                       FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 MARTÍN RAÙL FONG SOTO,                                  No. 11-17051
              Petitioner-Appellant,
                                                         D. Ct. No.
                        v.                             CV-04-68-TUC-
                                                           DCB
 CHARLES L. RYAN and CHARLES
 GOLDSMITH, Warden,
             Respondents-Appellees.                        OPINION


         Appeal from the United States District Court
                  for the District of Arizona
          David C. Bury, District Judge, Presiding

                  Argued and Submitted
       September 10, 2013—San Francisco, California

                          Filed July 25, 2014

    Before: Mary M. Schroeder and Jay S. Bybee, Circuit
    Judges, and Robert J. Timlin, Senior District Judge.*

                      Opinion by Judge Timlin;
                     Dissent by Judge Schroeder




  *
    The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.
2                          FONG V. RYAN

                           SUMMARY**


                          Habeas Corpus

    The panel affirmed the district court’s denial of an
Arizona state prisoner’s 28 U.S.C. § 2254 habeas corpus
petition challenging convictions of murder, robbery and
attempt, and aggravated robbery and attempt arising from a
triple homicide.

    The panel held that the Arizona courts did not engage in
an unreasonable determination of the facts or an unreasonable
application of controlling federal law when denying the
petitioner’s claim under Napue v. Illinois that the prosecution
knowingly elicited and used the false testimony of a detective
regarding when the petitioner became a suspect in this case.

    The panel held that the Arizona courts likewise did not
engage in an unreasonable determination of facts or an
unreasonable application of controlling federal law when
denying petitioner’s claim that his trial counsel provided
ineffective assistance of counsel by calling as a witness, in
pursuit of a mistaken-identity defense, a state informant who
otherwise would not have testified at the trial.

    Dissenting, Judge Schroeder wrote that the petitioner did
not receive a fair trial and the district court should have
granted him habeas relief because the jury convicted the
petitioner after a trial marked by perjury and incompetence.


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

                       COUNSEL

Amy Armstrong and Emily Skinner, Arizona Capital
Representation Project, Tucson, Arizona, for Petitioner-
Appellant.

Thomas C. Horne, Attorney General; Kent E. Cattani,
Division Chief Counsel; Joseph T. Maziarz, Section Chief
Counsel; Aaron J. Moskowitz, Assistant Attorney General,
Criminal Appeals/Capital Litigation Division, Phoenix,
Arizona, for Respondents-Appellees.

Professor Susan Martyn, University of Toledo College of
Law, Toledo, Ohio; Emeritus Professor Gary Lowenthal,
Arizona State University, Tempe, Arizona, for Amicus Curiae
Ethics Bureau at Yale.
4                           FONG V. RYAN

                              OPINION

TIMLIN, District Judge:

     Arizona state prisoner Martín Raùl Fong Soto
(“Petitioner” or “Fong”)1 appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his
jury convictions of murder, robbery and attempt, and
aggravated robbery and attempt arising from a triple
homicide. A separate jury convicted Petitioner’s co-
defendants, Christopher McCrimmon (“McCrimmon”) and
Andre Minnitt (“Minnitt”), of similar charges in later
prosecutions brought by the same prosecutor in Petitioner’s
case. However, McCrimmon was acquitted after his second
trial and Minnitt’s convictions were vacated after three trials
once prosecutorial misconduct during Minnitt’s and
McCrimmon’s first two trials was uncovered. Specifically,
the prosecutor was found to have knowingly elicited from
Detective Joseph Godoy of the Tucson Police Department
false testimony about how and when the three defendants
became suspects in the case in order to bolster the credibility
of the key state witness, Keith Woods, whose testimony tied
the defendants to the crime. The prosecutor was later
disbarred for his misconduct.

    Petitioner raises two certified claims on appeal. First, he
contends that the Arizona courts unreasonably rejected his
claim that, during his trial, the prosecution also knowingly


 1
   Though previous case captions in this matter have referred to Petitioner
as “Martin Soto Fong,” the Court recognizes that before the district court,
Petitioner identified his actual name as Martín Raùl Fong Soto, or, more
commonly, Martín Fong, and that Petitioner captions his filings with this
Court in accord with that representation.
                           FONG V. RYAN                                5

elicited and used the false testimony of Detective Joseph
Godoy regarding when Petitioner became a suspect in this
case in order to secure his conviction. Second, he argues that
the Arizona courts unreasonably rejected his claim that his
counsel was ineffective for calling state informant Keith
Woods (“Woods”) as a witness when Woods otherwise would
not have testified at Petitioner’s criminal trial.2

   We have jurisdiction over this timely appeal pursuant to
28 U.S.C. § 1291, and we affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

      A. Crimes of Conviction

    Petitioner’s convictions arose out of the June 24, 1992
lethal shootings at the El Grande Market in Tucson, Arizona,
of Fred Gee (“Gee,” the market manager), Ray Arriola (a
market employee), and Zewan Huang (Gee’s elderly uncle).
State v. Soto-Fong, 928 P.2d 610, 614 (Ariz. 1996). Shortly
after the shootings, police found an abandoned car three
blocks from the market. Id. The car had been left mid-turn,
rather than parked near the curb. Id. at 624–25. The doors
were unlocked, the rear windows rolled down, and the hood
was warm to the touch. Id. at 625. McCrimmon’s fingerprint
was found on the driver’s side window. Id. at 614, 625.

    The market was in the process of closing at the time the
murders took place. Id. at 615. Gee’s body was found near
the open cash register at the liquor counter. The cash register


  2
    Fong also raises a number of uncertified issues in his opening brief,
which we address separately in a concurrently filed memorandum
disposition.
6                            FONG V. RYAN

had a sale rung up on it, and nearby on the counter were bags
containing a cucumber and three lemons. Id. Petitioner’s
fingerprints were found on the bags. Id. Also, on the floor
near Gee’s body were two foodstamps not yet stamped with
the market’s name. Petitioner’s fingerprint was found on one
of the stamps. Id. At least $175.52 was missing from the
store. Id.

        B. State Informant Keith Woods and Information
           about a “Chachi”

    Shortly after being released from prison in late August
1992, Woods was arrested by Tucson police on a drug charge.
Id. In exchange for his release and the dismissal of that
charge, which could have subjected Woods to 25 years in
prison, Woods agreed to act as a state informant. Id. at 616.
On September 8, 1992, the lead homicide detective in the El
Grande murder case, Joseph Godoy (“Godoy” or “Detective
Godoy”), interviewed Woods because of information Woods
represented he had about the triple homicide. Id. at 615.
Godoy initially engaged in an untaped interview with Woods
that lasted approximately 30 to 45 minutes, after which police
transferred Woods to a “bugged” room in order to tape his
statement. State v. Minnitt, 55 P.3d 774, 777 (Ariz. 2002).

    During the taped portion of the interview, Woods stated
that McCrimmon and Minnitt had confessed to him that they
had completed the El Grande murders with a third person
identified as “Cha-Chi”3 who used to work at the market.
Woods stated that Chachi “masked down or whatever” during


    3
    The Court utilizes the spelling “Chachi” when not directly quoting
another court decision, the parties’ pleadings, or the excerpts of record, all
of which include varied spellings and capitalizations of that name.
                      FONG V. RYAN                         7

the shooting. Woods also represented that he had never seen
or met Chachi before and could not describe what Chachi
looked like. Woods relayed that McCrimmon and Minnitt
confessed to him on the first day that Woods was released
from prison in late August 1992.

    Woods’ September 8, 1992 statement was not the first
date on which Detective Godoy learned of a Chachi being a
possible suspect in the El Grande murders. In an
investigative report dated September 9, 1992, Godoy stated
that on August 31, 1992, he received a call from an unknown
male who stated that “Martin Soto and a black guy named
McKinney” committed the shootings. According to the
September 9, 1992 report, later that same day, a Detective
Zimmerling (“Zimmerling”) advised Godoy that a female
confidential informant represented that “a Hispanic male
named Chachi and a black male named Christopher
McCrimmon” were involved in the triple homicide. Godoy
went on to relate in his report that on September 1, 1992, he
obtained information from the Tucson Police Department’s
Gang Unit that Petitioner Fong was an associate of
McCrimmon’s, that his AKA was Martin Soto, and that he
also went by the name Chachi.

    In another investigative report dated September 15, 1992,
Godoy related slightly different facts about when and from
whom he learned about a Chachi. For example, in this
subsequently dated report, Godoy related that on August 31,
1992, the unknown male caller identified McKinney and a
Chachi (not a Martin Soto) as involved in the El Grande
murders. Godoy also related that on that same day,
Zimmerling called to state that a confidential informant had
identified as suspects a black male known as Christopher
McCrimmon and a Mexican male known as Martin Soto or
8                          FONG V. RYAN

Chachi. In the report, Godoy represented that he then
completed a records check on Christopher McCrimmon and
Martin Soto, but that no information came back on a Martin
Soto.

    As a result, Godoy went to the El Grande Market to see if
Tommy Gee, a relative of the deceased market manager,
recognized either name. Tommy Gee said that he did not but
that an individual named Martin Fong, i.e., Petitioner, used to
work at the market. Godoy stated in his report that he then
completed a records check on Martin Fong which was
successful and revealed that Martin Fong used the name
Martin Soto. Godoy also related that the next day, on
September 1, 1992, Detective Fuller with the Tucson Police
Department told him that McCrimmon was best friends with
an individual named Martin Fong or Martin Soto.

    As reflected in the September 15, 1992 report, on
September 2, 1992, Detective Godoy helped Detective Fuller
arrest Minnitt and McCrimmon for a robbery committed in
Tucson at Mariano’s Pizzeria on August 26, 1992. Detective
Godoy questioned each of them about their involvement in
the El Grande murders, and both denied any involvement in
those murders or in the Mariano’s Pizzeria robbery.
McCrimmon also denied having seen Fong recently, and
Minnitt claimed not to know Fong at all.4 Nonetheless, after
a forensic identification technician concluded on September
10, 1992, that Fong’s fingerprints matched those found on
certain items at the El Grande Market crime scene, Petitioner
was arrested on September 11, 1992.


    4
   State informant Keith Woods also was told by police on September 8,
1992, that he was a suspect in the Mariano’s Pizzeria robbery, before he
offered to provide detectives with information on the El Grande murders.
                      FONG V. RYAN                         9

    Detective Godoy completed a second interview with
Woods on November 20, 1992. On that date, the police
apprehended Woods after he had gone into hiding for a few
weeks in an attempt to renege on his deal to aid law
enforcement in the prosecution of the El Grande homicides.
This interview also began with an untaped portion. In the
taped portion of the interview, Woods began by continuing to
represent that when Minnitt and McCrimmon confessed to
him, they only referred to the third individual as “Chachi.”
Woods also related that McCrimmon and Minnitt told Woods
that Chachi made the plans to commit the robbery at the
market because he used to work there, and he could get them
inside because the market employees would recognize him.

    Woods went on to tell Godoy that he had met Chachi at
the house of McCrimmon’s girlfriend, Bridget Lucero, on a
date after McCrimmon and Minnitt had been arrested in early
September 1992 in connection with the Mariano’s Pizzeria
case. As a result, Woods said that he could now identify
Chachi as Petitioner because Woods had also seen Petitioner
on television after Petitioner was arrested for the El Grande
murders on September 11, 1992 (though on September 8,
1992, Woods claimed to have never met Chachi).

    Later in the interview, when Godoy again referred to
Woods meeting Chachi, Woods stated that “they” were
actually calling him Martin, not Chachi, and that Woods was
not sure if Martin and Chachi were two different people.
Then, for the first time, Woods specifically related that,
during McCrimmon and Minnitt’s joint confession to him on
the day that he was released from prison, McCrimmon had
talked about committing the homicides with a guy named
“Martin” and “Chachi.” Woods again repeated that he was
not sure if Martin and Chachi were the same person. At that
10                    FONG V. RYAN

point in the interview, Godoy then identified “Martin’s”
girlfriend as Betty Christopher (Petitioner’s girlfriend) and
asked Woods if he knew Betty Christopher; Woods answered
in the affirmative.

    Petitioner’s attorney, James Stuehringer (“Stuehringer”),
conducted a March 4, 1993 pretrial interview of Woods.
During that interview, Woods expressly stated that
McCrimmon and Minnitt had told him during their joint
confession to the El Grande murders that “Martin” and
“Chachi” had committed the crime with them, and that both
names referred to a single person, Betty Christopher’s
boyfriend. During this interview, Woods also receded from
his September 8, 1992 statement that Chachi wore a mask
during the commission of the murders. That is, he indicated
that he only assumed Chachi wore a mask but had not
explicitly been told that by McCrimmon or Minnitt. Woods
also told Stuehringer that McCrimmon had told him that
Chachi lived behind a Circle K off of a street called Prince.

     C. Petitioner’s State Court Trial

    The prosecution’s theory of the case was that, as an
undisputed former El Grande Market employee, Fong
exploited the store employees’ recognition of him to gain
access to the store while it was in the process of closing,
enabling him, Minnitt and McCrimmon to commit the
charged crimes. See, e.g., Soto-Fong, 928 P.2d at 620.
However, the state did not plan to call Woods as a witness in
Petitioner’s case because Fong was not present when
McCrimmon and Minnitt allegedly confessed to Woods,
raising Sixth Amendment confrontation clause issues under
Bruton v. United States, 391 U.S. 123 (1968).
                       FONG V. RYAN                         11

    Petitioner’s attorney nonetheless listed Woods as a
defense witness in order to support a primary defense theory
of mistaken identity: that Chachi was not Petitioner but
Martin Garza, a close friend of McCrimmon’s with the
nickname “Chachi.”        Soto-Fong, 928 P.2d at 615.
Stuehringer likewise filed a motion in limine asking the trial
court to limit the scope of Woods’ testimony to his
September 8, 1992 statement wherein he implicated a former
El Grande employee named Chachi but failed explicitly to
identify Chachi as Petitioner.

