DOWNS V HOYT

Judge for the Northern District of California, sitting by designation.

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COUNSEL

Wendy R. Willis, Assistant Federal Public Defender, Port-

land, Oregon, for the petitioner-appellant.

Janet A. Klapstein, Assistant Attorney General, Salem, Ore-

gon, for the respondent-appellee.

_________________________________________________________________

OPINION

SCHWARZER, Senior District Judge:

FACTUAL AND PROCEDURAL BACKGROUND

Petitioner Elizabeth Diane Downs was convicted of mur-

der, attempted murder, and assault in the Lane County Circuit

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Court in Oregon in 1984. The jury found that she fatally shot

one of her children, Cheryl, then age seven, and seriously

wounded the other two, Christie and Danny, then ages eight

and three. Christie testified at trial that she saw her mother

open the trunk of her car and then shoot each of the three chil-

dren. Ballistics experts testified that bullets taken from

Downs's home had extractor marks identical to cartridge cas-

ings found at the crime scene. The marks were from a.22 cal-

iber Ruger semiautomatic pistol, the same make of a firearm

which Downs had possessed and used previously. Downs's

gun was last seen in her possession in 1983. The murder

weapon was never recovered.

Downs's conviction was affirmed on appeal by the Oregon

Court of Appeals without opinion and the Oregon Supreme

Court denied review in 1987. See State v. Downs , 733 P.2d

119 (Or. App. 1987), rev. denied, 738 P.2d 199 (Or. 1987).

Downs then sought postconviction relief in state court. The

postconviction court granted summary judgment on the pro-

secutorial misconduct claims and held a trial on Downs's

other claims, hearing testimony from the trial participants and

others. It granted relief on two claims related to restitution

and sentencing and denied Downs's remaining claims. The

Oregon Court of Appeals affirmed without opinion in 1993

and the Oregon Supreme Court denied review. See Downs v.

Schiedler, 861 P.2d 1046 (Or. App. 1993), rev. denied, 873

P.2d 321 (Or. 1994).

Downs first sought habeas relief in the Eastern District of

California in November 1993. That petition was dismissed

without prejudice for failure to exhaust state remedies. She

filed the instant petition in the district court in Oregon on June

25, 1996, and filed an amended petition containing nine

claims on January 17, 1997. After permitting Downs to con-

duct discovery and expand the record, the district court denied

the petition without a hearing on February 8, 1999. This

appeal followed and we now affirm.

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SCOPE OF REVIEW

We review the district court's denial of the petition de

novo. Houston v. Roe, 177 F.3d 901, 905 (9th Cir. 1999), cert.

denied, 120 S. Ct. 1168 (2000). We review the court's factual

findings for clear error, Houston, 177 F.3d at 905, and we pre-

sume the state court's factual determinations to be correct. 28

U.S.C. § 2254(e)(1). Because the petition was filed on June

25, 1996, following the effective date of the Antiterrorism and

Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-

132, 110 Stat. 1214 (1996), the provisions of that Act control.

See Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Downs, citing Delgado v. Lewis, 181 F.3d 1087 (9th Cir.

1999), argues that the state court decisions are entitled to little

deference because the Oregon appellate courts issued no opin-

ions and because some of her postconviction claims were dis-

posed of by summary judgment. Delgado rests on the

rationale that the state court, which had no briefs from peti-

tioner, had not articulated its reasons for denying relief. Id. at

1091 n.3. Here, in contrast, the postconviction court stated its

reasons in a three-page letter opinion followed by fourteen

pages of findings on which judgment was entered, and the

appellate courts had before them briefs fully presenting the

merits. We are satisfied that Downs's claims were"adjudi-

cated on the merits in State court proceedings." 28 U.S.C.

§ 2254(d).

The district court's decision was rendered before the

Supreme Court's decision in Williams v. Taylor , 120 S. Ct.

