Gonzalez v. Wong, No. 08-99025 (12-7-11) (Clifton; partial concurrence and partial dissent by W. Fletcher; partial dissent by O'Scannlain).

This is a notable decision discussing Pinholster and what it means for newly discovered evidence. The petitioner was sentenced to death for the murder of a police officer attempting to search the petitioner's house. A jailhouse informant reported that the petitioner told him he was waiting for the officer so he could bag a cop. Here the new evidence was Brady impeachment of a key state witness - the jailhouse informant. The impeachment involved numerous prison mental health reports that concluded the witness was mentally ill and a liar. The state did not disclose this Brady evidence, and stonewalled its disclosure throughout the state appellate process. While the 9th concludes that Pinholster bars it's consideration of the new evidence in the Brady claim since review is limited to what was before the state court, it has to do something with this bombshell of new evidence. If it is considered a new claim, then exhaustion issues are raised. However, drawing upon Breyer's concurrence, the 9th concludes that it should remand the issue to the district court with instructions to stay and abey the habeas proceedings to allow the petitioner to present to state court his Brady claim with the subsequently disclosed materials. This allows the state court to channel the claim and take first crack at the new evidence. Once the state court has decided, then the petitioner can return to federal court. W. Fletcher concurs, but dissents as to the remand here because, under these facts, this court should decide. He argues this because of the state's stonewalling and efforts to hide the evidence and the state court's decision not to require disclosure leaves the issue to the federal courts. This is due to the specific facts here. O'Scannlain dissents, arguing that Pinholster bars any consideration by the federal court of the subsequent evidence. He believes that the evidence is not material and that the petitioner somehow delayed discovery.