionally obligated to
disclose “evidence favorable to an accused . . . [that] is
material either to guilt or to punishment.” This prosecutorial
duty is grounded in the Fourteenth Amendment, id. at 86,
which instructs that states shall not “deprive any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The purpose of Brady is to ensure
that “criminal trials are fair,” Brady, 373 U.S. at 87, and “that
a miscarriage of justice does not occur,” United States v.
Bagley, 473 U.S. 667, 675 (1985). Placing the burden on
prosecutors to disclose information “illustrate[s] the special
role played by the American prosecutor in the search for truth
in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281
(1999). The prosecution is trusted to turn over evidence to
the defense because its interest “is not that it shall win a case,


where the State failed to argue for its application); Worth v. Tyer, 276 F.3d
249, 262 n.4 (7th Cir. 2001) (“[T]he court, not the parties, must determine
the standard of review, and therefore, it cannot be waived.”). As the Tenth
Circuit characterized the issue, “[i]t is one thing to allow parties to forfeit
claims, defenses, or lines of argument; it would be quite another to allow
parties to stipulate or bind us to application of an incorrect legal standard,
contrary to the congressional purpose.” Gardner, 568 F.3d at 879.
24                  AMADO V. GONZALEZ

but that justice shall be done.” Id. (quoting Berger v. United
States, 295 U.S. 78, 88 (1935)).

    The prosecution’s duty to divulge relevant information is
a “broad obligation.” Strickler, 527 U.S. at 281. The
prosecutor, although “not required to deliver his entire file to
defense counsel,” is required to turn over evidence that is both
favorable to the defendant and material to the case. Bagley,
473 U.S. at 675. This duty exists regardless of whether the
defense made any request of the prosecution; the prosecution
is required to provide material, favorable information even
“where the defendant does not make a Brady request.” Id. at
680–82.

    Favorable evidence is not limited to evidence that is
exculpatory, i.e., evidence that tends to prove the innocence
of the defendant. Favorable evidence includes that which
impeaches a prosecution witness. In Giglio v. United States,
405 U.S. 150, 154 (1972), “the Government’s case depended
almost entirely” on one witness, yet the prosecution failed to
inform the defense that the witness testified in exchange for
a promise from the government that he would not be
prosecuted. The Supreme Court held that the prosecution was
required to inform the defense about its agreement with the
witness because “evidence of any understanding or agreement
as to a future prosecution would be relevant to [the witness’s]
credibility and the jury was entitled to know of it,” and the
Court ordered a new trial. Id. at 154–55. The Supreme Court
has since made clear that the prosecution must disclose all
material impeachment evidence, not just evidence relating to
cooperation agreements. See Bagley, 473 U.S. at 676.
                   AMADO V. GONZALEZ                        25

    The prosecution’s duty to reveal favorable, material
information extends to information that is not in the
possession of the individual prosecutor trying the case. In
Kyles v. Whitley, 514 U.S. 419, 441–42 (1995), police learned
that a witness who implicated the defendant had provided a
description of the suspect to the police that did not match the
defendant. The prosecutors were apparently unaware that this
exculpatory information even existed. Still, the Supreme
Court held that the prosecutors had violated Brady, for they
had “a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police.” Kyles, 514 U.S. at 437. This
requirement meant that prosecutors had to put in place
“procedures and regulations . . . to insure communication of
all relevant information on each case to every lawyer who
deals with it.” Id. at 438 (quoting Giglio, 405 U.S. at 154).
Interpreting Kyles, our circuit has observed that “[b]ecause
the prosecution is in a unique position to obtain information
known to other agents of the government, it may not be
excused from disclosing what it does not know but could have
learned.” Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.
1997) (en banc).

