                                                                              FILED
                           NOT FOR PUBLICATION                                MAY 08 2013

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



                           FOR THE NINTH CIRCUIT


KEVIN LIGHT-ROTH,                                No. 12-35047

              Petitioner - Appellant,            D.C. No. 2:11-cv-00313-JCC

  v.
                                                 MEMORANDUM*
STEPHEN SINCLAIR, Superintendent,
Washington State Penitentiary,

              Respondent - Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                   John C. Coughenour, District Judge, Presiding

                        Argued and Submitted April 9, 2013
                               Seattle, Washington

Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.

       Kevin Light-Roth appeals from the denial of his petition for writ of habeas

corpus. The district court issued a certificate of appealability (“COA”) as to two of

Light-Roth’s claims, namely whether the government introduced the testimony of

Justin VanBrackle in violation Brady v. Maryland, 373 U.S. 83 (1963), and Napue


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
v. Illinois, 360 U.S. 264 (1959). Light-Roth also sought a COA from this Court as

to his remaining claims (i.e., whether his trial counsel was ineffective under

Strickland v. Washington, 466 U.S. 668, 687 (1987), for failing to uncover the

VanBrackle-related violations, and whether the government introduced the

testimony of an additional witness, Chris Highley, in violation of Brady and

Napue). We have jurisdiction under 28 U.S.C. § 1291, affirm the district court on

the certified claims, and deny Light-Roth’s request for a COA on the remaining

claims.

      1.     The state courts’ rejection of Light-Roth’s VanBrackle-related Brady

claim was not the result of an unreasonable determination of the facts or an

unreasonable application of federal law. See 28 U.S.C. § 2254(d). “To prevail on

a Brady claim, [a] defendant must show that ‘(1) the evidence was exculpatory or

impeaching; (2) it should have been, but was not produced; and (3) the suppressed

evidence was material to his guilt or punishment.’” United States v. Antonakeas,

255 F.3d 714, 725 (9th Cir. 2001) (quoting Paradis v. Arave, 130 F.3d 385, 392

(9th Cir. 1997)). Light-Roth’s Brady claim fails because, even assuming the

government suppressed favorable evidence, given the strength of the case against

Light-Roth and the cumulative nature of VanBrackle’s testimony, the state court

reasonably determined that evidence was not material.


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      2.     Light-Roth’s VanBrackle-related Napue claim likewise fails. To

succeed under Napue, Light-Roth must show that: “(1) the prosecution actually

presented false testimony; (2) the prosecution knew or should have known that the

testimony was false; and (3) the false testimony was material to the outcome of the

trial.” United States v. Pelisamen, 641 F.3d 399, 407 (9th Cir. 2011). The state

court’s determination that the government neither knew nor should have known

VanBrackle was testifying falsely was not an unreasonable determination of the

facts or an unreasonable application of Napue. Moreover, for the same reasons

indicated above, the VanBrackle evidence was immaterial.

      3.     Finally, a COA may issue “only if the applicant has made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A

petitioner satisfies this standard by demonstrating that jurists of reason could

disagree with the district court’s resolution of his constitutional claims or that

jurists could conclude the issues presented are adequate to deserve encouragement

to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Light-Roth

has not made such a showing with respect to his Highley-related Brady and Napue

claims, or his derivative ineffective assistance of counsel claim. We decline to

expand the certificate of appealability and, therefore, dismiss Light-Roth’s




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uncertified issues for lack of jurisdiction. Doe v. Woodford, 508 F.3d 563, 569

(9th Cir. 2007).

      AFFIRMED.




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