                                                                           FILED
                            NOT FOR PUBLICATION
                                                                            OCT 21 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


TROY SMITH,                                      No.    15-16819

              Petitioner-Appellant,              D.C. No. 3:11-cv-01791-SI

 v.
                                                 MEMORANDUM*
KEVIN CHAPPELL, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                      Susan Illston, District Judge, Presiding

                     Argued and Submitted September 14, 2016
                             San Francisco, California

Before: W. FLETCHER, CHRISTEN, and FRIEDLAND, Circuit Judges.

       In California state court, Smith was convicted of second degree robbery,

false imprisonment, second degree burglary, and conspiracy to commit robbery.

He was sentenced to twenty-six years in prison. Smith later filed a habeas corpus

petition in federal court in which he argued that the evidence was insufficient to



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
support his conviction. Shortly thereafter, pursuant to a Pitchess motion, Smith

received approximately 300 pages of potential Brady material from the personnel

file of a San Francisco Police Department (SFPD) inspector who was heavily

involved in the investigation of his case, and who testified extensively at trial. See

Brady v. Maryland, 373 U.S. 83 (1963); Pitchess v. Superior Court, 522 P.2d 305

(Cal. 1974), superseded by statute, Cal. Penal Code §§ 832.7, 832.8, Cal. Evid.

Code §§ 1043–45. The material revealed that, six years before the robbery,

Inspector Gardner was involved in a cheating scandal relating to an SFPD officer’s

examination. A police commission disciplined Gardner for lying to investigators

and failing to properly report a leak of exam scenarios and answers. He was

suspended for ninety days, was placed on probation for five years, and remained on

probation during the robbery investigation. Following this disclosure, the district

court granted Smith’s motion to amend his federal petition to add a claim under

Brady, and stayed his federal proceedings so Smith could exhaust his new claim in

state court. The state court denied relief.

      When Smith returned to federal court, he moved for additional discovery

related to his Brady claim. The district court denied the motion as futile, and

denied Smith’s habeas petition on the merits. The district court granted a

certificate of appealability on Smith’s Brady claim and on the denial of his


                                              2
discovery motion, and Smith timely appealed. This court has jurisdiction under 28

U.S.C. § 2253. We affirm.

      1. Brady v. Maryland is the clearly established law governing the only

habeas claim Smith raises on appeal. 373 U.S. 83 (1963). The State does not

dispute that evidence of Inspector Gardner’s misconduct during the testing scandal

was favorable to Smith and suppressed by the State. This is a wise concession:

“That [Gardner] was disciplined for lying on the job obviously bears on his

credibility,” see Milke v. Ryan, 711 F.3d 998, 1007 (9th Cir. 2013), and there is no

question that this evidence “was suppressed by the government,” see United States

v. Sedaghaty, 728 F.3d 885, 899 (9th Cir. 2013). The sole question before us is

whether the testing scandal evidence was material.

      Withheld “evidence is ‘material’ within the meaning of Brady when there is

a reasonable probability that, had the evidence been disclosed, the result of the

proceedings would have been different.” Smith v. Cain, 132 S. Ct. 627, 630 (2012)

(quoting Cone v. Bell, 556 U.S. 449, 469–70 (2009)). The California Superior

Court’s ruling that the testing scandal evidence was not material under Brady was

not “contrary to . . . clearly established Federal law” nor based on “an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d). Although the evidence

would have been highly probative impeachment material, it was not unreasonable


                                          3
for the state court to conclude that there is not a reasonable probability that any

change in the way the jurors viewed Gardner’s testimony would have changed the

jury’s verdict. See Gonzalez v. Wong, 667 F.3d 965, 982 (9th Cir. 2011) (outlining

two-step inquiry to evaluate materiality when withheld evidence relates to

witness’s credibility, including (1) “whether . . . there was a reasonable probability

that the new evidence would have changed the way in which the jurors viewed” the

witness’s testimony, and (2) “whether . . . there was a reasonable probability that

this change would have resulted in a different verdict”).

      The State presented physical evidence linking Smith to the crime scene,

including a Chronicle newspaper Gardner found at 1 Tillman Place, the location of

the robbery, two days after the crime. Smith’s fingerprints were found on the

newspaper, and the State argued that it placed Smith at the crime scene on the

morning of the robbery. The newspaper was particularly strong evidence because:

(1) fingerprints of co-defendant George Turner, who was arrested with $650,000

worth of the jewelry store’s inventory, were on the paper along with Smith’s; (2)

the newspaper was from the day of the robbery, April 7, and trial testimony

established that it was a special early edition available only from news racks in San

Francisco (not Oakland, where Smith lived); and (3) video evidence showed one




                                           4
perpetrator arriving at 1 Tillman Place on the morning of the robbery carrying a

newspaper.