    To summarize, a Brady claim of prosecutorial misconduct
requires a petitioner to show that the evidence suppressed by
the prosecutor satisfies three elements: “The evidence at
issue must be favorable to the accused, either because it is
exculpatory, or because it is impeaching; that evidence must
have been suppressed by the State, either willfully or
inadvertently; and prejudice must have ensued.” Banks v.
Dretke, 540 U.S. 668, 691 (2004) (quoting Strickler, 527 U.S.
at 281–82).
26                  AMADO V. GONZALEZ

     The prosecutor’s obligation under Brady is not excused by
a defense counsel’s failure to exercise diligence with respect
to suppressed evidence. However, defense counsel cannot lay
a trap for prosecutors by failing to use evidence of which
defense counsel is reasonably aware for, in such a case, the
jury’s verdict of guilty may be said to arise from defense
counsel’s stratagem, not the prosecution’s failure to disclose.
In such a case, the prosecution’s failure to disclose Brady or
Giglio evidence would not “deprive the defendant of a fair
trial,” Bagley, 473 U.S. at 675.

     C. Review of the Court of Appeal’s Decision

     The Court of Appeal found that Amado’s Brady claim
failed because Amado did not establish (1) “the newly-
discovered nature of the evidence,” and (2) his counsel’s
“inability to discover and produce the evidence at trial, with
the exercise of due diligence.” Under AEDPA, we defer to
that finding unless the decision of the Court of Appeal is
(1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States;” or (2) “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). As we discuss below, nothing in the
record suggests that defense counsel knew before or during
trial, or otherwise reasonably had available to him, the key
evidence that the prosecutor had failed to disclose, and which
could have made a significant difference in impeaching the
key witness against Amado.
                    AMADO V. GONZALEZ                        27

       1. Was the Evidence Newly Discovered?

    The Court of Appeal ruled that Amado did not establish
“the newly discovered nature of the evidence.” If his counsel
had known of the impeachment material at or before the time
of trial, the prosecutor cannot be said to have suppressed
anything, and there was no Brady violation. See Banks,
540 U.S. at 691. However, the record does not support the
Court of Appeal’s ruling, and it was inconsistent with the
proceedings in the Superior Court. There, the prosecutor did
not contest Amado’s argument that his attorney did not
receive Hardy’s probation report until after trial, too late to
use in cross examination. The Superior Court accepted
Amado’s contention that the evidence was newly discovered,
and ruled against him on other grounds. And the trial record
indicates that Amado’s counsel was unaware of this
impeachment evidence at the time Hardy was cross examined.
Although the Superior Court ruled that the cross examination
of Hardy was vigorous, the cross examination focused on
Hardy’s vision. Had Amado’s counsel been aware of the
probation report, he surely would have cross examined Hardy
regarding his prior convictions, his felony-probationary status,
and his connection with the Piru Bloods.

     The Court of Appeal explained its ruling by commenting
that Lapan’s representation, that he had not learned of the
impeachment material until after trial, was “argument,” and
thus not evidence. But the Court of Appeal ignored that it had
granted Amado’s motion to augment the record and that
Lapan’s sworn declaration provided record testimony that he
“did not learn until after trial that Warren Hardy was on
felony probation as a result of a robbery conviction and that
in the probation report from that offense, Hardy stated he was
28                  AMADO V. GONZALEZ

a ‘Piru Blood.’” There was no basis to conclude that Lapan
had merely provided “argument,” to question Lapan’s
veracity, or to overrule the Superior Court’s acceptance of the
evidence as newly discovered.

    Under § 2254(d)’s unreasonable determination clause, “a
federal court may not second-guess a state court’s fact-finding
process unless, after review of the state-court record, it
determines that the state court was not merely wrong, but
actually unreasonable.” Taylor v. Maddox, 366 F.3d 992, 999
(9th Cir. 2004). “[I]t is not enough that we would reverse in
similar circumstances if this were an appeal from a district
court decision. Rather, we must be convinced that an
appellate panel, applying the normal standards of appellate
review, could not reasonably conclude that the finding is
supported by the record.” Id. at 1000 (citations omitted). We
hold that the decision of the Court of Appeal, that Amado had
not established that the evidence was newly discovered, was
an “unreasonable determination of the facts,” 28 U.S.C.
§ 2254(d)(2). There was nothing in the record that could
support a finding that Lapan had the evidence that the
prosecutor had suppressed when Lapan conducted his defense
of Amado.

