                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 20 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



JAMES S. GARNETT,                                No. 11-35316

              Petitioner - Appellant,            D.C. CIV 2:05-01438 MJP

  v.
                                                 MEMORANDUM *
RICHARD MORGAN,

              Respondent - Appellee.



                   Appeal from the United States District Court
                      for the Western District of Washington
                 Marsha J. Pechman, Chief District Judge, Presiding

                      Argued and Submitted December 5, 2011
                               Seattle, Washington

Before:       TASHIMA, McKEOWN, and TALLMAN, Circuit Judges.

       James Garnett, a Washington state prisoner, appeals the district court’s

denial of his petition for a writ of habeas corpus. Garnett’s petition is governed by

the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254.

Garnett argues that the State violated Brady v. Maryland, 373 U.S. 83 (1963), by



          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
failing to disclose evidence that Garnett could have used to impeach a state

witness. We affirm the district court’s denial of Garnett’s petition because we

agree with the district court that the suppressed evidence was not material.

      At the request of the State, after victim Dan Diorio’s body was found,

Kristine Anderson recorded a series of conversations with Garnett’s wife

Kymberly Garnett. After the recordings were made, but before Garnett’s trial

began, prosecutors told Anderson that a private foundation had offered a $5000

reward in the case. The district court found that Anderson understood that she

needed the prosecutors’ recommendation to receive the reward, and that the

recommendation was dependent on her continued cooperation and testimony at

trial. The district court found that the prosecution did not reveal this information to

the defense.

      Garnett argues that he raised this Brady claim in his state personal restraint

petition, but that the Washington courts failed to adjudicate it on the merits. Thus,

he reasons that we should evaluate the claim de novo, Cone v. Bell, 556 U.S. 449,

129 S. Ct. 1769, 1784 (2009), and consider evidence adduced in his federal habeas

case, see Cullen v. Pinholster, 131 S. Ct. 1388, 1401 n.10 (2011); id. at 1417 n.5

(Sotomayor, J., dissenting). For its part, the State contends that the Washington

courts rejected Garnett’s Brady claim on the merits, while at the same time


                                           2
suggesting that the particular Brady claim raised here was never presented to any

Washington state court. We need not decide these procedural issues because we

conclude that even on de novo review and considering the new evidence, Garnett’s

claim is without merit.

      “There are three components of a true Brady violation: The evidence at

issue must be favorable to the accused, either because it is exculpatory, or because

it is impeaching; that evidence must have been suppressed by the State, either

willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene,

527 U.S. 263, 281-82 (1999). “[E]vidence is material only if there is a reasonable

probability that, had the evidence been disclosed to the defense, the result of the

proceeding would have been different.” United States v. Bagley, 473 U.S. 667,

682 (1985); see also Kyles v. Whitley, 514 U.S. 419, 434 (1995).

      Garnett’s Brady claim fails because there is not a reasonable probability of a

different result had the reward evidence been disclosed to the defense. At

Garnett’s trial for first-degree murder, the state called forty-nine witnesses,

including Anderson. The state presented a host of circumstantial evidence against

Garnett, including that he went to a bar with Diorio on the night of the murder, that

he had a financial motive for the murder, that Diorio’s body was found in a remote




                                           3
location with which Garnett was familiar, and that Garnett had stolen the same type

and caliber gun from a neighbor as was used in the murder.

      The state also introduced two of Anderson’s recordings. On the first

recording, one speaker described how she had disposed of bloody clothing, which

an unidentified male was wearing when he returned home. On the second

recording, one speaker stated that “James” had used a “zapper” on “Dan” because

he is a “big boy.” Neither recording identified the speakers, identified the full

names of “James” or “Dan,” or directly tied the conversations to the murder of

Diorio.

      Anderson testified that the person describing the disposal of bloody clothing

and the zapper use on the recordings was Kymberly Garnett, and that “zapper”

referred to a Taser. Anderson further testified that the conversations were about

the Diorio murder.

      The suppression of the reward evidence was not material because even if the

suppressed evidence wholly undermined Anderson’s credibility, it is not

reasonably probable that the jury would not have convicted Garnett. The defense

did not challenge Anderson’s identification of the speakers on the recordings. The

defense apparently did not attempt to argue that the recordings referred to a

different “James” or a different “Dan,” or that “zapper” meant something other


                                           4
than a Taser. Thus, it is reasonably probable that even if the jury did not believe

Anderson, the jury would still have concluded that Garnett’s wife stated on the

recordings that she had disposed of Garnett’s bloody clothing and that Garnett

used a Taser on Diorio. And if the jury believed that Kymberly Garnett described

the disposal of Garnett’s bloody clothing and Garnett’s use of a Taser on Diorio, it

is not reasonably probable that the jury would have concluded that recorded

conversation discussed a hypothetical situation rather than the murder of Diorio.

      The evidentiary value of the recorded conversations at Garnett’s trial did not

depend on Anderson’s credibility. And even if it did, the decreased evidentiary

weight of this piece of evidence would not reasonably undermine confidence in the

outcome of the entire trial. Therefore, the suppression of evidence that could have

undermined Anderson’s credibility at trial does not undermine confidence in the

outcome of Garnett’s trial.

      Accordingly, the judgment of the district court, denying Garnett’s habeas

petition, is AFFIRMED.




                                          5