    The judge denied Stuehringer’s motion in limine and
ruled that, if Woods testified, all of his statements to law
enforcement about McCrimmon’s and Minnitt’s joint
confession to him, including Woods’ November 20, 1992
statement, would be admissible at trial. Soto-Fong, 928 P.2d
at 616–17. Stuehringer still decided to call Woods as a
witness, who went on to testify, inter alia, to the contents of
his September 8 and November 20, 1992 statements.
Soto-Fong, 928 P.2d at 620 (noting that Woods testified that
“the third murderer was ‘Martin,’ ‘the Mexican dude,’ who
‘used to work there[.]’”); see also id. at 624. During trial,
Woods also expressly stated that McCrimmon and Minnitt
told him when they confessed to the crimes that Martin was
Betty Christopher’s boyfriend, consistent with his statement
to Stuehringer during the March 4, 1993 pretrial interview.
Id. at 624. And Woods related that he understood Chachi to
be Petitioner after meeting him at Bridget Lucero’s house.

    As part of the mistaken identity defense, Stuehringer also
introduced evidence that Petitioner had never been known as
“Cha-Chi.” Id. at 616 n.2. Stuehringer likewise called
Martin Garza as a witness and elicited from him that his
nickname was Chachi, that he and McCrimmon were friends
12                      FONG V. RYAN

who lived around the corner from one another, that
McCrimmon called him Chachi, and that he lived near the
Circle K off of a street called Prince. Moreover, Stuehringer
elicited from Detective Godoy that, after his September 8,
1992 meeting with Woods but before November 20, 1992,
Godoy misstated in a telephonic search warrant affidavit and
under oath during a juvenile court transfer hearing that
Woods had identified Petitioner as Chachi, that Petitioner
confessed to the crimes, and that Petitioner had the murder
weapon. As a result, Stuehringer argued to the jury that
Godoy had an incentive to feed Woods additional
incriminating information connecting Chachi to Petitioner
when Godoy and Woods met for the second time on
November 20, 1992, after Woods had gone into hiding. As
another part of the defense strategy, Stuehringer presented
evidence and argument that the detectives, including
Detective Godoy, misrepresented and mishandled the
fingerprint evidence implicating Petitioner, making that
evidence unreliable. Soto-Fong, 928 P.2d at 615, 621.

     In addition to the testimony from defense witness Woods
and the state’s presentation of the fingerprint evidence linking
Petitioner to the crime scene, the jury also heard from a
primary state witness named Queen E. Ray (“Ray”). Ray
testified that she loaned the abandoned car found near the El
Grande shootings with McCrimmon’s fingerprint on it to
McCrimmon in return for money on the evening of the El
Grande shootings. Id. at 614. She further testified that
McCrimmon, Minnitt, and a third person, whom she knew as
“Martinez,” left McCrimmon’s apartment with the car around
10:00 p.m. Id. She identified Petitioner as Martinez during
trial. Id. at 614–15. She went on to testify that McCrimmon,
Minnitt, and Petitioner returned to McCrimmon’s apartment
about an hour after she loaned them the car, without the car,
                        FONG V. RYAN                           13

and that McCrimmon gave her $30 and the car keys. Id. at
615.

    Petitioner, seventeen at the time the crimes were
committed, was convicted on all counts except a burglary
count and ultimately sentenced to death. Soto-Fong, 928 P.2d
at 615.

    D. State Misconduct and the Trials of Petitioner’s Co-
       Defendants

    Petitioner’s co-defendants, McCrimmon and Minnitt,
were tried three weeks later. During that joint trial, the
prosecutor in the El Grande murder cases, Kenneth Peasley
(“Peasley”), represented during his opening and closing
statements that Godoy did not have the names of Petitioner,
McCrimmon, or Minnitt until he met with Woods on
September 8, 1992, and also stated that Godoy did not suspect
a former market employee or know that Petitioner worked at
the El Grande Market until he interviewed Woods; Godoy
gave testimony consistent with Peasley’s representations.
Minnitt, 55 P.3d at 778. Both Minnitt and McCrimmon were
convicted and sentenced to death. However, McCrimmon’s
and Minnitt’s initial convictions were overturned on appeal
because of jury coercion, while Petitioner’s convictions were
affirmed on direct review. State v. McCrimmon, 927 P.2d
1298, 1303 (Ariz. 1996); Soto-Fong, 928 P.2d at 635.

    Meanwhile, the state retried Minnitt and McCrimmon in
separate trials. Minnitt’s 1997 initial retrial resulted in a hung
jury. Minnitt, 55 P.3d at 777. During that trial and in line
with questions asked during the 1993 joint trial, Peasley
repeatedly elicited testimony from Godoy that Godoy did not
suspect McCrimmon, Minnitt, Fong or a “Cha-chi” of
14                      FONG V. RYAN

committing the El Grande murders until Godoy spoke with
Woods on September 8, 1992. Id. at 779. At McCrimmon’s
1997 retrial, his defense counsel confronted Godoy about this
testimony, and Godoy admitted that it was false but that he
feared causing a mistrial by improperly revealing information
obtained from confidential informants. Id. McCrimmon was
acquitted.

    Minnitt was then tried for the third time by a different
prosecutor and was convicted again in 1999. Id. at 776, 780.
But, on October 11, 2002, the Arizona Supreme Court
vacated his conviction and held that his latest retrial should
have been barred under the double jeopardy clause of the
Fifth Amendment because of Peasley’s repeated and knowing
use of false testimony during Minnitt’s prior two trials. Id. at
783.

    In summarizing the context of the prosecutorial
misconduct, the Arizona Supreme Court recounted the
following:

           Before discussing the actual misconduct in
       this case, we recount the context in which it
       occurred. Deputy County Attorney Kenneth
       Peasley conducted the 1993 Soto-Fong trial
       and the 1993 and 1997 trials of Minnitt and
       McCrimmon. He did not participate in
       Minnitt’s 1999 trial. In all three Minnitt trials
       and in both McCrimmon trials, the state’s
       case depended heavily on Keith Woods’
       credibility. Importantly, as of September 2,
       the police had identified Soto-Fong,
       McCrimmon, and Minnitt as suspects in the El
                         FONG V. RYAN                           15

        Grande crimes and had interviewed them.5
        But according to Godoy, police had yet to
        interview anyone who could provide direct
        evidence linking any of the three to the
        crimes. Woods was not interviewed until
        September 8, six days after the McCrimmon
        and Minnitt interviews. Godoy claimed to
        have received his first knowledge of any
        involvement by McCrimmon and Minnitt
        from his interview with Woods. This was the
        information the police were seeking-that
        McCrimmon and Minnitt had implicated
        themselves in the murders and that a witness
        would so testify.

            Woods’ credibility was tenuous. He was a
        convicted felon and drug addict who entered
        into an agreement with the state to provide
        testimony to avoid a lengthy prison sentence.
        The state had no plausible explanation why
        Godoy conducted the untaped [portion of the
        September 8] interview with Woods. The
        defense strategy in the Minnitt and
        McCrimmon trials was to show that Godoy
        was the source of Woods’ information about
        Minnitt’s and McCrimmon’s involvement in
        the case, and that during the untaped
        interview, he fed that information to Woods.
        If Godoy was indeed the source, Woods’
        testimony would not have helped the state.


 5
   Contrary to how this statement reads, only Minnitt and McCrimmon
were interviewed prior to Godoy’s September 8, 1992 interview with
Woods. Godoy did not interview Petitioner until September 9, 1992.
16                     FONG V. RYAN

        Similarly, without Woods, the state’s case
        would be significantly weakened because no
        direct or physical evidence connected Minnitt
        to the crime, and the credibility of the
        remaining witnesses was questionable.

Id. at 777–78.

   In summarizing the extent of the misconduct, the Arizona
Supreme Court further concluded:

            Peasley’s misdeeds were not isolated
        events but became a consistent pattern of
        prosecutorial misconduct that began in 1993
        and continued through retrial in 1997. The
        prosecutor knowingly and repeatedly misled
        the jury as to how, when, and from whom
        Godoy first learned the names of the three
        defendants. By allowing the jury to believe
        that Woods was the initial source, the state
        avoided the credibility obstacle that would
        have been apparent had Godoy himself been
        the source. It is clear that Godoy testified
        falsely and that his testimony was used to
        bolster the credibility of the state’s key
        witness. Moreover, the record establishes that
        Peasley knew the testimony was false and not
        only failed to clarify the mistake but argued
        the evidentiary point to the jury. Peasley’s
        calculated deception reveals the actual
        weakness of the state’s case.

Id. at 782.
                       FONG V. RYAN                         17

   Because of his misconduct in the McCrimmon and
Minnitt trials, Peasley was disbarred. In re Peasley, 90 P.3d
764, 781 (Ariz. 2004).

   E. Petitioner’s Post-Conviction Relief Proceedings in
      State and Federal Court

    Fong filed his first state postconviction relief (“PCR”)
petition in Arizona Superior Court on August 20, 1999. That
petition included, inter alia, a claim alleging prosecutorial
misconduct based on perjury by Detective Godoy akin to that
ultimately found to have occurred in Minnitt’s and
McCrimmon’s trials. It also included a claim alleging
ineffective assistance of counsel because of Stuehringer’s
decision to call Keith Woods as a defense witness.

    During evidentiary hearings occurring in January and
August 2001, Stuehringer testified about his defense strategy,
and Peasley testified about the prosecutorial misconduct and
certain Brady v. Marlyand allegations. Because Godoy was
under indictment for perjury stemming from McCrimmon’s
and Minnitt’s trials at that time, he invoked his rights under
the Fifth Amendment and refused to testify at the evidentiary
hearings.

     Prior to issuing a ruling on the petition, Fong’s assigned
state court judge died, and when a new judge was assigned to
the matter, the parties agreed that a number of issues raised
by Fong could be decided without further evidentiary
development. After those claims were resolved and denied in
a June 27, 2002 order, the superior court then held another
evidentiary hearing on Petitioner’s remaining claims in
August 2002. Godoy again did not appear as a witness due to
his intention to invoke the Fifth Amendment if so called, even
18                      FONG V. RYAN

though he no longer was under indictment for his conduct in
McCrimmon’s and Minnitt’s prosecutions. In an October 7,
2002 ruling, the Arizona Superior Court denied Petitioner’s
remaining claims, including his prosecutorial misconduct
claim based on Godoy’s alleged perjury and his claim for
ineffective assistance of counsel based on Stuehringer’s
decision to call Woods as a defense witness.

    Fong filed two more PCR petitions in state superior court
and engaged in a number of related state appellate
proceedings in a continued effort to challenge his conviction
and sentence. While he successfully had his death sentence
vacated as a result of the United States Supreme Court’s
decision in Roper v. Simmons, 543 U.S. 551 (2005), he
obtained no other relief in state court, and the October 7,
2002 Arizona Superior Court ruling remains the last reasoned
state court decision on the two certified issues addressed
herein.

    Fong’s federal habeas petition asserted 24 claims for
relief. On August 5, 2011, the district court found that
Petitioner was not entitled to habeas relief on any of his
claims. However, it issued a certificate of appealability on the
two issues addressed in the instant opinion after finding that
Petitioner had not met the requirements for habeas relief
under 28 U.S.C. § 2254(d) for claims adjudicated on the
merits in state court proceedings.

II. STANDARD OF REVIEW

    Because Fong filed his federal habeas petition after April
1, 1996, the Anti-Terrorism and Effective Death Penalty Act
(“AEDPA”) applies to his claims. Lindh v. Murphy, 521 U.S.
320, 336, 117 S. Ct. 2059 (1997). Under the AEDPA, a
                        FONG V. RYAN                         19

federal court can grant relief only if the state court’s
adjudication of a petitioner’s claim on the merits was
“contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the
Supreme Court of the United States” or if the state proceeding
“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). The
AEDPA sets forth a “highly deferential standard for
evaluating state-court rulings,” Lindh, 521 U.S. at 333 n.7,
and “demands that state-court decisions be given the benefit
of the doubt,” Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.
Ct. 357 (2002).

    On federal habeas review, the court “look[s] through
unexplained state court decisions leaving, in effect, the denial
of post-conviction relief to the last reasoned state court
decision to address the claim at issue.” Medley v. Runnels,
506 F.3d 857, 862 (9th Cir. 2007) (en banc). A state court
renders a decision “contrary to” federal law if it reaches “a
conclusion opposite to that reached by [the Supreme Court]
on a question of law or if [it] decides a case differently than
[the Supreme Court] has on a set of materially
indistinguishable facts.” Williams v. Taylor, 529 U.S. 362,
413, 120 S. Ct. 1495 (2000).

    A state court unreasonably applies federal law if it
“identifies the correct governing legal principle from [the
Supreme Court’s] decisions but unreasonably applies that
principle to the facts of the prisoner’s case.” Id. Under the
“unreasonable application” inquiry, “the state court decision
[must] be more than incorrect or erroneous.” Lockyer v.
Andrade, 538 U.S. 63, 75, 123 S. Ct. 1166 (2003). Instead,
the decision must be “objectively unreasonable.” Id.; see also
20                     FONG V. RYAN

Harrington v. Richter, 131 S. Ct. 770, 786–87 (2011) (“As a
condition for obtaining habeas corpus from a federal court, a
state prisoner must show that the state court’s ruling on the
claim being presented in federal court was so lacking in
justification that there was an error well understood and
comprehended in existing law beyond any possibility for
fairminded disagreement.” (emphasis added)). This same
standard of unreasonableness applies to state court factual
determinations under 28 U.S.C. § 2254(d)(2). Taylor v.
Maddox, 366 F.3d 992, 999 (9th Cir. 2004) (citing Torres v.
Prunty, 223 F.3d 1103, 1107–08 (9th Cir. 2000)); see also
Murray v. Schriro, __F.3d__, 2014 WL 997716, *11 (Mar.
17, 2014 9th Cir. 2014) (“[W]e may only hold that a state
court’s decision was based on an unreasonable determination
of the facts if ‘we [are] convinced that an appellate panel,
applying the normal standards of appellate review, could not
reasonably conclude that the finding is supported by the
record.’” (alternation in original) (quoting Taylor, 366 F.3d
at 1000)).

