                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 18 2015

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

UNITED STATES OF AMERICA,                        No. 12-56368

              Plaintiff - Appellee,              D.C. Nos.    2:12-cv-00412-RGK
                                                              2:05-cr-01111-RGK-
  v.                                             3

OSCAR RODRIGUEZ,
                                                 MEMORANDUM*
              Defendant - Appellant.


                   Appeal from the United States District Court
                      for the Central District of California
                   R. Gary Klausner, District Judge, Presiding

                      Argued and Submitted February 3, 2015
                               Pasadena, California

Before: PREGERSON and NGUYEN, Circuit Judges, and WHALEY, Senior
District Judge.**

       Oscar Rodriguez appeals the denial of his petition pursuant to 28 U.S.C. §

2255. We have jurisdiction under 28 U.S.C. §§ 1291, 2253(a), and 2255(d), and

we affirm.

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Robert H. Whaley, Senior District Judge for the U.S.
District Court for the Eastern District of Washington, sitting by designation.
      First, the district court correctly concluded that the government did not

violate its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and its

progeny. Reviewing for clear error, United States v. Zuno-Arce, 339 F.3d 886, 888

(9th Cir. 2003), the district court properly found that the government made no

promises to Julian Wiseman, Ryan Davis, or Oscar Johnson in exchange for their

testimony. The case agent and the Assistant United States Attorney handling the

case both attested under penalty of perjury that no such promises were made, and

the mere fact that the government moved to reduce these witnesses’ sentences

following their testimony does not demonstrate the existence of a promise of

leniency in exchange for that testimony, see United States v. Rodriguez, 766 F.3d

970, 988-89 (9th Cir. 2014). Without a promise of leniency, there is no “evidence .

. . favorable to the accused . . . [that was] suppressed by the government,” and

therefore no Brady violation. See United States v. Sedaghaty, 728 F.3d 885, 899

(9th Cir. 2013).

      Similarly, even assuming, without deciding, that the government violated

Kyles v. Whitley, 514 U.S. 419 (1995) by failing to discover and provide to defense

counsel the recordings of Johnson’s telephone calls, the district court reasonably

concluded that the calls did not contain evidence of a promise of leniency. This

view is entitled to deference given that the district court observed Johnson’s


                                          2
testimony at two trials, including his explanation of the substance of his telephone

conversations at the trial of Ralph Rocha. Moreover, the government disclosed to

Rodriguez prior to his trial that Johnson, Davis, and Wiseman hoped to receive a

reduced sentence, thereby giving Rodriguez the opportunity to impeach them on

that basis. Therefore, any Kyles violation—assuming one occurred—did not

sufficiently prejudice Rodriguez to warrant relief because it did not “put the whole

case in such a different light as to undermine confidence in the verdict.” See id. at

435.

       The district court did not abuse its discretion, see United States v. Chacon-

Palomares, 208 F.3d 1157, 1158–59 (9th Cir. 2000), in ruling on Rodriguez’s

Brady claim without an evidentiary hearing. The district court presided over the

trials of Rodriguez and Rocha, and had an opportunity to observe the demeanor of

Wiseman, Davis, Johnson, and the Assistant United States Attorney handling the

case. As stated above, the case agent and the prosecutor submitted affidavits

stating under penalty of perjury that no promises of leniency were made. By

contrast, Rodriguez submitted no direct evidence of any promises of leniency. On

this record, it was not an abuse of discretion to resolve Rodriguez’s Brady claim

without an evidentiary hearing. Cf. Earp v. Ornoski, 431 F.3d 1158, 1168–70 (9th

Cir. 2005) (holding that, where petitioner submitted affidavits containing direct


                                          3
evidence of prosecutorial misconduct, district court abused its discretion by finding

them “inherently untrustworthy and not worthy of belief” without holding an

evidentiary hearing).

      Second, the government did not violate Rodriguez’s due process rights by

knowingly presenting false testimony, or failing to correct false testimony given

during the course of his trial. See Napue v. Illinois, 360 U.S. 264, 269 (1959);

Mooney v. Holohan, 294 U.S. 103, 112 (1935). Rodriguez’s claim is grounded on

his contention that the government promised leniency to Wiseman, Davis, and

Johnson in exchange for their testimony. It lacks merit because, as stated above,

the district court’s finding that no promises were made is not clearly erroneous.

Moreover, to the extent that the district court found that Johnson testified falsely at

Rodriguez’s trial as to whether he “expect[ed]” to receive a sentence reduction as a

result of his testimony, the district court correctly found that this false testimony

was not material because there is no “reasonable likelihood that the false testimony

could have affected the judgment of the jury” as to Rodriguez’s guilt. See

Rodriguez, 766 F.3d at 990. In this regard, Johnson was impeached on numerous

other bases during trial, including the fact that he previously received a sentence

reduction in exchange for testimony in another proceeding, and the government’s




                                           4
case against Rodriguez included other evidence, apart from Johnson’s testimony,

establishing Rodriguez’s guilt.

      AFFIRMED.




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