                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAY 4 2018
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JESSE WILLIAM MENDEZ,                           No.    16-15026

                Petitioner-Appellant,           D.C. No. 3:13-cv-02797-EMC

 v.
                                                MEMORANDUM*
GARY SWARTHOUT, Warden,

                Respondent-Appellee,

and

SCOTT FRAUENHEIM, Warden,

                Respondent.

                   Appeal from the United States District Court
                     for the Northern District of California
                   Edward M. Chen, District Judge, Presiding

                     Argued and Submitted February 16, 2018
                            San Francisco, California

Before: BEA and N.R. SMITH, Circuit Judges, and LASNIK,** District Judge.

      We write primarily for the parties who are familiar with the underlying facts.


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Robert S. Lasnik, United States District Judge for the
Western District of Washington, sitting by designation.
This habeas appeal stems from petitioner Jesse Mendez’s convictions for the

attempted murder of Oakland Police Officer Kevin McDonald and for two firearm-

related offenses connected to the same crime. Officer McDonald was shot during a

traffic stop of the Camaro that Mendez was driving with Mendez’s cousin

Jeremiah Dye in the passenger seat.

      After unsuccessful direct and collateral appeals in state court, Mendez filed a

federal petition for habeas corpus.1 We review a district court’s denial of habeas

relief de novo, and we may affirm on any ground supported by the record.

Washington v. Lampert, 422 F.3d 864, 869 (9th Cir. 2005).

      We review Mendez’s petition under the Antiterrorism and Effective Death

Penalty Act of 1996 (AEDPA). Under AEDPA, we will not grant relief unless his

case resulted in a decision that was “contrary to, or involved an unreasonable

application of, clearly established Federal law, . . . [or] was based on an

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

      Because Mendez’s claims were summarily denied in state court, we “must

determine what arguments or theories supported or, as here, could have supported,

the state court’s decision; and then [we] must ask whether it is possible fairminded

jurists could disagree that those arguments or theories are inconsistent with the

holding in a prior decision of [the Supreme] Court.” Harrington v. Richter, 562

      1
              The district court had jurisdiction under 28 U.S.C. § 2254. We have
jurisdiction under 28 U.S.C. § 2253.

                                           2
U.S. 86, 102 (2011).

      1.     Mendez claims prosecutors failed to disclose evidence in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Prosecutors did not turn over audio

recordings about an anonymous informant who said the shooter was hiding nearby.

That tip led police to Dye who was killed by police after a standoff.

      To succeed on his claim, Mendez must show that the undisclosed evidence

was material—that is, he must show “there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

been different.” Kyles v. Whitley, 514 U.S. 419, 433 (1995) (marks and citation

omitted). A “reasonable probability” is one sufficient to undermine confidence in

the outcome of the trial. Strickler v. Greene, 527 U.S. 263, 289–90 (1999).

      Mendez argues that the undisclosed recordings were material because they

would have led the informant, whose information implied Dye was the shooter, to

testify. The record suggests otherwise. The government turned over to the defense

the informant’s unregistered phone number. The withheld recordings did not

contain additional contact or identifying information. The trial took place three

years after the shooting, and every description of the informant emphasized that

anonymity was very important to him. Defense counsel tried to contact him but

failed, and nothing suggests the recordings would have changed that outcome.

Given the cumulative nature of the recordings and other strong evidence of guilt,



                                          3
see Banks v. Dretke, 540 U.S. 668, 700–01 (2004), the California Supreme Court

could reasonably have concluded that the prospect of securing the informant’s

testimony was not sufficient to undermine confidence in the trial’s outcome, see

Strickler, 527 U.S. at 289.

      Mendez alternatively argues that the content of the recordings would have

justified admitting the informant’s statements under a hearsay exception. The

record, however, does not indicate the statements were “spontaneous.” See Cal.

Evid. Code § 1240; People v. Becerrada, 393 P.3d 114, 128 (Cal. 2017). The

informant reflected, contacted police, and negotiated and was paid a reward. Nor

does the record suggest the statements were evidence “b[earing] persuasive

assurances of trustworthiness.” See Chambers v. Mississippi, 410 U.S. 284, 302

(1973). The informant saw Mendez and Dye flee from more than 1,200 feet away,

and he had an incentive to say the man he saw was the shooter. The California

Supreme Court could reasonably have concluded that the prospect of admitting the

informant’s statements was not sufficient to undermine confidence in the trial’s

outcome. See Strickler, 527 U.S. at 289.