    This Court reviews de novo a district court’s denial of
habeas corpus relief. Tanner v. McDaniel, 493 F.3d 1135,
1139 (9th Cir. 2007). The district court’s factual findings are
reviewed for clear error. Allen v. Woodford, 395 F.3d 979,
992 (9th Cir. 2005).

III.      DISCUSSION

       A. Alleged Napue Violation

    In Napue v. Illinois, 360 U.S. 264, 269 (1959), the
Supreme Court held “that a conviction obtained through use
of false evidence, known to be such by representatives of the
State, must fall under the Fourteenth Amendment.” Under
                        FONG V. RYAN                         21

this clearly established Supreme Court precedent, “the
petitioner must show that (1) the testimony (or evidence) was
actually false, (2) the prosecution knew or should have known
that the testimony was actually false, and (3) that the false
testimony was material. United States v. Zuno-Arce,
339 F.3d 886, 889 (9th Cir. 2003); see also Alcorta v. Texas,
355 U.S. 28, 31 (1957) (the state cannot allow a witness to
give a material false impression of the evidence). “In
addition, the state violates a criminal defendant’s right to due
process of law when, although not soliciting false evidence,
it allows false evidence to go uncorrected when it appears.”
Hayes v. Brown, 399 F.3d 972, 978 (9th Cir. 2005) (citing
Alcorta and Pyle v. Kansas, 317 U.S. 213 (1942)).

    False testimony is material if there is “any reasonable
likelihood that the false testimony could have affected the
judgment of the jury.” Id. (internal quotations and citation
omitted). “Under this materiality standard, [t]he question is
not whether the defendant would more likely than not have
received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence.” Id. (alteration in
the original) (internal quotations and citation omitted); see
also Dow v. Virga, 729 F.3d 1041,1048 (9th Cir. 2013)
(“Napue requires us to determine only whether the error
could have affected the judgment of the jury, whereas
ordinary harmless error review requires us to determine
whether the error would have done so.” (emphasis in
original)).

    On appeal, Petitioner asserts that the prosecution built its
case on false testimony by Detective Godoy implying that he
did not suspect Petitioner, Minnitt, or McCrimmon of
committing the El Grande homicides until he first spoke with
22                     FONG V. RYAN

Woods on September 8, 1992. Petitioner contends that
because this testimony left the jury with the false impression
that Woods was the original source of Godoy’s suspicion of
Fong, it bolstered the credibility of Godoy and Woods and
discredited the defense argument that Godoy told Woods
what to say.

    As framed before the state courts, Petitioner’s claim
focuses on a single question Peasley asked Godoy during
direct examination, as well as a series of questions
Stuehringer proceeded to ask Godoy on cross-examination.
Godoy testified after Stuehringer had already called Woods
as a defense witness, wherein Woods had testified that, on
September 8, 1992, he had told Godoy that McCrimmon,
Minnitt, and an individual called “Chachi” were responsible
for the El Grande murders. The next day, during Godoy’s
direct examination, Peasley asked the following question:

       Peasley:    What I’m going to do is this: Ask
                   you to focus on the time period of
                   June 24th until the end of August
                   of 1992. During that time period,
                   had yo u d e veloped any
                   information up to the end of
                   August, had you developed any
                   information that would lead you to
                   believe that either Christopher
                   McCrimmon, Andre Minnitt, or
                   Martin Fong were suspects in the
                   killings of these three men at the
                   El Grande Market?

       Godoy:      No, sir.
                      FONG V. RYAN                         23

This question was not directly followed by questions about
Godoy’s September 8, 1992 contact with Woods.

    However, the next day, on cross-examination, Stuehringer
asked Godoy about Keith Woods’ September 8, 1992
statement:

       Stuehringer:   So what you were saying to
                      Mr. Woods and what Mr.
                      Woods was saying to you was
                      committed to a tape [on
                      September 8, 1992]?

       Godoy:         That’s correct.

       ...

       Stuehringer:   In the course of that statement
                      is when you learn about Mr.
                      McCrimmon and Mr. Minnitt?

       Godoy:         Yes.

       Stuehringer:   And this third person named
                      Cha-Chi?

       Godoy:         That’s correct.

       Stuehringer:   I think you testified earlier this
                      afternoon that after September
                      8th, your next contact with
                      Mr. Woods wasn’t until
                      November 20th?
24                     FONG V. RYAN

       Godoy:          That’s correct.

       Stuehringer:    So whatever information you
                       had that you testified to
                       between September 8th and
                       November 20th came from
                       that September 8th session?

       Godoy:      Yes.

    Petitioner argued before the state courts (as he argues
here) that Godoy’s testimony in response to the above
questions constituted perjury and left the jury with the false
impression that Woods was the original source of Godoy’s
suspicion of Fong.

    As to the direct examination question by Peasley, the state
PCR court ruled that Godoy’s response did not meet the
definition of perjury under Arizona law because of Fong’s
own representation in his petition that Godoy’s answer was
“technically [] true (although misleading),” considering
Godoy stated in his September 9 and 15, 1992 investigative
reports that he had obtained information by August 31, 1992
– i.e., the end of August – implicating McCrimmon and
Petitioner in the crimes. In other words, the state court ruled
that a technically true statement, by definition, could not
constitute perjury under Arizona law.

    As to the alleged perjury committed by Godoy during
Stuehringer’s cross-examination of him, the state PCR court
reasoned that Stuehringer’s questions and Godoy’s answers
had to be considered in the entire context of Godoy’s
testimony. In particular, the state court found that when
Godoy answered the above questions by Stuehringer, Godoy
                       FONG V. RYAN                         25

did not actually state that he had never heard of the three
defendants’ names before meeting with Woods. Specifically
regarding Fong, the state PCR court pointed out that earlier
in Stuehringer’s cross-examination of Godoy, Stuehringer
had elicited testimony from Godoy that sometime in late June
to late August, Godoy got in touch with members of the Gee
family to obtain a list of current and former El Grande market
employees and that Godoy found out from them that
Petitioner was a former employee.

    Most significant for the state court, on Peasley’s redirect
of Godoy, Peasley attempted to explore further the
circumstances under which Godoy first spoke with the Gee
family and how and from whom he first learned Petitioner
was a possible suspect. Those questions began as follows:

       Peasley:        When did that conversation
                       with the Gee family actually
                       take place?

       Godoy:          I had spoken to them a couple
                       of times throughout the
                       summer about who worked
                       there and specifically asked
                       him right when Mr. Fong
                       became a focus of this case –
                       and the first week was
                       September – about who
                       actually worked there.

       Peasley:        So when you talked to Mr.
                       Gee and you asked him about
                       his employment records, did
                       you refer by name to the
26                  FONG V. RYAN

                    individual you were concerned
                    about whether or not he had
                    worked there?

     Godoy:         Yes, I believe I at that time
                    asked for Mr. Martin Soto.

     Peasley:       And had you gotten
                    information, sir, before that
                    conversation with Mr. Gee
                    that provided you with the
                    name, Martin Soto, so you
                    would have a name to ask Mr.
                    Gee about in the first place?

     Godoy:         Yes.

     Peasley:       And from how many different
                    sources had you gotten the
                    name, Martin or Martin Soto,
                    prior to your conversation with
                    Mr. Gee where you asked him
                    about whether or not Martin
                    Soto had ever worked there?

     Stuehringer:   Judge, objection,     hearsay,
                    foundation.

     Peasley:       The door was opened on that
                    one, Judge. And, again, if I
                    need to be heard, but Mr.
                    Stuehringer made inquiry
                    about that conversation.
                      FONG V. RYAN                        27

       Court:         Sustained.

       Peasley:       Did you speak with Sergeant
                      Zimmerling before your
                      conversation with Mr. Gee
                      where you asked about
                      employment records? Did you
                      speak with Sergeant
                      Zimmerling of the Tucson
                      Police Department?

       Godoy:         Yes, I did.

       Peasley:       Without going into the nature
                      of the conversation that you
                      had with Sergeant Zimmerling
                      –

       Stuehringer:   Judge, could I approach the
                      bench and be heard?

    Stuehringer and Peasley then engaged in a sidebar with
the trial court judge in which Stuehringer asked that Peasley
be precluded from exploring with Godoy in any fashion any
anonymous sources of information possibly connecting
Petitioner or a “Martin Soto” to the crime because such
testimony lacked foundation and was prejudicial hearsay.
The court, this time, overruled Stuehringer’s objection, and
Peasley proceeded as follows:

       Peasley:       Sir, I was asking you about
                      your conversation with
                      Sergeant Zimmerling of the
                      Tucson Police Department.
28                  FONG V. RYAN

                    When was it that you actually
                    spoke with Sergeant
                    Zimmerling?

     Godoy:         The exact date I believe was
                    August 31st.

     ...

     Peasley:       Without going into the nature
                    of the information, did
                    Sergeant Zimmerling give you
                    information that you thought
                    was pertinent to this particular
                    case?

     Stuehringer:   Judge, may I just have a
                    continuing objection?

     Court:         Yes, you may.

     Godoy:         Yes.

     Peasley:       Was it after your conversation
                    with Sergeant Zimmerling
                    that you contacted the Gees
                    and made inquiry about
                    employment records?

     Godoy:         Yes.

     Peasley:       And was it after that
                    conversation, sir, that you
                       FONG V. RYAN                        29

                       specifically asked       about
                       Martin Soto?

       Godoy:          Yes, sir.

       Peasley:        Were you at some point, then,
                       after that inquiry provided
                       with records concerning
                       Martin Fong who you later
                       came to know as Martin Soto?

       Godoy:          Yes.

    Based on the above testimony, the state court concluded
that the jury actually was informed that Godoy suspected
Petitioner’s involvement in the El Grande murders prior to
Godoy’s September 8, 1992 meeting with Woods and at least
as early as August 31, 1992, and that any limitations on the
extent of the information presented to the jury about what
Godoy knew prior to talking to Woods was caused, in part, by
Petitioner’s own counsel who kept objecting to Godoy
testifying about information contained in his September 9 and
15, 1992 investigative reports.

    The state PCR court likewise concluded that Godoy’s
quoted testimony on direct and cross-examination, in addition
to not being perjurious, also did not give a material false
impression to the jury that Godoy did not suspect Petitioner’s
involvement in the homicides until Godoy met with Woods.
Stuehringer’s admitted trial strategy was of particular import
to the state PCR court in evaluating Petitioner’s false
impression argument.
30                      FONG V. RYAN

    Specifically, the state PCR court noted that Stuehringer’s
defense strategy in calling Woods as a defense witness was to
try and connect the Chachi that Woods had referred to on
September 8, 1992, to Martin Garza and to suggest that when
Woods later stated to Detective Godoy on November 20,
1992, that, inter alia, Chachi was also referred to as “Martin”
and was “Betty Christopher’s boyfriend,” those additional
details connecting Chachi to Petitioner had been fed to
Woods by Godoy. In other words, Petitioner’s mistaken
identity defense aimed to keep from the jury any inculpatory
information – such as information in Godoy’s September 9
and 15, 1992 investigative reports – identifying Petitioner as
Chachi or a murder suspect prior to September 8, 1992, the
date on which Woods first implicated a Chachi who
seemingly could be connected to Martin Garza.

     As a result, the state PCR court found that the prosecution
could not be faulted for failing to elicit fully the very
information that Petitioner affirmatively sought to keep out at
trial. Moreover, the state PCR court noted that Fong, in
apparent contradiction of his own argument, even
acknowledged in his petition that Peasley attempted to elicit
from Godoy at trial that Godoy had information implicating
Fong in the crimes prior to September 8, 1992, and cited to
Peasley’s redirect of Godoy on October 20, 1993, quoted
above, in which Peasley asked Godoy about information
obtained from Sergeant Zimmerling and the Gee family. And
the state PCR court again emphasized that the prosecution
was nonetheless able to present the jury with some evidence,
over defense counsel’s repeated objections, that Petitioner
became a suspect in the case on or about August 31, 1992,
before Godoy spoke with Woods. Therefore, the state PCR
court also rejected Petitioner’s false impression argument.
                       FONG V. RYAN                         31

    Based on the above state PCR court reasoning and trial
testimony at issue, Petitioner fails to show that the state PCR
court’s decision denying him relief on his Napue claim was
unreasonable under 28 U.S.C. §§ 2254(d)(1) or (d)(2).

    Petitioner first argues that Godoy’s testimony on direct
examination – that he developed no information suggesting
that McCrimmon, Minnitt, and Petitioner were suspects in the
El Grande murders during the time period from June 24 until
the end of August 1992 – was in fact false because evidence
shows that: 1) Godoy had suspected Petitioner and had been
pursuing him all summer, and 2) Godoy had allegedly
received certain information from Sergeant Zimmerling and
an anonymous caller possibly implicating Petitioner and
McCrimmon in the triple homicide as of August 31, 1992.

    But neither of Petitioner’s two factual allegations renders
the state court’s decision denying his Napue claim
unreasonable because the evidence Petitioner claims reveals
the deception in Godoy’s direct examination testimony was
in fact disclosed to the jury during trial, as acknowledged by
the state PCR court. For example, Petitioner supports his first
factual allegation – that Godoy had suspected Fong all
summer – by citing to an August 27, 1992 investigative report
authored by Godoy in which Godoy stated that he contacted
the El Grande Market on June 30, 1992, to receive a list of
former and current employees.

