Fong v. Ryan, No. 11-17051 (7-25-14)(Timlin (Sr. D.J. with Bybee; Schroeder dissenting).
Petitioner's conviction for a triple homicide is affirmed. This affirmance is despite the detective lying (no dispute); the prosecutor engaging in misconduct (no dispute in this and the codefendants' cases); the prosecutor's subsequent disbarment (matter of record for this and other codefendants' cases); the questionable trial strategy of defense counsel in calling an informant when the state couldn't and having damning statements come in (supplying the nails and hammer for petitioner's coffin); and the acquittal or dismissals of the two other codefendants. The 9th uses AEDPA to find the state court's decisions not unreasonable in applying the Supreme Court's decision in Napue v. Illinois that elicitation of false testimony is a due process violation. Dissenting, Schroeder states that the petitioner did not receive a fair trial. The dissent is appalled at the prosecutorial misconduct and the inexplicable ineffectiveness and incompetence of defense counsel.