928 F2d 1137 Myers v. Borg

928 F.2d 1137

Unpublished Disposition

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.

Randy Allen MYERS, Petitioner-Appellant,
Robert Glen BORG, Warden, et al., Respondents-Appellees.

No. 90-55301.

United States Court of Appeals, Ninth Circuit.

Submitted March 20, 1991.*
Decided March 25, 1991.

Appeal from the United States District Court for the Central District of California; No. CV-89-2108-FW, Francis C. Whelan, District Judge, Presiding.




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Randy Allen Myers, a California state prisoner, appeals pro se the district court's denial of his 28 U.S.C. Sec. 2254 habeas petition. We review de novo, Norris v. Risley, 878 F.2d 1178, 1180 (9th Cir.1989), and we affirm.


* Myers contends he was denied a fair trial because the prosecution did not disclose to the jury the terms of the plea agreement of his accomplice, who testified against him.


"[D]eliberate deception of a jury by the presentation of known false evidence is incompatible with rudimentary demands of justice." Giglio v. United States, 405 U.S. 150, 153 (1972) (quotation omitted); accord United States v. Polizzi, 801 F.2d 1543, 1549 (9th Cir.1986). "[T]he same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears ..., irrespective of the good faith or bad faith of the prosecution." Giglio, 405 U.S. at 153 (quotations omitted). "When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule." Id. at 154 (quotation omitted). A new trial is required if "the false testimony could ... in any reasonable likelihood have affected the judgment of the jury...." Id.


In 1984, Myers and an accomplice each were charged with two counts of rape in violation of Cal.Penal Code Sec. 261(2). The information further alleged that during the commission of the rape, Myers and the accomplice acted in concert with each other to accomplish the rape by means of force and violence within the meaning of Cal.Penal Code Sec. 264.1. The accomplice subsequently pleaded guilty to one count of forcible rape and agreed to testify at Myers's trial. In return, the prosecution dropped the second count of forcible rape and the in concert allegation, but made no promises as to the sentence. A copy of the transcript of the plea agreement was given to Myers before trial.


At trial, Myers represented himself. The victim testified that Myers and the accomplice raped her. Police officers testified that after the rape, the victim was crying, appeared extremely upset, and had red marks and scratches on her neck and back. Photographs showing injuries to the victim's neck and back were admitted into evidence. The emergency room physician who treated the victim testified that the injuries she sustained and her elevated pulse and respiration rates were consistent with one who had been sexually assaulted. The accomplice also testified and corroborated the victim's testimony.


On direct examination, the accomplice testified that he had pleaded guilty to one count of rape. On cross-examination, the following colloquy took place between Myers and the accomplice:

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Q: Were any promises made to you to testify here today?


A: No.


Q: No promises whatsoever?


A: None.


Neither the prosecution nor Myers examined the accomplice further as to the terms of the plea agreement. The jury subsequently found Myers guilty on all counts and found the in concert allegation to be true.


Myers contends that he was denied a fair trial because the prosecution did not explain that the accomplice benefited from a plea bargain where a second count of rape and the in concert allegation were dismissed in exchange for the accomplice's testimony. Nevertheless, the prosecution fully disclosed the terms of the plea agreement to Myers before the trial. Cf. Giglio, 405 U.S. at 154-55 (undisclosed deal made with witness that in exchange for his testimony, he would not be prosecuted; prosecution's failure to disclose agreement deprived defendant of due process). Myers could have explored the extent of the plea agreement on cross-examination, but did not.1 Moreover, unlike the facts in Giglio, where the government's case depended almost entirely on the witness's testimony, see id. at 153-55, the accomplice's testimony here merely corroborated the victim's detailed testimony about the rape. Independent physical and medical evidence and the testimony of the police officers also corroborated the victim's testimony. Even without the accomplice's testimony, the government's case against Myers was strong.2 See Willhoite v. Vasquez, 921 F.2d 247, 249 (9th Cir.1990); cf. Giglio, 405 U.S. at 153-55 (without witness's testimony, there could have been no indictment and no evidence to carry the case to the jury). Because any error was harmless, Myers was not denied due process by the prosecution's failure to fully explain the terms of the disclosed plea agreement. See id.



