Jeffrey Ford v. Fernando Gonzalez

Filing

FILED OPINION (JOHN T. NOONAN, M. MARGARET MCKEOWN and MILAN D. SMITH, JR.) AFFIRMED. Judge: JTN Dissenting, Judge: MDS Authoring. FILED AND ENTERED JUDGMENT. [8234057]--[COURT UPDATE: Filed date was missing from original opinion. The opinion has been corrected to include the filed date. Resent NDA. 07/02/2012 by RY]

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FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY DEAN FORD,
Petitioner-Appellant,
v.
FERNANDO GONZALEZ,
Respondent-Appellee.





No. 11-15430
D.C. No.
2:05-cv-00944LKK-GGH
OPINION

Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, Senior District Judge, Presiding
Submitted March 12, 2012*
San Francisco, California
Filed July 2, 2012
Before: John T. Noonan, Jr., M. Margaret McKeown, and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.;
Dissent by Judge Noonan

*The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

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COUNSEL
Marylou Hillberg, Sebastopol, California, for the petitionerappellant.
Kamala D. Harris, Michael P. Farrell, Brian G. Smiley, Jeffrey Grant, California Department of Justice, Sacramento,
California, for the respondent-appellee.

OPINION
M. SMITH, Circuit Judge:
Petitioner-Appellant Jeffrey Dean Ford (Ford), a California
state prisoner, appeals from the district court’s dismissal as
untimely of three claims in his petition for a writ of habeas
corpus, under 28 U.S.C. § 2254. Ford argues that his claims
are timely because the prosecutor withheld evidence that Constance Goins (Goins), a witness for the prosecution at his trial,
received lenient treatment in her own criminal cases in return

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for testifying against him. We hold that Ford is not entitled to
delayed commencement of the one-year statute of limitations
under the Antiterrorism and Effective Death Penalty Act
(AEDPA), 28 U.S.C. §§ 2241 et seq., because the factual
predicate of his claims could have been discovered had he
exercised due diligence at his trial. We also hold that Ford is
not entitled to equitable tolling because he did not exercise
reasonable diligence, and no extraordinary circumstance prevented the timely filing of his claims. Accordingly, we affirm
the district court’s dismissal of his habeas claims as timebarred.
FACTUAL AND PROCEDURAL BACKGROUND
In September 2000, Detective Danny Minter (Detective
Minter) of the Sacramento Sheriff’s Department was investigating a series of bank robberies. Detective Minter met with
Goins, who was in police custody on unrelated drug charges,
at her request. She said that Ford had admitted to her that he
was addicted to robbing banks and that he had robbed multiple U.S. Bank branches. Detective Minter told her that once
he confirmed what she told him, he would contact the deputy
district attorney prosecuting her case. Nevertheless, Goins
was released from jail before the information she provided
was confirmed. Detective Minter investigated what Goins told
him and arrested Ford. Ford was charged with robbing six
banks, including three U.S. Bank branches.
At Ford’s trial, Goins testified for the prosecution. Witnesses offered different accounts about whether Goins had
sought or received benefits for cooperating with law enforcement. Goins denied providing information to law enforcement
to get out of jail. However, Detective Minter testified that
Goins “said that she wanted to go home, and she had family
members she needed to be home to take care of.” He also testified that “she got out [of jail] right after we talked to her,”
although he denied having anything to do with her release.
Throughout the closing argument, the prosecutor repeatedly