        2. Is Due Diligence a Factor?

    The Court of Appeal ruled that Amado’s Brady claim
failed because he did not establish “an inability to discover
and produce the evidence at trial, with the exercise of due
diligence.” The issue is whether that ruling is “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).
                    AMADO V. GONZALEZ                         29

     A decision is “contrary to” Supreme Court precedent “if
it applies a rule that contradicts the governing law set forth in
[the Supreme Court’s] cases or if it confronts a set of facts
that are materially indistinguishable from a decision of [the
Supreme] Court and nevertheless arrives at a result different
from [the Supreme Court’s] precedent.” Early v. Packer,
537 U.S. 3, 8 (2002) (internal quotation marks omitted).

    Under Brady, as the United States Supreme Court’s
decisions clearly establish, the prosecutor has a “broad duty
of disclosure.” Strickler, 527 U.S. at 281. The prosecutor
must presume in favor of disclosure, and resolve his doubts
about the exculpatory nature of a document in favor of
producing it. See United States v. Agurs, 427 U.S. 97, 108
(1976) (ruling that “the prudent prosecutor will resolve
doubtful questions in favor of disclosure”). If a prosecutor
has an open-file policy, defense counsel is entitled to rely on
that policy and assume that the file will contain the
documents that will be useful for impeachment or that tend to
exculpate his client. See Strickler, 527 U.S. at 283 n.23 (“if
a prosecutor asserts that he complies with Brady through an
open file policy, defense counsel may reasonably rely on that
file to contain all materials the State is constitutionally
obligated to disclose under Brady”). See also Banks,
540 U.S. at 695 (“Our decisions lend no support to the notion
that defendants must scavenge for hints of undisclosed Brady
material when the prosecution represents that all such
material has been disclosed.”). In other words, defense
counsel may rely on the prosecutor’s obligation to produce
that which Brady and Giglio require him to produce.

   The Court of Appeal’s requirement of due diligence
would flip that obligation, and enable a prosecutor to excuse
30                 AMADO V. GONZALEZ

his failure by arguing that defense counsel could have found
the information himself. The proposition is contrary to
federal law as clearly established by the Supreme Court, see
Early, 537 U.S. at 8, and unsound public policy. Especially
in a period of strained public budgets, a prosecutor should not
be excused from producing that which the law requires him
to produce, by pointing to that which conceivably could have
been discovered had defense counsel expended the time and
money to enlarge his investigations. No Brady case discusses
such a requirement, and none should be imposed. See Banks,
540 U.S. at 691 (setting forth the essential elements of a
Brady claim).

    The State argues that our own precedents support such an
argument. The cases are distinguishable. They hold only that
defense counsel cannot ignore that which is given to him or
of which he otherwise is aware, and not that he is obliged to
conduct interviews or investigations himself. For example, in
United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991),
the federal government had given defense counsel a transcript
of an interview with a crucial government witness and the
witness’s rap sheet, but had not also supplied the witness’s
state prison records. We held that Brady had been satisfied,
because “[t]he prosecution is under no obligation to turn over
materials not under its control,” and, “here, [the] defendant
ha[d] enough information to be able to ascertain the supposed
Brady material on his own.” Id. This court has since clarified
that Aichele stands for the proposition that the federal
government’s Brady obligation does not extend to “files that
were under the exclusive control of [state] officials.” Benn v.
Lambert, 283 F.3d 1040, 1061 (9th Cir. 2002).
                       AMADO V. GONZALEZ                             31

    In United States v. Dupuy, 760 F.2d 1492, 1501-02 (9th
Cir. 1985), we explained that when defense counsel was put
on notice as to potential Brady material and given the
opportunity to seek it out, then a defendant likely could not
later claim that a Brady violation had occurred. No such
explicit notice was provided here. See also United States v.
Bond, 552 F.3d 1092, 1097 (9th Cir. 2009) (the government
had given the defendant “the essential factual data to
determine whether the witness’ testimony might be helpful”);
United States v. Bracy, 67 F.3d 1421, 1428-29 (9th Cir. 1995)
(no suppression where the federal government gave the
defense two reports on a government witness’s criminal
history and a printout from a National Crime Information
Center computer search about that witness, but did not
provide details about that witness’s criminal history and
cooperation with law enforcement in two states).

