Frank Harris v. MARTIN BITER, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FRANK HARRIS,
Petitioner - Appellant,
v.
MARTIN BITER, Warden,
Respondent - Appellee.
No. 13-55473
D.C. No. 2:11-CV-03801-ODW-
JEM
MEMORANDUM *
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.
FILED
JUL 15 2015
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* 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.

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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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