    However, as the state PCR court noted, Godoy testified to
substantially similar facts during Stuehringer’s cross-
examination of him wherein Godoy stated that he had
contacted the Gees about obtaining a list of current and
former employees somewhere in the time frame of late June
to late August and thereafter learned that Petitioner was a
32                          FONG V. RYAN

former employee. Moreover, during Stuehringer’s recross of
Godoy, Stuehringer expressly asked Godoy about the August
27, 1992 investigative report and Godoy’s representation
therein that he asked the Gees for an employee list on June
30, 1992. Considering such evidence was disclosed to the
jury, Petitioner does not explain how these facts would
otherwise render Godoy’s direct-examination testimony false
or misleading.6


   6
     Petitioner also supports this first factual allegation – that Godoy
suspected Petitioner all summer – by reference to an article from The New
Yorker he used in support of an actual innocence claim raised in his
second state PCR petition, filed in 2005. While this article was presented
to the state PCR court, Petitioner appears not to have attempted to use this
article in state court to support an allegation that the prosecution
knowingly presented Godoy’s false testimony at trial. For that reason, this
Court may be precluded from considering such evidence in evaluating
Petitioner’s Napue claim. Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).

     But, even if the Court could properly consider such evidence in
evaluating Petitioner’s Napue claim, the contents of that article do not
support a conclusion that the state PCR court’s finding regarding Godoy’s
direct testimony was unreasonable. In that article, Godoy is quoted as
saying that he “decided to find all the people who had worked at the El
Grande. It took weeks, but I found everyone except this one guy, this guy
named Martin. . . . I was looking for him, but I was always one step
behind. I needed to make him or clear him.” However, this statement by
Godoy is not tied to any express time frame and can be construed as
consistent with Godoy’s trial testimony that he sought a list of current and
former market employees from the Gees as part of his general
investigation of the crimes. That is, Godoy’s representations in the article
simply show that he generally sought to clear all market employees as
suspects but does not suggest that he had any particular knowledge beyond
Fong’s status as a former employee that tended to show he might be
involved in the El Grande murders prior to August 31, 1992. And it bears
repeating that the jury nonetheless heard through Peasley’s redirect
examination of Godoy that Godoy obtained specific knowledge more
                           FONG V. RYAN                               33

    Petitioner’s second factual allegation – that Godoy’s
direct testimony was false because undisclosed evidence
shows that he actually obtained information implicating Fong
from Sergeant Zimmerling and an anonymous caller by
August 31, 1992 – is belied by the state court trial testimony
quoted above. Here, again, the jury was presented with the
evidence that Petitioner urges on appeal was not presented to
the jury and rendered Godoy’s testimony misleading. Indeed,
as the state PCR court found, on redirect, the prosecution did
in fact elicit that Godoy had learned via conversations with
Zimmerling information implicating Petitioner in the case –
the suspect name “Martin Soto” – by at least August 31,
1992, approximately one week before Godoy spoke with
Woods. Moreover, the prosecution asked Godoy from what
other sources he had obtained incriminating information
about a “Martin” or “Martin Soto” at that time, but
Petitioner’s counsel made an objection to the admission of
such testimony into evidence, which the court sustained. As
a result, the prosecution was hampered in its ability to flesh
out all information Godoy had that potentially implicated
Petitioner prior to his meeting with Woods.

    Petitioner nonetheless attempts to get around the fact that
Godoy testified to obtaining certain incriminating facts from
Zimmerling as of August 31, 1992, by contending that
Godoy’s testimony that he received the name “Martin Soto”
from Zimmerling as of August 31, 1992, was also false. In
support of this allegation, Petitioner notes that Godoy’s
September 9 and 15, 1992 investigative reports contain varied
details about whether Zimmerling identified a “Chachi” as a
possible suspect or a “Martin Soto” as a suspect. Petitioner


directly implicating Petitioner on or about August 31, 1992, approximately
one week prior to his September 8, 1992 contact with Woods.
34                     FONG V. RYAN

also notes that during pretrial interviews, both Zimmerling
and Godoy stated that Zimmerling had identified as a possible
suspect an individual named “Chachi” or “Martin” but had
never used the last name “Soto.”

    But Petitioner’s references to what very well may be
inconsistencies between Godoy’s trial testimony and other
evidence detailing what Zimmerling told Godoy about
possible suspect names on August 31, 1992, obfuscate the
issue on appeal. Petitioner’s Napue claim in state and federal
court has always centered on whether Godoy’s direct
examination testimony was false and misleading because it
allowed the jury to infer that Woods was the source of
Godoy’s suspicion of Fong. Even if Godoy’s testimony about
what information Zimmerling gave him was not fully
accurate, Petitioner does not cogently dispute that Godoy’s
testimony on redirect at least communicated to the jury that
Godoy’s suspicion of Petitioner preceded his September 8,
1992 interview with Woods and instead arose from his prior
contacts with Sergeant Zimmerling and the Gee family,
thereby correcting any impression that Woods was the initial
source of information linking Petitioner to the crime. In other
words, Petitioner fails to develop the significance of possible
inconsistencies concerning Godoy’s trial testimony and
statements about information received from Zimmerling for
purposes of his Napue claim.

    Petitioner also argues on appeal that the state court was
unreasonable in concluding that Godoy’s cross-examination
testimony in which he testified that he “learned about”
McCrimmon, Minnitt, and a “Chachi” from Woods during
their September 8, 1992 conversation was not perjurious.
However, as the state PCR court noted, when Godoy testified
“yes” in response to a question phrased by defense counsel
                       FONG V. RYAN                         35

asking if Godoy learned about Minnitt, McCrimmon, and a
Chachi on that date, Godoy did not affirmatively state that he
learned the names of those three individuals for the first time
during that conversation.

    Moreover, as the state argues on appeal, it is reasonable
to construe the phrase “learn about” in the context of the
question posed by defense counsel to refer to the role played
by a Chachi in the murders, rather than simply the name
Chachi. Petitioner does not dispute that Godoy first learned
about the details of a Chachi’s alleged role in the El Grande
murders from his conversation with Woods on September 8,
1992, though Godoy had otherwise obtained the name
“Chachi” as a possible suspect by at least August 31, 1992, as
reflected in his September 9 and 15, 1992 investigative
reports.

     Godoy’s affirmative one-word answer to a question
phrased by defense counsel in this case also directly contrasts
with Godoy’s testimony in the trials of Petitioner’s
co-defendants, where Woods was the key state witness and
the prosecution expressly asserted in its opening statement
that Godoy did not have the names of McCrimmon, Minnitt,
or Petitioner until after he met with Woods on September 8,
1992. Minnitt, 55 P.3d at 778–79. Here, because Woods was
a defense witness, the prosecution did not even mention
Woods in its opening statement. Moreover, in those later
trials, Peasley asked Godoy when McCrimmon, Minnitt, and
Fong became suspects and Godoy expressly responded that
he did not suspect any of the named defendants until he met
with Woods on September 8, 1992, and that he did not
suspect a former employee in the El Grande homicides and
did not get in contact with the Gee family about a former
employee until after he spoke with Woods on that date. Id.;
36                          FONG V. RYAN

see also In Re Peasley, 90 P.3d at 767–68. Godoy’s isolated
“learn about” answer in the context of Petitioner’s trial does
not approach this same level of affirmative misrepresentation.

    Even if Godoy’s direct and cross-examination testimony
was not outright perjurious, Petitioner nonetheless urges that
Godoy’s quoted testimony still created a material false
impression that Woods was the source of the name Chachi –
if not the source of Godoy’s general suspicion of Fong –
because the prosecution’s redirect examination of Godoy only
focused on whether Godoy had suspected a former market
employee,7 a “Martin,” or a “Martin Soto” on or about

 7
    Petitioner recognizes that the damaging aspect of Woods’ September
8, 1992 statement that links Chachi to him as opposed to Martin Garza is
the reference to Chachi being a former market employee. As a result, he
at times appears to argue on appeal that Godoy’s at-issue testimony was
also misleading because Godoy’s answers in conjunction with Woods’
trial testimony made it appear as if Woods was the source of Godoy’s
suspicion of Petitioner as a former market employee, and thereby deprived
Petitioner of a meaningful opportunity to argue that Godoy fed that piece
of information to Woods.

     To the extent he means to make such an argument, the Court finds it
to be without merit. To begin, Petitioner did not so precisely argue in
front of the state PCR court that Godoy’s direct and cross-examination
testimony in Petitioner’s trial was false because it left an impression that
Woods was the source of Godoy’s suspicion of a former employee.
Instead, his arguments pressed in state court focused on whether Godoy’s
testimony gave the impression that Woods was the source of Godoy’s
suspicion of Fong generally.

     But, turning to the merits of this more focused claim, Peasley’s
questions on redirect examination, admittedly did not expressly elicit a
date by which the Gees identified Petitioner to Godoy as a former market
employee, though a specific date was provided regarding Godoy’s contact
with Sergeant Zimmerling. But, Peasley’s questions and Godoy’s answers
support a reasonable conclusion under the AEDPA’s deferential review of
                            FONG V. RYAN                               37

August 31, 1992. In other words, Petitioner argues that the
state PCR court’s reliance on Peasley’s redirect of Godoy as
mitigating any misunderstanding about when Petitioner
generally became a suspect in the case was unreasonable
because the state court failed to acknowledge the more
nuanced point that the jury remained uninformed that Godoy
already suspected a Chachi of the crime and had information
linking Petitioner to the name “Chachi” prior to his
September 8, 1992 contact with Woods.



the state PCR court’s fact-finding that Peasley conveyed to the jury that
Godoy obtained information from the Gees that Petitioner was a former
market employee prior to Godoy’s September 8, 1992 contact with
Woods; the order of Peasley’s questions suggested that Godoy got in
contact with the Gees shortly after learning from Zimmerling
incriminating information about a Martin or Martin Soto on August 31,
1992, more than a week before Godoy first met with Woods. Moreover,
as noted by the state PCR court, the jury heard during Godoy’s
cross-examination by Stuehringer that Godoy’s contact with the Gees
occurred around late August. The jury also heard Godoy state on redirect
examination that he immediately contacted the Gees when Petitioner
became a focus of the case as of September.

     Peasley’s questions and Godoy’s answers also made clear that Godoy
was prompted to contact the Gees about a suspected former employee
because of his August 31, 1992 contact with Sergeant Zimmerling, not
because of his later contact with Woods. This testimony directly contrasts
with Godoy’s false testimony and Peasley’s improper arguments during
the trials of Petitioner’s co-defendants that Woods’ September 8th
statement caused Godoy to contact the Gees about a former employee. In
other words, Peasley’s redirect questions in Petitioner’s criminal case
made clear that Woods was not the initial source of Godoy’s suspicion of
Petitioner as a former market employee. Because the jury was informed
that Godoy was suspicious of a former employee (namely, Petitioner)
before Godoy met with Woods, the defense was not deprived of an
opportunity to argue to the jury that Godoy fed that detail to Woods during
their September 8, 1992 meeting.
38                     FONG V. RYAN

     However, this distinction between a general suspicion of
Petitioner and suspicion of a Chachi was not lost on the state
PCR court. Instead, as the state PCR court repeatedly
emphasized in its decision denying Petitioner relief,
Petitioner’s counsel consistently objected when Peasley
began asking Godoy about the contents of his September 9
and 15, 1992 investigative reports. While it remains unclear
if the prosecutor meant to at some point ask Godoy about a
Chachi as referred to in those reports, the state PCR court’s
focus on such defense objections at least acknowledges that
the prosecutor was hampered in his ability to reveal fully to
the jury the contents of the September 9 and 15, 1992
investigative reports, which contained information linking
Petitioner to the name Chachi.

    But, more significantly, the state PCR court’s focus on
Petitioner’s defense theory in rejecting his false impression
claim demonstrates that it reasonably concluded that the
original source of the name Chachi was not material to
Petitioner’s defense. In other words, Petitioner’s defense
theory did not aim to prove that Godoy fed the name Chachi
to Woods during their September 8, 1992 meeting, in
comparison to the defense theories of Petitioner’s co-
defendants who were explicitly named by Woods in his
September 8, 1992 statement and wanted to prove that Godoy
fed their names to Woods on that date. Minnitt, 55 P.3d at
778.

    While Stuehringer no doubt at times pointed out that it
was suspect for Godoy to engage in untaped communications
with Woods on September 8, 1992, Stuehringer actually
wanted the jury to believe Woods’ September 8, 1992
representation that a Chachi – Martin Garza – had committed
the El Grande murders with McCrimmon and Minnitt as part
                       FONG V. RYAN                        39

of Petitioner’s mistaken identity defense. As a result,
Stuehringer purposefully did not present the jury with any
argument that Godoy was motivated to feed the name
“Chachi” to Woods on that date. Indeed, when testifying
about his defense strategy during two different state PCR
court evidentiary hearings, Stuehringer expressly stated that
he aimed to have the jury believe Woods’ September 8, 1992
representation that a Chachi committed the crimes.

    Stuehringer’s opening statement comports with his
articulation of the defense strategy made during the state PCR
court evidentiary hearings. As reflected in that opening
statement, Petitioner’s mistaken identity defense focused on
Godoy feeding Woods additional information connecting
Chachi to Petitioner after Godoy met with Woods on
September 8, 1992, information – that McCrimmon and
Minnitt referred to Chachi as “Martin” and “Betty
Christopher’s boyfriend” and that Woods could now identify
Petitioner as Chachi – which Woods only included in his later
November 20, 1992 statement. For example, during opening
statement, Stuehringer began by presenting to the jury as
worthy of belief Woods’ initial September 8, 1992 statement
to Godoy. In particular, he highlighted that on that date
Woods told Godoy that he had never met Chachi, did not
know who he was, and understood Chachi to have been
masked during the triple homicide. Stuehringer also omitted
that Woods referred to Chachi as a market employee on that
date, the primary fact in Woods’ September 8, 1992 statement
undermining Petitioner’s mistaken identity defense.
Stuehringer went on to tell the jury that after September 8,
1992, Detective Godoy affirmatively misrepresented under
oath during a juvenile court transfer hearing that Woods told
him that: Petitioner had also confessed to the crime;
40                     FONG V. RYAN

Petitioner was in possession of the murder weapon; and
Chachi was Petitioner.