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said that Goins spoke with Detective Minter because she
wanted to be released.
After Ford was arrested, Beverly Ford, who is Goins’s sister and Ford’s wife, began living in the same house as Goins
and their mother. During the trial, Beverly Ford pressured
Goins to help Ford and took an active interest in Ford’s case.
Beverly Ford testified that a few weeks before trial, Goins
was found in possession of drugs by a police detective, but
was not arrested. During Ford’s trial, the prosecutor reported
to the court while Ford was present that a warrant was issued
for Goins’s arrest. Defense counsel asked the trial court
whether he could use the information “to argue to this jury
that [Goins] did what she did because she was expecting a
deal from the DA’s office,” and gave an example of law
enforcement taking “dope from her” but “cut[ting] her some
slack.” After the prosecutor reported that there was no deal by
law enforcement to delay Goins’s arrest warrant in exchange
for her testimony and that the warrant was issued by a different judge because Goins had failed to appear on an unrelated
court date, defense counsel did not pursue the issue.
The jury found Ford guilty of two counts of robbery. After
the trial, Beverly Ford drafted a note in which Goins recanted
her testimony, for Goins to copy. Beverly Ford then transported Goins to a notary so she could sign the note. Nevertheless, at a later hearing on Ford’s motion for a new trial,
despite Beverly Ford’s insistence that she say otherwise,
Goins maintained that she had been truthful at trial, and that
her recantation in the notarized note was false. The California
Court of Appeal affirmed Ford’s convictions. On May 12,
2004, the California Supreme Court denied Ford’s petition for
review.
On May 13, 2005, Ford filed his original petition for a writ
of habeas corpus in the United States District Court for the
Eastern District of California, based on the introduction of
certain evidence (unrelated to Goins’s testimony) at his trial.

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In November 2005, Ford’s appointed counsel requested all of
Goins’s criminal files. Counsel received the files and
reviewed them in January 2006. These files allegedly revealed
that Goins had received favorable dispositions of her own
criminal cases before and during Ford’s trial.
On February 16, 2006, Ford filed an amended habeas petition seeking to add claims based on his counsel’s examination
of Goins’s case files. The amended petition included the original grounds for relief in the first claim and added four new,
unexhausted claims. In his second claim, Ford alleged that the
prosecutor failed to disclose material, exculpatory evidence of
benefits that Goins received for cooperating with law enforcement. The third claim stated that Ford’s right to effective
assistance of counsel was violated because his trial counsel
failed to investigate favors Goins received in exchange for her
testimony. Ford’s fourth claim asserted that the prosecutor
intentionally or recklessly introduced Goins’s false, misleading, and perjurious testimony. The fifth claim contended that
Ford’s confinement was unlawful because of his actual innocence.
On August 23, 2006, the district court stayed and closed the
case pending exhaustion of Ford’s claims. The California
Supreme Court denied Ford’s state habeas petition on February 11, 2009.
On March 6, 2009, Ford notified the district court of the
California Supreme Court’s decision and requested that the
court lift the stay. The same day, Ford filed a second amended
petition that included the same claims as the first petition, but
included additional facts in support of Ford’s fifth claim.
On March 17, 2009, the magistrate judge lifted the stay.
Respondent-Appellee Fernando Gonzalez moved to dismiss
claims 2 through 5 as time-barred. The district judge adopted
the magistrate judge’s recommendation as to claims 2, 3, and

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4, and dismissed these claims as untimely. In the same order,
the district judge dismissed claim 5 on the merits.
After the district judge dismissed Ford’s remaining habeas
claim, Ford filed a timely notice of appeal to our court. See
Fed. R. App. P. 4(a)(5)(A).
STANDARD OF REVIEW AND JURISDICTION
“The dismissal of a petition for writ of habeas corpus as
time-barred is reviewed de novo.” Bills v. Clark, 628 F.3d
1092, 1096 (9th Cir. 2010) (quoting Spitsyn v. Moore, 345
F.3d 796, 799 (9th Cir. 2003)). “If the facts underlying a
claim for equitable tolling are undisputed, the question of
whether the statute of limitations should be equitably tolled is
also reviewed de novo.” Id. (quoting Spitsyn, 345 F.3d at
799). “Otherwise, findings of fact made by the district court
are to be reviewed for clear error.” Id. (quoting Spitsyn, 345
F.3d at 799).
We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and
2253(c).
DISCUSSION
Under AEDPA, “[a] 1-year period of limitation shall apply
to an application for a writ of habeas corpus by a person in
custody pursuant to the judgment of a State court.” 28 U.S.C.
§ 2244(d)(1). “Section 2244(d)(1) ‘contain[s] multiple provisions relating to the events that trigger its running.’ ” Lee v.
Lampert, 653 F.3d 929, 933 (9th Cir. 2011) (en banc) (quoting Holland v. Florida, 130 S. Ct. 2549, 2561 (2010)) (alteration in original). “The triggering events are the dates on
which: direct review becomes final, an unlawful state-created
impediment to filing is removed, a new constitutional right is
made retroactively available, or the factual predicate of the
claim(s) presented could have been discovered with ‘due diligence.’ ” Id. (quoting 28 U.S.C. § 2244(d)(1)(A)-(D)). The

