                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


RANDALL AMADO,                            No. 11-56420
            Petitioner-Appellant,
                                            D.C. No.
                 v.                      2:03-cv-00078-
                                              PA-E
TERRI GONZALEZ, Warden,
California Men’s Colony,
              Respondent-Appellee.           OPINION


     Appeal from the United States District Court
        for the Central District of California
      Percy Anderson, District Judge, Presiding

                Argued and Submitted
        January 8, 2013—Pasadena, California

                Filed October 30, 2013

Before: William A. Fletcher and Johnnie B. Rawlinson,
Circuit Judges, and Alvin K. Hellerstein, Senior District
                        Judge.

             Opinion by Judge Hellerstein;
             Dissent by Judge Rawlinson
2                     AMADO V. GONZALEZ

                           SUMMARY*


                          Habeas Corpus

   The panel reversed the district court’s denial of a
28 U.S.C. § 2254 habeas corpus petition challenging a murder
conviction based on a violation of Brady v. Maryland,
373 U.S. 83 (1963).

    Reviewing de novo because the highest state court only
considered state law in denying relief to petitioner, the panel
held that the prosecution violated Brady by suppressing
material impeachment information about its witness, Warren
Hardy. The panel held that it would have reached the same
conclusion under a deferential standard of review. The panel
also held that petitioner was prejudiced because Hardy’s
statements were critical to the conviction, because Hardy was
the only person to testify that petitioner brought a weapon to
the scene, thus differentiating him from just a member of a
crowd of onlookers after the shooting.

    Judge Rawlinson dissented. She would hold that the state
court did not unreasonably apply Brady, that the record
supports the aiding and abetting theory of conviction whether
or not petitioner had a weapon, and that there was no
prejudice to petitioner given the witness’ extensive self-
impeachment and the existence of other witnesses who
attested to petitioner’s aiding and abetting in the crime.



  *
    This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
                    AMADO V. GONZALEZ                         3

                         COUNSEL

John Lanahan (argued), San Diego, California, for Petitioner-
Appellant.

Kamala D. Harris, Dane R. Gillette, Lance E. Winters,
Kenneth C. Byrne, and David A. Wildman (argued), Office of
the Attorney General of California, Los Angeles, California,
for Respondent-Appellee.


                          OPINION

HELLERSTEIN, Senior District Judge:

     Violence between street gangs is a scourge to
communities. The prosecutors who prosecute crimes
committed by these gangs perform a vital service. But
prosecutors must be vigilant that excessive zeal does not
violate a defendant’s constitutional right to a fair trial. When
that occurs, the courts must balance the needs of the
community with a defendant’s constitutional right to a fair
trial.

     Randall Amado was convicted in 1998 by a Los Angeles
jury of aiding and abetting a senseless murder in a public bus.
The prosecutor neglected, however, to discharge his
obligation to disclose material information that would have
enabled defense counsel to impeach the credibility of a
critical witness against Amado. We hold in this opinion that
the prosecution’s failure, in violation of clearly established
federal law as determined by the U.S. Supreme Court,
requires that Amado be given a new trial.
4                   AMADO V. GONZALEZ

I. The Facts of Record and the Prior Proceedings

    A. The Shooting

    In 1996 and 1997, the Bounty Hunter Bloods and 118 East
Coast Crips were rival street gangs in southern Los Angeles.
Some members of the Bounty Hunter Bloods gang attended
Centennial High School, and traveled to and from school on
public bus No. 53 through neighborhoods claimed by the 118
East Coast Crips. The gang members identified themselves
by the colors of their clothing: red for the Bloods, and blue for
the Crips. As bus No. 53 passed through the Crips’
neighborhoods, members of the Bloods gang on board
frequently taunted, flashed gang signs at, spit at, and threw
objects at Crips gang members standing at the bus stops.

    On January 15, 1997, two members of 118 East Coast
Crips, Robert Johnson and Wilbert Pugh, decided to retaliate.
Their friend, Nicholas Briggs, overheard the two propose that
a large group of Crips board bus No. 53 and attack Bloods
members inside. Briggs testified that Johnson carried a gun
at that meeting, but that there was no discussion of shooting
anyone. Johnson and Pugh decided that the attack would
occur the next day, but Briggs had a court appearance to
attend and declined to join them.

     The following afternoon, Johnson, Pugh, and a group of
their friends met near the intersection of Imperial Highway
and Avalon Boulevard. When a No. 53 bus approached, at
about 3:20 pm, Pugh yelled “Y’all ready?” and the group
moved toward the bus as it pulled into a bus stop. Pugh and
at least one other unidentified gang member boarded the bus,
and Pugh cursed the Bounty Hunter Bloods members in the
                   AMADO V. GONZALEZ                        5

back. One of the Crips, possibly Pugh, shouted “Shoot this
m_____ f______ bus up,” and the Crips exited. Johnson,
behind the bus, poked a gun through the rear window, aimed
at a passenger dressed in red, and fired, hitting two others.
Corrie Williams, a student at Centennial High School, was
shot in the neck and killed. Tammy Freeman, her friend, was
shot in the arm. The bus driver sped off, stopping a few
blocks away when he felt it was safe.

   B. The Arrest and Prosecution

    Amado was arrested with Briggs the next night. At the
time, Amado and Briggs were drinking and smoking
marijuana in a backyard near the location of the shooting, and
across the street from Amado’s home. Johnson and Pugh fled
to Milwaukee, Wisconsin. Johnson was arrested in
Milwaukee approximately a week after the murder, and he
confessed to the shooting. Pugh was also arrested in
Milwaukee, although not until a year after the bus attack
occurred.

    Amado was indicted in Los Angeles County Superior
Court on charges of first degree murder, premeditated
attempted murder, assault with a firearm, and shooting at an
occupied motor vehicle. The prosecution accused Amado of
aiding and abetting the shooting by running with Crips gang
members to ambush and surround the bus, and by carrying a
gun to the scene.

    The court and prosecution were concerned about
intimidation of witnesses, and retaliation against those who
testified. This fear was driven in part by the fact that Pugh
was still at large at the time the proceedings began. Based on
6                      AMADO V. GONZALEZ

interviews of witnesses in camera, the Superior Court ordered
that the addresses and phone numbers of witnesses be
withheld from the defense, and that the prosecution make
witnesses available for interviews by the defense at the
courthouse. Warren Hardy was one of those witnesses, but
Amado’s trial counsel, Richard Lapan, did not interview him.

