Troy McGarvey v. Jim Salmonsen; Attorney General for the State of Montana

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
TROY MCGARVEY,
Petitioner-Appellant,
v.
JIM SALMONSEN; ATTORNEY
GENERAL FOR THE STATE OF
MONTANA,
Respondents-Appellees.
No. 17-35340
D.C. No.
9:14-cv-00201-DLC-JCL
MEMORANDUM*
Appeal from the United States District Court
for the District of Montana
Dana L. Christensen, Chief Judge, Presiding
Argued and Submitted March 8, 2019
Portland, Oregon
Before: GRABER and BERZON, Circuit Judges, and ROBRENO,** District
Judge.
Petitioner Troy McGarvey was convicted of the murders of Clifford Grant
and Norman Nelson in Flathead County, Montana. McGarvey appeals the district
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The Honorable Eduardo C. Robreno, United States District Judge for
the Eastern District of Pennsylvania, sitting by designation.
FILED
APR 16 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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court’s denial of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. He
argues that the Montana Supreme Court erred when it found the prosecutor had not
violated the edicts of Brady v. Maryland, 373 U.S. 83 (1963). We review the
district court’s denial of a § 2254 petition de novo. Sanders v. Cullen, 873 F.3d
778, 793 (9th Cir. 2017), cert. denied, 139 S. Ct. 798 (2019). We affirm.
Under the deferential standard imposed by AEDPA § 2254(d), we may not
grant a writ of habeas corpus unless the state court’s decision: 1) “was contrary to
federal law then clearly established in the holdings of [the United States Supreme
Court]”; 2) “involved an unreasonable application of such law”; or 3) “was based
on an unreasonable determination of the facts in light of the record before the state
court.” Harrington v. Richter, 562 U.S. 86, 100 (2011) (internal quotation marks
omitted). “A state court’s determination that a claim lacks merit precludes federal
habeas relief so long as ‘fairminded jurists could disagree’ on the correctness of the
state court’s decision.” Id. at 101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)).
To establish a Brady violation concerning particular evidence, McGarvey
must show three elements: 1) the evidence “must be favorable to the accused,
either because it is exculpatory, or because it is impeaching”; 2) the evidence was
“suppressed by the State, either willfully or inadvertently”; and 3) the defense was
prejudiced by the suppression of the evidence. Strickler v. Greene, 527 U.S. 263,

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281–82 (1999). McGarvey argued that the prosecution had withheld Brady
material concerning three witnesses — Sanchez, Armstrong, and Edwardson.
Sanchez
McGarvey argues the Flathead County prosecutor violated Brady by not
producing police records and notes of witness interviews pertaining to Sanchez,
done in Lake County, where both counties were members of a multi-jurisdictional
task force. We assume, without deciding, that the Flathead County prosecutors ran
afoul of Brady under the principles established in Kyles v. Whitley, 514 U.S. 419
(1995), and that the state court unreasonably held to the contrary. Nonetheless,
under Brecht v. Abrahamson, 507 U.S. 619 (1993), there is insufficient prejudice to
merit granting the petition.
The Montana Supreme Court held that, assuming a Brady violation, there
was no prejudice to the defense. The court found that the material was speculative,
cumulative, or irrelevant, and would not have affected the outcome of the trial
because the defense used other evidence to attack Sanchez’s character and to
establish his means, motive, and opportunity to commit the crimes for which
McGarvey was convicted. Specifically, the jury knew that Sanchez regularly dealt
drugs, coming from Washington to do so about twice a month, and that he had
various appurtenances of the drug trade, including several cell phones and guns. In
the circumstances, the state court’s no-prejudice conclusion is not “objectively

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unreasonable.” Hall v. Haws, 861 F.3d 977, 992 (9th Cir. 2017).
Armstrong
According to McGarvey, Armstrong could have been impeached with two
sets of materials, as being a liar or having mental health problems, that were not
produced.
The first set of materials is connected to Armstrong’s sentencing hearing for
the theft of a motor vehicle. Armstrong’s mother wrote a letter to the sentencing
court and testified at the hearing in a bid for leniency for her son. The Montana
Supreme Court ruled, among other things, that the absence of these materials was
not prejudicial. The court reasoned that the defense had used other evidence to
impeach Armstrong as a liar and extortionist. Furthermore, had the defense used
the missing materials to attack Armstrong’s mental health, doing so would have
contradicted and undermined the defense strategy of liar/extortionist and would
therefore not have affected the outcome positively for McGarvey.
The second set of materials was Armstrong’s jailhouse notes. The
prosecution disclosed this material to the defense but characterized it as
voluminous and not exculpatory. The Montana Supreme Court ruled that the
jailhouse notes had not been suppressed because those notes had been made
available to the defense. The court also found that, as with the sentencing
materials, using these notes to attack Armstrong’s mental health would have

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undercut the defense’s liar/extortionist strategy.
Fair-minded jurists could disagree over the correctness of the Montana
Supreme Court’s decisions regarding the Armstrong materials.
Edwardson
McGarvey argues that information regarding Edwardson’s criminal actions
with Monroe shows that Edwardson was motivated to fabricate his statements to
police, in which Edwardson said he had heard McGarvey admit to the murders.
The Montana Supreme Court ruled the prosecution had not suppressed this
information because it had no obligation to disclose it. The court also ruled that
McGarvey’s argument concerning the importance of the information was
unsupported, speculative, and conclusory. The court found that the information
was irrelevant because substantial evidence showed that Edwardson and Monroe
had not been involved in criminal activity until long after Edwardson gave his
statements to police. The Montana Supreme Court’s determination of the facts was
not unreasonable in light of the record. Fair-minded jurists could disagree over the
correctness of the court’s findings and decision.
AFFIRMED.

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