1495 (2000), and our decision in Van Tran v. Lindsey, 212

F.3d 1143 (9th Cir. 2000). Williams construed § 2254(d)(1) to

provide that the writ may issue when the federal court is

firmly convinced that the state court was "simply wrong" and

that a federal constitutional right has been violated, even if the

state court's decision appears "at first-blush " to be "entirely

reasonable." Id. at 1511. Williams 's "objectively unreason-

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able" standard is further explicated in Van Tran where we

said:

[U]nder AEDPA we must reverse a state court's decision as involving an "unreasonable application" of clearly established federal law when our indepen- dent review of the legal question . . . leaves us with a "firm conviction" that one answer, the one rejected by the court, was correct and the other, the applica- tion of the federal law that the court adopted, was erroneous--in other words that clear error occurred.

212 F.3d at 1153-54.

We may affirm on any ground supported by the record,

even if it differs from the district court's rationale. See United

States v. Washington, 969 F.2d 752, 755 (9th Cir. 1992), cert.

denied, 507 U.S. 1051 (1993). Because the district court

applied the wrong standard, we must decide whether its judg-

ment can be affirmed under the correct standard.

DISCUSSION

Downs raises nine claims: (1) that the state's failure to dis-

close certain handwritten investigatory notes violated its obli-

gations under Brady; (2) that the destruction of some of these

notes was in bad faith and violated due process; (3) that pros-

ecutor committed misconduct by reading excluded portions of

Danny's medical records during the state's closing argument

and that trial counsel's failure to move for a mistrial denied

Downs effective assistance of counsel; (4) that the prosecu-

tor's improper questioning of Downs on cross-examination

constituted prosecutorial misconduct, and that trial counsel's

failure to object, move for a mistrial, or call the diagnosing

psychiatrist denied Downs effective assistance of counsel; (5)

that Christie's testimony was tainted as the result of improper

influence and that trial counsel's failure to object denied

Downs effective assistance of counsel; (6) that trial counsel's

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failure to introduce a state police fingerprint report at trial

denied Downs effective assistance of counsel; (7) that trial

counsel's failure to call Dr. Jerome Vergamini, a hospital staff

psychiatrist who interviewed both Christie and Danny, denied

Downs effective assistance of counsel; (8) that the trial court

gave an impermissible Allen charge to the jury which violated

Downs's Sixth Amendment right to a fair trial and that appel-

late counsel's failure to raise this issue on appeal constituted

ineffective assistance; and (9) that the trial court's denial of

a continuance for new counsel violated Downs's Sixth

Amendment right to counsel and that appellate counsel's fail-

ure to raise this issue on appeal constituted ineffective assis-

tance.

I. FAILURE TO PROVIDE MATERIAL,

EXCULPATORY EVIDENCE

Downs first contends that the state deprived her of evidence

helpful to her defense. While the state provided her with four

reports, Downs did not receive information on some 100 leads

contained in the sheriff's file, including pictures and names of

suspects, license plate numbers of vehicles matching the

description given by Downs, and names and phone numbers

of citizens and law enforcement officials with potentially rele-

vant information. Downs argues that these matters were mate-

rial because (1) additional witnesses would have supported

her version of the events and provided her with an opportunity

to track down the shooter, and (2) they would have shown that

Lane County authorities focused almost immediately on her

rather than conducting a proper investigation. She points spe-

cifically to a note memorializing a call from a person who

overheard a conversation in which a man stated he thought he

knew the killer but was afraid to contact authorities because

the killer was affiliated with the Free Souls, a motorcycle

gang. The notes also contained a record of an early interview

with Christie in which she said that she did not know some-

one had injured her.

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The prosecution's suppression of evidence favorable to

the accused violates due process when the evidence is mate-

rial to guilt or to punishment. See Brady v. Maryland, 373

U.S. 83, 87 (1963). 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).

"[A] constitutional error occurs, and the conviction must be

reversed, only if the evidence is material in the sense that its

suppression undermines confidence in the outcome of the

trial." Id. at 678.

The state court granted the state's summary judgment

motion on this claim. The district court, after permitting

Downs to take discovery and conducting an independent

review of the record, denied the claim, finding that Downs's

argument amounts to speculation that the withheld material

might have led to some admissible evidence which might have

been sufficiently favorable to meet the Bagley standard.