    Pugh, Johnson, and Amado were tried together before two
juries, one for Johnson, the alleged shooter, and the second,
for Pugh and Amado, the alleged aiders and abettors. While
many witnesses testified as to Pugh’s and Johnson’s roles in
the shooting, the evidence against Amado was more limited.
Two witnesses testified that Amado was part of the group that
gathered at the bus stop. John Grisson, a high school
classmate of Amado, testified on direct that he was at the
intersection of Imperial Highway and Avalon Boulevard, and
saw Amado, with others, running toward the bus. However,
when pressed on cross Grisson testified that when he had seen
Amado with the group it had been a few minutes before the
shooting, and that he did not see Amado run toward the bus
prior to the shooting, or away from the bus after the shooting.
The second of the two witnesses, Natasha Barner, Pugh’s
girlfriend at the time of the shooting, testified that she saw
Amado, along with a crowd, “coming across the street”
toward the bus stop prior to the shooting.1 Barner said that
she did not see Amado with a gun. Barner, corroborated by
another witness, testified that she knew only that Johnson and

    1
      Contrary to the dissent’s suggestion, neither Grisson nor Barner
testified that they saw Amado board the bus. The two stated only that
Amado was among the group of six to eight teenagers at the bus stop.
Most witnesses testified that only two of those teenagers boarded the bus.
Pugh was identified as one of the two. No witness testified that Amado
was the other.
                   AMADO V. GONZALEZ                         7

Pugh were members of 118 East Coast Crips, and no witness
testified that Amado was a member of the gang. Amado,
however, did have the nickname “Bang,” which some viewed
as a gang moniker.

     Warren Hardy, who originally identified himself to the
police as Warren Collins, was the key witness against Amado.
Hardy lived less than a block from the intersection of Imperial
Highway and Avalon Boulevard. Hardy testified that, from
his balcony, minutes before the shooting and from a distance
of approximately 35 feet, he saw a short, chubby boy with
slicked-back hair and a pony-tail carrying a handgun and
trailing a group of teenagers heading towards Avalon
Boulevard. Hardy testified that he then heard gunfire, and,
shortly after, he saw several of these same teenagers run down
the street. The next night, Hardy testified, he heard several
teenagers behind his building talking and laughing about the
shooting. Hardy testified that he called the police, who
responded, found Amado and Briggs in the area where Hardy
had placed the laughing teenagers, and arrested them.

    At trial, Hardy could not identify Amado, neither as the
person who he said had carried a gun, nor as one of the
teenagers who had gathered the next night behind his
building. The best that Hardy could do was to identify
Amado’s hairstyle as similar to the hairstyle of the person he
saw with the gun. On cross examination, Hardy testified that
his vision was poor, that he could not remember key details
about what he saw behind his building, and that he did not
want to testify because he feared for his safety.

  Because of Hardy’s reluctance to testify and his lack of
memory, the prosecution called LAPD Detective Michelle
8                        AMADO V. GONZALEZ

Esquivel to testify about statements Hardy made the day after
the shooting, at the time of Amado’s arrest. Esquivel, reading
from the notes she had taken while interviewing Hardy,
testified that Hardy had identified Amado as the person who
had carried a gun to the shooting.2 Esquivel quoted Hardy as
describing the teenager as a “light-skinned, chubby male
black . . . [with] a blue short-sleeved shirt, and his hair was
long, slicked back.” Esquivel wrote that when the police
informed Hardy that Amado and Briggs had been arrested, a
fellow detective asked if they “had the correct guys,” and
Hardy answered, “Yes.”

    During closing arguments, the prosecution emphasized
Hardy’s statement to the police that Amado carried a gun as
reliable evidence of his guilt:

         Now, what did Mr. Hardy say? Randall
         Amado or somebody that looks like him is the
         guy that he saw on January the 16th, 1997,
         carrying a gun. The only reason why he is
         going to say that, or say words to the effect of
         he’s possibly the guy that did the shooting is
         because he thinks that’s the guy who he saw
         on January the 16th, 1997, with a gun. That’s
         the only reason why you make that statement.
         The only reason. Now, why is Randall
         Amado carrying a gun to a fistfight? Is it

    2
   California law allows prior inconsistent statements of a witness to be
admitted into evidence, even if not made under oath. See, e.g., People v.
Ledesma, 140 P.3d 657, 710 (Cal. 2006) (affirming the trial court’s
decision to allow a police officer to testify as to his prior conversation with
a witness after that witness testified that he could not remember the
conversation).
                        AMADO V. GONZALEZ                              9

            because he himself thought this could possibly
            evolve into something else other than a
            fistfight? And if so, did he think in his own
            mind that the natural and probable
            consequences of agreeing to get into a fight
            could result in a shooting, so I better have
            myself armed before I go over there?

   On November 30, 1998, Amado was convicted of all
charges. He was sentenced to 27 years to life in prison.

         C. Amado’s Motion for a New Trial and His Appeal

    After the jury’s verdict of Amado’s guilt, a copy of a
probation report on Warren Hardy came into the possession
of Lapan, Amado’s trial counsel.3 The report disclosed that
Hardy had pleaded guilty to committing a robbery,4 that he
was on probation for that offense, and that Hardy had been a
member of the Piru Bloods, an affiliated Bloods gang. The
prosecution had not disclosed those facts, or given the
probation report on Hardy to Amado’s counsel. Lapan then
interviewed Hardy, and Hardy wrote out a declaration (the
“Hardy declaration”) stating that he had been convicted of
robbery “out of the Long Beach court” and that he had been
a member of the Piru Bloods.5


     3
     Lapan did not disclose how the probation report came into his
possession, stating only that he did not obtain it “until after trial.”

     4
    The record is not clear as to when Hardy was convicted. Lapan
represented to the Superior Court that Hardy plead guilty to robbery in
1996. In his declaration, Hardy said he was convicted of robbery in 1997.
 5
     The declaration was dated January 21, but lacked a year.
10                  AMADO V. GONZALEZ

    Amado moved for a new trial on the ground that the
prosecution had violated Brady v. Maryland, 373 U.S. 83
(1963), in failing to disclose Hardy’s probation report. At a
hearing held January 25, 1999, Lapan presented the Hardy
declaration and represented that he had “just received
[Hardy’s] file on the robbery when he pled guilty in 1996 that
indicated he was a Piru Blood.” Lapan argued that there was
a reasonable probability that the result of the trial would have
been different had this “newly discovered evidence” been
available to impeach Hardy, and that Amado was entitled to
a new trial under Brady. The State countered that Lapan had
failed to diligently pursue information about Hardy and
therefore Amado was not entitled to a new trial, and that the
new evidence would not change Hardy’s credibility. The
State argued, based on how “the testimony played out and the
way that Mr. Hardy was found by the police and the way that
he came forward, it’s just not a situation where Mr. Hardy’s
credibility on what he testified to is going to be changed by
the introduction of this new evidence.”

    The Superior Court held that, even though Hardy’s prior
conviction should have been disclosed to the jury, doing so
would not have changed the result. The court concluded that
other witnesses had placed Amado at the scene and that Hardy
had been cross-examined vigorously as to his observations:

       Mr. Hardy is not the only person who put Mr.
       Amado at the scene. I don’t think that any
       more aggressive cross-examination—and he
       was aggressively cross-examined on behalf of
       Mr. Amado by Mr. Lapan about his
       observations and his ability to perceive, and I
       think that the jury had the benefit of
                        AMADO V. GONZALEZ                               11

         everything that they possibly could have short
         of the information of the robbery, which in a
         perfect world they should have had. But I
         don’t know that it reaches the level that
         warrants a new trial. I therefore am going to
         respectfully deny the motion before me for
         new trial.