     Because Godoy had gone “out on a limb” when testifying
in juvenile court, Stuehringer told the jury that Godoy had a
clear motive to feed Woods additional information that more
explicitly connected Chachi to Petitioner when Godoy and
Woods met again on November 20, 1992. Stuehringer
informed the jury that it would have to decide how “credible”
Keith Woods’ “second version” of events as reflected in his
November 20, 1992 statement was when compared to his
initial September 8, 1992 statement. In other words,
Stuehringer attempted to characterize Woods’ two primary
statements to Godoy as distinct and irreconcilable, rather than
cohesive iterations of a single story about McCrimmon and
Minnitt’s joint confession to Woods on the day he was
released from prison. Stuehringer then argued to the jury that
the real Chachi in this case would prove to be Martin Garza.

    Indeed, defense counsel’s decision to call Woods as a
witness at all – when he otherwise would not have testified on
behalf of the state – was based on this defense theory that
Woods’ September 8, 1992 statement was exculpatory as to
Petitioner because that statement did not expressly name or
directly identify Petitioner as a perpetrator and provided an
opportunity to argue that Martin Garza, McCrimmon’s close
friend who was undisputedly nicknamed Chachi, actually
committed the crimes with McCrimmon and Minnitt. For
that reason, Stuehringer (unsuccessfully) moved in limine to
preclude the admission of Woods’ November 20, 1992
statement, which Stuehringer asserted raised confrontation
clause problems because it included the alleged confessions
of Fong’s co-defendants in a manner that more directly
implicated Petitioner, but simultaneously sought to have
                           FONG V. RYAN                               41

Woods’ September 8, 1992 statement admitted in support of
Petitioner’s mistaken identity defense.

    Defense counsel’s decision to utilize Woods’ September
8, 1992 statement to pursue a mistaken identity defense may
have been imperfect, considering that statement also included
reference to Chachi being a market employee when Martin
Garza undisputedly had never worked at the El Grande
Market. But, imperfections in the defense theory8 do not
otherwise render the original source of the name Chachi
material to Petitioner’s innocence claim under Napue.

    Instead, as the state PCR court realized, any testimony
from Godoy that he obtained the name “Chachi” prior to his
meeting with Woods on September 8, 1992, would have
undermined rather than benefitted Petitioner’s mistaken
identity defense because that defense required Stuehringer to
minimize any connections between Petitioner and a so-called
Chachi. Godoy’s investigative reports,9 which showed that
he had the name “Chachi” prior to meeting with Woods on
September 8, 1992, also problematically linked the name
“Chachi” to “Martin Soto” and “Martin Fong.” Because of
those connections, Stuehringer testified during the state PCR
court evidentiary hearings that he sought to prevent Godoy
from testifying to any of this information, resulting in
Stuehringer’s objections when Peasley began to question

     8
     The Court addresses below the merits of Petitioner’s ineffective
assistance of counsel claim based on Stuehringer’s decision to call Woods
as a defense witness.
 9
   The Court addresses Fong’s Brady claim premised on the alleged non-
disclosure of Godoy’s September 9, 1992 investigative report in the
concurrently filed memorandum disposition. The state undisputedly
disclosed Godoy’s September 15, 1992 investigative report to Petitioner.
42                      FONG V. RYAN

Godoy about information obtained from Sergeant Zimmerling
and other sources. In contrast to Godoy’s investigative
reports, Keith Woods’ initial statement to Godoy on
September 8, 1992, did not so directly tie Chachi to
Petitioner. Indeed, Woods’ initial statement referred to
Chachi wearing a mask, undermining the state theory that
Chachi knew the store employees as a former employee
himself and exploited their recognition of him to enter the
store. Further, Woods testified that McCrimmon told him
that Chachi lived on the street where Martin Garza lived.
Based on these statements by Woods, the state PCR court
reasonably concluded that Petitioner’s mistaken identity
defense was bolstered by having the jury believe Woods’
September 8, 1992 statement that McCrimmon and Minnitt
had confessed to committing the crime with a masked Chachi.

    Petitioner’s characterization of his trial defense theory
during his postconviction proceedings and before this Court
is somewhat revisionist because he now claims that his
defense theory was premised on Godoy feeding Woods the
name Chachi during their September 8, 1992 meeting and
fabricating that a Chachi was ever involved in the murders,
making his defense theory more like that of his co-
defendants. Understandably, Petitioner wants to draw
parallels to the trials of his co-defendants because Godoy and
Peasley were found to have committed misconduct in those
cases.

    But his recharacterization not only contradicts the trial
transcripts in this matter and Stuehringer’s articulation of the
defense strategy during the state PCR evidentiary hearings,
but it also fails to account for the key difference in
Petitioner’s case as compared to the prosecutions of his co-
defendants. Again, the state undisputedly was not going to
                           FONG V. RYAN                              43

call Woods as a witness or present his September 8, 1992 and
November 20, 1992 statements as evidence during
Petitioner’s prosecution. Unlike his co-defendants, Petitioner
never would have had to neutralize or otherwise attack
Woods’ September 8, 1992 statement in order to establish his
innocence at trial. If Petitioner did not want the jury to hear
and believe that Woods had been told by McCrimmon and
Minnitt that they committed the crimes with a Chachi,
Petitioner had the option of not calling Woods as a witness
and introducing a suspected Chachi into the proceedings.
Petitioner offers no plausible explanation for why he would
have chosen to call Woods as a defense witness if he only
meant to demonstrate that Woods’ September 8, 1992
statement was false in its entirety and that Godoy fed Woods
all of the information about a Chachi on that date.

     As a result, the state PCR court was reasonable in
concluding that neither Godoy’s direct nor cross-examination
testimony gave a material false impression of the evidence in
light of the mistaken identity defense that Petitioner advanced
at trial, which hinged on the jury believing Woods’
initial account that a masked individual nicknamed
Chachi, i.e., Martin Garza, had committed the crimes
with Minnitt and McCrimmon.10 This Court’s conclusion




  10
     The substance of Petitioner’s Napue argument focuses on whether
Godoy’s testimony was false or misleading because it gave an impression
that Woods was the initial source of Godoy’s suspicion of Petitioner
specifically, hence Petitioner’s focus on what information Godoy had
implicating Petitioner prior to September 8, 1992, and whether Peasley’s
redirect of Godoy sufficiently revealed that Godoy had information
implicating Petitioner in the crimes prior to Godoy’s first meeting with
Woods.
44                          FONG V. RYAN



     But Petitioner also at times generally states that Godoy’s testimony
was false and misleading because it gave the impression that Woods was
the initial source of Godoy’s suspicion of Petitioner, Minnitt, and
McCrimmon, collectively. To the extent Petitioner is arguing that
Godoy’s testimony was also materially false and misleading in Petitioner’s
case because it failed to communicate that Godoy likewise suspected
Minnitt and McCrimmon prior to meeting Woods on September 8, 1992,
the Court rejects this argument.

     Again, as the state PCR court found, Godoy never affirmatively
testified that he did not have the names of these three individuals prior to
his meeting with Woods, in contrast to his testimony during Minnitt’s and
McCrimmon’s trials. The undisputed factual record also shows that
Godoy’s September 8, 1992 contact with Woods was the first date on
which Godoy spoke with someone who communicated specific details
about McCrimmon’s, Minnitt’s, and Chachi’s alleged roles in the El
Grande murders.

     But, more significantly, the initial source of Godoy’s suspicion of
Minnitt and McCrimmon was not material to Petitioner’s defense in the
same way that the initial source of the name Chachi was not material to
Petitioner’s defense. As part of his mistaken identity defense, Petitioner
wanted the jury to believe that Minnitt and McCrimmon had committed
the El Grande murders with Martin Garza. As a result, Petitioner was not
motivated to ensure that the jury understood that Godoy had those two
suspect names prior to his meeting with Woods because Petitioner never
intended to argue that Godoy fed those names to Woods or that
McCrimmon and Minnitt were innocent. Instead, Petitioner wanted the
jury to believe those portions of Woods’ September 8, 1992 statement that
implicated Minnitt and McCrimmon, as well as those portions that
implicated a masked Chachi. See, e.g., Dist. Ct. Docket No. 144-3, Exh.
W at 49 (Stuehringer’s testimony at state PCR evidentiary hearing that he
wanted the jury to “believe somebody by the name of ChaChi with a mask
came into the store, together with McCrimmon and Minnitt, and
perpetrated the killings.”) (emphasis added).

     In light of Petitioner’s defense at trial and because Godoy never
affirmatively testified that he did not have Minnitt’s and McCrimmon’s
names before his contact with Woods, the prosecutor likewise would have
                             FONG V. RYAN                                  45

does not mean to suggest that a criminal defendant’s chosen
defense theory can nullify what might otherwise be a false
impression of the evidence caused by a state witness and left
uncorrected by the prosecution. As Petitioner correctly points
out, the state has a constitutional duty to correct false
testimony given by its witnesses, even when the defense
knows the testimony was false but does nothing to point out
such falsity to the jury or judge. See, e.g., United States v.
LaPage, 231 F.3d 488, 492 (9th Cir. 2000) (“[T]he
government’s duty to correct perjury by its witnesses is not
discharged merely because defense counsel knows, and the
jury may figure out, that the testimony was false.”).

    However, on the facts of this case and under the
AEDPA’s deferential review, Petitioner fails to show that the
state PCR court’s rejection of his Napue claim involved an
unreasonable application of controlling federal law.11 Again,



had no obligation to clarify further to the jury that McCrimmon and
Minnitt were already suspects when Godoy spoke with Woods on
September 8, 1992.
 11
    For the first time in his reply brief, Petitioner argues that the state PCR
court’s false impression analysis was not just unreasonable under Alcorta
but that it was also contrary to Alcorta and Napue. While the state PCR
court correctly recited federal law under Alcorta, it admittedly went on to
discuss State v. Orantez, 902 P.2d 824 (Ariz. 1995), at some length when
addressing Petitioner’s false impression argument. As Petitioner points
out, the state PCR court’s discussion of Orantez appears inconsistent with
federal law by suggesting that the onus is on defense counsel to expose
false or misleading testimony. As this Court has stated, “It is ‘irrelevant’
whether the defense knew about the false testimony and failed to object
or cross-examine the witness, because defendants ‘c[an]not waive the
freestanding ethical and constitutional obligation of the prosecutor as a
representative of the government to protect the integrity of the court and
46                          FONG V. RYAN

Godoy never affirmatively testified that he first obtained the
name “Chachi” from Woods. But even putting that fact aside,
the original source of that nickname was not independently
significant to or probative of Petitioner’s guilt or innocence
outside the context of Petitioner’s defense strategy. And, in
light of the testimonial evidence presented at trial, Petitioner
also has not shown that the state PCR court engaged in an
unreasonable determination of the facts when it concluded
that the jury had otherwise been apprised that Godoy
suspected Petitioner, if not a Chachi, prior to Godoy’s
September 8, 1992 contact with Woods. The record reflects
that the prosecution presented the jury with evidence that
Godoy began to suspect Petitioner after he spoke with
Sergeant Zimmerling on August 31, 1992, and shortly
thereafter learned from the Gees that Petitioner was a former


the criminal justice system.’” Sivak v. Hardison, 658 F.3d 898, 909 (9th
Cir. 2011) (alternation in original) (citation omitted); LaPage, 231 F.3d at
492.

      But, despite the state PCR court’s misplaced citation to Orantez, it
nonetheless properly relayed federal law under Alcorta, and its denial of
Petitioner’s false impression claim, as discussed above, still squares with
a reasonable interpretation of Alcorta and Napue. In other words, the state
PCR court did not deny Petitioner’s false impression claim simply because
Stuehringer could have but failed to object to Godoy’s purportedly
misleading testimony while the prosecutor idly sat by. Instead, it noted
that the prosecution, after defense counsel elicited some of the purportedly
problematic testimony, actually tried to and did get information to the jury
that Godoy suspected Petitioner before Godoy first met with Woods. The
state court also recognized that defense counsel affirmatively aimed to
preclude trial testimony identifying Petitioner as Chachi or a murder
suspect prior to September 8, 1992, because, in defense counsel’s opinion,
those facts undermined the mistaken identity defense. Again, the state
court’s decision reasonably recognized that the materiality of the source
of the name “Chachi” could not be considered in a vacuum, but had to be
evaluated in the context of Petitioner’s defense at trial.
                       FONG V. RYAN                         47

market employee, prior to Godoy’s September 8, 1992
contact with Woods. As a result, Godoy’s testimony did not
create a material false impression that Woods was the initial
source of Godoy’s suspicion of Fong or a former market
employee.

    Before the state PCR court, Petitioner also cited two
statements Peasley made in closing argument at trial to
support his position that the prosecutor, Peasley, went on to
argue Godoy’s allegedly false testimony to the jury. Having
found Godoy’s testimony not to be false or materially
misleading, the state PCR court did not proceed to address
expressly Peasley’s closing remarks. However, because
Petitioner recites those remarks on appeal, we here conclude
that Peasley’s comments in closing also do not render the
state court’s decision denying his Napue claim unreasonable.

    First, Peasley repeated in closing argument that the
Tucson police did not suspect Petitioner or his co-defendants
from June 24, 1992, until late August 1992, and stated
directly after that that “[t]he first time that Detective Godoy
is able to sit down and talk with anybody who gives him
direct information about what happened is that contact on
September 8th with Keith Woods.” But again, this remark
does not state affirmatively that Godoy failed to suspect
Petitioner as a former market employee until he spoke with
Woods. This comment also has to be considered in the
context of the evidence that the state PCR court reasonably
found to have been presented to the jury, i.e., that the jury
was informed that Petitioner became a suspect on or about
August 31, 1992, due in large part to Peasley’s redirect
examination of Godoy. And again, Petitioner does not
dispute that the first individual to provide Godoy with details
48                     FONG V. RYAN

about a Chachi’s alleged role in the El Grande murders was
Woods.