    Brady is not so limited as the State argues. It is not likely
that an interview of Hardy would have disclosed the facts that
the State suppressed, as we discuss in the next section. We
hold that the Court of Appeal’s requirement of due diligence
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).10


   10
       The Court of Appeal’s holding under California Penal Code
§ 1181(8), that Amado failed to show that the evidence was newly
discovered and could not have been discovered with due diligence, raises
the issue of an independent and adequate state ground for the decision,
precluding federal habeas review. However, the State did not make this
argument, and therefore waived the defense. See Vang v. Nevada,
329 F.3d 1069, 1073 (9th Cir. 2003). Further, the defense does not apply.

    First, it was not “firmly established” that California Penal Code
32                      AMADO V. GONZALEZ

     D. Review of Amado’s Brady Claim

    Since the Court of Appeal’s decision does not survive
AEDPA review, we now review the constitutionality of
Amado’s conviction and, specifically, his claim of a violation
of Brady, under 28 U.S.C. § 2254(a). See Frantz, 533 F.3d at
737.

   Recall that a Brady prosecutorial misconduct claim must
meet three essential elements: “The evidence at issue must be
favorable to the accused, either because it is exculpatory, or


§ 1181(8) requires a party seeking a new trial to submit an attorney’s
declaration describing when the evidence was discovered, in lieu of an
attorney representation corroborating a witness’s declaration. See Lee v.
Kemna, 534 U.S. 362, 376 (2002) (holding that the independent state
ground must be “firmly established and regularly followed”). The statute
itself does not require such a declaration, nor does the case the California
Court of Appeal relied on, People v. Martinez, 685 P.2d 1203, 1205 (Cal.
1984) (in bank), which states only that facts supporting a new trial must
“be shown by the best evidence of which the case admits.” Lapan had
reason to believe that his statement to the Superior Court was sufficient
without an accompanying declaration because California courts have held
that “[s]tatements of a responsible officer of the court are tantamount to
sworn testimony.” People v. Wolozon, 188 Cal. Rptr. 35, 37 n.4 (Cal. Ct.
App. 1982) (citing People v. Laudermilk, 431 P.2d 228, 238 (Cal. 1967)).
In any event, Lapan did file a declaration, and the Court of Appeal,
although allowing Amado to augment the record with the declaration,
simply ignored it.

     As to the requirement that Amado show that he could not have
obtained the evidence with due diligence, that rule was not simply an
independent state procedural rule, but is interwoven with, and changes the
substance of, the Brady requirement. See Morales v. Calderon, 85 F.3d
1387, 1393 (9th Cir. 1996) (“Federal habeas review is not barred if the
state decision fairly appears to rest primarily on federal law, or to be
interwoven with the federal law” (internal quotation marks omitted).).
                       AMADO V. GONZALEZ                              33

because it is impeaching; that evidence must have been
suppressed by the State, either willfully or inadvertently; and
prejudice must have ensued.” Banks, 540 U.S. at 691. Here,
there is no dispute that the impeachment material meets the
favorable-to-the-accused standard. We therefore turn to the
other two elements. Under Wiggins we consider those issues
de novo, since they were not addressed by the Court of
Appeal. 539 U.S. at 534; see also Frantz, 533 F.3d at 737.

         1. The Prosecutor’s Duty to Turn Over the
            Impeachment Material

    Under Kyles, the fact that the individual prosecutors who
brought the case against Amado may not themselves have had
the Hardy impeachment material in their possession is not a
bar to Amado’s Brady claim. At oral argument before this
Court, the State conceded that the prosecution had access to
Hardy’s conviction and probation records, for Hardy was
prosecuted by the same office that prosecuted Amado, the Los
Angeles County District Attorney’s Office.11 Pursuant to
Kyles, the prosecution had a Brady obligation to produce
these records. 514 U.S. at 437. Cf. Giglio, 405 U.S. at 154
(“To the extent [a Brady obligation] places a burden on the
large prosecution offices, procedures and regulations can be
established to carry that burden and to insure communication
of all relevant information on each case to every lawyer who
deals with it.”).