    Amado appealed to the California Court of Appeal,
Second Appellate District. In response to concerns expressed
by the appellate court at oral argument, Amado moved to
augment the record to document that the Hardy impeachment
evidence was “newly discovered.” Defense counsel Lapan
supported his motion by including the Hardy declaration and
his own declaration (the “Lapan declaration”) which stated
that Lapan had received no information from the prosecution
about Hardy’s criminal background and gang affiliation and
that “I did not learn until after trial that Warren Hardy was on
felony probation as a result of a robbery conviction and that
in the probation report from that offense, Hardy stated that he
was a ‘Piru Blood.’” The appellate court granted Amado’s
motion to augment the record.

   In a June 14, 2001 unpublished opinion, the California
Court of Appeal affirmed the Superior Court’s denial of
Amado’s motion for a new trial, but on different grounds.
The Court of Appeal, citing California Penal Code § 1181(8)6

 6
   [T]he court may, upon his application, grant a new trial . . . [w]hen new
evidence is discovered material to the defendant, and which he could not,
with reasonable diligence, have discovered and produced at the trial.
When a motion for a new trial is made upon the ground of newly
discovered evidence, the defendant must produce at the hearing, in support
thereof, the affidavits of the witnesses by whom such evidence is expected
12                     AMADO V. GONZALEZ

and relying on People v. Martinez, 685 P.2d 1203 (Cal. 1984),
a state-law case that interprets that statute, held that the
procedural requirements for moving for a new trial had not
been satisfied, and that the Hardy declaration failed to
“establish that the evidence [on Hardy’s background] is
indeed newly discovered.” Furthermore, the Court of Appeal
ruled that Amado failed to “establish that defense counsel
could not have discovered the impeaching facts in the
exercise of due diligence.” As to defense counsel Lapan’s
representation that he had not learned of Hardy’s prior felony
conviction, probation status, and gang affiliation until after
trial, that was not admissible evidence, for attorney Lapan
“was making argument, not testifying under oath.” The Court
of Appeal concluded that “Amado failed to produce any
evidence to establish that the impeaching facts about Hardy
were newly discovered and could not have been discovered
and produced at trial in the exercise of due diligence, let alone
the best available evidence.”7

    Amado filed a petition with the California Supreme Court
to review the Court of Appeal’s decision, but the Supreme
Court denied the petition. Amado thus “exhausted the
remedies available” in the California courts. See 28 U.S.C.
§ 2254(b)(1)(A).




to be given, and if time is required by the defendant to procure such
affidavits, the court may postpone the hearing of the motion for such
length of time as, under all circumstances of the case, may seem
reasonable.”
 7
   The Court of Appeal also affirmed the Johnson and Pugh convictions,
holding, among other things, that there was sufficient evidence to convict.
                    AMADO V. GONZALEZ                        13

   D. Amado’s Habeas Petition

    Amado filed a petition for a writ of habeas corpus with the
U.S. District Court, Central District of California on January
6, 2003. See 28 U.S.C. § 2254. On May 16, 2003, the
magistrate judge assigned to the case issued a Report and
Recommendation (“R & R”), recommending that Amado’s
petition be granted because the prosecution had violated
Amado’s constitutional rights under Brady. The R & R found
that “the undisclosed Brady evidence was ‘substantial and
was far more damaging to [Hardy’s] credibility than the
impeachment evidence available to the defense at trial.’”
(quoting Benn v. Lambert, 283 F.3d 1040, 1055 (9th Cir.
2002)).

    The R & R lay in the district court for more than six years
without action. On December 14, 2009, Amado filed an
application for a ruling by the district court, but 19 more
months passed before any decision. On July 20, 2011, eight-
and-a-half years after Amado filed his petition, the district
court issued an order denying Amado’s petition, and denying
as well Amado’s request for a Certificate of Appealability.
See 28 U.S.C. § 2253. Applying a deferential standard of
review, the court held that it was reasonable for the California
courts to find that the State had not suppressed evidence,
since Amado’s trial counsel had had an opportunity to speak
with Hardy, but had failed to do so. The court ruled also that
Amado had not demonstrated prejudice “[i]n light of the
substantial evidence against Petitioner on the prosecution’s
aiding and abetting theory.”

   Amado filed a notice of appeal on August 16, 2011. This
Court granted a Certificate of Appealability on September 22,
14                  AMADO V. GONZALEZ

2011 as to one issue: “whether prosecution’s suppression of
impeachment evidence violated appellant’s right to due
process under Brady v. Maryland, 373 U.S. 83 (1963).” We
have jurisdiction to hear Amado’s appeal under 28 U.S.C.
§§ 1291 and 2253.

II. Discussion

     A. Standard of Review

        1. The Requirements of AEDPA

    Generally, federal courts apply a deferential standard of
review in habeas cases. Under the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”), if a claim
was “adjudicated on the merits in State court proceedings,” a
writ of habeas corpus may be granted only if the state court
adjudication:

        resulted in a decision that was contrary to, or
        involved an unreasonable application of,
        clearly established Federal law, as determined
        by the Supreme Court of the United States; or
        . . . resulted in a decision that was based on an
        unreasonable determination of the facts in
        light of the evidence presented in the State
        court proceeding.

28 U.S.C. § 2254(d). In contrast, if a claim was not
“adjudicated on the merits” in state court, the review is de
novo. Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
If a federal claim was presented to the state court and the state
court denied all relief, “it may be presumed that the state court
                    AMADO V. GONZALEZ                          15

adjudicated the claim on the merits in the absence of any
indication or state-law procedural principles to the contrary.”
Harrington v. Richter, 131 S.Ct. 770, 784–85 (2011). This
presumption is rebuttable, for example, if “the state standard
is quite different from the federal standard” or “if a provision
of the Federal Constitution or a federal precedent was simply
mentioned in passing in a footnote or was buried in a string
cite.” Johnson v. Williams, 133 S.Ct. 1088, 1096 (2013).

     Determining whether a claim was “adjudicated on the
merits” is not always a simple endeavor. Often, there are two
or more lower court decisions relevant to a habeas petitioner’s
claim. In those cases, we look to the decision that “finally
resolves” the claim at issue in order to determine whether that
claim was adjudicated on the merits. As we have held, a
claim is “adjudicated on the merits” if it is “a decision finally
resolving the parties’ claims . . . that is based on the substance
of the claim advanced, rather than on a procedural, or other,
ground.” Lambert v. Blodgett, 393 F.3d 943, 969 (9th Cir.
2004) (quoting Sellan v. Kuhlman, 261 F.3d 303, 311 (2d Cir.
2001)). Thus, AEDPA deference does not apply where a
lower state court addresses the merits but the state appellate
court fails to do so. See Thomas v. Horn, 570 F.3d 105,
114–17 (3d Cir. 2009) (concluding there has been no
“adjudication on the merits” in this situation because the state
lower court decision did not “finally resolve” the petitioner’s
claim); Liegakos v. Cooke, 106 F.3d 1381, 1385 (7th Cir.
1997) (reaching the same conclusion on the grounds that “the
last state court to issue an opinion” is the focus of the inquiry)
(following Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991));
see also Barker v. Fleming, 423 F.3d 1085, 1093 (9th Cir.
2005) (“[F]ederal court[s] should review the last decision in
16                 AMADO V. GONZALEZ

isolation and not in combination with decisions by other state
courts.”).