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one-year statute of limitations begins running from the latest
of those dates. See 28 U.S.C. § 2244(d)(1); Hasan v. Galaza,
254 F.3d 1150, 1153 (9th Cir. 2001). Equitable tolling may
also apply in appropriate circumstances. See Holland, 130 S.
Ct. at 2554.
On appeal, Ford challenges the dismissal of claims 2, 3,
and 4 as untimely. He argues that he is entitled to delayed
commencement of the statute of limitations because the factual predicate of his claims could not have been discovered
until his present counsel received Goins’s case files in January 2006.1 He also argues that he is entitled to equitable tolling.
A.

Start Date of Statute of Limitations

[1] The statute of limitations begins to run under
§ 2244(d)(1)(D) when the factual predicate of a claim “could
have been discovered through the exercise of due diligence,”
not when it actually was discovered. 28 U.S.C.
§ 2244(d)(1)(D) (emphasis added); accord Schlueter v.
Varner, 384 F.3d 69, 74 (3d Cir. 2004). “Due diligence does
not require ‘the maximum feasible diligence,’ but it does
require reasonable diligence in the circumstances.”2 Schlueter,
384 F.3d at 74 (quoting Moore v. Knight, 368 F.3d 936, 940
(7th Cir. 2004)); see also Quezada v. Schribner, 611 F.3d
1165, 1168 (9th Cir. 2010) (using reasonable diligence standard in evaluating commencement of statute of limitations
under § 2244(d)(1)(D)); Starns v. Andrews, 524 F.3d 612, 619
1
Ford abandoned any argument that the failure to disclose Goins’s case
files was a state-created impediment that delayed the start of the statute of
limitations under 28 U.S.C. § 2244(d)(1)(B).
2
We seem to have reached this conclusion only in an opinion subsequently vacated for unrelated reasons, and we reach this conclusion again
today. See Souliotes v. Evans, 622 F.3d 1173, 1178 (9th Cir. 2010) (“As
our sister circuits have recognized, § 2244(d)(1)(D) does not demand the
maximum diligence possible, but only ‘due’ or ‘reasonable’ diligence.”),
vacated, 654 F.3d 902 (9th Cir. 2011).

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(5th Cir. 2008); DiCenzi v. Rose, 452 F.3d 465, 470 (6th Cir.
2006) (noting that § 2244(d)(1)(D) requires only due, or reasonable, diligence).
[2] “Section 2244(d)(1)(D) provides a petitioner with a
later accrual date than section 2244(d)(1)(A) only ‘if vital
facts could not have been known’ ” by the date the appellate
process ended. Schlueter, 384 F.3d at 74 (quoting Owens v.
Boyd, 235 F.3d 356, 359 (7th Cir. 2000)). The “due diligence”
clock starts ticking when a person knows or through diligence
could discover the vital facts, regardless of when their legal
significance is actually discovered. See Hasan, 254 F.3d at
1154 n.3; see also Redd v. McGrath, 343 F.3d 1077, 1082
(9th Cir. 2003).
[3] Although section 2244(d)(1)(D)’s due diligence
requirement is an objective standard, a court also considers
the petitioner’s particular circumstances. See Wood v. Spencer, 487 F.3d 1, 5 (1st Cir. 2007) (holding that due diligence
under § 2244(d)(1)(D) is an objective test); Schlueter, 384
F.3d at 75 (considering petitioner’s physical confinement and
familial assistance in determining due diligence); Moore, 368
F.3d at 940 (taking into account that prisoners are limited by
their physical confinement in determining due diligence);
Easterwood v. Champion, 213 F.3d 1321, 1323 (10th Cir.
2000) (holding that a case is “discoverable” by “due diligence” on the date it becomes accessible in the prison law
library, rather than the date of publication); see also Starns,
524 F.3d at 619 (holding that a petitioner did not fail to act
with due diligence given the state’s misleading suggestion).
Just as the petitioner’s particular circumstances may include
impediments to discovering the factual predicate of a claim,
they may also include any unique resources at the petitioner’s
disposal to discover his or her claim. See, e.g., Schlueter, 384
F.3d at 75 (considering that a petitioner’s parents actively
assisted him in evaluating his diligence).
Here, Ford’s second, third, and fourth claims are premised
on an alleged deal Goins received for testifying against him

