Dow v. Virga, No. 11-17678 (9-5-13) (Reinhardt with M. Smith and Carr, Sr. D.J.)

In this second degree robbery habeas challenge, the 9th reverses the denial of the petition. It held that (1) the state prosecutor did commit prosecutorial misconduct; (2) that it wasn't harmless; and (3) that the state court's application of federal law was unreasonable. Here, even the state court found prosecutorial misconduct when the prosecutor knowingly elicited false testimony. The prosecutor had the detective testify that the petitioner, rather than his lawyer, had asked that eye patches be used in a line up to cover up a facial scar during a line-up. The lawyer had asked because of a concern about false identification, since only the petitioner had a facial scar. After eliciting the false testimony, the prosecutor than argued that it showed consciousness of guilt. The 9th agreed with the state courts that this was misconduct, and reversed the denial of the petition because it wasn't harmless, and the state courts had been unreasonable in applying clearly established federal precedent.