    Another complexity occurs where a state court rules on
one element of the claim but not on others. In that situation,
the Supreme Court has said that federal courts should apply
a de novo standard of review to the elements of a claim on
which the state court did not rule. In Wiggins v. Smith,
539 U.S. 510, 534 (2003), for example, the Supreme Court
applied a de novo standard to the prejudice prong of an
ineffective assistance of counsel claim where the state court
addressed the deficiency prong of that claim but never
addressed the prejudice prong. See also Rompilla v. Beard,
545 U.S. 374, 390 (2005) (following Wiggins). In
Harrington, the Supreme Court held that where a state court
denies relief in a one-sentence summary order, federal courts
should still apply the AEDPA deferential standard of review
to the state court ruling. 131 S.Ct. at 785. In so holding, the
Supreme Court stated in dicta—and without reference to
Wiggins or Rompilla—that “§ 2254(d) applies when a ‘claim,’
not a component of one, has been adjudicated.” Id. at 784.
Based on this language, the Eleventh Circuit has questioned
whether Rompilla remains good law on this point, but has not
actually decided the issue. See Childers v. Floyd, 642 F.3d
953, 969 n.18 (2011) (en banc), cert. granted, judgment
vacated, 133 S. Ct. 1452 (2013). In contrast, both the Sixth
and Seventh Circuits have concluded that Harrington did not
change the Supreme Court’s prior holdings. See Rayner v.
Mills, 685 F.3d 631, 639 (6th Cir. 2012) (“[Supreme Court
cases] mandate AEDPA deference to both prongs when the
state court decision summarily dismisses the claim without
explanation; when a state court decision relies only on one
prong, the cases mandate AEDPA deference to that prong and
                    AMADO V. GONZALEZ                         17

de novo consideration of the unadjudicated prong.”); Sussman
v. Jenkins, 642 F.3d 532, 534 (7th Cir. 2011) (“We certainly
cannot assume that the Court overruled sub silentio [in
Harrington] its holding in Wiggins—a precedent so important
to the daily work of the lower federal courts.”).

        2. The Standard of Review in This Case

     The threshold issue is the standard by which we are to
review the decision of the California Court of Appeal,
whether to defer to its rulings, review them de novo, or
perform our review according to some combination of both
standards. Although neither party in its briefs addressed the
issue of the proper standard of review, we have the obligation
to apply the correct standard, for the issue is non-waivable.
See Gardner v. Galetka, 568 F.3d 862, 879 (10th Cir. 2009)
(“We agree with our sibling circuits that the correct standard
of review under AEDPA is not waivable.”); Brown v. Smith,
551 F.3d 424, 428 n.2 (6th Cir. 2008) (“[A] party cannot
‘waive’ the proper standard of review by failing to argue for
it.”), overruled on other grounds by Cullen v. Pinholster, 131
S.Ct. 1388, 1400 (2011); Eze v. Senkowski, 321 F.3d 110, 121
(2d Cir. 2003) (holding that AEDPA’s deferential standard of
review applied even where the State failed to argue for its
application); Worth v. Tyer, 276 F.3d 249, 262 n.4 (7th Cir.
2001) (“[T]he court, not the parties, must determine the
standard of review, and therefore, it cannot be waived.”). As
the Tenth Circuit characterized the issue, “[i]t is one thing to
allow parties to forfeit claims, defenses, or lines of argument;
it would be quite another to allow parties to stipulate or bind
us to application of an incorrect legal standard, contrary to the
congressional purpose.” Gardner, 568 F.3d at 879. Because
we look to the case that “finally resolv[ed]” Amado’s claim,
18                    AMADO V. GONZALEZ

we examine the California Court of Appeal’s decision, not the
Superior Court’s decision, to determine whether Amado’s
claim was “adjudicated on the merits.” Lambert, 393 F.3d at
969.

     The Court of Appeal noted, first, that the appeal by
Amado was for a new trial pursuant to Section 1181(8) of the
California Penal Code. That section, quoted at note 6, supra,
provides for a new trial based on newly discovered evidence
if the new evidence is “material,” and if the defense could not,
“with reasonable diligence, have discovered and produced [it]
at the trial.”8 In interpreting Section 1181(8), the Court of
Appeal relied on two decisions that had addressed the statute:
(1) People v. Martinez, 685 P.2d 1203, 1208–09 (Cal. 1984),
a decision of the California Supreme Court that found that
although the statute’s requirement of “due diligence” served
an important public policy, it should not be given “a strict
enforcement”; and (2) People v. Arguello, 390 P.2d 377, 379
(Cal. 1964), an earlier decision of the California Supreme
Court that similarly relied on the due diligence requirement.

    Next, the Court of Appeal ruled that Amado’s counsel
was not duly diligent, as Section 1181(8) required. The Court
of Appeal ruled that counsel’s representation to the Superior
Court, that the impeachment evidence against Hardy was
newly discovered, was not of evidential quality because
counsel “was making argument, not testifying under oath,”
and thus did not satisfy the showing for a new trial required



  8
    Section 1181(8) requires also that defendant produce at the hearing
“the affidavits of the witnesses by whom such evidence [the newly-
discovered evidence] is expected to be given.”
                      AMADO V. GONZALEZ                             19

by Section 1181(8).9 In effect, the Court of Appeal found that
Amado was required to produce evidence that showed that the
“newly discovered evidence” was in fact newly discovered,
and Amado had failed to do so because the evidence that
Amado presented was unsworn.

    Thus, the Court of Appeal denied Amado’s motion for a
new trial. But it did so without any consideration of the
requirements of Brady v. Maryland. Its rulings were based
totally on state law, specifically, California Penal Code
§ 1181(8), in relation to the standards for reviewing motions
for a new trial based on newly-discovered evidence. While
the Superior Court had addressed the merits of Brady, the
Court of Appeal ignored the lower court’s findings. The
Superior Court had ruled that the Hardy impeachment
evidence, even if it had been disclosed, would not have
changed the outcome of the trial, and thus the failure to
disclose was not prejudicial to Amado. The Superior Court
reasoned that two other witnesses had identified Amado as
joining the crowd that ran to the scene of the shooting (even
though none other than Hardy had seen a gun in Amado’s
hand). The Court of Appeal did not comment on this ruling.
The Superior Court also had observed that “in a perfect world
[the jury] should have had” the Hardy impeachment
information. The Court of Appeal did not comment on this
finding either. Since the Court of Appeal failed to consider
the decisions of the U.S. Supreme Court on the prosecution’s
constitutional obligation under Brady to disclose exculpatory
information or, for that matter, anything other than Section


  9
    The Court of Appeal did not comment on the fact that it had granted
Amado’s motion to augment the record, nor did it comment on the
contents of the Lapan declaration.
20                     AMADO V. GONZALEZ

1181(8) of the California Penal Code, no deference is to be
given to its conclusion that Amado is not entitled to a new
trial.10 See Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir.
2002).