The district court's characterization of Downs's claim

is correct. The most that can be said of these materials is that

they might have provided investigatory leads. Brady does not

require a prosecutor to turn over files reflecting leads and

ongoing investigations where no exonerating or impeaching

evidence has turned up. See United States v. Agurs, 427 U.S.

97, 109 (1976); Coleman v. Calderon, 150 F.3d 1105, 1116-

17 (9th Cir. 1998) (failure to disclose evidence of other sus-

pects not material because there was no direct or circumstan-

tial evidence linking the third persons to the crime), judgment

rev'd on other grounds, 525 U.S. 141, 119 S. Ct. 500 (1998),

cert. denied, 525 U.S. 1058, 119 S. Ct. 625 (1998). Downs's

arguments, moreover, are speculative and fail to point out, as

required by Bagley, how production of these materials would

have created a reasonable probability of a different result. 473

U.S. at 682. As for the notes of the early interview of Christie

in which, due to her aphasia, she was able to respond only by

opening or closing her eyes, they indicate only that at that

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time Christie did not know that she had been hurt. They said

nothing about how she might have been hurt, and Christie's

initial lack of memory was brought out at trial. As the notes

do not cast doubt on the verdict, the state court's rejection of

this claim was not clearly erroneous.

II. DESTRUCTION OF DEPUTY POND'S

HANDWRITTEN NOTES

Downs contends that her due process rights were violated

by Deputy Pond's destruction of his handwritten notes. The

district court held that the prosecutorial misconduct claim was

defaulted because it was never raised in the state proceedings.

The claim was raised, however, in the postconviction court

and disposed of on summary judgment. Because the claim

was fairly presented to the state court and nothing indicates

that it was rejected on an independent state ground, it is prop-

erly before us. See Michigan v. Long, 463 U.S. 1032, 1041

(1983).

Unless Downs can show bad faith on the part of the

prosecution, failure to preserve potentially useful evidence

does not constitute a denial of due process. Arizona v. Young-

blood, 488 U.S. 51, 58 (1988). Downs's argument that bad

faith may be inferred from the facts that the trial court was

uncomfortable with Pond's veracity and demeanor; that

Pond's testimony about the number of reports and handwrit-

ten notes was contradicted by the large number later found

after the district court's discovery order; and that the destruc-

tion appeared to have been selective, i.e., that the only hand-

written notes missing from Pond's file are those relating to

suspects other than Downs, is not persuasive. The trial court

stated that Pond was just as likely confused as evasive in his

testimony. In addition, Pond did retain reports on certain peo-

ple who eventually became defense witnesses and he appears

to have incorporated many of his notes into various reports,

some of which Downs received. Moreover Downs has failed

to show that these materials had potential exculpatory value

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as required by California v. Trombetta, 467 U.S. 479, 489

(1984). The state court's rejection of this claim was not

clearly erroneous.

III. PROSECUTOR'S READING OF EXCLUDED

AND MISLEADING DOCUMENTS INTO THE

RECORD

As her third claim, Downs contends that the prosecutor

acted improperly during closing argument when he read a

statement by Danny Downs identifying his mother as the

shooter. The state had earlier moved successfully to exclude

portions of the medical reports in which that statement

appeared.

A. Due Process

While the government may not "suggest that information

not in evidence supports its case," United States v. Badger,

983 F.2d 1443, 1455 (7th Cir. 1993), cert. denied, 508 U.S.

928, 113 S. Ct. 2391 (1993), prosecutorial misconduct vio-

lates due process only if evidence is presented which "taken

as a whole" gives a jury a "false impression. " Alcorta v.

Texas, 355 U.S. 28, 31 (1957) (per curiam). It is uncontested

that the prosecutor, confused about which portions of the

voluminous medical records had been admitted into evidence,

read Danny's statement inadvertently. Furthermore, the refer-

ence was made in passing in the course of an eight-hour clos-

ing argument and the prosecutor, immediately after reading

the statement, explicitly told the jury that he did not believe

it to be competent evidence of Downs's guilt. Upon defense

counsel's objection, the prosecutor apologized and immedi-

ately changed the topic. The state court granted summary

judgment on the claim and the district court rejected it. We

find no clear error.