 11
    Hardy stated in his declaration that he was prosecuted in Long Beach.
Long Beach falls under the auspices of the Los Angeles County District
Attorney’s Office.
34                  AMADO V. GONZALEZ

   At oral argument, the State questioned whether
prosecutors had access to records on Hardy’s gang affiliation.
However, that information was discussed in the very same
probation report that discussed Hardy’s prior felony
conviction. Had the State obtained that report, as the State
concedes it was required to do, it also would have discovered
Hardy’s gang affiliation.

        2. Prejudice

    We next consider whether Amado was prejudiced as a
result of the State’s failure to produce the Brady information.
A defendant is prejudiced if the evidence that was not
produced is material. As we noted above, the Court of
Appeal concluded that the evidence was material. For the
following reasons, we agree with the Court of Appeal.

    “The evidence is material only if there is a reasonable
probability that, had the evidence been disclosed to the
defense, the result of the proceeding would have been
different. A ‘reasonable probability’ is a probability sufficient
to undermine confidence in the outcome.” Bagley, 473 U.S.
at 682. The test for materiality “is not a sufficiency of
evidence test.” Kyles, 514 U.S. at 434. Evidence can be
sufficient to sustain a verdict, and still Brady can be violated.
Id. at 434–45. If “the favorable evidence [not produced]
could reasonably be taken to put the whole case in such a
different light as to undermine confidence in the verdict,”
Brady has been violated. Id. at 435.
                   AMADO V. GONZALEZ                      35

       3. Prejudice – The Jurors’ View of Hardy

    The State withheld not one but three pieces of evidence
that had the potential of undermining Hardy’s testimony.
First, Hardy had a robbery felony conviction. Defense
counsel could have argued that this conviction rendered him
an untrustworthy witness. Second, Hardy was on probation
for that conviction at the time he testified. Defense counsel
could have argued that Hardy was seeking favor with his
probation officers by helping the police solve a well-
publicized murder case. Third, Hardy was a former member
of a Bloods gang, and the defense could have argued that
Hardy was biased against a member or friend of the rival
Crips.

    Lapan’s cross-examination of Hardy did not address any
of these points, for Lapan, without the suppressed
impeachment evidence, lacked a good-faith basis to ask the
appropriate questions. Lapan’s cross-examination was short,
focusing on Hardy’s weak vision and his arguable inability to
identify people running across his field of vision. The
suppressed information would have added to the force of the
cross-examination and defense counsel’s closing argument.
There is a reasonable probability that the suppressed
information would have made a difference, causing the jury
to view Hardy’s implication of Amado with a great deal more
suspicion.

   The State makes two arguments why the jurors’ view of
Hardy would not have changed. First, the State argues that
Hardy was already impeached by the cross-examination on his
weak vision. The suppressed information, however, could
have been used to show that Hardy had a motive to embellish
36                  AMADO V. GONZALEZ

the truth, and even to lie. This is an entirely different reason
to cast doubt on Hardy’s words than the one presented at trial.

    The State’s second argument is that Hardy’s reluctance to
testify and limited memory show that he was not biased
against Amado. If Hardy was testifying against Amado in
order to win favor with the prosecution, he would have been
much more helpful and supplied detailed answers while on
the stand, the State reasons. This argument, however, ignores
Hardy’s cooperation with the police the night after the
shooting. Hardy provided substantial assistance to the police
on that day, voluntarily calling the authorities and identifying
Amado as the teenager he saw with the gun. The details of
Hardy’s initial implication of Amado were admitted into
evidence through the testimony of Detective Esquivel, who
helped fill in the gaps of Hardy’s sometimes spotty testimony.
Thus, Hardy’s initial identification of Amado—possibly
tainted by Hardy’s motives for bending the truth—made it
into the mix of evidence considered by the jury.

