EARL FELTON CRAGO, Jr. v. CHARLES L. RYAN, Warden; ATTORNEY GENERAL FOR THE STATE OF ARIZONA

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
EARL FELTON CRAGO, Jr.,
Petitioner-Appellant,
v.
CHARLES L. RYAN, Warden;
ATTORNEY GENERAL FOR THE STATE
OF ARIZONA,
Respondents-Appellees.
No. 16-16159
17-16469
D.C. No. 4:14-cv-02007-FRZ
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
Frank R. Zapata, District Judge, Presiding
Submitted August 16, 2018**
San Francisco, California
Before: O’SCANNLAIN and BEA, Circuit Judges, and McLAUGHLIN,***
District Judge.
Petitioner Earl Felton Crago, Jr., appeals the district court’s judgment
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Mary A. McLaughlin, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
AUG 21 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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denying his petition for writ of habeas corpus. We have jurisdiction under 28
U.S.C. §§ 1291 and 2253. We review de novo, see Smith v. Ryan, 823 F.3d 1270,
1278–79 (9th Cir. 2016), and we affirm.
1. Brady claim. Federal courts may not grant habeas relief unless the state
court’s adjudication of a claim rested on an unreasonable determination of the facts
in light of the evidence presented, or “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.” 28 U.S.C. § 2254(d).
“[T]he suppression by the prosecution of evidence favorable to an accused upon
request violates due process where the evidence is material either to guilt or to
punishment, irrespective of the good faith or bad faith of the prosecution.” Brady
v. Maryland, 373 U.S. 83, 87 (1963). Materiality requires a reasonable probability
of a different result in the proceeding at issue if the evidence had been disclosed.
Strickler v. Greene, 527 U.S. 263, 280 (1999).
As an initial matter, Crago does not demonstrate that the prosecution
withheld evidence that was favorable to the defense. The one DNA test that was
complete before trial was inconclusive, and therefore neither inculpatory nor
exculpatory.
Furthermore, the state trial court reasonably weighed the strength of the
prosecution’s evidence, other than Crago’s own testimony, against the weakness of

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Crago’s alibi. The trial evidence included an eyewitness who identified Crago as
the shooter, along with testimony that Crago had admitted shooting someone to
death. The alibi rested on two items of evidence: an entry permit for a U.S. Army
base that Crago obtained on the morning of the shooting, without any indication of
when he actually entered and exited the base; and a witness’s testimony that Crago
left her home on the base that morning early enough to arrive at the murder scene
at the time of the shooting. Neither piece of evidence accounts for Crago’s
whereabouts at the time of the shooting. The trial court also reasonably addressed
Crago’s claim that another man was the real killer, noting that this theory relied on
misrepresentations of witnesses’ statements. Crago does not attempt to
characterize these findings as unreasonable factual determinations.
Crago contends that the state trial court’s decision contradicted or
unreasonably applied Brady because the decision rejected this claim under an
Arizona state rule requiring that new evidence “probably would have changed the
verdict,” Ariz. R. Crim. P. 32.1(e), in contrast to Brady’s more accommodating
threshold of “reasonable probability.” In fact, the record reveals that the state trial
court both invoked and reasonably applied the reasonable-probability standard.
2. Uncertified evidentiary-hearing claim. We construe Crago’s briefing of
the uncertified claim that the state trial court should have held an evidentiary
hearing as a motion to expand the certificate of appealability, and we deny that

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motion. Ninth Circuit Rule 22-1(e). First, that argument was never presented to
the district court. Second, reasonable jurists would not debate that there was no
need for an evidentiary hearing because the state trial court reasonably concluded
that Crago’s Brady claim was meritless even if his allegations about the
prosecutor’s erroneous statement and withholding of the inconclusive test result
were correct. See Slack v. McDaniel, 529 U.S. 473, 483–84 (2000).
AFFIRMED.

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