B. Ineffective Assistance of Counsel

Downs further contends that trial counsel should have

moved for a mistrial after the prosecutor's statement. The

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state court found that trial counsel, after conferring with

Downs, made a valid tactical judgment not to seek a mistrial

and that the prosecutor's action was not in fact ground for a

mistrial. To establish ineffective assistance of counsel, a

defendant must show both that counsel's performance fell

below an objective standard of reasonableness and that the

deficient performance prejudiced the defense. See Strickland

v. Washington, 466 U.S. 668, 691 (1984). The second, or prej-

udice prong, requires a showing that there is a reasonable

probability that, but for counsel's unprofessional errors, the

result of the proceeding would have been different. Id. at 694.

The question is not whether the verdict would more likely

than not have been different, but whether the defendant

received a fair trial, understood as a trial resulting in a verdict

worthy of confidence. See Kyles v. Whitley, 514 U.S. 419, 434

(1995).

There is a strong presumption that counsel's conduct falls

within the wide range of reasonable professional assistance,

or "sound trial strategy." Strickland, 466 U.S. at 689. Tactical

decisions after consultation with the client are"virtually

unchallengeable." Id. at 690. Moreover, even if Downs could

show deficient performance, the record does not establish a

reasonable probability that, but for counsel's alleged ineffec-

tive performance, the result of the proceeding would have

been different. Id. at 694. As Downs cannot show that she did

not receive a fair trial, understood as a trial resulting in a ver-

dict worthy of confidence, the state court's rejection of this

claim was not clearly erroneous.

IV. PROSECUTOR'S REFERENCE TO DEVIANT

SOCIOPATH DIAGNOSIS DURING CROSS-

EXAMINATION

Downs also claims that the prosecution's cross-examination

deprived her of due process and that trial counsel's failure to

object and move for a mistrial denied her the effective assis-

tance of counsel.

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A. Due Process

Prosecutorial misconduct, as noted above, violates due pro-

cess only if a prosecutor presents evidence which"taken as a

whole" gives a jury a "false impression." Alcorta, 355 U.S. at

31. On cross-examination, the prosecutor asked Downs, "You

were labeled a deviant sociopath by the tests [Dr. Jamison]

gave you?" She answered, "I don't know . . . . She didn't dis-

cuss names. She discussed different qualities that I carried at

that time." Defense counsel did not object and made no

motions. Prior to trial, Downs had consulted a psychologist,

Dr. Polly Jamison, who twice administered the Minnesota

Multiphasic Personality Inventory test to Downs. The cover

sheets on both reports list "deviant" and"sociopathic" as rele-

vant classifications. Downs contends that the question was

misleading and that the prosecutor was obligated to correct

any misperception.

The state argues that this claim was raised in the postcon-

viction court only as an ineffective assistance claim and the

district court held it procedurally defaulted. Even if the claim

were properly before us, it cannot be said that this question,

coming during a four-day cross-examination of Downs and

dealing with her psychological state--a relevant matter--so

infected the trial with unfairness that it denied her due pro-

cess. The state court's finding that there was nothing improper

about the question and that it was not ground for a mistrial

was not clearly erroneous.

B. Ineffective Assistance of Counsel

Downs further contends that trial counsel's failure to

object, move for a mistrial, or call Dr. Jamison was ineffec-

tive assistance. Counsel's decision not to seek a mistrial in the

fourth week of what turned out to be a six-week trial was a

tactical judgment, as was counsel's decision not to call Dr.

Jamison to rebut the question's implication. Neither can it be

said to have constituted deficient performance. While Jamison

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did notify counsel that she had positive things to say about

Downs, counsel knew that Jamison was inexperienced and

that calling her would have risked opening the entire subject

of Downs's psychological examination. Moreover, Downs has

not shown prejudice, particularly as the prosecutor promptly

dropped the line of inquiry and changed the topic. Accord-

ingly, the state court's rejection of Downs's claim was not

clearly erroneous.