        4. Prejudice – Reasonable Probability of a
           Different Result

    Hardy’s statements against Amado, in his testimony and
as introduced through Detective Esquivel, were critical to
Amado’s conviction. Hardy was the only person to testify
that Amado brought a weapon to the scene. Without such
testimony, it is doubtful that the jury would have found that
Amado had the requisite criminal intent to aid and abet
Johnson’s attack on the passengers on the bus. Indeed,
without such evidence, Amado was just one member of a
crowd. Mere presence in a crowd is not sufficient to render
                   AMADO V. GONZALEZ                        37

a person an accomplice. See People v. Salgado, 105 Cal.
Rptr. 2d 373, 381–82 (Cal. Ct. App. 2001).

    At trial, the prosecution emphasized the critical nature of
Hardy’s testimony. The prosecutor argued during summation
that Hardy’s testimony on Amado’s carrying of a gun showed
he was involved in the “significant amount of planning and
talking” about the attack prior to the shooting. The
prosecution emphasized that Hardy “specifically describes
somebody that looks like Randall Amado, and then later picks
that person out the next day.” Hardy was the one who
“hear[d] people discussing the shooting” and called the police
to set the case in motion. The prosecution told the jury that
“the only reason” Hardy had to identify Amado was that he
truly believed that Amado was “the guy who he saw on
January the 16th, 1997, with a gun.” Would the prosecutor
have argued with such conviction if Hardy had been
impeached by his recent robbery conviction, his felony
probation status with a motive to curry favor with the
authorities, and his past membership in the Bloods, in
frequent rivalry and conflict with members of the Crips? The
prosecutor’s failure to discharge his Brady obligations
enabled him to bolster Hardy’s credibility well beyond the
credibility Hardy would have had if all the impeaching
information had been made available to defense counsel and,
by defense counsel, to the jury.

    Relying on California cases that broadly apply accomplice
liability to gang members, the State contends that even if
Hardy had not testified at all, Amado still could have been
convicted. See, e.g., People v. Medina, 209 P.3d 105, 112
(Cal. 2009) (gang member involved in a fistfight responsible
for shooting committed by another member of his gang);
38                 AMADO V. GONZALEZ

People v. Ayala, 105 Cal. Rptr. 3d 575, 585 (Cal. Ct. App.
2010) (gang member participates in murder when he rides
with a fellow gang member to assist him in a beating of a
rival gang); People v. Montes, 88 Cal. Rptr. 2d 482, 486 (Cal.
Ct. App. 1999) (gang member who wielded a chain in a gang
fight responsible for shooting committed by a fellow gang
member). But without Hardy, the only evidence against
Amado was Barner’s and Grisson’s testimony, which showed
that, at best, Amado ran to the bus with many others who
were not indicted. On such evidence, it is questionable if a
jury could have convicted Amado of intending to facilitate
murder. See Salgado, 105 Cal. Rptr. 2d at 381–82.

    We do not need to decide more than the question before
us—whether the prosecutor’s violation of Brady was
prejudicial. The standard is not whether there is sufficient
evidence for conviction, but whether there is a “reasonable
probability” that the outcome would have been different,
meaning that “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
Here, that standard is met. The impeaching evidence was
strong enough to cast a cloud of doubt over Hardy’s
testimony. With that cloud of doubt, the remaining evidence
against Amado was weak. While Barner and Grisson both put
Amado at the scene of the crime, neither of them testified that
they saw him with a weapon or heard him make any
statements, or heard others make statements, that suggested
that Amado intended to participate in an assault. There was
no proof that Amado had any discussions with Johnson and
Pugh, or had a strong relationship with them that would have
suggested that Johnson and Pugh had shared their plan with
Amado. Hardy’s testimony that Amado carried a gun was
                       AMADO V. GONZALEZ                    39

influential to the jury in delivering a verdict against Amado,
and it is reasonably probable that a jury, if made aware of the
impeaching information against Hardy, would have given
little, if any, credence to his testimony and would have
returned a different verdict.

III.      Conclusion

    In failing to disclose material impeachment evidence to
Amado before or during trial, the State violated Amado’s
right to due process under Brady. We reverse and remand
with instructions to grant the writ of habeas corpus and
release Amado from custody unless the district attorney of
Los Angeles County, within 60 days, initiates proceedings for
a new trial.