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and providing information to the police. The only evidence
Ford offers that such a deal exists is Goins’s case files, which
allegedly show favorable dispositions of some charges against
her.
[4] We hold that the factual predicate of Ford’s claims
could have been discovered at the time of his trial through the
exercise of due diligence. The magistrate judge observed that
Ford “relies on a factual predicate and speculative inferences
therefrom which have been present since the trial itself
(whether or not they were recognized by anyone).” We agree.
[5] Based on the testimony offered at Ford’s trial, Ford had
reason to suspect that Goins may have sought and received
some benefits for assisting law enforcement. At the very least,
Ford and his trial counsel were aware that, despite being
found in possession of drugs by a police detective, Goins was
not arrested. In fact, his trial counsel remarked at trial that he
wanted to argue to the jury that Goins “did what she did
because she was expecting a deal from the DA’s office,” but
declined to press this argument. Thus, Ford’s trial counsel
was clearly aware of the possibility of a deal. Regardless of
whether this knowledge is attributed to Ford, it illustrates that
the testimony at trial gave ample reason for a reasonable person in Ford’s position to investigate further whether Goins
sought and received benefits in return for assisting law
enforcement. Cf. Wood, 487 F.3d at 4-5 (holding that a petitioner, through his attorney, had notice of a conversation in
evaluating whether the petitioner exercised due diligence
under § 2244(d)(1)(D)).
[6] Beyond the testimony at trial, the unique living
arrangements and active assistance of Beverly Ford, his wife,
also gave Ford access to information about whether Goins had
received a deal. Beverly Ford, Goins’s sister, lived in the
same house as Goins and their mother. As the magistrate
judge found, “it is more than arguable that Beverly Ford was
present and aware of Goins’ various criminal cases and their

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dispositions” after Ford’s arrest. During and after the trial,
Beverly Ford pressured Goins to help Ford, and took an active
interest in Ford’s case. The magistrate judge did not speculate
as to what specific information Beverly Ford was privy to or
what information she relayed to Ford. Beverly Ford’s assistance was an additional resource a reasonable person in
Ford’s circumstances could have used to discover the factual
predicate of his claims at the time of his trial. See, e.g., Schlueter, 384 F.3d at 75 (considering that a petitioner’s parents,
who were actively involved in his case, could have assisted
the petitioner in discovering the factual basis of his habeas
claim).
[7] Under the circumstances, Ford could have discovered
the factual predicate of claims 2, 3, and 4 through the exercise
of due diligence, no later than the completion of his trial.
Thus, the district court did not err in finding that Ford did not
exercise due diligence. Accordingly, the statute of limitations
began running under § 2244(d)(1)(D) no later than the end of
Ford’s trial. See Schlueter, 384 F.3d at 74.
[8] Because the vital facts underlying claims 2, 3, and 4
could have been known long before the state appellate process
ended, § 2244(d)(1)(D) does not provide Ford with a later
accrual date than § 2244(d)(1)(A). See id.; Owens, 235 F.3d
at 359. Accordingly, the one-year statute of limitations began
running on August 11, 2004, the day after Ford’s conviction
became final and the latest of the possible triggering dates.
See 28 U.S.C. § 2244(d)(1); Corjasso v. Ayers, 278 F.3d 874,
877 (9th Cir. 2002). Ford first asserted claims 2, 3, and 4 on
February 16, 2006, long after the statute of limitations expired.3
3
“[A] new claim in an amended petition relates back to avoid a limitations bar, when the limitations period has run in the meantime, only when
it arises from the same core of operative facts as a claim contained in the
original petition.” Hebner v. McGrath, 543 F.3d 1133, 1134 (9th Cir.
2008). However, Ford does not argue that claims 2, 3, and 4 are timely
under the relation back doctrine. Even if he did, his new claims would not
relate back to his original petition because they arise from an entirely different set of operative facts. See id.

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Therefore, the district court did not err in concluding that
claims 2, 3, and 4 were time-barred.4
B.

