                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 26 2013

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



                           FOR THE NINTH CIRCUIT


LAMONT STERLING JOHNSON,                         No. 11-16197

              Petitioner - Appellant,            D.C. No. 4:07-cv-04483-PJH

  v.
                                                 MEMORANDUM*
ROBERT A. HOREL, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Northern District of California
                   Phyllis J. Hamilton, District Judge, Presiding

                     Argued and Submitted November 6, 2013
                            San Francisco, California

Before: REINHARDT, NOONAN, and WATFORD, Circuit Judges.

       1. Petitioner Lamont Johnson seeks habeas relief on the ground that the

government destroyed material exculpatory evidence in violation of his due

process rights. See Arizona v. Youngblood, 488 U.S. 51, 57–58 (1988); California

v. Trombetta, 467 U.S. 479, 488–89 (1984). To prevail on this claim, Johnson



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
must show that the government failed to preserve constitutionally material

evidence. See Youngblood, 488 U.S. at 56–57; Trombetta, 467 U.S. at 489.

Constitutionally material means that the exculpatory value of the evidence was

apparent before it was destroyed, and that the evidence was “of such a nature that

the defendant would be unable to obtain comparable evidence by other reasonably

available means.” Trombetta, 467 U.S. at 489.

      The California Court of Appeal found, as a factual matter, that Johnson had

received “everything of an exculpatory nature.” We cannot say this finding was

based on “an unreasonable determination of the facts” in light of the record before

the state court. 28 U.S.C. § 2254(d)(2). By the time of his second trial, Johnson

had access to the press releases that the State withheld and the witnesses who

appear to have been the source of the information contained in the press releases.

Johnson has not identified any other evidence that might have existed suggesting

that a third person was in fact present at the murder scene. In light of the state

court’s factual determination, we cannot say that it unreasonably applied

Trombetta and Youngblood when it denied Johnson relief. See 28 U.S.C.

§ 2254(d)(1); Harrington v. Richter, 131 S. Ct. 770, 786 (2011).

      2. We also reject Johnson’s claim regarding the prosecution’s use of

inconsistent factual theories in the trials of Johnson and his co-defendant. No


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Supreme Court precedent clearly establishes that the Due Process Clause bars the

government from prosecuting co-defendants under inconsistent factual theories

absent evidence that the prosecutor knowingly used false evidence or acted in bad

faith. See 28 U.S.C. § 2254(d)(1). There is no evidence of either here.

      AFFIRMED.




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