       REVERSED and REMANDED.



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the majority’s conclusion that
the state court’s denial of Randall Amado’s Brady1 claim
entitles Amado to habeas relief.           As the majority
acknowledges, this case is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Majority Opinion, pp. 16–17. Under the
strictures set forth in AEDPA, our review of state court
rulings is severely cabined. Under AEDPA, even de novo
review is not really de novo. Rather, we review the state court

 1
     Brady v. Maryland, 373 U.S. 83 (1963).
40                  AMADO V. GONZALEZ

decision for reasonableness. Only if the state court decision
is objectively unreasonable is habeas relief warranted. See
Wiggins v. Smith, 539 U.S. 510, 520–21 (2003). Habeas
relief is not warranted simply because we think the state court
got it wrong. Rather, under AEDPA we must give deference
to the state court decision, affording state courts “the benefit
of the doubt . . .” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).

    As the United States Supreme Court emphasized in
Harrington v. Richter, 131 S. Ct. 770, 785 (2011), “an
unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be
granted a deference and latitude that are not in operation when
the case involves review under the [Brady] standard itself.”
(citation and internal quotation marks omitted).

    In Richter, we were reminded that “[a] state court’s
determination that a claim lacks merit precludes federal
habeas relief, so long as fairminded jurists could disagree on
the correctness of the state court’s decision. . . .” Id. at 786
(citation and internal quotation marks omitted). The Supreme
Court cautioned us: “It bears repeating that even a strong case
for relief does not mean the state court’s contrary conclusion
was unreasonable.” Id. (citation omitted).

     The Supreme Court left no doubt that habeas relief should
not be granted readily, stating in no uncertain terms: “If [the
habeas] standard is difficult to meet, that is because it was
meant to be. . . .” Id. The Supreme Court explained that
AEDPA stopped just short of completely prohibiting
relitigation in federal court of claims of error that were
previously rejected in state court. See id. The Supreme Court
                   AMADO V. GONZALEZ                        41

clarified that AEDPA only “preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with
[Supreme Court] precedents. It goes no farther.” Id. Rather
than providing a pathway to second guessing state court
decisions, habeas corpus as amended by AEDPA “is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through
appeal. . . .” Id. (citation and internal quotation marks
omitted).

    Finally, we must keep in mind that the more general the
rule being applied, the more leeway the state has to apply the
rule in case-by-case applications. See id. Brady is a rule of
general application, see United States v. Bagley, 473 U.S.
667, 682–83 (1985) (adopting the broad prejudice standard
established in Strickland v. Washington, 466 U.S. 668 (1984)
for Brady materiality analysis); see also Cobb v. Thaler,
682 F.3d 364, 381 (5th Cir. 2012) (“[L]ike Brady's disclosure
requirement, the materiality standard is a general rule,
meaning a wide range of reasonable applications exist. . . .”)
(citation omitted). Accordingly, we must afford the state
considerable leeway in applying the principles articulated in
the Brady decision. We must also keep in the forefront of our
analysis the limitations of our review. The majority’s
conclusion simply cannot be reconciled with these precepts.

    Amado was convicted as an aider and abettor, which
means that the prosecutor had no obligation to prove that
Amado fired the shots that killed one victim and wounded
another, or that he actually boarded the bus. See, e.g., People
v. Salgado, 88 Cal. App. 4th 5, 15 (2001) (“Aiding and
abetting requires a person to promote, encourage or instigate
42                  AMADO V. GONZALEZ

the crime with knowledge of its unlawful purpose.”) (citations
omitted). Therefore, any testimony regarding whether Amado
had a gun or actually boarded the bus was not material. See
Banks v. Dretke, 540 U.S. 668, 698 (2004) (defining
materiality in terms of its potential effect on the outcome of
the case).

