Dow v. Virga, No. 11-17678 (9th Cir. 2013)
Annotate this CasePetitioner, convicted of second degree robbery, petitioned for review of the district court's denial of his 28 U.S.C. 2254 habeas corpus petition, alleging prosecutorial misconduct when the prosecutor knowingly elicited and then failed to correct false testimony. The district court concluded that the prosecutor's misconduct violated Napue v. Illinois but upheld the conviction because the district court found that it was not reasonably likely that, absent the misconduct, petitioner would have obtained a more favorable verdict. The court concluded that, in rejecting petitioner's claim, the state court applied a harmlessness standard that was "contrary to" the harmlessness standard required by Napue. The Napue standard was different from the ordinary harmlessness standard, and was referred to in Napue and its progeny as a "materiality" standard. Even assuming that the state court applied the Napue materiality standard, its application of that standard would have constituted an unreasonable application of clearly established Supreme Court law. Accordingly, the court reversed and remanded.
Court Description: Habeas Corpus. The panel reversed the district court’s denial of a 28 U.S.C. § 2254 habeas corpus petition alleging prosecutorial misconduct when the prosecutor knowingly elicited and then failed to correct false testimony. During trial, a detective testified that Dow, rather than his attorney, requested that each of the participants in a lineup wear a bandage under his right eye at the location at which petitioner had a small scar under his; the attorney made this request out of concern that the witness might falsely identify petitioner because he was the only participant with a facial scar. The prosecutor argued that petitioner had demonstrated consciousness of guilt by trying to hide his scar to prevent his identification. The panel held that, after the state court found misconduct, it applied a harmlessness standard that is contrary to that required by Napue v. Illinois, 360 U.S. 264 (1959). The panel further held that, had the state court applied the proper standard in rejecting petitioner’s claim, it would have unreasonably applied clearly established federal law.
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