Myers also contends the prosecution improperly vouched for the accomplice's credibility during closing argument.


It is improper for the prosecution to vouch for the credibility of a government witness. United States v. Roberts, 618 F.2d 530, 533 (9th Cir.1980). Vouching occurs when the prosecutor "(1) 'places the prestige of the government behind the witness' through personal assurances of the witness's veracity, or (2) suggests that 'information not presented to the jury supports the witness's testimony.' " United States v. Wallace, 848 F.2d 1464, 1473 (9th Cir.1988) (quoting Roberts, 618 F.2d at 533).


Prosecutorial misconduct during closing argument is reversible error only if "in the circumstances of the trial as a whole, the remarks were so prejudicial that they likely influenced the jury adversely to the defendant and deprived the defendant of a fair trial." United States v. Patel, 762 F.2d 784, 795 (9th Cir.1985); see Donnelly v. DeChristoforo, 416 U.S. 637, 642-43 (1974) (in the context of a section 2254 petition, "not every trial error ... constitutes a failure to observe that fundamental fairness essential to the very concept of justice").


In his closing argument, the prosecutor stated that "[w]e don't need to speculate why [the accomplice] ... testified. It could be that perhaps he felt guilty and feels sorry about the whole thing." Myers did not object to this argument.


Even assuming that the prosecutor's comments in this matter were improper, we conclude that any error was harmless. See id. Given the strong evidence supporting the government's case, the prosecutor's statements during closing argument did not "so infect the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly, 416 U.S. at 642-43.



On appeal, Myers argues that the district court erred in denying his section 2254 petition without an evidentiary hearing. This contention lacks merit.


The district court must hold an evidentiary hearing in a section 2254 proceeding if (1) the petitioner's allegations, if proved, would entitle him to relief, and (2) the state court trier of fact has not, after a full and fair hearing, reliably found the relevant facts. Townsend v. Sain, 372 U.S. 293, 312-13 (1963); Van Pilon v. Reed, 799 F.2d 1332, 1338 (9th Cir.1986).


Here, Myers makes no allegations of events that occurred outside of the trial record that might require an evidentiary hearing. See Blackledge v. Allison, 431 U.S. 63, 72-74 & n. 4 (1977). Because all relevant facts are contained in the state court record, and because the district court independently reviewed the state court record in deciding the merits of Myers's claims, the district court's denial of the habeas petition was proper. See Townsend, 372 U.S. at 312-13; Reiger v. Christensen, 789 F.2d 1425, 1428 (9th Cir.1986).



On appeal, Myers asserts that the district court adopted the magistrate's final report and recommendation without conducting a de novo review.


Under 28 U.S.C. Sec. 626(b), a magistrate is authorized to prepare a report and recommendation that disposes of a party's claims. If the party objects to the recommendation within 10 days, the district court must make a de novo determination and may adopt the magistrate's findings. See Fed.R.Civ.P. 72(b); Tripati v. Rison, 847 F.2d 548, 548 (9th Cir.1988). Here, Myers did timely file an objection to the magistrate's report. The district judge then conducted a de novo determination and adopted the magistrate's original report and recommendation, acknowledging Myers's objection thereto. Thus, the district court did not commit any error.




The panel unanimously finds this case suitable for disposition without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Circuit R. 36-3


At best, the accomplice's testimony was misleading. The accomplice testified on direct that he had pleaded guilty to one count of forcible rape. The government argues that by saying on cross that he was not promised anything in exchange for his testimony, the accomplice referred to the fact that no promises as to sentence were made by the prosecution


Myers argues that the accomplice's testimony provided critical corroboration of the victim's claim that Myers penetrated her, which is an essential element of rape in California. Nevertheless, Myers's allegations do not affect the strength of the government's case