                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 20 2014

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

BERNARD GORDON,                                  No. 11-17758

              Petitioner - Appellant,            D.C. No. 1:04-cv-05363-LJO-DLB

  v.
                                                 MEMORANDUM*
C. K. PLILER,

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence J. O’Neill, District Judge, Presiding

                            Submitted May 16, 2014**
                             San Francisco, California

Before: McKEOWN and M. SMITH, Circuit Judges, and SELNA, District
Judge.***




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James V. Selna, District Judge for the U.S. District
Court for the Central District of California, sitting by designation.
      Bernard Gordon appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254 challenging his conviction of robbery and

special-circumstance murder involving the use of a firearm. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.

      Gordon argues that the prosecution withheld impeachment evidence relating

to the testimony of jailhouse informant Mark Mikles and that it presented false

evidence through Mikles’s testimony. The California Court of Appeal denied

relief, finding that even if the information about Mikles’s testimony had been

disclosed to the defense, “there is no reasonable probability that the result would

have been different.” Mikles was thoroughly impeached with available evidence,

he was not a key witness, and any alleged errors with his testimony were

immaterial in light of other “overwhelmingly strong” eyewitness identification

testimony and inculpatory notes passed between Gordon and his brothers, which

jail personnel intercepted.

      We consider Gordon’s appeal under the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”), which requires that we “deny habeas relief

unless [Gordon] shows that 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’ or ‘was based on an unreasonable


                                          2
determination of the facts in light of the evidence presented in the State court

proceeding.’” Merolillo v. Yates, 663 F.3d 444, 453 (9th Cir. 2011) (quoting 28

U.S.C. § 2254(d)(1)–(2)). Gordon has not satisfied either prong. See 28 U.S.C.

§ 2254(d)(1).

      The Court of Appeal reasonably determined that no error occurred under

Brady v. Maryland, 373 U.S. 83 (1963), because the undisclosed impeachment

evidence both individually and cumulatively did not undermine the court’s

confidence in the outcome of the trial. See Barker v. Fleming, 423 F.3d 1085,

1096, 1100–01 (9th Cir. 2005); cf. Giglio v. United States, 405 U.S. 150, 154–55

(1972) (holding that withheld impeachment evidence was material because the

prosecution’s case depended heavily on that witness’ testimony). Second, the state

court reasonably determined that relief should not be granted under Napue v.

Illinois, 360 U.S. 264 (1959), because any alleged falsehoods in Mikles’s

testimony were not reasonably likely to affect the judgment of the jury. See Giglio,

405 U.S. at 154 (citing Napue, 360 U.S. at 271). He was not the “make-or-break

witness” for the state. See Maxwell v. Roe, 628 F.3d 486, 507–08 (9th Cir. 2010)

(internal quotation marks omitted).




                                          3
      Gordon has also failed to demonstrate that the Court of Appeal made an

unreasonable determination of the facts. See 28 U.S.C. § 2254(d)(2).1 The record

supports the state court’s findings that Mikles was not a key witness, that he was

extensively impeached about his history of testifying in return for consideration,

and that other evidence established Gordon’s guilt. Gordon provides no clear and

convincing evidence to the contrary. See 28 U.S.C. § 2254(e)(1).

      Finally, Gordon has not shown that even if the alleged Brady and Napue

violations do not warrant relief separately, the cumulative effect of the errors

rendered the trial unfair. See Jackson v. Brown, 513 F.3d 1057, 1085 (9th Cir.

2008).

      AFFIRMED.




      1
         In light of our determination that Gordon’s claim under § 2254(d)(2) lacks
merit, we do not address the state’s argument that he forfeited this claim by failing
to file it as an objection to the Magistrate Judge’s findings and recommendations.
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