                            NOT FOR PUBLICATION
                                                                         FILED
                                                                          JUL 15 2015
                    UNITED STATES COURT OF APPEALS
                        FOR THE NINTH CIRCUIT                       MOLLY C. DWYER, CLERK
                                                                     U.S. COURT OF APPEALS




FRANK HARRIS,                                              No. 13-55473

               Petitioner - Appellant,           D.C. No. 2:11-CV-03801-ODW-
                                                              JEM
          v.
                                                          MEMORANDUM *
MARTIN BITER, Warden,

               Respondent - Appellee.


                    Appeal from the United States District Court
                        for the Central District of California
                    Otis D. Wright, II, District Judge, Presiding

                             Submitted March 3, 2015 **
                               Pasadena, California

               Before: Murphy, *** Gould, and Tallman, Circuit Judges.


      Petitioner, Frank Harris, appeals the denial of habeas relief from his

California state convictions for first degree murder and first degree attempted

murder. Exercising jurisdiction under 28 U.S.C. §§ 1291 and 2253, we affirm.


      *
       This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
      The panel unanimously finds this case suitable for decision without oral
argument. See Fed. R. App. P. 34(a)(2).
      ***
        The Honorable Michael R. Murphy, Senior Circuit Judge for the U.S.
Court of Appeals, Tenth Circuit, sitting by designation.
      1. Harris raises two claims on appeal. He asserts the prosecution violated

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose that a witness, Jesse

Polk, was motivated by a reward offer. He also asserts the prosecution violated

Napue v. Illinois, 360 U.S. 264 (1959), by knowingly presenting Polk’s false

testimony that he was not motivated by the reward. These claims were previously

presented to the California Court of Appeals which summarily denied relief. The

California Supreme Court denied the petition for review.

      2. Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), a federal court may not grant habeas relief for a claim adjudicated on

the merits in state court unless the prior 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.”

Brumfield v. Cain, 135 S. Ct. 2269, 2275 (2015) (quotation omitted). The

summary denial of Harris’s claims is a denial on the merits for purposes of 28

U.S.C. § 2254(d). Harrington v. Richter, 562 U.S. 86, 99–100 (2011) (holding

federal courts should apply the AEDPA’s deferential standard of review even

when the petitioner’s claims have been summarily denied by the state courts).

      3. To establish a Brady violation, Harris must show (1) the withheld

evidence was favorable to him “either because it is exculpatory, or because it is

impeaching,” (2) the prosecution suppressed the evidence either willfully or

inadvertently, and (3) he was prejudiced by the suppression. Strickler v. Greene,

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527 U.S. 263, 281–82 (1999). The suppression of favorable evidence “violates

due process where the evidence is material either to guilt or to punishment.”

Brady, 373 U.S. at 87. Withheld 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.” United States v. Bagley, 473

U.S. 667, 682 (1985).

      4. Even assuming the prosecution either willfully or inadvertently withheld

evidence favorable to Harris, the denial of Harris’s Brady claim was neither

contrary to, nor an unreasonable application of, clearly established Supreme Court

precedent because Harris has not shown a reasonable probability the evidence

would have produced a different verdict. Although Harris could have used the

withheld evidence to impeach Polk’s credibility, the jury heard abundant evidence

from which it could assess the veracity of Polk’s assertion that he identified

Harris because it was “the right thing to do” and not because he was motivated by

the reward. Further, Polk was not an eyewitness to the crime; he identified Harris

from a surveillance video. Two police officers, both of whom had spent

significantly more time with Harris than Polk, also viewed the surveillance video

and identified Harris as the assailant. Thus, Polk’s testimony was duplicative of

other evidence of Harris’s guilt and had no effect on Harris’s convictions.

Confidence in the outcome of Harris’s trial conclusion is not undermined by the

failure to disclose the challenged evidence. See Bagley, 473 U.S. at 683.

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Accordingly, the state court’s denial of post-conviction relief on the Brady claim

was not an unreasonable application of Supreme Court precedent.

      5. To prevail on his Napue claim, Harris was required to show (1) Polk’s

testimony was actually false (2) the prosecution knew or should have known the

testimony was actually false, and (3) the false testimony was material. Haynes v.

Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). A conviction will be set

aside based on a Napue violation if there is “any reasonable likelihood that the

false testimony could have affected the judgment of the jury.” Id. at 985.

      6. Applying the AEDPA’s deferential standard of review, the state court’s

resolution of Harris’s Napue claim was not unreasonable. For the reasons

discussed relative to Harris’s Brady claim, Polk’s testimony was duplicative and

he was not a “make-or-break witness.” Maxwell v. Roe, 628 F.3d 486, 507–08

(9th Cir. 2010). We are confident the jury would have convicted Harris without

Polk’s allegedly false testimony, i.e., that he was not motivated by the reward

when he identified Harris. Thus, there is no reasonable likelihood Polk’s

testimony affected the judgment of the jury.

      7. Because there was a reasonable basis for the state court to deny relief on

Harris’s Brady and Napue claims, we affirm the denial of Harris’s § 2254 habeas

corpus petition.

      AFFIRMED.




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