    Second, Petitioner cites Peasley’s statement in closing
that Keith Woods told Godoy that “Martin” was “a guy who
used to work there, the boyfriend of Betty Christopher” and
that Godoy got this information from Woods “beginning on
September 8th, up through basically November 20th when he
talks to the detective again. . . .” However, this statement
primarily summarizes the content of Woods’ trial testimony
and memorialized statements. Such a summary does not
suggest Godoy failed to suspect Petitioner until he spoke with
Woods. By this closing remark, Peasley also neither
explicitly nor implicitly claimed to be summarizing all the
evidence in the case implicating Petitioner in the triple
homicide, such that the jury might infer from Peasley’s
comment that Woods’ September 8, 1992 statement to Godoy
was the first piece of evidence obtained by the state tending
to show that Petitioner might have been involved in the triple
homicide.

     The remaining arguments Petitioner presses on appeal
related to his Napue claim likewise do not entitle him to any
relief. For example, he argues that the state PCR court was
unreasonable in hinging its decision on the fact that Godoy
had not admitted to committing perjury during Petitioner’s
trial. However, Petitioner mischaracterizes the state’s
decision. Instead, the state PCR court noted that Petitioner
had claimed that Godoy admitted to perjuring himself in State
v. Soto-Fong, but Petitioner provided no evidence showing
that Godoy had made such admissions. The state PCR court
still went on to undertake its own analysis of whether Godoy
perjured himself, as discussed at length above, and reasonably
                       FONG V. RYAN                         49

concluded that he had not provided false testimony during
Petitioner’s trial.

    Petitioner also argues that the state court was
unreasonable because it hinged its decision on the fact that no
judicial or administrative decision found Godoy to have
perjured himself in State v. Soto-Fong. Here again, Petitioner
misinterprets the state PCR court’s decision. The state court
only made that point because Petitioner asserted that Godoy
had admitted to committing perjury in Petitioner’s trial. The
state court still independently analyzed the merits of
Petitioner’s perjury and false impression arguments and did
not deny them solely because no other court had ruled on
them.

     Petitioner also has not shown that the state PCR court’s
decision is unreasonable because the Arizona Supreme Court
has since found that Godoy and Peasley engaged in
misconduct during the later trials of his co-defendants. As
addressed previously, the testimony Godoy gave and the
arguments Peasley made during Petitioner’s trial are
materially distinguishable from Godoy’s and Peasley’s
conduct during the trials of Petitioner’s co-defendants.
Again, in those later trials, Peasley represented and Godoy
affirmatively testified that the police had not obtained the
names of McCrimmon, Minnitt, or Petitioner as possible
suspects in the triple homicide until Godoy spoke with
Woods on September 8, 1992. They also represented that
Godoy did not suspect a former employee in the murders and
did not contact the Gee family about a former employee until
Godoy spoke with Woods. Minnitt, 55 P.3d at 778; In Re
Peasley, 90 P.3d at 767–68. As evaluated in detail above, the
trial record in Petitioner’s case shows that these same
misrepresentations were not made to the jury during
50                          FONG V. RYAN

Petitioner’s trial. And the partial transcripts Petitioner
supplies of Godoy’s and Peasley’s testimony given during
hearings related to their misconduct in the later trials of
Petitioner’s co-defendants do not undermine such a
conclusion, contrary to Petitioner’s suggestion. The cited
transcripts do not demonstrate that Peasley and Godoy
admitted to misconduct in Petitioner’s trial, as asserted by
Petitioner, but instead show how Godoy’s testimony and
Peasley’s arguments morphed from accurate information in
Petitioner’s trial to affirmative misrepresentations during the
trials of his co-defendants.12, 13

 12
    Petitioner also argues that the state PCR court’s rejection of his Napue
claim was unreasonable because Woods has now admitted, as reflected in
a 2005 affidavit, that Godoy and Peasley fed him information and told him
what to say during Petitioner’s trial. By making this argument, Petitioner
attempts to incorporate his uncertified claim that the state fabricated
Woods’ trial testimony into this distinct, though related, certified issue
respecting Godoy’s trial testimony. However, the Court separately
addresses and rejects Petitioner’s testimonial fabrication claim in the
concurrently filed memorandum disposition and will not repeat its
reasoning here. The Court also separately addresses and rejects in the
concurrently filed memorandum disposition Petitioner’s claim that Peasley
improperly vouched for Godoy during closing argument, though Petitioner
likewise refers to Peasley’s alleged improper vouching when arguing this
certified Napue claim.
  13
     Petitioner contends that the district court erred in denying him an
evidentiary hearing on his Napue claim under Pinholster, 131 S. Ct. at
1398 (holding that reasonableness review under the AEDPA is limited to
the record before the state PCR court that adjudicated the claim on the
merits), because he has otherwise shown that the state court’s merits
decision was unreasonable under 28 U.S.C. §§ 2254(d)(1) and (d)(2).
Because we reject his reasonableness challenges to the state PCR court’s
legal analysis and fact-finding, we affirm the district court’s denial of an
evidentiary hearing on whether the prosecution knowingly presented false
testimony to the jury through Detective Godoy. Notwithstanding
Pinholster’s limitations on evidentiary development in federal court,
                          FONG V. RYAN                              51

     In denying Petitioner relief on his prosecutorial
misconduct claim, the Court sympathizes with Petitioner’s
understandable concern that the same egregious misconduct
perpetrated by Peasley and Godoy during the prosecutions of
Petitioner’s co-defendants must have infected his earlier trial.
However, in light of the deference owed state court decisions
under the AEDPA and upon a thorough consideration of the
trial record in Petitioner’s case, the Court cannot conclude
that the state PCR court’s decision denying Petitioner relief
on this claim was “so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility for fairminded disagreement.”
Richter, 131 S. Ct. at 786–87

    B. Alleged Ineffective Assistance of Counsel

    Fong’s ineffective assistance of counsel claim is governed
by the two-part standard articulated by the Supreme Court in
Strickland v. Washington, 466 U.S. 668 (1984). Under this
clearly established federal law, “a [petitioner] must show both
deficient performance and prejudice.”              Knowles v.
Mirzayance, 556 U.S. 111, 122 (2009). In evaluating whether
an attorney’s performance was deficient, “courts must
‘indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance’
and make every effort ‘to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the conduct
from counsel’s perspective at the time.’” Hibbler v.
Benedetti, 693 F.3d 1140, 1149 (9th Cir. 2012) (quoting
Strickland, 466 U.S. at 689). To establish prejudice,
Petitioner “must show that there is a reasonable probability


Petitioner provides no further persuasive explanation for why he should
be entitled to evidentiary development in federal court on this claim.
52                         FONG V. RYAN

that, but for counsel’s unprofessional errors, the result of the
proceeding would have been different.” Strickland, 466 U.S.
at 694.

    Moreover, under the AEDPA, this Court asks “not
‘whether counsel’s actions were reasonable’ but ‘whether
there is any reasonable argument that counsel satisfied
Strickland’s deferential standard.’” Hibbler, 693 F.3d at
1150 (quoting Richter, 131 S. Ct. at 788). In other words, “a
‘doubly deferential review’ applies to Strickland claims
rejected by the state court.” Id. (quoting Mirzayance,
556 U.S. at 123); see also Richter, 131 S. Ct. at 786 (“It bears
repeating that even a strong case for relief [under Strickland]
does not mean the state court’s contrary conclusion was
unreasonable.”); id. at 786–87.

    Petitioner argues that his defense attorney violated well-
established professional norms by calling the state’s
informant, Keith Woods, as a defense witness to pursue a
tenuous mistaken identity defense when the prosecution
undisputedly did not plan to have Woods testify during its
case-in-chief because of concerns under Bruton. He contends
that Woods’ testimony was prejudicial under Strickland
because it allowed for the admission of McCrimmon’s and
Minnitt’s alleged confessions to committing the El Grande
murders with a Chachi, an individual whose identity was also
linked to Petitioner by Woods’ testimony. Fong asserts that
the state PCR court’s rejection of his ineffective assistance of
counsel claim constitutes both an unreasonable determination
of the facts and an unreasonable application of Strickland.14



  14
     Though Petitioner also refers to the state PCR court’s denial of his
claim as “contrary to” federal law in a heading, he fails to develop such
                            FONG V. RYAN                              53

    The relevant portion of the last reasoned state court
decision denying Petitioner relief on this claim bears
repeating in full:

               Defense counsel’s reasoned trial strategy
          was to use Keith Woods’ original statement of
          September 9, 1992 [sic]15 to implicate the
          person referred to as “Cha-Chi” and direct the
          jury’s attention to this person and away from
          the defendant and particularly away from the
          fingerprint evidence implicating the
          defendant. This was a particularly plausible
          theory as the Petitioner/defendant’s attorney
          not only provided evidence of a plausible
          identity for this third person in Martin Garza
          who has the nickname ChaChi and was a
          friend of one of the co-defendants and lived in
          a referenced neighborhood. This was a
          critical part of the defense strategy. The
          “Cha-Chi” described by Keith Woods wore a
          mask. The state claimed the defendant was
          able to gain after-hours access to the market
          because he was known by Mr. Gee. The two
          points are not reconcilable. If the perpetrator
          needed to reveal himself to gain access he
          would not wear a mask. The use of a mask
          implies “Cha-Chi” was not Martin Soto-Fong,
          from which the jury may infer Martin Soto-
          Fong was not a participant in the crimes.


an argument. And the state court correctly recited Strickland’s standard
when denying all of Petitioner’s ineffective assistance of counsel claims.
 15
      The date should undisputedly read September 8, 1992.
54                        FONG V. RYAN

        Keith Woods was critical to the defense’s
        theory of the case. This was a calculated and
        reasoned trial strategy by an experienced
        criminal defense attorney.16

    Consistent with the state PCR court’s articulation of the
defense theory, Stuehringer provided testimony at two
different state PCR evidentiary hearings in which he
represented that he chose to call Keith Woods in order to
diffuse the fingerprint evidence implicating Petitioner and to
create reasonable doubt about the identity of the third
perpetrator who committed the crimes with McCrimmon and
Minnitt based on Woods’ September 8, 1992 identification of
a masked Chachi. In particular, Stuehringer testified that
Woods’ identification of a masked Chachi as a perpetrator
allowed him to undermine the state theory that Petitioner
exploited the store employees’ recognition of him to gain
entry into the market and also allowed him to point the finger
at Martin Garza, McCrimmon’s friend who, unlike Petitioner,
undisputedly went by the nickname Chachi. In addition,
Stuehringer claimed to have discussed with Petitioner

  16
     On direct review, the Arizona Supreme Court also made note of
Stuehringer’s “tactical” decision to call Woods, stating the following:

        Nor will we second-guess trial counsel’s tactical
        decision to introduce evidence that the murderer was
        Cha-Chi, even at the expense of opening the door to
        Woods’ later statements. Fingerprint evidence and
        other testimony connected defendant to the crime. It is
        understandable that defense counsel would want to
        raise the issue of whether Cha-Chi, a person other than
        Fong, committed the murders, even at the expense of
        other evidence indicating that “Cha-Chi” was Fong.

Soto-Fong, 928 P.2d at 618.
                        FONG V. RYAN                          55

whether to call Woods as a witness and testified that he
sought guidance from other peer attorneys about whether to
utilize Woods for a mistaken identity defense.

     On appeal, Petitioner urges that the state PCR court was
unreasonable in treating as a “calculated and reasoned trial
strategy” Stuehringer’s decision to call Woods as a witness
and utilize his September 8, 1992 statement in pursuit of a
mistaken identify defense for a number of reasons. In
particular, he points out that: 1) Woods’ September 8, 1992
statement already referred to Chachi as a market employee –
a fact implicating Petitioner rather than Martin Garza;
2) Stuehringer also had learned in a pretrial March 4, 1993
interview of Woods that he was not certain and had only
assumed Chachi wore a mask during the homicides despite
his comment to that effect in his September 8, 1992
statement; 3) Stuehringer was on notice that Woods’ later
November 20, 1992 statement, with additional information
linking Petitioner to Chachi, would no doubt be introduced at
trial after the trial court denied Stuehringer’s motion in limine
to preclude the introduction of that statement; and
4) Stuehringer could have introduced the name “Chachi”
through Godoy’s testimony without calling Woods as a
witness in order to pursue a mistaken identity defense.
Petitioner also asserts that Stuehringer did not act reasonably
by ignoring significant forensic evidence – Petitioner’s
fingerprints at the scene – in order to pursue a tenuous
mistaken identity defense.

    None of Petitioner’s arguments demonstrates that the state
PCR court engaged in an unreasonable application of
Strickland or made an unreasonable determination of the facts
in denying his ineffective assistance of counsel claim.
Richter, 131 S. Ct. at 786–87 (state court ruling must be “so
56                      FONG V. RYAN

lacking in justification that there was an error well understood
and comprehended in existing law beyond any possibility for
fairminded disagreement”). First, Petitioner correctly points
out that Woods’ September 8, 1992 statement did refer to
Chachi being an El Grande Market employee, undermining
the argument that Martin Garza, who undisputedly never
worked at the market, was the Chachi who had committed the
murders. However, as the state PCR court emphasized,
Woods’ September 8, 1992 statement also referred to Chachi
being “masked down or whatever” when he committed the
crimes. As the state PCR court recognized and as Stuehringer
testified during the state PCR evidentiary hearing, Chachi’s
use of a mask to hide his face during the robbery was
inconsistent with the state’s theory of the case that Petitioner
exploited the store employees’ recognition of him as a former
employee to gain entrance to the El Grande Market, thus
casting doubt on whether Chachi was in fact Petitioner or a
former employee.