          Smith argues that Gardner planted the Chronicle newspaper at 1 Tillman

Place on April 9. But at oral argument, Smith’s counsel could not articulate a

plausible theory explaining how Gardner could have planted this particular edition

of the newspaper with the two sets of fingerprints on it. George Turner was not yet

a suspect on April 9 when Gardner allegedly obtained the Chronicle from Smith’s

apartment. Assuming Gardner visited Smith’s Oakland apartment on April 9, he

would have had to be incredibly lucky to abscond with a newspaper that had not

been available for purchase in Oakland that included both Smith’s and Turner’s

prints.

          In light of the strength of the evidence against Smith, the state court

reasonably concluded that general impeachment evidence against Gardner was not

material under Brady. The state court’s rejection of the Brady claim was thus not

“contrary to . . . clearly established Federal law” nor based on “an unreasonable

determination of the facts.” See 28 U.S.C. § 2254(d).

          2. The district court did not abuse its discretion in denying Smith’s request

for discovery on his Gardner-related Brady claim. Under Rule 6(a) of the Federal

Rules Governing Section 2254 Cases, a district court “may, for good cause,


                                              5
authorize a party to conduct discovery under the Federal Rules of Civil Procedure

and may limit the extent of discovery.” “[W]here specific allegations before the

court show reason to believe that the petitioner may, if the facts are fully

developed, be able to demonstrate that he is . . . entitled to relief” the petitioner has

shown “good cause” and discovery is warranted. Pham v. Terhune, 400 F.3d 740,

743 (9th Cir. 2005) (per curiam) (quoting Bracy v. Gramley, 520 U.S. 899, 908–09

(1997)).

      The district court denied Smith’s motion for additional discovery for two

reasons. First, the court ruled that Smith was not entitled to additional discovery

under Cullen v. Pinholster, 563 U.S. 170 (2011). Pinholster held “that review

under § 2254(d)(1) is limited to the record that was before the state court that

adjudicated the claim on the merits.” 563 U.S. at 181. The record on appeal does

not reveal exactly what was presented to the California Superior Court for in

camera review in conjunction with the Pitchess motion, and the parties dispute

whether the state court reviewed Gardner’s entire file, including attachments to the

testing scandal disciplinary report. Under California law, “[w]hen a party brings a

Pitchess motion, the trial court is required to keep a record of what it reviewed to

provide meaningful appellate review.” People v. Superior Court, 377 P.3d 847,

861 (Cal. 2015). The record in this court does not indicate whether the California


                                            6
Superior Court followed this procedure, and counsel did not know whether the

state court did.1 We agree with Smith that Pinholster might not bar discovery in

another case where the record reveals Brady material was not presented to the state

court for in camera review. However, here, the district court did not err by denying

discovery because there is no plausible theory under which the requested discovery

could be material to Smith’s case.

      As the district court explained, even with additional evidence related to the

testing scandal, Smith would not have been able to show he was entitled to relief

under Brady. We agree with this independent basis for denying discovery. Smith

did not articulate any reason to believe that the materials he seeks contain

significantly different evidence from the materials he has already obtained. And,


      1
               The district attorney asked the Superior Court “to conduct an in
camera review of [Gardner’s] personnel file or relevant portions thereof” in its
motion. “When a trial court concludes a defendant’s Pitchess motion shows good
cause for discovery of relevant evidence contained in a law enforcement officer’s
personnel files, the custodian of the records is obligated to bring to the trial court
all potentially relevant documents to permit the trial court to examine them for
itself.” People v. Mooc, 36 P.3d 21, 30 (Cal. 2001) (internal quotation marks and
citations omitted). “The custodian should be prepared to state in chambers and for
the record what other documents (or category of documents) not presented to the
court were included in the complete personnel record, and why those were deemed
irrelevant or otherwise nonresponsive to the defendant’s Pitchess motion.” Id.
Here, the record contains a minute order from the Superior Court acknowledging
the district attorney’s request for in camera review, but does not include findings or
a written order from the court in response to the Pitchess motion. Our record does
not otherwise reveal the scope of the Superior Court’s review.
                                           7
as explained above, the materials he has obtained are not material under Brady.

Smith did not present a plausible account of how Gardner could have planted the

special early edition of the Chronicle with both Turner’s and Smith’s fingerprints

at the crime scene. Absent such an account, we are not left with “grave doubt,”

Kotteakos v. United States, 328 U.S. 750, 765 (1946), that additional facts about

the testing scandal six years prior to the robbery would have made a difference to

the outcome of this case. Therefore, the district court did not err in ruling that

Smith failed to show good cause for additional discovery under Rule 6(a).

AFFIRMED.




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