Equitable Tolling

Ford argues that he is entitled to equitable tolling because
the prosecutor withheld evidence that Goins had received a
deal. As an initial matter, we note that claims 2, 3, and 4 are
premised on the assumption that Goins received lenient treatment in cases against her for helping law enforcement convict
Ford. Ford offers no evidence in support of this assumption
other than the allegedly favorable dispositions reflected in
Goins’s case files. He also seems to concede that these case
files are matters of public record.
“[A] ‘petitioner’ is ‘entitled to equitable tolling’ only if he
shows ‘(1) that he has been pursuing his rights diligently, and
(2) that some extraordinary circumstance stood in his way’
and prevented timely filing.” Holland, 130 S. Ct. at 2562
(quoting Pace v. DiGuglielmo, 544 U.S. 408, 418 (2005)).
“The diligence required for equitable tolling purposes is ‘reasonable diligence,’ not ‘maximum feasible diligence.’ ” Id. at
2565.
[9] The “general rule” is that “equitable tolling is available
where the prisoner can show extraordinary circumstances
were the cause of an untimely filing.” Bills, 628 F.3d at 1097.
“Under our cases, equitable tolling is available for this reason
only when extraordinary circumstances beyond a prisoner’s
control make it impossible to file a petition on time and the
extraordinary circumstances were the cause of [the prisoner’s]
untimeliness.” Id. (quoting Spitsyn, 345 F.3d at 799) (internal
quotation marks omitted).
4
The fact that Ford filed a habeas petition in state court after AEDPA’s
statute of limitations expired does not affect our conclusion. See Ferguson
v. Palmateer, 321 F.3d 820, 823 (9th Cir. 2003) (holding that “section
2244(d) does not permit the reinitiation of the limitations period that has
ended before the state petition was filed”).

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Here, Ford did not pursue his rights diligently. The testimony at his trial, as well as the unique living arrangements
and active assistance of Beverly Ford, gave Ford ample reason to suspect that Goins may have sought and received benefits. The fact that Goins’s case files were matters of public
record also indicates Ford’s lack of diligence.
[10] Ford essentially argues that he is entitled to equitable
tolling merely because he alleges that the prosecutor violated
Brady v. Maryland, 373 U.S. 83 (1963). If Ford were correct,
AEDPA’s one-year statute of limitations could never bar a
Brady claim. Several of our sister circuits have found Brady
claims time-barred, and we agree that the statute of limitations
may bar such claims in appropriate circumstances. See, e.g.,
Daniels v. Uchtman, 421 F.3d 490, 492 (7th Cir. 2005) (noting that information supporting petitioner’s Brady claim could
have been discovered more than one year prior to petitioner’s
filing of his federal habeas petition); Lucidore v. N.Y. State
Div. of Parole, 209 F.3d 107, 111, 113 (2d Cir. 2000) (dismissing Brady claim as time-barred where petition was filed
almost two years after the petitioner obtained the exculpatory
materials). Thus, we reject Ford’s argument.
The dissent’s arguments are similarly flawed. Through circular logic, our dissenting colleague contends that because the
prosecution violated Brady, we may reach the merits of
Ford’s Brady claim. But see Rouse v. Lee, 339 F.3d 238, 252
n.15 (4th Cir. 2003) (en banc) (“It seems curiously circular to
say . . . that we consider the merits in deciding whether we
can consider the merits.”). Our colleague also argues that we
are requiring a defendant’s spouse to help a defendant. Neither of the dissent’s claims is correct.5
5

We do not share the dissent’s certainty that a Brady violation occurred,
given the unique facts of this case. Several of our sister circuits have suggested that Brady is not violated when a government witness merely
desires or expects favorable treatment in return for his or her assistance,
and no evidence of an agreement between the government and the witness

