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1 COLEMAN & BALOGH LLP BENJAMIN L. COLEMAN 2 California State Bar No. 187609 1350 Columbia Street, Suite 600 3 San Diego, California 92101 Telephone No. (619) 794-0420 4 Facsimile No. (619) 652-9964 5 COLEMAN & BALOGH LLP ETHAN A. BALOGH 6 California State Bar No. 172224 255 Kansas Street, Suite 340 7 San Francisco, California 94103 Telephone No. (415) 565-9600 8 Facsimile No. (415) 565-9601 9 Attorneys for Petitioner Eliot Scott Grizzle 10 11 12 ELIOT SCOTT GRIZZLE, 13 14 v. 15 ROBERT HOREL, 16 Respondent. 17 18 19 Petitioner, UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) Case No. C 07-4845 SI

STATEMENT OF FACTS AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PETITION FOR WRIT OF HABEAS CORPUS

PRELIMINARY STATEMENT Petitioner, Eliot Scott Grizzle, respectfully submits the following Statement of Facts and

20 Memorandum of Points and Authorities in Support of his Petition for a Writ of Habeas Corpus. 21 22 PROCEDURAL HISTORY On December 24, 1997, Mr. Grizzle and Gary Littrell, inmates at Pelican Bay State Prison,

23 were jointly charged in Del Norte County, California in a two-count information with murder and conspiracy 24 to murder Aaron Marsh. The conspiracy count alleged four overt acts: (1) Mr. Grizzle dissolved prescription 25 drugs in inmate-manufactured alcohol to make Marsh drunk, vulnerable, and unable to defendant himself; (2) 26 Mr. Grizzle caused inmate Michael Contreras to deliver the alcohol to Marsh in a bag covered by a manila 27 folder; (3) Littrell got Marsh drunk and physically disabled with the drugs and alcohol; and (4) Littrell 28 strangled Marsh with a garrote rope while Marsh was too drunk to defend himself. See Ex. A.

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The trials of Mr. Grizzle and Littrell were severed. See, e.g., Ex. B at 1; Ex. K at 2. Former

2 Deputy District Attorney James Fallman tried both cases for the prosecution. See, e.g., Ex. B at 1,109; Ex. 3 E. Mr. Grizzle was originally represented by appointed attorney Paul Gallegos. See, e.g., Ex. I at 65; Ex. N. 4 By the time of trial, however, he was represented by appointed attorney Russell J. Clanton. See, e.g., Ex. E. 5 Littrell proceeded to trial first, in the summer of 1998. A jury acquitted him on the conspiracy

6 count and convicted him of second degree murder on the substantive count. Due to potential jury misconduct, 7 Littrell's case was ultimately settled for a reduced sentence. See, e.g., Ex. B; Ex. K at 2. 8 Mr. Grizzle's trial took place in February of 1999. See, e.g., Ex. E. Shortly before the trial,

9 he unsuccessfully moved to dismiss the information on the grounds of collateral estoppel, relying upon the 10 acquittal on the conspiracy count in Littrell's trial. See Ex. K at 42-43. Unlike the jury in Littrell's trial, a jury 11 returned guilty verdicts against Mr. Grizzle as to both the conspiracy and substantive counts on February 19, 12 1999. See, e.g., Ex. K at 1. In June 1999, Mr. Grizzle's motions for new trial were denied, and he was 13 sentenced to 37 years to life. See, e.g., Ex. K at 1. 14 Mr. Grizzle appealed to the Court of Appeal, First Appellate District. The court of appeal

15 affirmed in an unpublished opinion issued on March 2, 2001 and denied Mr. Grizzle's petition for rehearing 16 on April 2, 2001. The Supreme Court of California denied Mr. Grizzle's petition for review on June 13, 2001. 17 See Ex. K. 18 On September 11, 2002, Mr. Grizzle filed a petition for a writ of habeas corpus in Del Norte

19 County Superior Court. On October 8, 2002, the superior court issued an order granting 30 days to file an 20 amended petition. While the state habeas corpus proceedings were commencing, the United States Attorney's 21 Office for the Central District of California filed a wide-ranging racketeering indictment against Mr. Grizzle 22 and dozens of other defendants. For the most part, the allegations against Mr. Grizzle contained in the federal 23 indictment consisted of the Marsh homicide. Mr. Grizzle was taken into federal custody and moved from 24 Pelican Bay. In addition, Mr. Grizzle's legal materials were seized by federal authorities. The federal 25 prosecutors also announced that they were considering seeking the death penalty against Mr. Grizzle. 26 Consequently, the superior court granted extensions of time to file an amended petition while the federal case 27 was pending. After over three years of pretrial proceedings, federal prosecutors dismissed the charges against 28 Mr. Grizzle, and he was transported back to Pelican Bay. See Ex. O at 3.

