                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                               FILED
                             FOR THE NINTH CIRCUIT                                OCT 01 2014

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

NATHANIEL FLOWERS,                                 No. 11-56181

               Petitioner - Appellant,             D.C. No. 2:09-cv-03119-JST-SS

  v.
                                                   MEMORANDUM*
SCOTT MCEWEN, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Josephine L. Staton, District Judge, Presiding

                       Argued and Submitted August 27, 2014
                               Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF,
Senior District Judge.**

       Nathaniel Flowers appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §

2253, and we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
              The Honorable Jed S. Rakoff, Senior District Judge for the United
States District Court for the Southern District of New York, sitting by designation.
      We consider Flowers’ appeal under the Antiterrorism and Effective Death

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

Flowers demonstrates that the state court’s 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

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

proceeding.’” Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir. 2012) (quoting 28

U.S.C. § 2254(d)).

      Flowers failed to demonstrate that the California Court of Appeal’s rejection

of his Brady1 claim was the product of an unreasonable determination of the facts. See

28 U.S.C. § 2254(d)(2). The record supports the vast majority of the state court’s

factual findings. However, to the extent that the state court determined that Joshua

Fells testified that he would not identify the shooter, that finding was factually

erroneous. Nevertheless, this factual error was not “central to petitioner’s claim,” and

thus does not warrant relief. Taylor v. Maddox, 366 F.3d 992, 1001 (9th Cir. 2004).

      The state court’s denial of Flowers’ Brady claim was not unreasonable or

contrary to federal law. Even if the State suppressed evidence that was favorable to

Flowers, the California Court of Appeal reasonably determined that Flowers was not

      1
       Brady v. Maryland, 373 U.S. 83 (1963).

                                           2
prejudiced, given the strength of the case against him, including eyewitness testimony,

forensic evidence that the same gun was used in the two shootings, Perry’s statements,

and Flowers’ recorded telephone conversations. See Morris v. Ylst, 447 F.3d 735,

745-46 (9th Cir. 2006). In addition, the evidence at issue was also cumulative,

thereby lessening its impact. See Williams v. Woodford, 384 F.3d 567, 599 (9th Cir.

2004), as amended.

      AFFIRMED.




                                          3
                                                                              FILED
Flowers v. McEwen, No. 11-56181                                                OCT 01 2014

                                                                           MOLLY C. DWYER, CLERK
Judge RAKOFF, concurring:                                                   U.S. COURT OF APPEALS



      The conduct of the prosecution in this case was grossly improper. The State

intentionally suppressed Brady material that, as the California Court of Appeal

acknowledged, could have been used to impeach the State’s star witness, Anthony

“Kaos” Perry.

      Moreover, the State’s case against Flowers was tenuous. Flowers’ first trial

resulted in a hung jury, and at his second, the jury voted to convict only after two

days of deliberations and the substitution of an alternate juror. Other than Perry’s

recanted testimony, the only evidence linking Flowers to the three shootings was:

(1) Flowers’ ambiguous post-arrest statements regarding the Christmas Day

shooting, which the prosecution claimed showed consciousness of guilt; (2) Perry’s

alleged statement to a convenience store clerk immediately before the January

shooting that he had been shot the week before and that “people were after him,”

which both Perry and the clerk denied on the stand; (3) the account of the February

shooting given by Luis Carmona, who admittedly caught only a glimpse of the

shooter while not wearing his eyeglasses, and whose testimony contradicted

another eyewitnesses’s statement regarding such basic details as whether the

shooter’s car was black or white; and (4) ballistics evidence indicating that the
same gun was used in the January and February shootings, without any evidence

tying that gun to Flowers.

      Nonetheless, if the State’s evidence was thin, the impeachment value of the

suppressed material was thinner still. Perry’s involvement in the Big Fly murder

did not give him an incentive to falsely identify Flowers (who was not present

during that crime) as his assailant in the subsequent shootings. Nor did the fact

that the police questioned Perry about the Big Fly incident after Flowers’ first trial

explain why Perry then recanted his earlier testimony; if anything, a criminal’s

realization that the police may be “on to him” gives him more incentive to curry

favor, not less.1 And while I disagree that evidence suggesting that Perry was a

cold-blooded murderer, rather than a mere gang member, would be merely

cumulative, it is not clear how the hearsay statements contained in the

investigatory file would come into evidence.

      In short, despite the egregiousness of the State’s misconduct and the

weakness of its case, I cannot conclude that any “fairminded jurist[]” would find

the suppressed evidence to be material. See Harrington v. Richter, 131 S. Ct. 770,



      1
        The theory that Flowers actually argued to the jury at his second trial was
far more plausible — that Flowers fabricated his testimony at the first trial in order
to obtain early release from the robbery sentence that he was serving at the time,
and then recanted after the government reneged on the deal; but the jury, by their
verdict, rejected that argument.
786 (2011) (internal quotation marks omitted). Accordingly, I join the majority in

affirming the judgment of the district court.