    Moreover, Stuehringer had obtained from Woods during
a March 4, 1993 pretrial interview his statement that
McCrimmon told him that Chachi lived behind a Circle K off
of a street called Prince – Martin Garza’s approximate
address at the time of the El Grande homicides and what the
state PCR court referred to as the “referenced neighborhood.”
The state court was reasonable in concluding that this
address, along with the reference to Chachi being masked,
provided Stuehringer with a significant opportunity to point
the finger at Martin Garza – an undisputed friend of
McCrimmon’s who, unlike Petitioner as argued by the
defense, went by the nickname Chachi – and to undermine
indirectly and implicitly Woods’ representation on September
8, 1992, that Chachi also was a former market employee.
                        FONG V. RYAN                         57

    Petitioner also accurately points out that, after making his
September 8, 1992 statement, Woods equivocated on whether
Chachi wore a mask. During a March 4, 1993 pretrial
interview, Woods told Stuehringer that he just assumed that
Chachi wore a mask and was not told that by McCrimmon or
Minnitt. Because of this equivocation, Petitioner argues that
Stuehringer and the state PCR court placed too much
emphasis on Woods’ initial September 8, 1992 statement that
Chachi was masked when justifying Stuehringer’s decision to
use Woods’ testimony at trial in support of a mistaken
identity defense.

    Stuehringer nonetheless was able to elicit the following
testimony from Woods during trial:

       Stuehringer:    Do you recall telling Detective
                       Godoy that McCrimmon and
                       Minnitt told you Chachi had
                       on a mask when he went into
                       the market?

       Woods:          Yeah.

       Stuehringer:    Thank you, sir. Now, you did
                       your best that day to be
                       truthful with Detective
                       Godoy?

       Woods:      Yes.

On cross-examination, Peasley admittedly went on to elicit
from Woods that he said Chachi was “masked down or
whatever” because he assumed Chachi was wearing a mask
but was not sure of that fact. But, on redirect examination,
58                     FONG V. RYAN

Stuehringer elicited from Woods that he never told Godoy
that his comment that Chachi was “masked down or
whatever” was just an assumption and not information
directly obtained from McCrimmon and Minnitt.

    Based on this trial testimony, Petitioner has not shown
that the state PCR court engaged in unreasonable fact-finding
in concluding that Woods described Chachi as wearing a
mask. See McClure v. Thompson, 323 F.3d 1233, 1243–44
(9th Cir. 2003) (holding that state court findings of fact are
entitled to deference even though evidence may cast doubt on
findings such that federal court would have made different
findings of fact). Woods indeed made such a statement on
September 8, 1992, even if he later equivocated on that point.
And Stuehringer attempted to undermine Woods’
equivocation on redirect examination by pointing out that
Woods never told Godoy that he was not sure if Chachi
actually wore a mask. Moreover, even if Woods later
equivocated about whether Chachi wore a mask, that Woods
ever referred to Chachi as masked still provided Stuehringer
with an opportunity to cast doubt on the state’s theory of the
case that Petitioner was Chachi and exploited the store
employees’ recognition of him as a former employee to enter
the El Grande Market, especially considering Stuehringer
presented additional evidence that Petitioner was not known
by the nickname “Chachi” and that Martin Garza had such a
nickname, lived on a referenced street identified by Woods,
and was close friends with McCrimmon. Richter, 131 S. Ct.
at 786 (“It bears repeating that even a strong case for relief
[under Strickland] does not mean the state court's contrary
conclusion was unreasonable.”).

   Petitioner also urges that the state PCR court was
unreasonable in condoning Stuehringer’s decision to call
                            FONG V. RYAN                               59

Woods as a defense witness after Stuehringer lost a motion in
limine seeking to prevent Woods from testifying to the
contents of his November 20, 1992 statement which included
additional details linking Chachi to Petitioner. But the state
PCR court concluded that, “Keith Woods was critical to the
defense’s theory of the case.” That conclusion implies that
the state PCR court found reasonable Stuehringer’s
determination that the benefits of calling Woods to testify
outweighed the negatives associated with the introduction of
his November 20, 1992 statement. See, e.g., Brown v.
Ornoski, 503 F.3d 1006, 1013 (9th Cir. 2007) (“Although
[defense counsel’s] decision to put [a witness] on the stand
came with some risks, it came with benefits to [the defendant]
as well. . . . [that] were available only if [the witness] were
called.”).

    Based on the record before this Court, Woods was the
only source of information that McCrimmon and Minnitt
confessed to committing the homicides with a Chachi whom
Woods had never met, that Chachi wore a mask, and that
McCrimmon had identified Chachi as living on the street
where Martin Garza testified to living. Petitioner has not
shown that the state PCR court was unreasonable in
concluding that the value of this testimony to Petitioner’s
mistaken identity defense outweighed the dangers of calling
Woods to testify even if Woods might testify to further
information implicating Petitioner in the triple homicide,
especially considering that, as discussed below, significant
fingerprint evidence already connected Petitioner to the
crimes.17


 17
   Petitioner cites a number of out-of-circuit cases that he says show that
counsel is ineffective when he or she opens the door to otherwise
inadmissible evidence. See, e.g., Ward v. United States, 995 F.2d 1317,
60                          FONG V. RYAN

    Indeed, Stuehringer testified during state PCR evidentiary
hearings that he decided to go ahead and call Woods as a
witness even after the trial court ruled that Woods’ November
20, 1992 statement would be admissible at trial because the
inconsistencies between Woods’ two statements provided
Stuehringer with an opportunity to “dirty up” Godoy and
suggest that Godoy was feeding information to Woods after
September 8, 1992, to further implicate Petitioner, a course of
action by Stuehringer consistent with the related defense


1322 (6th Cir. 1993); United States v. Villalpando, 259 F.3d 934, 939 (8th
Cir. 2001); Goodman v. Bertrand, 467 F.3d 1022, 1029–31 (6th Cir.
2006); White v. Thaler, 610 F.3d 890, 899–900 (5th Cir. 2010). However,
those cases – two of which are direct review cases – either involve
scenarios in which the attorney’s initial decision which opened the door
to otherwise inadmissible, inculpatory evidence was deemed not sound
strategy (sometimes because the attorney actually admitted he or she had
no strategy in pursuing a particular course of action) or involve
circumstances where an attorney’s performance comprised a catalog of
errors which together resulted in prejudice to the defendant. In contrast,
here, the state PCR court was reasonable in concluding that Stuehringer’s
initial decision to pursue a mistaken identity defense using Woods was
reasonably strategic, despite some of the negative consequences which
ensued, especially because fingerprint evidence already linked Petitioner
to the crime and because Stuehringer was otherwise able to challenge the
veracity of Woods’ later, more inculpatory statements linking Petitioner
to Chachi, as addressed infra. Cf. Edwards v. Lamarque, 475 F.3d 1121,
1127–29 (9th Cir. 2007) (en banc) (state court decision finding counsel’s
conduct objectively reasonable owed deference where counsel asked
defendant to explain his suspicious behavior testified to by his wife even
though such risky questioning resulted in waiver of marital privilege and
wife’s further testimony about defendant’s inculpatory statements to her
about murder, especially considering state otherwise had strong case
against defendant). In addition, none of the cases Petitioner cites involves
the Supreme Court’s elucidation of Strickland. Andrade, 538 U.S. at
71–72 (“‘[C]learly established Federal law’ under § 2254(d)(1) is the
governing legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.” (citation omitted)).
                       FONG V. RYAN                         61

strategy (as reflected in the trial record) of casting Godoy as
an overzealous detective who repeatedly misrepresented and
mishandled evidence in Petitioner’s case.

    Petitioner agrees that the inconsistencies between Woods’
two primary statements strongly show that Godoy fed Woods
information on November 20, 1992, and that Stuehringer
could have mitigated the harmfulness of calling Woods as a
defense witness if Stuehringer was able to elicit those
inconsistencies and argue them to the jury. However, he
contends that Stuehringer failed on this account too. But,
while Petitioner may demonstrate that Stuehringer was far
from perfect in his exploitation of the differences between
Woods’ September 8, 1992 and November 20, 1992
statements, he overstates the case in saying that Stuehringer
wholly failed to argue such differences to the jury.
Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (“The Sixth
Amendment guarantees reasonable competence, not perfect
advocacy judged with the benefit of hindsight.”).

    For example, Stuehringer repeatedly emphasized to the
jury during opening and closing arguments that Woods only
claimed to have met Chachi and identified Chachi as
“Martin” and “Betty Christopher’s boyfriend” on November
20, 1992, after Godoy had misrepresented in a telephonic
search warrant affidavit and during a juvenile court transfer
hearing that Woods had identified Petitioner as Chachi, said
that Petitioner confessed to the murders, and said that
Petitioner had the murder weapon – information which
undisputedly was not included in Woods’ initial September
8, 1992 statement. Indeed, Stuehringer elicited from Godoy
that, after Godoy met with Woods on September 8, 1992, but
before their second meeting on November 20, 1992, Godoy
62                     FONG V. RYAN

made these misstatements in a telephonic search warrant
affidavit and during a juvenile court transfer hearing.

    Moreover, Stuehringer elicited from Woods that, some
time after Woods gave his September 8, 1992 statement to
law enforcement, Woods went into hiding in an attempt to
renege on his deal to aid in the prosecution of the El Grande
homicides until he was taken into custody on November 20,
1992, the date on which he gave his second statement to
Detective Godoy. Stuehringer also elicited from Woods that
Woods had not spoken to Minnitt or McCrimmon a second
time after Woods made his September 8, 1992 statement to
Godoy, implying that it was strange for Woods to remember
additional facts allegedly provided by Minnitt and
McCrimmon connecting Chachi to Petitioner over two
months later when Woods ostensibly should have had such
information during his initial meeting with Godoy.
Stuehringer likewise attempted to elicit from Woods, a hostile
witness, that Woods spoke with Godoy off tape on November
20, 1992, and that Woods added details to his November 20,
1992 statement and later statements to law enforcement
which were not included in his September 8, 1992 statement.

    Stuehringer further elicited from Woods that he had seen
via television or the newspaper that Petitioner had been
arrested in this case by the time Woods gave his second
November 20, 1992 statement to law enforcement in which
Woods claimed to have met Chachi at Bridget Lucero’s house
and physically identified Petitioner as Chachi. As a result,
Stuehringer implied to the jury that Petitioner’s arrest
subsequent to Woods’ first statement improperly informed
Woods’ belated identification of Petitioner as Chachi. In
other words, the trial record demonstrates that Stuehringer did
take steps to mitigate the harmful effects of Woods’
                           FONG V. RYAN                               63

November 20, 1992 statement by eliciting testimony from
Godoy and Woods suggesting that, on November 20, 1992,
Godoy had an incentive to feed incriminating information to
a receptive Woods who needed to make good on his deal to
provide law enforcement with information about the El
Grande homicides in exchange for the dismissal of the drug
charges against him.

    Petitioner further argues that the state PCR court’s
decision denying his ineffective assistance of counsel claim
was unreasonable because Stuehringer did not have to call
Woods at all to introduce a suspected Chachi into the trial
who could be tied to Martin Garza.18 In particular, Petitioner
suggests that Stuehringer could have simply asked Godoy
whether he suspected a Chachi of committing the triple
homicide, in much the same way that Peasley asked Godoy if
he obtained the name “Martin Soto” from Detective
Zimmerling on August 31, 1992. That is, Petitioner asserts
that Stuehringer could have asked Godoy about the contents
of his investigative reports in which Godoy represented
receiving the name “Chachi” from Zimmerling and a
confidential source.



 18
     As part of this argument, Petitioner asserts that Stuehringer made an
ill-informed representation to the trial court that Woods had to testify
when the trial court asked if evidence implicating Chachi could come in
through another witness. However, Petitioner misrepresents Stuehringer’s
exchange with the trial court judge. The judge did not ask Stuehringer in
a general or open-ended manner if there was any way evidence of a
Chachi could come in without putting Woods on the witness stand.
Instead, the judge specifically asked if Woods’ September 8, 1992
statement could be introduced through a witness other than Woods, and
Stuehringer said that he did not think that would be appropriate under
applicable hearsay rules.
64                      FONG V. RYAN

     In response to this argument, the district court ruled that
the prosecution likely would have successfully precluded
Godoy from testifying to the contents of his investigative
reports on hearsay grounds. However, even if a hearsay
objection to Godoy’s testimony would not have been made or
passed muster, this Court also finds it probable that the state
trial court would not have simply limited Godoy’s testimony
to whether he suspected a Chachi and prevented the
prosecution from exploring in any fashion with Godoy his
sources for that name and his suspicion of that individual.
For example, when Stuehringer argued that Woods’
testimony should be limited to his September 8, 1992
statement because of Bruton issues tied to the November 20,
1992 statement, the prosecution argued that such a limitation
was unfair because the prosecution would have been
hampered in cross-examination in its efforts to explore a full
and accurate picture of who Woods understood Chachi to be
in order to counter Petitioner’s mistaken identity defense.
The state trial court agreed.

    In a similar fashion, if Stuehringer utilized Godoy as a
defense witness and asked him whether he suspected a
Chachi based on alleged hearsay information contained in his
investigative reports, the prosecution likely would have
successfully argued that Stuehringer’s questioning opened the
door to additional information about a Chachi contained in
Godoy’s reports, so that the prosecution could present a full
and accurate picture on cross-examination about what those
sources said related to a suspected Chachi in order to counter
Petitioner’s defense. See, e.g., State v. Woratzeck, 657 P.2d
865, 867 (Ariz. 1982) (defendant’s direct examination of a
witness on topic opens door to further inquiry on topic during
cross-examination); State v. Mincey, 636 P.2d 637, 653 (Ariz.
1981), cert. denied, 455 U.S. 1003 (1982) (“Arizona follows
                       FONG V. RYAN                        65

the English or ‘wide open’ rule, wherein cross-examination
may extend to all matters covered by direct examination
. . . .” (internal citation and quotations omitted)). And that
information was harmful to Petitioner’s theory that Chachi
was someone other than Petitioner. In particular, the
undisputedly disclosed September 15, 1992 report states that
a “Suspect Number 2 was described as a Mexican male
named ‘Martin Soto’ also known as ‘Cha-Chi,’” and that
“Martin Fong” used the name “Martin Soto,” thereby linking
the name “Chachi” back to Petitioner. Similar information is
contained in Godoy’s allegedly undisclosed September 9,
1992 report, which states that “Martin Fong’s AKA was listed
as Martin Soto” and “that he also went by Cha-Chi.”