      2.     Mendez further claims that under Napue v. Illinois, 360 U.S. 264

(1959), his due process rights were violated when the prosecutor allowed Sgt.

Tony Jones, the lead investigator, to testify he had no information pointing to any

suspect other than Mendez.



                                           4
      Due process prohibits the prosecution from obtaining a conviction by

knowingly introducing, soliciting, or allowing false testimony. Napue, 360 U.S. at

269. Similar to Brady claims, a claim under Napue requires the false testimony to

have been material. United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003).

Napue’s materiality standard asks whether “there is any reasonable likelihood that

the false testimony could have affected the judgment of the jury.” Phillips v.

Ornoski, 673 F.3d 1168, 1189 (9th Cir. 2012), as amended (May 25, 2012) (marks

and citation omitted).

      Assuming Sgt. Jones’s testimony was false, the defense was still able to

argue repeatedly that Dye was a suspect and the actual shooter, and Sgt. Jones

himself referred to Dye as a suspect on cross-examination. The California Supreme

Court could reasonably have concluded that the testimony was not material. See id.

      3.     Finally, Mendez invokes various claims of ineffective assistance of

counsel. We evaluate claims of ineffective assistance of counsel under the familiar

standard that requires Mendez to show (1) counsel’s performance was deficient to

the point that it fell below an objective standard of reasonableness, and (2)

counsel’s deficient performance prejudiced him. Strickland v. Washington, 466

U.S. 668, 687–88 (1984). To show prejudice, Mendez “must demonstrate ‘a

reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different.’” Harrington, 562 U.S. at 104 (quoting



                                          5
Strickland, 466 U.S. at 694).

      Mendez claims trial counsel was ineffective for failing to impeach Sgt.

Jones’s “no other suspects” answer, but we have explained that Sgt. Jones’s answer

was of only arguable significance. The California Supreme Court could reasonably

have concluded that counsel’s failure to impeach did not prejudice Mendez.

      Mendez also claims trial counsel was ineffective for failing to object to a

question the jury asked Sgt. Jones. The jury asked if Sgt. Jones ruled out the

Camaro’s passenger as the shooter, and Sgt. Jones answered, “Yes.” An

investigator ruling out a suspect differs from an opinion on guilt or innocence, and

tends to assist a trier of fact. See People v. Coffman, 96 P.3d 30, 90 (Cal. 2004), as

modified (Oct. 27, 2004). Mendez fails to show why Sgt. Jones’s answer was

impermissible, and the California Supreme Court could have reasonably concluded

that counsel’s failure to object did not prejudice Mendez.

      Mendez also argues that his counsel rendered ineffective assistance when he

failed to present evidence at trial that Dye was on parole. Mendez reasons that

Dye’s parole status gave him a more compelling motive than Mendez to shoot

Officer McDonald. However, the California Supreme Court could have concluded

that there was no reasonable probability of a different outcome if this motive

evidence had been presented. Mendez has not shown that parolees who are

passengers in cars that commit moving violations are always or regularly searched.



                                          6
Further, had motive evidence been pursued, it could have drawn more focus to a

gun that was found. That was not the gun used to shoot Officer McDonald and

evidence suggests Dye discarded it as he fled, which would support the view that

Dye was not in fact the shooter. An ineffective assistance of counsel claim will fail

if the conduct can be readily explained as reasonable trial strategy. Murtishaw v.

Woodford, 255 F.3d 926, 951 (9th Cir. 2001).

      For Mendez’s remaining claims of ineffective assistance of counsel, he

either raises them for the first time on appeal or did not fairly present them in state

court. Those claims are forfeited, see Miles v. Ryan, 713 F.3d 477, 494 n.19 (9th

Cir. 2013), unexhausted, see 28 U.S.C. § 2254(b); Gentry v. Sinclair, 705 F.3d

884, 901 (9th Cir. 2013), or both, and they are not properly before us.

      AFFIRMED.




                                           7