    Despite the Court of Appeal’s clear focus on Section
1181(8), the State insists that the Court of Appeal did address
the merits of Brady when it said “[t]he record before us does
not establish the prosecution’s failure under Brady to reveal
this information to defense counsel.” Read in context,
however, this one-sentence statement is a reference to the
insufficiency of the Hardy declaration to meet the
requirements of Section 1181(8), not a discussion of a Brady
claim.



   10
      The California Court of Appeal’s reliance on state law raises the
question of whether the independent and adequate state law doctrine bars
our consideration of this issue. The State does not explicitly argue that
this doctrine applies, and therefore has waived this defense. See Vang v.
Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003). Further, it was not “firmly
established” that California Penal Code § 1181(8) requires a party seeking
a new trial to submit an attorney’s declaration describing when the
evidence was discovered, in lieu of an attorney representation
corroborating a witness’s declaration. See Lee v. Kemna, 534 U.S. 362,
376 (2002) (holding that the independent state ground must be “firmly
established and regularly followed”). The statute itself does not require
such a declaration, nor does the case the California Court of Appeal relied
on, People v. Martinez, 685 P.2d at 1205, which states only that facts
supporting a new trial “be shown by the best evidence of which the case
admits.” Lapan had reason to believe that his statement to the Superior
Court was sufficient without an accompanying declaration because
California courts have held that “[s]tatements of a responsible officer of
the court are tantamount to sworn testimony.” People v. Wolozon,
188 Cal. Rptr. 35, 37 n.4 (Cal. Ct. App. 1982) (citing People v.
Laudermilk, 431 P.2d 228, 238 (Cal. 1967)).
                    AMADO V. GONZALEZ                         21

    Furthermore, even if the State is correct that the California
Court of Appeal addressed the merits of Brady, a de novo
standard of review would still apply to the issue of whether
Amado was prejudiced. The State concedes that the
California Court of Appeal did not discuss the issue of
prejudice. Where a state court addresses only one element of
a claim, federal courts reviewing a habeas petition on that
claim apply a de novo standard of review to the elements of
a claim that the state court did not discuss. Wiggins v. Smith,
539 U.S. 510, 534 (2003). Thus, under the State’s own
theory, the standard of review on the issue of prejudice is de
novo even if, as the State argues, a deferential standard of
review should apply to the issue of whether the prosecution
suppressed evidence in violation of Brady.

    We next discuss the rule of Brady.

    B. Suppression

        1. The Requirements of Brady

     Under the landmark case of Brady v. Maryland, 373 U.S.
83, 87 (1963), prosecutors are constitutionally obligated to
disclose “evidence favorable to an accused . . . [that] is
material either to guilt or to punishment.” This prosecutorial
duty is grounded in the Fourteenth Amendment, id. at 86,
which instructs that states shall not “deprive any person of
life, liberty, or property, without due process of law.” U.S.
Const. amend. XIV, § 1. The purpose of Brady is to ensure
that “criminal trials are fair,” Brady, 373 U.S. at 87, and “that
a miscarriage of justice does not occur,” United States v.
Bagley, 473 U.S. 667, 675 (1985). Placing the burden on
prosecutors to disclose information “illustrate[s] the special
22                  AMADO V. GONZALEZ

role played by the American prosecutor in the search for truth
in criminal trials.” Strickler v. Greene, 527 U.S. 263, 281
(1999). The prosecution is trusted to turn over evidence to
the defense because its interest “is not that it shall win a case,
but that justice shall be done.” Id. (quoting Berger v. United
States, 295 U.S. 78, 88 (1935)).

    The prosecution’s duty to divulge relevant information is
a “broad obligation.” Strickler, 527 U.S. at 281. The
prosecutor, although “not required to deliver his entire file to
defense counsel,” is required to turn over evidence that is both
favorable to the defendant and material to the case. Bagley,
473 U.S. at 675. This duty exists regardless of whether the
defense made any request of the prosecution; the prosecution
is required to provide material, favorable information even
“where the defendant does not make a Brady request.” Id. at
680–82.

    Favorable evidence is not limited to evidence that is
exculpatory, i.e., evidence that tends to prove the innocence
of the defendant. Favorable evidence includes that which
impeaches a prosecution witness. In Giglio v. United States,
405 U.S. 150, 154 (1972), “the Government’s case depended
almost entirely” on one witness, yet the prosecution failed to
inform the defense that the witness testified in exchange for
a promise from the government that he would not be
prosecuted. The Supreme Court held that the prosecution was
required to inform the defense about its agreement with the
witness because “evidence of any understanding or agreement
as to a future prosecution would be relevant to [the witness’s]
credibility and the jury was entitled to know of it,” and the
Court ordered a new trial. Id. at 154–55. The Supreme Court
since has made clear that the prosecution must disclose all
                   AMADO V. GONZALEZ                        23

material impeachment evidence, not just evidence relating to
cooperation agreements. See Bagley, 473 U.S. at 676.

    A prosecutor’s duty to reveal favorable, material
information extends to information that is not in the
possession of the individual prosecutor trying the case. In
Kyles v. Whitley, 514 U.S. 419, 441–42 (1995), police learned
that a witness who implicated the defendant had provided a
description of the suspect to the police that did not match the
defendant. The prosecutors were apparently unaware that this
exculpatory information even existed. Still, the Supreme
Court held that the prosecutors had violated Brady, for they
had “a duty to learn of any favorable evidence known to the
others acting on the government’s behalf in the case,
including the police.” Kyles, 514 U.S. at 437. This
requirement meant that prosecutors had to put in place
“procedures and regulations . . . to insure communication of
all relevant information on each case to every lawyer who
deals with it.” Id. at 438 (quoting Giglio, 405 U.S. at 154).
Interpreting Kyles, our circuit has observed that “[b]ecause
the prosecution is in a unique position to obtain information
known to other agents of the government, it may not be
excused from disclosing what it does not know but could have
learned.” Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir.
1997) (en banc).

    The Supreme Court has not tempered the Brady obligation
of prosecutors by imposing a due diligence standard on
defense counsel. Clearly, defense counsel cannot lay a trap
for prosecutors by failing to mention or use favorable
impeachment or exculpatory evidence of which they were
aware, for the prosecution’s failure to disclose that evidence
in such a case cannot be said to have “deprive[d] the
24                     AMADO V. GONZALEZ

defendant of a fair trial.” Bagley, 473 U.S. at 675. But there
is no indication in the case before us that defense counsel
knew before or during trial that Hardy had committed a
felony, or was on probation, or had been a Piru Blood. Nor,
as we discuss in the next section, could defense counsel be
expected to know this information without the prosecution’s
disclosure.