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The narrow issue before us is whether Ford’s habeas claims
are time-barred. Under AEDPA, this is a threshold question
that we must decide before we reach the merits of a habeas
petitioner’s claims. See, e.g., Miranda v. Castro, 292 F.3d
1063, 1068 (9th Cir. 2002) (affirming the dismissal of a
habeas petition as untimely without reaching the merits of its
claims). Because Ford did not exercise due diligence and no
extraordinary circumstance prevented the timely filing of his
claims, his claims are time-barred regardless of their strength.
Unlike our dissenting colleague, we decline to take the circular approach of considering the merits of Ford’s claims in
evaluating whether they are timely enough to reach the merits.
Contrary to the dissent’s characterization, we do not
impose any affirmative requirement on a defendant’s spouse
in evaluating the timeliness of a habeas claim. Our focus
before we may reach the merits is simply whether the petitioner exercised reasonable diligence given his particular circumstances, including any impediments confronting him and
the resources at his disposal. Our colleague’s approach
implies that we should ignore the resources at a petitioner’s
disposal, and take into account only the impediments conis presented. See, e.g., Shabazz v. Artuz, 336 F.3d 154, 165 (2d Cir. 2003);
Todd v. Schomig, 283 F.3d 842, 849 (7th Cir. 2002); see also Bell v. Bell,
512 F.3d 223, 234 (6th Cir. 2008) (en banc). Although we need not decide
whether to join our sister circuits, their precedents raise considerable
doubt that a Brady violation occurred in this case. Our doubt is further
reinforced by Ford’s access to information suggesting that Goins may
have sought and received benefits in return for helping law enforcement.
See United States v. Aichele, 941 F.2d 761, 764 (9th Cir. 1991) (“When,
as here, a defendant has enough information to be able to ascertain the
supposed Brady material on his own, there is no suppression by the government.”); United States v. Shaffer, 789 F.2d 682, 690 (9th Cir. 1986)
(agreeing with the government that a defendant “cannot claim a Brady
violation if he was ‘aware of the essential facts enabling him to take
advantage of any exculpatory evidence’ ”). Nevertheless, we need not
decide whether a Brady violation occurred in this case, and we decline to
do so.

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fronting him, in evaluating diligence. The Third Circuit has
rejected such an approach, and so do we. See Schlueter, 384
F.3d at 75 (considering that a petitioner’s parents actively
assisted him in evaluating his diligence).
As sympathetic as the dissent portrays Ford to be, sympathy alone neither delays the start date of AEDPA’s statute of
limitations nor constitutes an equitable exception. AEDPA is
designed “to ‘further the principles of comity, finality, and
federalism.’ ” Panetti v. Quarterman, 551 U.S. 930, 945
(2007) (citation omitted). We decline the dissent’s wellmeaning, but misguided, invitation to disregard those principles.
[11] Under the circumstances, Ford did not pursue his
rights diligently. He did not exercise reasonable diligence in
obtaining Goins’s case files, his only evidence of the existence of a deal. Even if Ford had been diligent, no extraordinary circumstance prevented the timely filing of claims 2, 3,
and 4. Therefore, the district court did not err in concluding
that Ford is not entitled to equitable tolling. See Holland, 130
S. Ct. at 2562.
CONCLUSION
For the foregoing reasons, we affirm the district court.
AFFIRMED.

NOONAN, Circuit Judge, dissenting:
The majority forbids a federal court from hearing Ford’s
habeas petition on the merits, not because the government in
Ford’s case did not violate Brady, but because Ford, a prisoner at the time, should have, with due diligence and the help
of his wife Beverly, been able to discover the government’s

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breach of Brady. The majority excuses the government’s
lapse while it imposes a new requirement on the spouse of a
defendant.
Constance Goins was the prosecution’s principal witness
against Ford. In the lead-up to Ford’s trial, the government
averred that it knew nothing of an April, 2002 case against
Goins for a violation of her probation. It further averred that
the status of that case had “no connection” to her testimony
in Ford’s case. The government put Goins on the stand at
Ford’s trial and elicited testimony from her that she did not
inculpate Ford in order to get out of jail. Any listener would
have inferred from her statement that she did not receive
favorable treatment in the disposition of her case as a result
of her cooperation. The detective who interviewed her in jail
testified that the police might have helped her by talking to
the district attorney in her case, had she not posted bail herself
before they had the chance. The inference was that they had
not helped her out at all in resolving her criminal cases. The
government’s in limine assertions and the testimony of the
two state’s witnesses conveyed that Ms. Goins had not been
afforded favorable treatment by the prosecution in her own
criminal cases in exchange for her testimony against Ford.
Ford’s attorney did not independently investigate.
In fact, only after Ford was appointed habeas counsel by
the district court in 2005 did the extent of Ms. Goins’ criminal
history — and the apparent favorable treatment she had
received — surface. Habeas counsel discovered, by ordering
copies of Goins’ criminal case files from the Sacramento
Superior and Municipal Courts, the following:
After Goins’ September 11, 2000 statement to the
detective, her bail was reduced to $8000 and she was
released on bail;
One week later, the court sentencing her found
unusual circumstances to justify a sentence of probation in that felony case, F07258;

