Martínsoto, Fong v. CHARLES L. RYAN and CHARLES GOLDSMITH, Warden

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARTÍN SOTO, FONG
Petitioner-Appellant,
v.
CHARLES L. RYAN and CHARLES
GOLDSMITH, Warden,
Respondent-Appellees.
No. 11-17051
D. C. No. 4:04-cv-00068-DCB
MEMORANDUM*
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted September 10, 2013
San Francisco, California
Before: SCHROEDER and BYBEE, Circuit Judges, and TIMLIN, Senior District
Judge.**
Martín Raùl Fong Soto (“Petitioner” or “Fong”) appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for writ of habeas corpus. In a separate
FILED
JUL 25 2014
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Robert J. Timlin, Senior District Judge for the U.S.
District Court for the Central District of California, sitting by designation.

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published opinion filed concurrently herewith, we affirm the district court’s denial
of the two certified claims Petitioner raises on appeal concerning prosecutorial
misconduct based on the government’s alleged knowing use of Detective Joseph
Godoy’s false testimony at trial and ineffective assistance of counsel based on
defense counsel’s decision to call state informant Keith Woods as a trial witness.
This memorandum opinion addresses the designated “Uncertified Issues”
Petitioner includes in his opening brief, which he claims also entitle him to habeas
relief. We construe his inclusion and designation of these issues as a motion to
expand the Certificate of Appealability (“COA”). 9th Cir. R. 22-1(e).
We deny Petitioner a COA on the following uncertified issues raised in his
opening brief because he has failed to make a substantial showing of the denial of a
constitutional right: 1) his claim that his rights to due process and conflict-free
counsel were violated when his trial and direct appellate attorney undertook the
representation of the prosecutor in Petitioner’s trial in various criminal
investigations and disciplinary proceedings arising out of the prosecutor’s
misconduct during the later trials of Petitioner’s co-defendants; 2) his claim that
the state violated his rights to due process and a fair trial by failing to disclose
certain benefits received by state informant Keith Woods. Hivila v. Wood, 195
F.3d 1098, 1104 (9th Cir. 1999); 28 U.S.C. § 2253(c)(2).
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We grant Petitioner a COA on the remaining uncertified claims raised in his
opening brief because he has shown that these issues are debatable amongst jurists
of reason or raise questions that deserve encouragement to proceed further. Doe v.
Woodford, 508 F.3d 563, 567 (9th Cir. 2007) (qouting Barefoot v. Estelle, 463 U.S.
880, 893 n.4 (1983)). Nonetheless, upon review of the petition, the relevant
pleadings and record before this Court and the district court, and the district court’s
order denying habeas relief, we deny Petitioner relief on these now certified claims
for the reasons stated below.
First, we deny Petitioner habeas relief on his claim that the state violated its
disclosure obligations under Brady v. Maryland, 373 U.S. 83 (1963), by failing to
disclose a September 9, 1992 investigative report authored by Detective Joseph
Godoy. While Petitioner argues that the state post-conviction relief court should
not have found credible the testimony of his criminal trial attorney and that
attorney’s paralegal representing that they had seen the report during Petitioner’s
earlier criminal trial, Petitioner has failed to show that the state court’s conclusion
that the September 9, 1992 report was disclosed was based on an unreasonable
determination of the facts. 22 U.S.C. § 2254(d)(2); Rice v. Collins, 546 U.S. 333,
341-42 (2006) (“Reasonable minds reviewing the record might disagree about the
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prosecutor’s credibility, but on habeas review that does not suffice to supersede the
trial court’s credibility determination.”).
Second,1 Fong is not entitled to relief on his Brady claim alleging that the
state failed to disclose an undated investigative report authored by Detective
Reuben Nunez. He fails to show that any information contained in that report is
material under Brady. Henry v. Ryan, 720 F.3d 1073, 1080 (9th Cir. 2013) (“To
establish materiality, [a petitioner] must show that the state’s ‘nondisclosure was
so serious that there is a reasonable probability that the suppressed evidence would
have produced a different verdict.’” (citation omitted)).
Third, Petitioner was not denied due process and a fair trial by the
prosecutor vouching for the credibility of Detective Joseph Godoy during closing
argument. The prosecutor’s comments during closing argument were made in
response to the defense theory that Detective Godoy repeatedly lied and
manufactured key evidence in the case and were an attempt to explain that the
evidence at trial at most showed that Detective Godoy made mistakes during the
investigation and prosecution of the case. United States v. Young, 470 U.S. 1,
1 Because we find Petitioner’s remaining claims meritless upon a de
novo review of the district court’s merits rulings, we refrain from addressing the
alternative arguments pressed by the state below asserting that these claims are
unexhausted or are otherwise procedurally defaulted.
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12-13 (1985); United States v. Necoechea, 986 F.2d 1273, 1279 (9th Cir. 1993)
(prosecutor allowed to argue in closing that witness is “telling the truth” and “not
lying” where “statements do not imply that the government is assuring [witness’s]
veracity, and do not reflect the prosecutor’s personal beliefs”).
Moreover, even if the prosecutor’s comments were improper, Petitioner has
not shown that a reasonable jurist could find that they “had [a] substantial and
injurious effect or influence in determining the jury’s verdict[,]” considering other
evidence of Petitioner’s guilt and that the state trial court instructed the jury that
closing argument is not evidence. Turner v. Calderon, 281 F.3d 851, 868 (9th Cir.
2002) (first alteration in original) (internal quotations and citation omitted).
Fourth, we also deny Petitioner habeas relief on his prosecutorial misconduct
claim alleging that the government fabricated state informant Keith Woods’
testimony at the criminal trial and thereby deprived Petitioner of due process and a
fair trial. The August 11, 2005 declaration of Keith Woods and the unsigned 2004
statement of his girlfriend, Tanisha Price-Woods, are too speculative to show that
the prosecution knew or should have known that any of defense witness Woods’
trial testimony was false under Napue v. Illinois, 360 U.S. 264 (1959). To the
extent any false testimony by defense witness Woods was presented at trial,
Petitioner also has failed to show that such testimony was material. Maxwell v.
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Roe, 628 F.3d 486, 508 (9th Cir. 2010) (false testimony of state’s “make-or-break”
witness material where his “testimony was the centerpiece of the prosecution’s
case” and all other evidence of guilt was weak and circumstantial).
Petitioner likewise has not shown that he is entitled to evidentiary
development in federal court on any of his claims. 28 U.S.C. § 2254(e)(2); Cullen
v. Pinholster, 131 S. Ct. 1388, 1398-1401 (2011); Schriro v. Landrigan, 550 U.S.
465, 474 (2007) (“In deciding whether to grant an evidentiary hearing, a federal
court must consider whether such a hearing could enable an applicant to prove the
petition’s factual allegations, which, if true, would entitle the applicant to federal
habeas relief.”).
The judgment of the district court is AFFIRMED.
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