                                                                           FILED
                           NOT FOR PUBLICATION                              OCT 13 2011

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




                            FOR THE NINTH CIRCUIT



MICHAEL MALONE,                                  No. 10-16612

              Petitioner - Appellant,            D.C. No. 1:07-cv-00743-AWI-
                                                 SMS
  v.

TOM FELKER, Acting Warden, HDSP                  MEMORANDUM *
and MATTHEW C. KRAMER, Warden,

              Respondents - Appellees.



                  Appeal from the United States District Court
                      for the Eastern District of California
                 Anthony W. Ishii, Chief District Judge, Presiding

                    Argued and Submitted September 14, 2011
                            San Francisco, California

Before: THOMAS and N.R. SMITH, Circuit Judges, and OLIVER, Chief District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Solomon Oliver, Jr., Chief District Judge for the U.S.
District Court for Northern Ohio, Cleveland, sitting by designation.
      Appellant appeals the district court’s denial of his 28 U.S.C. § 2254 habeas

corpus petition. Appellant argues that the prosecutor violated Brady v. Maryland,

373 U.S. 83 (1963), by not disclosing a telephone message he received, claiming

defense witness “Orbus Weathers was a bad guy and not to be trusted.” We review

the denial of the petition de novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.

2004). We affirm.

      Here, the California Superior Court’s decision was not contrary to, or an

unreasonable application of, clearly established Supreme Court precedent. See 28

U.S.C. § 2254(d). “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). The state court’s holding that the telephone

message was not favorable to the accused was not unreasonable. See Brady, 373

U.S. at 87. Under Brady, the evidence may not be withheld if it “would tend to

exculpate [the defendant].” 373 U.S. at 87–88. No Supreme Court precedent

clearly establishes that possible impeachment evidence of a defense witness is

favorable to the accused, thereby mandating disclosure under Brady. United States

v. Bagley, 473 U.S. 667, 676–77 (1985), merely holds that impeachment evidence


                                          2
of Government witnesses must be disclosed. We therefore need not analyze the

other components of a Brady violation.

      Appellant argues that the nondisclosure of information that leads to the

discovery of admissible evidence must be disclosed. However, assuming the

statement was favorable to the defendant, the nondisclosed evidence must be

material in order to be prejudicial (the third component of a violation). Strickler,

527 U.S. at 280. Here, the telephone message was not material under Brady. The

message did not adequately or reasonably suggest to the prosecutor that it was or

would lead to material, favorable evidence for the defense.

      AFFIRMED.




                                           3