         2. Application of the Brady Standard

    Under Kyles, the fact that the individual prosecutors who
brought the case against Amado may not themselves have had
the Hardy impeachment material in their possession is not a
bar to Amado’s Brady claim. At oral argument before this
Court, the State conceded that the prosecution had access to
Hardy’s conviction and probation records, for Hardy was
prosecuted by the same office that prosecuted Amado, the Los
Angeles County District Attorney’s Office.11 Pursuant to
Kyles, the prosecution had a Brady obligation to produce
these records. 514 U.S. at 437. Cf. Giglio, 405 U.S. at 154
(“To the extent [a Brady obligation] places a burden on the
large prosecution offices, procedures and regulations can be
established to carry that burden and to insure communication
of all relevant information on each case to every lawyer who
deals with it.”).

   At oral argument, the State questioned whether
prosecutors had access to records on Hardy’s gang affiliation.
However, that information was discussed in the very same


 11
    Hardy stated in his declaration that he was prosecuted in Long Beach.
Long Beach falls under the auspices of the Los Angeles County District
Attorney’s Office.
                   AMADO V. GONZALEZ                        25

probation report that discussed Hardy’s prior felony
conviction. Had the State obtained that report, as the State
concedes it was required to do, it also would have discovered
Hardy’s gang affiliation.

     The State argues that Amado’s counsel has not
sufficiently shown when or how he learned of the Brady
material that the prosecution failed to produce. However,
Lapan’s declaration sufficiently states that he did not know
this information “until after trial,” and there is no reason to
question his veracity. Lapan declared: “I did not learn until
after trial that Warren Hardy was on felony probation as a
result of a robbery conviction and that in the probation report
from that offense, Hardy stated he was a ‘Piru Blood.’”
Lapan similarly represented to the Superior Court that “I
didn’t know [Hardy] had a prior felony record [at the time of
trial]” and “I didn’t know he was a Blood.” The Superior
Court accepted this representation, holding against Amado on
different grounds.

    The State’s primary argument is not that Amado’s counsel
knew of the Hardy impeachment evidence, but that Amado’s
counsel should have known about this evidence. The State,
relying on several cases from this circuit, contends that
Hardy’s background was accessible to Amado’s counsel and
that the State cannot be said to have suppressed information
that, with diligence, could have been discovered. For
example, in United States v. Aichele, 941 F.2d 761, 764 (9th
Cir. 1991), we stated: “[w]hen . . . a defendant has enough
information to be able to ascertain the supposed Brady
material on his own, there is no suppression by the
government” (citing United States v. Dupuy, 760 F.2d 1492,
1501 n.5 (9th Cir. 1985)). See also United States v. Bond,
26                  AMADO V. GONZALEZ

552 F.3d 1092, 1096 (9th Cir. 2009) (holding that there is no
suppression where defendants have the means of discovering
the favorable information on their own and “there was no
government action to throw the defendant off the path of the
alleged Brady information”); United States v. Bracy, 67 F.3d
1421, 1428–29 (9th Cir. 1995).

    In all of these cases, however, the defendants had been
advised specifically of the source and nature of the Brady
material, and could not complain, having been so advised,
that they could not obtain that material. In Dupuy, for
example, the case that started this line, the prosecutor did not
turn over her work product, notes of her conversations with
the defendant’s co-defendants that contained exculpatory
information. However, the court told the defendant to obtain
the exculpatory information from the co-defendants
themselves, and defendant failed to make a showing that he
could not have had full recourse by following the court’s
suggestion. 760 F.2d at 1501–02. In Aichele, the government
had given defense counsel a transcript of an interview with a
crucial government witness and the witness’s rap sheet, but
had not also supplied the witness’s prison records. 941 F.2d
at 764. Similarly, in Bracy, the government gave the defense
two reports on a government witness’s criminal history and a
printout from a National Crime Information Center computer
search about that witness, but did not provide details about
that witness’s criminal history in two states. The production,
the court ruled, was sufficient. See 67 F.3d at 1428. And in
Bond, the government had given the defendant “the essential
factual data to determine whether the witness’ testimony
might be helpful.” 552 F.3d at 1097. These cases hold that
there is no violation of Brady if the government provides the
defendant with the core Brady materials and the defendant
                    AMADO V. GONZALEZ                          27

fails to show that additional materials would have made a
difference at the trial.

    In essence, the State interprets its Brady duty to require it
to produce only what defense counsel shows that it could not
have known, and found, on its own. Brady is not so limited.
Under Brady, as clearly established by Supreme Court law,
the prosecutor has a “broad duty of disclosure.” Strickler,
527 U.S. at 281; cf. United States v. Agurs, 427 U.S. 97, 108
(1976) (finding that “the prudent prosecutor will resolve
doubtful questions in favor of disclosure”). In Strickler, the
Court noted that “if a prosecutor asserts that he complies with
Brady through an open file policy, defense counsel may
reasonably rely on that file to contain all materials the State is
constitutionally obligated to disclose under Brady.” 527 U.S.
at 283 n.23. In other words, if the defense has a good reason
to believe that prosecutors are required to turn over a
particular piece of information, the defense is not required to
hunt down that information on its own.

    Here, the prosecution failed to provide any Brady material
on Hardy. The prosecution never suggested to the defense
that Hardy had a criminal background, even though, under
California law, as well as under Brady, the prosecution must
disclose to the defendant “[t]he existence of a felony
conviction of any material witness whose credibility is likely
to be critical to the outcome of the trial.” California Penal
Code § 1054.1(d). Moreover, Amado’s counsel could not
easily have obtained the Hardy impeachment information
without the assistance of the prosecution, for it was “the
policy of the [California] Department of Justice to release rap
sheets only to prosecutors, and defense disclosure requests
[were required to] go through the prosecutor’s office.”
28                  AMADO V. GONZALEZ

People v. Little, 68 Cal. Rptr. 2d 907, 911 (Cal. Ct. App.
1997) (citation omitted). We therefore hold that the
prosecution suppressed information on Hardy’s criminal
background and gang affiliation, in violation of Brady.

    While we believe a de novo standard of review is
appropriate here given that the California Court of Appeal did
not address Brady, we would reach the same conclusion even
if we were to apply a deferential standard of review. Any
finding by the California Court of Appeal that the prosecution
had not suppressed evidence was an “unreasonable
application of, clearly established Federal law, as determined
by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Strickler and Kyles show that it is the
prosecution’s duty to provide material impeachment
information to the defense, not the defense’s duty to find that
information by itself. The California Court of Appeal’s
finding that Amado was required to demonstrate diligence in
obtaining this information is at odds with this Supreme Court
case law.

     C. Prejudice

    This court next must consider whether Amado was
prejudiced as a result of the State’s failure to produce the
Brady information. A defendant is prejudiced if the evidence
that was not produced is material. “The evidence is material
only if there is a reasonable probability that, had the evidence
been disclosed to the defense, the result of the proceeding
would have been different. A ‘reasonable probability’ is a
probability sufficient to undermine confidence in the
outcome.” Bagley, 473 U.S. at 682. The test for materiality
“is not a sufficiency of evidence test.” Kyles, 514 U.S. at 434.
                    AMADO V. GONZALEZ                        29

Evidence can be sufficient to sustain a verdict, and still Brady
can be violated. Id. at 434–45. If “the favorable evidence
[not produced] could reasonably be taken to put the whole
case in such a different light as to undermine confidence in
the verdict,” Brady has been violated. Id. at 435.

