Kevin Light-Roth v. STEPHEN SINCLAIR, Superintendent, Washington State Penitentiary

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
KEVIN LIGHT-ROTH,
Petitioner - Appellant,
v.
STEPHEN SINCLAIR, Superintendent,
Washington State Penitentiary,
Respondent - Appellee.
No. 12-35047
D.C. No. 2:11-cv-00313-JCC
MEMORANDUM*
Appeal from the United States District Court
for the Western District of Washington
John C. Coughenour, District Judge, Presiding
Argued and Submitted April 9, 2013
Seattle, Washington
Before: D.W. NELSON, TASHIMA, and CALLAHAN, Circuit Judges.
Kevin Light-Roth appeals from the denial of his petition for writ of habeas
corpus. The district court issued a certificate of appealability (“COA”) as to two of
Light-Roth’s claims, namely whether the government introduced the testimony of
Justin VanBrackle in violation Brady v. Maryland, 373 U.S. 83 (1963), and Napue
FILED
MAY 08 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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v. Illinois, 360 U.S. 264 (1959). Light-Roth also sought a COA from this Court as
to his remaining claims (i.e., whether his trial counsel was ineffective under
Strickland v. Washington, 466 U.S. 668, 687 (1987), for failing to uncover the
VanBrackle-related violations, and whether the government introduced the
testimony of an additional witness, Chris Highley, in violation of Brady and
Napue). We have jurisdiction under 28 U.S.C. § 1291, affirm the district court on
the certified claims, and deny Light-Roth’s request for a COA on the remaining
claims.
1. The state courts’ rejection of Light-Roth’s VanBrackle-related Brady
claim was not the result of an unreasonable determination of the facts or an
unreasonable application of federal law. See 28 U.S.C. § 2254(d). “To prevail on
a Brady claim, [a] defendant must show that ‘(1) the evidence was exculpatory or
impeaching; (2) it should have been, but was not produced; and (3) the suppressed
evidence was material to his guilt or punishment.’” United States v. Antonakeas,
255 F.3d 714, 725 (9th Cir. 2001) (quoting Paradis v. Arave, 130 F.3d 385, 392
(9th Cir. 1997)). Light-Roth’s Brady claim fails because, even assuming the
government suppressed favorable evidence, given the strength of the case against
Light-Roth and the cumulative nature of VanBrackle’s testimony, the state court
reasonably determined that evidence was not material.

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2. Light-Roth’s VanBrackle-related Napue claim likewise fails. To
succeed under Napue, Light-Roth must show that: “(1) the prosecution actually
presented false testimony; (2) the prosecution knew or should have known that the
testimony was false; and (3) the false testimony was material to the outcome of the
trial.” United States v. Pelisamen, 641 F.3d 399, 407 (9th Cir. 2011). The state
court’s determination that the government neither knew nor should have known
VanBrackle was testifying falsely was not an unreasonable determination of the
facts or an unreasonable application of Napue. Moreover, for the same reasons
indicated above, the VanBrackle evidence was immaterial.
3. Finally, a COA may issue “only if the applicant has made a substantial
showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “A
petitioner satisfies this standard by demonstrating that jurists of reason could
disagree with the district court’s resolution of his constitutional claims or that
jurists could conclude the issues presented are adequate to deserve encouragement
to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). Light-Roth
has not made such a showing with respect to his Highley-related Brady and Napue
claims, or his derivative ineffective assistance of counsel claim. We decline to
expand the certificate of appealability and, therefore, dismiss Light-Roth’s

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uncertified issues for lack of jurisdiction. Doe v. Woodford, 508 F.3d 563, 569
(9th Cir. 2007).
AFFIRMED.

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