Running Eagle v. Ryan, No. 07-99026 (7-18-12)

(Wardlaw with Bea; partial concurrence, partial dissent by Pregerson)

(Note: this is an Arizona FPD case)

The petitioner and a co-defendant were involved in a brutal murder of an elderly couple. Who actually murdered them? At the trial stage, a cellmate of the co-defendant said he had information, and wanted to make a deal. The prosecutors met with him five times. No deal was struck, and the prosecutors used another witness. At trial, and sentencing, the co-defendant argued that the petitioner was the stabber. What exactly did the cellmate witness tell the prosecutors? We don't know. The cellmate is dead. The information or even file was never turned over to the defense, despite repeated requests over 20 years. The 9th gives a deferential AEDPA shrug, concluding that such information was speculation (5 times?), and that the standard for Brady used by the state PCR courts was proper. The 9th hammers the point that the information was speculation, and can not be inferred to be favorable and material in the absence of what was actually said. Dissenting, Pregerson argues that the petitioner had sought Brady material, and it was the state which withheld it. There should be a hearing on exactly what the evidence was. The issue of who did the stabbing played, for Peregerson, a major role in sentencing. To the majority, the sentencing judge focused on the defendants as individuals, and their age, remorse, mental condition, and prospects of rehabilitation. Pregerson also believes the state courts used an incorrect standard -- "probably would have changed the verdict" -- rather than the lower standard of "reasonable probability". The state's standard is contrary to federal law. The panel all agreed to affirm the denials of the IAC claims as to failure to move for severance, prosecutorial misconduct in argument, and sentencing.