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FORD v. GONZALEZ

In three separate felony probation cases, the trial
court added as a condition of probation that she was
to comply with any and all subpoena orders;
While Ford’s case was being prepared for trial,
Goins was arrested again and held to answer for
assaulting a woman with a deadly weapon; just
before Ford’s trial, the case against her was dismissed on a motion by the district attorney.
Goins had an active criminal history from the time she
summoned the detectives to meet her in jail on September 11,
2000 up to the time of Ford’s trial in April, 2002. From all
appearances, her testimony against Ford seems to have led to
extremely favorable dispositions in at least the felony drug
case and the assault with a deadly weapon case. The government provided none of this information to Ford, either before
securing his conviction or after. It averred only that there was
“no connection” between the disposition in her parole violation case and her testimony against Ford. It elicited testimony
from two witnesses suggesting that she was not given favorable prosecutorial treatment. This impression seems to have
been misleading.
A.

The prosecution violated Brady.

The prosecution has the obligation to turn over evidence
favorable to an accused: “[T]he suppression by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or
to punishment, irrespective of the good faith or bad faith of
the prosecution.” Brady v. Maryland, 373 U.S. 83, 87 (1963).
The Court went on to hold, in Giglio, “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 [of Brady].” Giglio v. U.S., 405 U.S.
150, 154 (1972) (citing Napue v. Illinois, 360 U.S. 264, 269
(1959)). Considering precisely the issue of the motive of a

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prosecution’s witness to inculpate the defendant, the Court
reversed Giglio’s conviction:
Here the Government’s case depended almost
entirely on Taliento’s testimony; without it there
could have been no indictment and no evidence to
carry the case to the jury. Taliento’s credibility as a
witness was therefore an important issue in the case,
and evidence of any understanding or agreement as
to a future prosecution would be relevant to his credibility and the jury was entitled to know of it.
Giglio, 405 U.S. at 154-55.
“Whether the nondisclosure was a result of negligence or
design, it is the responsibility of the prosecutor. The prosecutor’s office is an entity and as such it is the spokesman for the
Government. A promise made by one attorney must be attributed, for these purposes, to the Government.” Giglio, 405
U.S. at 154. This court has repeatedly so held. See, e.g., Carriger v. Stewart, 132 F.3d 463, 480 (9th Cir. 1995) (en banc)
(“Because the prosecution is in a unique position to obtain
information known to other agents of the government, it may
not be excused from disclosing what it does not know but
could have learned”); U.S. v. Zuno-Arce, 44 F.3d 1420, 1427
(9th Cir. 1995) (exculpatory information in the possession of
the FBI covered under Brady). It is also clear that the prosecution is required to turn over evidence favorable to the defense
whether or not the defense requests the information. See U.S.
v. Bagley, 473 U.S. 667, 682-83 (1985); Kyles v. Whitley, 514
U.S. 419, 433 (1995).
Ford raises evidence that Goins averted incarceration on
more than one occasion in the wake of her cooperation against
Ford. The prosecution either knew about the dispositions of
Goins’ criminal cases or is presumed, for Brady purposes, to
have known. The prosecution was required to provide this
information to Ford.

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B.

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The statute of limitations began to run when Ford discovered the facts underlying the Brady claim.