    In other words, Petitioner seemingly overstates how easy
it would have been to introduce a suspected Chachi into the
proceeding via Godoy and at the same time preclude the
prosecution from exploring any other information related to
a Chachi that might have implicated Petitioner. Instead,
Stuehringer may have had to abandon entirely a mistaken
identity defense based on Martin Garza being Chachi to
prevent any evidence linking Chachi to Petitioner from
coming in at trial.

    Moreover, whether Stuehringer could have gotten the
name Chachi introduced at trial through someone other than
Woods still does not render unreasonable the state PCR
court’s decision denying Petitioner relief on his ineffective
assistance of counsel claim. Again, the state PCR court found
that Woods was a particularly critical witness for the
mistaken identity defense because only his testimony
suggested that Chachi wore a mask and linked the Chachi
who Woods discussed with McCrimmon to the address of
Martin Garza. As the state points out on appeal, having
66                     FONG V. RYAN

Woods testify arguably showed the jurors: 1) why they
should believe a Chachi committed the crimes – because
Minnitt and McCrimmon confessed to committing the
murders with a Chachi; 2) why the jury should believe that
Chachi was not Petitioner – because Chachi wore a mask and
lived at the location McCrimmon identified to Woods as
Martin Garza’s address; and 3) why the jury should
disbelieve Godoy and mistrust Woods’ second statement to
law enforcement – because an overzealous Godoy was
incentivized to coerce a reneging Woods into adding
information incriminating Petitioner to Woods’ November
20, 1992 and later statements.

    Petitioner’s argument that Stuehringer simply ignored the
fingerprint evidence in pursuit of a mistaken identity defense
when he should have also challenged that evidence based on
the alleged sloppiness of the forensic investigation likewise
is not supported by the record before this Court. Instead, the
record reflects that Stuehringer obtained a fingerprint expert
who confirmed the state’s finding that the fingerprints found
at the scene were Fong’s. Nonetheless, through the cross-
examinations of Godoy and his partner, Detective Karen
Wright, Stuehringer engaged in a thorough attack of the
forensic investigation.

    For example, Stuehringer elicited testimony from
Detective Wright confirming the oddity of the crime-scene
investigators only locating Petitioner’s fingerprints at the
scene when one would expect that the store owner’s and other
store employees’ fingerprints would also be found there. She
also testified that her initial crime scene log only showed one
foodstamp found by murder victim Fred Gee and a single
plastic bag on the counter, contrary to later records showing
that two plastic bags were found on the counter and that two
                        FONG V. RYAN                         67

foodstamps were located near Mr. Gee’s body. In addition,
Stuehringer elicited from Detective Wright that she testified
at the grand jury hearing that both foodstamps found near Mr.
Gee’s body had Fong’s fingerprints on them, though evidence
admitted at trial showed only one foodstamp bore Fong’s
fingerprints. Stuehringer further elicited from her that the
Tucson Police Department deviated from its normal
evidence-storage protocols in handling the items which bore
Fong’s fingerprints.

    In a similar vein, Stuehringer questioned Godoy about his
decision initially to store the evidence in this case outside of
the normal location used by the police department for such
evidence storage. Stuerhringer was also able to elicit from
Detective Godoy a number of contradictory statements he
gave throughout the case’s prosecution about the fingerprint
evidence, including: (1) that Godoy represented in a search
warrant affidavit and during an under-oath phone call to a
judge that the foodstamp bearing Fong’s fingerprints was
found in the cash register, rather than next to Fred Gee’s body
on the floor; (2) that Godoy also misstated in the search
warrant affidavit that there was only one plastic bag on the
counter when a photograph of the scene showed two bags;
(3) that Godoy misrepresented under oath to a judge that
Fong’s fingerprints were found on the cucumber sitting on the
market’s checkout counter; (4) that Godoy incorrectly stated
during a pretrial interview that no one at the crime scene had
touched the plastic bags bearing Fong’s fingerprints or
removed the contents of those bags even though a crime-
scene photograph showed that the forensic identification
technician touched the bags and removed and dusted the
cucumber and lemons found inside them at the crime scene;
and (5) that Godoy misrepresented that the lemons found at
the scene were taken back to the Tucson Police Department
68                     FONG V. RYAN

for processing and that he saw the forensic identification
technician with them at the station when the lemons actually
were left at the crime scene.

    In other words, though Stuehringer conceded that the
fingerprints found at the scene belonged to Fong, he also took
steps to show the jury that the fingerprint evidence was
mishandled, misrepresented, and possibly even manufactured.
Indeed, during closing argument, Stuehringer extensively
argued that Godoy’s inconsistent representations about the
fingerprint evidence, as well Godoy’s and the police
department’s deviations from proper evidence handling and
storage protocols, created reasonable doubt about whether the
fingerprint evidence established Fong’s culpability for the
murders.

     In addition, Petitioner has not shown that the state PCR
court was unreasonable in condoning Stuehringer’s risky
decision to call Woods and not abandon the mistaken identity
defense altogether when weighed against the fingerprint
evidence connecting Petitioner to the crimes. While
Petitioner tries to minimize that fingerprint evidence, the
Arizona Supreme Court found it quite compelling evidence
of guilt on direct review because the placement and location
of Petitioner’s fingerprints were consistent with them being
left during the commission of the crime:

           Although defendant claims his prints
       could have been left in the store when he
       worked there several months before, this does
       not explain the presence of his prints on
       unstamped food stamps found on the floor
       next to the body of Fred Gee. Testimony
       indicated that the food stamps would have
                       FONG V. RYAN                       69

       been marked by the store on the day they were
       received. Also, the fingerprints found on the
       lemon and cucumber bags on the counter near
       Gee’s body belonged to Fong, not Garza.

            Although Fong may have touched baggies
       while working in the store months prior to the
       murders, or even while shopping in the store
       prior to the murders, it is highly unlikely that
       Fong unrolled a spool of plastic bags, placed
       his prints on a baggie, and then rolled it back
       up on the spool. Likewise, assuming Fong
       touched bags that were lying around the store,
       it is unlikely that days, weeks, or even months
       after Fong touched those two particular bags,
       the killer entered the store, found those same
       bags, and used them to carry lemons and a
       cucumber to the liquor counter where Gee
       was shot.

Soto-Fong, 928 P.2d at 623; see also Mikes v. Borg, 947 F.2d
353, 356–57 (9th Cir. 1991) (conviction based on fingerprint
evidence alone may be sustained where sufficient evidence
presented that fingerprints had to have been left on items
during commission of the crime); State v. Rodriguez,
961 P.2d 1006, 1009 (Ariz. 1998) (conviction based on
fingerprint evidence alone should be sustained where “jury
could reasonably infer that the prints could only have been
impressed when the crime was committed”). As a result, the
state PCR court was reasonable in concluding that
Stuehringer was justified in pursuing a risky mistaken
identity defense as an attempt to diffuse the fingerprint
evidence.
70                         FONG V. RYAN

    Petitioner also urges that Stuehringer’s testimony before
the state PCR court about his trial strategy is unworthy of
belief because, at the time it was given, Stuehringer was a
conflicted witness who was representing Peasley in the
various state disciplinary proceedings related to Peasley’s
misconduct during the trials of Petitioner’s co-defendants.19
But, Stuehringer’s representation of Peasley in those other
proceedings, though unusual, does not render untrustworthy
Stuehringer’s testimony during a state PCR evidentiary
hearing about his own trial performance. See Weaver v.
Palmateer, 455 F.3d 958, 964–65 (9th Cir. 2006) (implicit
credibility determinations made by state court in favor of
defense attorney’s testimony related to ineffective assistance
of counsel claim owed AEDPA deference). And, upon this
Court’s review, the trial transcripts provided by Petitioner on
appeal, including Stuehringer’s opening statement, his closing
argument, and his examinations of Woods and Godoy,
support his characterization of his trial strategy before the
state PCR court.

    Because we find reasonable the state court’s conclusion
that Fong’s counsel was not deficient in deciding to call
Woods as a witness to pursue a mistaken identity defense, we
refrain from addressing whether Fong was prejudiced by his
counsel’s performance.

    Stuehringer’s decision to call Woods as a witness in
pursuit of a mistaken identity defense was unquestionably
risky, and Stuehringer’s presentation of that defense via
Woods may not have panned out exactly how Stuehringer


  19
    Petitioner’s independent claim for relief centering on Stuehringer’s
representation of Peasley in those state disciplinary proceedings is
addressed in the concurrently filed memorandum disposition.
                        FONG V. RYAN                          71

hoped. However, giving proper deference to the state PCR
court, “and even though we might reach a different
conclusion under a different standard of review, we cannot
say that [the state court’s denial of Petitioner’s ineffective
assistance of counsel claim] was an objectively unreasonable
application of Strickland to the facts of this case,” or involved
an unreasonable determination of the facts. Edwards,
475 F.3d at 1128–29.

IV.     CONCLUSION

    We affirm the district court’s denial of Fong’s habeas
petition on the two certified issues addressed herein. The
Arizona Courts did not engage in an unreasonable
determination of the facts or an unreasonable application of
controlling federal law when denying Petitioner’s
prosecutorial misconduct claim based on Godoy’s trial
testimony or Petitioner’s ineffective assistance of counsel
claim based on Stuehringer’s decision to call Woods as a
defense witness in pursuit of a mistaken identity defense.

      AFFIRMED.



SCHROEDER, Circuit Judge, dissenting.

    This is a very troubling and confusing case. The crime
was a highly publicized triple murder-robbery in the Tucson
area. Fong was only seventeen at the time the crime was
committed. There were no eyewitnesses. The principal trial
witnesses were hardly upstanding citizens. The police
informant, Woods, had only recently been released from
prison and, absent cooperation, would have soon been back
72                    FONG V. RYAN

in prison on drug charges. The owner of the getaway car was
a known cocaine user. The prosecution had very little direct
evidence linking the three defendants, Fong, McCrimmon,
and Minnitt, to the crime. McCrimmon’s fingerprints were
on the getaway car, and Fong’s fingerprints were at the scene
of the robbery. During the trial Fong was apparently referred
to by several different names, including Chachi and Martinez,
while another person, also named Martin, may also have been
called Chachi.

    What is now clear is that in order to bolster the dubious
credibility of the informant, Woods, the prosecution
knowingly put on perjured testimony of the police
investigator, Godoy. While Godoy lied at the trials of all of
the defendants, this fact came out only after Fong’s
conviction had become final and the convictions of the other
two defendants had been reversed for juror coercion. In their
retrials, where the perjury was disclosed, McCrimmon was
acquitted, and Minnitt’s jury hung, and he was eventually
freed on double jeopardy grounds.

   Fong’s prosecutor was ultimately disbarred for the
knowing use of perjured testimony in the original trials of
Minnitt and McCrimmon. See State v. Minnitt, 55 P.3d 774
(Ariz. 2002). Fong, however, has served more than twenty
years in prison for the murders.

    The informant, Woods, provided damaging testimony in
Fong’s trial. The prosecution could not put Woods on the
stand in Fong’s trial because he would testify to the alleged
confession of McCrimmon and Minnitt, whom Fong could
not cross-examine. See Bruton v. United States, 391 U.S. 123
(1968) (holding that testimony recounting a co-defendant’s
confession violated the Confrontation Clause and due
                       FONG V. RYAN                        73

process). Fong’s own attorney called the informant as a
witness, hoping, without any legal basis whatsoever, that he
would be able to limit the testimony to identifying Minnitt,
McCrimmon, and a person named “Chachi,” and to exclude
any description of “Chachi” that would identify him as Fong.
The cherry-picking attempt failed. See State v. Soto-Fong,
928 P.2d 610, 618 (Ariz. 1996). Woods’ testimony inevitably
inculpated Fong.

    It is, of course, quite possible that Fong would have been
convicted without Woods’ testimony. But with that
testimony, there was no way that the jury could have failed to
convict Fong. His own lawyer put the nail in his coffin. In
the original appeal, the state Supreme Court opinion
emphasized that Fong put Woods on as a witness, and
disclaimed any intent to second guess the strategy. The court
said:

       Having chosen a strategy which brought into
       issue portions of McCrimmon’s and Minnitt’s
       statements to Woods, defendant cannot
       complain that the court should have precluded
       the state from introducing additional portions
       of those same statements.

Soto-Fong, 928 P.2d at 618.

    Fong raised multiple issues before the district court, but
the district court correctly identified the two most important
for certification on appeal: the knowing use of the perjured
testimony of Godoy, and the conduct of defense counsel in
calling Woods to the stand.
74                       FONG V. RYAN

    The majority accurately explains that Godoy’s false
testimony played a lesser role in Fong’s trial than it did in the
later trial of McCrimmon and Minnitt. Godoy, in order to
bolster Woods’ credibility, lied about learning for the first
time from Woods about the trio’s involvement. The lie was
less critical here than in the other trials because there was
strong evidence, apart from Woods’ statements, that Fong
was involved. There was thus less need to bolster Woods’
credibility. Godoy’s testimony nevertheless reinforced
Woods’ testimony and out-of-court statements that implicated
Fong and that were key to his conviction.

    It is also probable that had Fong’s attorney not put Woods
on the stand to testify about what Woods told the police, the
perjured testimony of Godoy as to the importance of Woods’
statements would have played a more important role in
Fong’s trial, and become nearly as important as Godoy’s
perjury was in the trials of McCrimmon and Minnitt, perjury
that eventually resulted in their walking free. If Fong’s
attorney had not called Woods, the jury would have been able
to assess the credibility of Woods’ statements only by
assessing the credibility of Godoy.

    Because the jury convicted Fong after a trial marked by
perjury and incompetence, I conclude that Fong did not
receive a fair trial. The district court should have granted him
habeas relief. 28 U.S.C. § 2254(d).

     I therefore respectfully dissent.
