                                                                             FILED
                            NOT FOR PUBLICATION                               SEP 23 2010

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




                            FOR THE NINTH CIRCUIT



WILLIS RANDOLPH,                                  No. 08-16275

              Petitioner - Appellant,             D.C. No. 1:93-cv-05604-LJO

  v.
                                                  MEMORANDUM *
PEOPLE OF THE STATE OF
CALIFORNIA; et al.,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Eastern District of California
                    Lawrence J. O’Neill, District Judge, Presiding

                       Argued and Submitted August 12, 2010
                             San Francisco, California

Before: GRABER, CALLAHAN, and BEA, Circuit Judges.

       Petitioner Willis Randolph appeals the district court’s denial of his petition

for a writ of habeas corpus, which challenged his 1989 conviction for first degree

murder and use of a firearm. Randolph contends that his jailhouse cell mate,

Ronnie Moore, should not have been permitted to testify at trial about


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
incriminating statements Randolph had made about the murder, because Moore

was a state agent at the time of the confession, and Randolph had defense counsel

before he talked with Moore. Moore’s testimony is claimed to have violated

Randolph’s Sixth Amendment rights under Massiah v. United States, 377 U.S.

201, 206 (1964), which prohibits the government from deliberately eliciting

incriminating statements from a criminal suspect once the right to counsel has

attached. Randolph also contends that his due process rights under Brady v.

Maryland, 373 U.S. 83, 87 (1963), were violated because the government did not

disclose the potentially exculpatory fact that Moore’s testimony could be

suppressed under Massiah.

       Both claims turn on whether Moore was a state agent when Randolph

confessed to Moore. The district court found that Moore was not. We hold there

were ample facts upon which the district court could base its finding. Because the

district court did not clearly err, we affirm the denial of Randolph’s habeas

petition.1

       Because Randolph’s petition was filed prior to the effective date of the Anti-

Terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), we apply pre-



       1
        Because the parties are familiar with the facts of the case, we will repeat
them here only to the extent necessary to explain our decision.

                                          2
AEDPA law. Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir. 2003). Under pre-

AEDPA law, we review the denial of petitioner’s habeas petition de novo, but we

review the district court’s finding of facts for clear error. Turner v. Calderon, 281

F.3d 851, 864 (9th Cir. 2002).

      It is undisputed that Randolph made several incriminating statements to

Moore between August 17 and August 24, 1989. The district court had a sufficient

basis for its finding that the first meeting between Moore and prosecutors was on

August 24, 1989. The district court also had sufficient evidence to conclude that

Randolph made incriminating statements to Moore before August 17, 1989.

      Finally, the district court had ample basis for its finding that Moore’s post-

1997 statements were not credible. Moore has consistently stated that he does not

remember the events of 1989 very well, and that his memory is not very good in

general—due, in part, to his past abuse of marijuana.

      Because the district court did not clearly err in finding that Moore was not a

state agent when Randolph confessed to him, Randolph’s Massiah and Brady

claims were properly denied.

      AFFIRMED.




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