AEDPA’s one-year statute of limitations runs from “the
date on which the factual predicate of the claim or claims
presented could have been discovered through the exercise of
due diligence.” 28 U.S.C. § 2244(d)(1)(D). What due diligence must a petitioner show when a state’s failure to disclose
Brady material leads to a delay in discovering the evidence?
Here, the one-year limitations period commenced when
Ford’s counsel received Goins’ criminal conviction histories.
The Supreme Court in Strickler v. Greene held that a
habeas petitioner had shown cause to excuse a procedural
default where he had no reason to believe at the time of trial
that the state had withheld Brady evidence. 527 U.S. 263,
287, 289 (1999). He was entitled to rely on the state’s duty to
disclose. Id. Similarly, Ford had no reason to believe at the
time of trial that the government had withheld evidence
whose disclosure was required by Brady.
Circuit courts that have confronted this question in the statute of limitations context have held implicitly that the statute
of limitations begins to run at the time the petitioner discovers
the Brady material. See, e.g., Friedman v. Rehal, 618 F.3d
142, 152 (2d Cir. 2010) (limitations period began to run when
petitioner saw the film Capturing the Friedmans and thereby
discovered that the prosecution had used hypnosis to help the
complainants remember); Starns v. Andrews, 524 F.3d 612,
619 (5th Cir. 2008) (limitations period began to run when a
witness gave exculpatory testimony in a subsequent wrongful
death action, where the defendant assumed “the state could be
taken at its word” when it turned over the witness’ name
before trial but indicated that he would only be marginally
helpful); Daniels v. Uchtman, 421 F.3d 490, 491-92 (7th Cir.
2005) (limitations period began to run in petitioner’s Brady
claim when a witness executed an affidavit recanting his testimony); Slutzker v. Johnson, 393 F.3d 373, 382 (3d Cir. 2004)

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(statute of limitations on Brady claim began to run when
habeas petitioner received previously undisclosed police
reports).
Our circuit is equally clear. In Quezada v. Scribner, 611
F.3d 1165, 1166-67 (9th Cir. 2010), the prosecution suppressed evidence of the compensation that Aflague, its witness, received in exchange for his cooperation against
Quezada. The prosecutor represented to the court that Aflague
received no benefits in exchange for his testimony. Id. at
1167. However, it later surfaced that Aflague had received
between $9,000 and $25,000 for his cooperation with law
enforcement over the course of a decade in various cases. Id.
Aflague also declared that he had lied about compensation in
a different case. Id. Considering the one-year statute of limitations, we reasoned:
Quezada requested compensation information from
the court, from the government and from Aflague.
Quezada’s attempts to acquire this information were
repeatedly rebuffed by silence on the part of the
informant, or an outright denial of the existence of
missing compensation information by the government. On December 11, 2008, Aflague changed his
testimony. Quezada discovered this in the spring of
2009. On the record before us it is clear that
Quezada did exercise reasonable diligence yet was
unable to acquire this information earlier.
Id. at 1168.
This case is analogous. Ford’s counsel moved in limine to
either obtain information about Goins’ criminal history or to
use her convictions for impeachment purposes. When the
government averred that any disposition of her probation case
was unconnected to Ford’s case, Ford’s attorney accepted the
government’s statement. Ford was entitled to rely on the government’s statement and its abiding obligation to comply with

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Brady. See Strickler v. Greene, 527 U.S. at 289; Bagley, 473
U.S. at 682-83.
As an inmate, Ford had neither the knowledge of the relevant case numbers nor the funds with which to gain access to
the records of Goins’ criminal history. But the district court
and this court endorse the magistrate’s surprising finding that
“ ‘it is more than arguable that Beverly Ford was present and
aware of Goins’ various criminal cases and their dispositions’
after Ford’s arrest.” Maj. op. at 7763-64 (emphasis added). It
is now not the state but the spouse who is in “the unique”
position to supply Brady information. See id. This imaginative
supposition is a bold circumvention of Brady. The only party
that bore the constitutional obligation to provide Ford with
this information was the government — not Ford, not Goins,
and certainly not Beverly Ford.
In the cases relied on by the majority, knowledge of the
Brady violation was timely possessed by the habeas petitioner
within the one-year limitations period and the government did
not keep him in ignorance by denying the Brady violation.
See, e.g., Lucidore v. New York State Division of Parole, 209
F.3d 107, 110-11, 113 (2d Cir. 2000) (petitioner conceded
that he knew facts of Brady violation in April, 1997 but filed
his petition on April 22, 1999); Daniels v. Uchtman, 421 F.3d
at 492 (factual predicate for timeliness purposes was date the
prosecution’s witness executed affidavit recanting trial testimony). These cases do not appear to be binding or even relevant when the petitioner has been misled by denials of the
Brady violation by the state.
The rule of law is subverted when the state violates an
important constitutional norm and then attempts to minimize
the harm it has done. Contrary to constitutional law established by the United States Supreme Court, this panel of the
Ninth Circuit excuses a flagrant violation of Brady by imposing upon the wife of an incarcerated defendant the obligation

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of detecting the state’s breach of Brady within the statutory
limitations period.