        1. The Jurors’ View of Hardy

    The State withheld not one but three pieces of evidence
that had the potential of undermining Hardy’s testimony.
First, Hardy had a robbery felony conviction. Defense
counsel could have argued that this conviction rendered him
an untrustworthy witness. Second, Hardy was on probation
for that conviction at the time he testified. Defense counsel
could have argued that Hardy was seeking favor with his
probation officers by helping the police solve a well-
publicized murder case. Third, Hardy was a former member
of a Bloods gang, and the defense could have argued that
Hardy was biased against a member or friend of the rival
Crips.

    Lapan’s cross-examination of Hardy did not address these
points, for Lapan, without the suppressed impeachment
evidence, lacked a good-faith basis to ask the appropriate
questions. Lapan’s cross-examination was short, focusing on
Hardy’s weak vision and his arguable inability to identify
people running across his field of vision. The suppressed
information would have added to the force of the cross-
examination and defense counsel’s closing argument. There
is a reasonable probability that the suppressed information
would have made a difference, causing the jury to view
Hardy’s implication of Amado with a great deal more
suspicion.
30                  AMADO V. GONZALEZ

    The State makes two arguments why the jurors’ view of
Hardy would not have changed. First, the State argues that
Hardy was already impeached by the cross-examination on his
weak vision. The suppressed information, however, could
have been used to show that Hardy had a motive to embellish
the truth, and even to lie. This is an entirely different reason
to cast doubt on Hardy’s words than the one presented at trial.

    The State’s second argument is that Hardy’s reluctance to
testify and limited memory shows that he was not biased
against Amado. If Hardy was testifying against Amado in
order to win favor with the prosecution, he would have been
much more helpful and supplied detailed answers while on
the stand, the State reasons. This argument, however, ignores
Hardy’s cooperation with the police the night after the
shooting. Hardy provided substantial assistance to the police
on that day, voluntarily calling the authorities and identifying
Amado as the teenager he saw with the gun. The details of
Hardy’s initial implication of Amado were admitted into
evidence through the testimony of Detective Esquivel, who
helped fill in the gaps of Hardy’s sometimes spotty testimony.
Thus, Hardy’s initial identification of Amado—possibly
tainted by Hardy’s motives for bending the truth—made it
into the mix of evidence considered by the jury.

       2. Reasonable Probability of a Different Result

    Hardy’s statements against Amado, in his testimony and
as introduced through Detective Esquivel, were critical to
Amado’s conviction. Hardy was the only person to testify
that Amado brought a weapon to the scene. Without such
testimony, it is doubtful if the jury would have found that
Amado had the requisite criminal intent to aid and abet
                   AMADO V. GONZALEZ                        31

Johnson’s attack on the passengers on the bus. Indeed,
without such evidence, Amado was just one member of a
crowd. Mere presence in a crowd is not sufficient to render
a person an accomplice. See People v. Salgado, 105 Cal.
Rptr. 2d 373, 381–82 (Cal. Ct. App. 2001).

    At trial, the prosecution emphasized the critical nature of
Hardy’s testimony. The prosecutor argued during summation
that Hardy’s testimony on Amado’s carrying of a gun showed
he was involved in the “significant amount of planning and
talking” about the attack prior to the shooting. The
prosecution emphasized that Hardy “specifically describes
somebody that looks like Randall Amado, and then later picks
that person out the next day.” Hardy was the one who
“hear[d] people discussing the shooting” and called the police
to set the case in motion. The prosecution told the jury that
“the only reason” Hardy had to identify Amado was that he
truly believed that Amado was “the guy who he saw on
January the 16th, 1997, with a gun.” Would the prosecutor
have argued with such conviction if Hardy had been
impeached by his recent robbery conviction, his felony
probation status with a motive to curry favor with the
authorities, and his past membership in the Bloods, in
frequent rivalry and conflict with members of the Crips? The
prosecutor’s failure to discharge his Brady obligations
enabled him to bolster Hardy’s credibility well beyond the
credibility Hardy would have had if all the impeaching
information had been made available to defense counsel and,
by defense counsel, to the jury.

    Relying on California cases that broadly apply accomplice
liability to gang members, the State contends that even if
Hardy had not testified at all, Amado still could have been
32                 AMADO V. GONZALEZ

convicted. See, e.g., People v. Medina, 209 P.3d 105, 112
(Cal. 2009) (gang member involved in a fistfight responsible
for shooting committed by another member of his gang);
People v. Ayala, 105 Cal. Rptr. 3d 575, 585 (Cal. Ct. App.
2010) (gang member participates in murder when he rides
with a fellow gang member to assist him in a beating of a
rival gang); People v. Montes, 88 Cal. Rptr. 2d 482, 486 (Cal.
Ct. App. 1999) (gang member who wielded a chain in a gang
fight responsible for shooting committed by a fellow gang
member). But without Hardy, the only evidence against
Amado was Barner’s and Grisson’s testimony, which showed
that, at best, Amado ran to the bus with others, many of whom
were not indicted. On such evidence, it is questionable if a
jury could have convicted Amado of intending to facilitate
murder. See Salgado, 105 Cal. Rptr. 2d at 381–82.

    We do not need to decide more than the question before
us—whether the prosecutor’s violation of Brady was
prejudicial. The standard is not whether there is sufficient
evidence for conviction, but whether there is a “reasonable
probability” that the outcome would have been different,
meaning that “the favorable evidence could reasonably be
taken to put the whole case in such a different light as to
undermine confidence in the verdict.” Kyles, 514 U.S. at 435.
Here, that standard is met. The impeaching evidence was
strong enough to cast a cloud of doubt over Hardy’s
testimony. With that cloud of doubt, the remaining evidence
against Amado was weak. While Barner and Grisson both put
Amado at the scene of the crime, neither of them testified that
they saw him with a weapon or heard him make any
statements, or heard others make statements, that suggested
that Amado intended to participate in an assault. There was
no proof that Amado had any discussions with Johnson and
                       AMADO V. GONZALEZ                    33

Pugh, or had a strong relationship with them that would have
suggested that Johnson and Pugh had shared their plan with
Amado. Hardy’s testimony that Amado carried a gun was
influential to the jury in delivering a verdict against Amado,
and it is reasonably probable that a jury, if made aware of the
impeaching information against Hardy, would have given
little, if any, credence to his testimony and would have
returned a different verdict.

III.      Conclusion

     In failing to disclose material impeaching evidence to
Amado before or during trial, the State violated Amado’s
right to due process under Brady. Amado is entitled to a new
trial. We reverse and remand with instructions to grant the
writ of habeas corpus and release Amado from custody unless
the district attorney of Los Angeles County, within 60 days,
initiates proceedings for a new trial.

       REVERSED and REMANDED.