V. USE OF CHRISTIE'S TESTIMONY

Downs also contends that the state's lengthy effort to

revive the memory of Christie, the only eyewitness, involved

suggestive questioning and improper influence which resulted

in tainted testimony and denied her a fair trial. Downs also

argues that trial counsel's failure to challenge the competency

of Christie's testimony denied her effective assistance.

A. Due Process

Downs argues that the prosecutors and investigators

improperly influenced Christie's testimony by coercing her to

identify her mother as the shooter. The facts on which Downs

relies to establish that Christie's memory was tainted are: the

sheer number of interviews (at least eighty before Christie's

trial testimony, a number the state vigorously disputes); their

allegedly coercive nature; the predominance of suggestive,

closed-ended questions that had to be answered yes or no; and

her extended state custody surrounded by persons under state

control. (Downs was denied access to her daughter both

before and after the trial.)

The district court held that this claim was not defaulted. We

agree, albeit for a different reason, having found that Downs's

briefs in the Oregon Court of Appeals and the Oregon

Supreme Court make specific reference to "the larger issue of

the coercion and manipulation of a traumatized 8 year old."

In response to Downs's sweeping generalizations, the state

in its brief presents a chronology of the treatment of and com-

munications with Christie, detailing the care with which state

agents dealt with Christie and debunking Downs's claims

regarding the coercive nature of the interviews. We note par-

ticularly Christie's first substantive interview on June 1, 1983,

referred to by counsel in oral argument, in which she

recounted, in the presence of Dr. Wilhite and nurse Zaklan

(and for a time Paula Krogdahl, a retired childcare worker),

that she remembered going for a ride with her mother, sister,

and brother and no one else in the car on the day she was hurt,

and that there were no males present on the night of the shoot-

ing. In short, while Christie's youth, suggestibility, and medi-

cal condition (she was aphasic, or unable to communicate

with speech, when she first awoke after the shooting) may

have been a basis for challenging her credibility, there are no

grounds for finding a due process violation. We therefore see

no clear error in the rejection of this claim.

B. Ineffective Assistance of Counsel

Downs further contends that trial counsel's failure to object

to the competency of Christie's testimony constituted ineffec-

tive assistance. She argues that the district court, which held

that the claim was procedurally barred, erred in failing to

reach the merits because she has made a "credible showing of

innocence." Schlup v. Delo, 513 U.S. 298 (1995), holds that

"if a petitioner . . . presents evidence of innocence so strong

that a court cannot have confidence in the outcome of the trial

unless the court is also satisfied that the trial was free of non-

harmless constitutional error, the petitioner should be allowed

to pass through the gateway and argue the merits of his under-

lying claims." Id. at 316. "To be credible, such a claim

requires petitioner to support his allegations of constitutional

error with new reliable evidence . . . that was not presented

at trial." Id. at 324. It is not enough that the evidence shows

the existence of a reasonable doubt; the petitioner must show

"that it is more likely than not that `no reasonable juror'

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would have convicted him." Id. at 329. To overcome the pro-

cedural bar, Downs's Strickland and Brady claims must be so

substantial as to bring the case "within the`narrow class of

cases . . . implicating a fundamental miscarriage of justice.' "

Id. at 315 (quoting McCleskey v. Zant, 499 U.S. 467, 494

(1991)). Downs's Strickland claim does not rise to the level

of nonharmless constitutional error. Downs, as noted above,

has not demonstrated that Christie's testimony should have

been excluded as tainted, but even had it been excluded,

Downs's innocence claim is undermined by the compelling

ballistic evidence. Cf. Carriger v. Stewart, 132 F.3d 463 (9th

Cir. 1997) (en banc) (petition qualified for gateway on a

showing principally that the chief prosecution witness had

confessed to the crime under oath in the postconviction court

and that prosecution had failed to produce file disclosing that

witness was a known liar). As discussed above, Downs's

Brady claim is not persuasive and so cannot support her gate-

way claim either. Likewise, the affidavits Downs submitted to

the district court, which contain conflicting versions of

another person's "confession," do not support the showing

that no reasonable jury could convict. Accordingly, we con-

clude that Downs's gateway claim is without merit.