    Unlike the majority, I focus my analysis on whether the
state court’s denial of relief was objectively unreasonable, not
whether Amado suffered prejudice in the first instance. See
Richter, 131 S. Ct. at 785 (cautioning against directly
reviewing the federal rule rather than reviewing the state
court’s application of that rule). Viewed through that prism,
I am unable to say that no fairminded jurist could disagree
that the state court’s decision was unreasonable, and neither
should the majority. See id. at 786; see also Wiggins,
539 U.S. at 520–21 (incorporating the “objectively
unreasonable” standard). The state court applied Brady, a
rule of general application, thereby implicating the
considerable leeway contemplated by the Supreme Court to
review of the resulting determination. See Richter, 131 S. Ct.
at 786.

    I agree with the presumably fairminded district court that
the state court did not unreasonably apply Brady. On the
issue of prejudice, which is the fulcrum of the majority’s
analysis, the record reflects that there was testimony, other
than that of Warren Hardy, to support the aiding and abetting
theory of conviction. Natasha Barner identified Amado as
part of the group at the bus stop who boarded the bus to
confront rival gang members. Witness John Grisson also
identified Amado as among the “group of guys” who “ran
                       AMADO V. GONZALEZ                               43

across the street” toward the bus stop where the shooting
occurred, boarded the bus, and fled following the shooting.2

    The record also reveals that Hardy was far from being a
stellar witness for the prosecution. As the district court
observed, Hardy endeavored to recant his testimony at every
turn. He could not “remember the face” of the individual he
previously identified as having a gun. He could not
remember identifying anyone to the police. Hardy also
confirmed that he did not witness the shooting and that he
failed to identify Amado from a photograph that was
presented to him during the trial. Given Hardy’s extensive
self-impeachment and the existence of other witnesses who
attested to Amado’s aiding and abetting of the shooting, it
was not objectively unreasonable for the state court to find a
lack of prejudice to Amado, i.e., that the undisclosed evidence
would not have affected the jury’s verdict. See Stickler v.
Greene, 527 U.S. 263, 293–94 (1999); see also Richter,
131 S. Ct. at 786 (“[H]abeas corpus is a guard against extreme
malfunctions in state criminal justice systems, not a substitute
for ordinary error correction through appeal. . . .”) (citation
and internal quotation marks omitted) (emphasis added). In
view of the “deference, latitude and leeway” we are to afford
the state court’s application of the Brady rule, id., it is hard to
comprehend how one could conclude that the state court’s
decision “was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility far from fairminded disagreement.”
Id. at 786–87.


 2
   As noted previously, on an aiding and abetting theory of culpability, it
makes no difference which individual members of the group actually
boarded the bus. See Salgado, 88 Cal. App. 4th at 15.
44                  AMADO V. GONZALEZ

     The majority opinion disagrees extensively with the
California Court of Appeal’s application of California Penal
Code § 1181(8). See Majority Opinion, pp. 13–14 and pp. 22.
However, our deference to a state court decision should be at
its zenith when the state court is interpreting a state statute.
See Bradshaw v. Richey, 546 U.S. 74, 76 (2005) (reminding
that “the Supreme Court has repeatedly held that a state
court’s interpretation of state law, including one announced
on direct appeal of the challenged conviction, binds a federal
court sitting in habeas corpus”) (citations omitted). However,
far from deferring to the state court’s interpretation of its own
state’s statute, the majority proceeds to completely ignore the
state court’s analysis, and conduct its own de novo analysis,
including whether the California Court of Appeal properly
applied California law. See Majority Opinion, pp. 26–39
(discussing the California Court of Appeal’s reliance on
California Penal Code § 1181 and interpreting various
California cases to determine that Amado suffered prejudice).

    Were the full feast of direct review spread before us, we
would be free to gnaw away at the trial court’s Brady ruling.
See, e.g., United States v. Sedaghaty, 728 F.3d 885, 898–903
(9th Cir. 2013) (reviewing Brady issue on direct appeal
without deference to the trial court’s ruling). However, the
Supreme Court has told this Circuit specifically, emphatically,
and repeatedly, to curb our appetite when it comes to habeas
review. See Richter, 131 S. Ct. at 785–86 (chastising this
Circuit for conducting a de novo review with no deference to
the state court decision).

   I respectfully decline to join a ruling that so clearly flouts
Supreme Court precedent. With respect, I dissent from the
majority opinion.