RAWLINSON, Circuit Judge, dissenting:

    I respectfully dissent from the majority’s conclusion that
the state court’s denial of Randall Amado’s Brady12 claim
entitles Amado to habeas relief.           As the majority
acknowledges, this case is governed by the provisions of the
Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Majority Opinion, p. 14. Under the strictures

 12
      Brady v. Maryland, 373 U.S. 83 (1963).
34                  AMADO V. GONZALEZ

set forth in AEDPA, our review of state court rulings is
severely cabined. Under AEDPA, even de novo review is not
really de novo. Rather, we review the state court decision for
reasonableness. Only if the state court decision is objectively
unreasonable is habeas relief warranted. See Wiggins v.
Smith, 539 U.S. 510, 520–21 (2003). Habeas relief is not
warranted simply because we think the state court got it
wrong. Rather, under AEDPA we must give deference to the
state court decision, affording state courts “the benefit of the
doubt . . .” Cullen v. Pinholster, 131 S. Ct. 1388, 1398
(2011).

    As the United States Supreme Court emphasized in
Harrington v. Richter, 131 S. Ct. 770, 785 (2011), “an
unreasonable application of federal law is different from an
incorrect application of federal law. A state court must be
granted a deference and latitude that are not in operation when
the case involves review under the [Brady] standard itself.”
(citation and internal quotation marks omitted).

    In Richter, we were reminded that “[a] state court’s
determination that a claim lacks merit precludes federal
habeas relief, so long as fairminded jurists could disagree on
the correctness of the state court’s decision. . . .” Id. at 786
(citation and internal quotation marks omitted). The Supreme
Court cautioned us: “It bears repeating that even a strong case
for relief does not mean the state court’s contrary conclusion
was unreasonable.” Id. (citation omitted).

    The Supreme Court left no doubt that habeas relief should
not be granted readily, stating in no uncertain terms: “If [the
habeas] standard is difficult to meet, that is because it was
meant to be. . . .” Id. The Supreme Court explained that
                   AMADO V. GONZALEZ                        35

AEDPA stopped just short of completely prohibiting
relitigation in federal court of claims of error that were
previously rejected in state court. See id. The Supreme Court
clarified that AEDPA only “preserves authority to issue the
writ in cases where there is no possibility fairminded jurists
could disagree that the state court’s decision conflicts with
[Supreme Court] precedents. It goes no farther.” Id. Rather
than providing a pathway to second guessing state court
decisions, habeas corpus as amended by AEDPA “is a guard
against extreme malfunctions in the state criminal justice
systems, not a substitute for ordinary error correction through
appeal. . . .” Id. (citation and internal quotation marks
omitted).

    Finally, we must keep in mind that the more general the
rule being applied, the more leeway the state has to apply the
rule in case-by-case applications. See id. Brady is a rule of
general application, see United States v. Bagley, 473 U.S.
667, 682–83 (1985) (adopting the broad prejudice standard
established in Strickland v. Washington, 466 U.S. 668 (1984)
for Brady materiality analysis); see also Cobb v. Thaler, 682
F.3d 364, 381 (5th Cir. 2012) (“[L]ike Brady’s disclosure
requirement, the materiality standard is a general rule,
meaning a wide range of reasonable applications exist. . . .”)
(citation omitted). Accordingly, we must afford the state
considerable leeway in applying the principles articulated in
the Brady decision. We must also keep in the forefront of our
analysis the limitations of our review. The majority’s
conclusion simply cannot be reconciled with these precepts.

   Amado was convicted as an aider and abettor, which
means that the prosecutor had no obligation to prove that
Amado fired the shots that killed one victim and wounded
36                  AMADO V. GONZALEZ

another. See, e.g., People v. Salgado, 88 Cal. App. 4th 5, 15
(2001) (“Aiding and abetting requires a person to promote,
encourage or instigate the crime with knowledge of its
unlawful purpose.”) (citations omitted). Therefore, any
testimony regarding whether Amado had a gun was not
material. See Banks v. Dretke, 540 U.S. 668, 698 (2004)
(defining materiality in terms of its potential effect on the
outcome of the case).

    Unlike the majority, I focus my analysis on whether the
state court’s denial of relief was objectively unreasonable, not
whether Amado suffered prejudice in the first instance. See
Richter, 131 S. Ct. at 785 (cautioning against directly
reviewing the federal rule rather than reviewing the state
court’s application of that rule). Viewed through that prism,
I cannot say that no fairminded jurist could disagree that the
state court’s decision was unreasonable, and neither should
the majority. See id. at 786; see also Wiggins, 539 U.S. at
520–21 (incorporating the “objectively unreasonable”
standard). The state court applied Brady, a rule of general
application, thereby implicating the considerable leeway
contemplated by the Supreme Court to review of the resulting
determination. See Richter, 131 S. Ct. at 786.

    I agree with the presumably fairminded district court that
the state court did not unreasonably apply Brady. On the
issue of prejudice, which is the fulcrum of the majority’s
analysis, the record reflects that there was testimony, other
than that of Warren Hardy, to support the aiding and abetting
theory of conviction. Natasha Barner identified Amado as
part of the group at the bus stop who boarded the bus to
confront rival gang members. Witness John Grisson also
identified Amado as among the “group of guys” who “ran
                     AMADO V. GONZALEZ                          37

across the street” toward the bus stop where the shooting
occurred, boarded the bus, and fled following the shooting.

    The record also reveals that Hardy was far from being a
stellar witness for the prosecution. As the district court
observed, Hardy endeavored to recant his testimony at every
turn. He could not “remember the face” of the individual he
previously identified as having a gun. He could not
remember identifying anyone to the police. Hardy also
confirmed that he did not witness the shooting and that he
failed to identify Amado from a photograph that was
presented to him during the trial. Given Hardy’s extensive
self-impeachment and the existence of other witnesses who
attested to Amado’s aiding and abetting of the shooting, it
was not objectively unreasonable for the state court to find a
lack of prejudice to Amado, i.e., that the undisclosed evidence
would not have affected the jury’s verdict. See Stickler v.
Greene, 527 U.S. 263, 293–94 (1999); see also Richter,
131 S. Ct. at 786 (“[H]abeas corpus is a guard against extreme
malfunctions in state criminal justice systems, not a substitute
for ordinary error correction through appeal. . . .”) (citation
and internal quotation marks omitted) (emphasis added). In
view of the “deference, latitude and leeway” we are to afford
the state court’s application of the Brady rule, id., it is hard to
comprehend how one could conclude that the state court’s
decision “was so lacking in justification that there was an
error well understood and comprehended in existing law
beyond any possibility far from fairminded disagreement.”
Id. at 786–87.

   Were the full feast of direct review spread before us, we
would be free to gnaw away at the trial court’s Brady ruling.
See, e.g., United States v. Sedaghaty, No. 11-30342, — F.3d
38                  AMADO V. GONZALEZ

—, 2013 WL 4490922, at *9–*12 (9th Cir. August 23, 2013)
(reviewing Brady issue on direct appeal without deference to
the trial court’s ruling). However, the Supreme Court has told
this Circuit specifically, emphatically, and in no uncertain
terms, to curb our appetite when it comes to habeas review.
See Richter, 131 S. Ct. at 785–86 (chastising this Circuit for
conducting a de novo review with no deference to the state
court decision).

   I respectfully decline to join a ruling that so clearly flouts
Supreme Court precedent. With respect, I dissent from the
majority opinion.