Downs also argues that the district court erred by failing to

hold a limited evidentiary hearing for the purpose of hearing

Christie's testimony. AEDPA bars an evidentiary hearing "[i]f

the applicant has failed to develop the factual basis of a claim

in State court proceedings." 28 U.S.C. § 2254(e)(2). Downs

argues that she was barred from deposing Christie before trial

and then from calling her as a postconviction witness. How-

ever, even if Downs surmounts this bar, AEDPA bars a hear-

ing

unless the applicant shows that-- (A) the claim relies on . . .

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(ii) a factual predicate that could not have been previously discovered through the exercise of due diligence; and (B) the facts underlying the claim would be suffi- cient to establish by clear and convincing evidence that but for constitutional error, no reasonable fact finder would have found the applicant guilty of the underlying offense.

28 U.S.C. § 2254(e)(2)(A)(ii)-(B).

As discussed above, the claim based on Christie's testi-

mony fails to meet that test. The facts underlying the claim

are insufficient to establish by clear and convincing evidence

that, but for the alleged constitutional error, no reasonable fact

finder would have found her guilty. Moreover, even assuming

Downs's claim could clear the hurdle posed by § 2254(e)(2),

the fact that a hearing would be permitted does not mean that

it is required. The district court retains discretion whether to

hold one. McDonald v. Johnson, 139 F.3d 1056, 1059-60 (5th

Cir. 1998). Here, the district court permitted Downs a year of

discovery to develop the record in support of her petition. Its

decision to deny an evidentiary hearing was not an abuse of

discretion. See Cardwell v. Greene, 152 F.3d 331, 338-39 (4th

Cir. 1998) ("We have long held that the need for an evidenti-

ary hearing may be obviated by . . . expansion of the record").

VI. FAILURE TO CALL DR. VERGAMINI

Downs contends that she was deprived of effective assis-

tance by counsel's failure to call Dr. Vergamini, a hospital

staff psychologist who interviewed both Christie and Danny

shortly after the shooting. Christie told Vergamini that she did

not remember the shooting and that she was genuinely con-

fused about what happened. Downs contends that Ver-

gamini's testimony would have supported the argument that

Christie's testimony had been improperly influenced by the

14672

prosecution. Trial counsel stated that he did not call Ver-

gamini because it would have involved "very little, if any,

benefit and a great deal of risk" and would have duplicated

other testimony. The postconviction court found counsel

made a valid tactical decision. We find no clear error.

VII. FAILURE TO USE STATE'S FINGERPRINT

REPORT

Downs contends her counsel was ineffective in failing to

use at trial a police report establishing that the fingerprints

found on the trunk of the car did not match Downs's. Downs

argues that this evidence would have supported her theory

that someone else was at the crime scene and undermined the

state's theory that she had retrieved the gun from the trunk.

Trial counsel testified that he did not consider the evidence

important to the defense and that he feared that jurors might

suspect Downs had destroyed evidence by wiping away her

own prints. The postconviction court found that trial counsel

had adequately reviewed all available evidence and dealt with

it properly at trial. We find no clear error.

VIII. DOWNS'S REMAINING CLAIMS

Downs raises three additional claims: (1) that the trial

court's refusal to grant a continuance in order to accommo-

date her choice of new counsel violated her Sixth Amendment

rights and denied her effective assistance of counsel; (2) that

the trial court's charge to the jury to enter verdicts on the

agreed upon counts and continue deliberating on the remain-

ing count was coercive; and (3) that appellate counsel's fail-

ure to raise these issues on appeal denied her effective

assistance of counsel. Downs concedes that these claims were

defaulted but relies on her claim of actual innocence to avoid

the procedural default. For the reasons discussed above, we

reject the contention.

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CONCLUSION

As the state court's decision was not clearly erroneous, we

AFFIRM the district court's denial of Downs's habeas peti-

tion.

AFFIRMED.

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