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Undersigned counsel, who had been appointed to represent Mr. Grizzle in the federal

2 racketeering case, then filed an amended petition on his behalf in the superior court. On June 18, 2007, the 3 superior court denied Mr. Grizzle's petition. Mr. Grizzle then filed a petition for a writ of habeas corpus with 4 the California Court of Appeal, which was denied on September 6, 2007. The Supreme Court of California 5 denied his petition for review on November 14, 2007. See Ex. O. 6 7 STATEMENT OF FACTS The following statement is only meant to summarize the facts presented at trial. Mr. Grizzle

8 will certainly provide the Court with any specific testimony or other portions of the record to support this 9 summary or any other facts, should the Court so require. Moreover, the facts specifically relating to the claims 10 for relief are set forth in detail in their respective sections of this memorandum. 11 On July 25, 1997, Littrell killed Marsh while the two lived in the same cell in a segregated

12 housing unit ("SHU") at Pelican Bay. See Ex. K at 1. That fact is undisputed. The dispute at trial centered 13 around whether Mr. Grizzle had anything to do with Marsh's death. 14 The defense's theory, supported by the testimony of Littrell and other witnesses, was that Mr.

15 Grizzle had nothing to do with the homicide. Instead, Marsh and Littrell had been fighting during the time 16 that they celled together. On the day of the homicide, Marsh became drunk and belligerent after having 17 consumed homemade alcohol known as "pruno." He then picked a fight with Littrell, a fight which resulted 18 in his death. 19 The prosecution's theory was that Mr. Grizzle, Littrell, and Marsh were all members of the

20 Aryan Brotherhood prison gang. Leaders of the gang had ordered that Marsh was to be killed, and Mr. Grizzle 21 and Littrell carried out that order. Specifically, the prosecution contended that Mr. Grizzle, who lived in a 22 separate cell but in the same pod as Marsh and Littrell, concocted the pruno, laced it with prescription 23 medication, and had it sent to the cell of Marsh and Littrell. Marsh then drank the concoction, which left him 24 in a weakened state thereby allowing Littrell to overcome and kill him. See, e.g., Ex. G. 25 The prosecution did not have a strong case, as reflected by the jury verdicts in Littrell's trial,

26 which acquitted Littrell of conspiracy and only convicted him of second degree murder. Indeed, the judge who 27 presided over both trials commented that the case against Mr. Grizzle was primarily based on witnesses with 28 "slimy" motives and was obviously even weaker than the case against Littrell. See Ex. C at 65-66; Ex. D at

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1 22-24. The only way the prosecution could tie Mr. Grizzle to Marsh's death was through a series of convicted 2 felons who turned state's evidence. In total, the prosecution called five such witnesses. While there was much 3 evidence undercutting their testimony, this summary will simply outline what the prosecution sought to prove 4 through their testimony. 5 Brian "Deadeye" Healy testified that he was a member of the Aryan Brotherhood and had

6 recently dropped out to cooperate with the prosecution. He testified that a few months before Marsh was 7 killed, he conveyed the leadership's order to kill Marsh to Mr. Grizzle. He also testified that, shortly after 8 Marsh was killed, Mr. Grizzle told him that Marsh had been taken care of. See Ex. F. 9 Douglas Ridinger testified that Mr. Grizzle had asked him if he would "whack" Marsh.

10 Ridinger testified that he originally agreed to do it, hoping that it would allow him to become a member of 11 the Aryan Brotherhood, but then decided not to go through with the request when he realized that "whack" 12 meant that he had to kill Marsh, as opposed to just stabbing him. See Ex. D at 23-24; Ex. K at 2, 4-5. 13 Michael Contreras testified that he was a tier tender in the pod where Mr. Grizzle, Littrell, and

14 Marsh lived. He testified that he saw Mr. Grizzle in his cell while he was lacing pruno with prescription 15 medication and that he then carried the concoction in an envelope from Mr. Grizzle's cell to the cell of Littrell 16 and Marsh. See Ex. D at 23; Ex. K at 2, 5-6. 17 Vernon Rubidoux testified that, after Marsh was killed, he had a conversation with Mr. Grizzle

18 and Littrell while all three were waiting to see their attorneys. During the conversation, both Mr. Grizzle and 19 Littrell made incriminating statements. See Ex. K at 2, 7-8. 20 Finally, last, and certainly not least for the purposes of this petition, was the testimony of

21 Frederick Clark. According to Clark, Mr. Grizzle paid him $500 to testify falsely at Littrell's trial. Mr. 22 Grizzle then offered to pay Clark additional money if he could provide the address of Healy's young daughter, 23 who the Aryan Brotherhood had planned to kill as retaliation for Healy's cooperation with law enforcement. 24 See Ex. E. 25 26 27 28

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STANDARD OF REVIEW The Attorney General will likely lean on the standard of review set forth in the Anti-Terrorism

3 and Effective Death Penalty Act of 1996 ("AEDPA"). The AEDPA standard of review provision states: 4 5 6 7 8 9 (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim ­

10 28 U.S.C. § 2254(d)). At least six members of the Ninth Circuit believe that the AEDPA standard of review 11 is unconstitutional. See Crater v. Galaza, F.3d , No. 05-17027, 2007 WL 4259530 (9th Cir. Dec. 6, 2007) 12 (Reinhardt, J., dissenting from denial of rehearing en banc); Irons v. Carey, 505 F.3d 846, 854-59 (9th Cir. 13 2007) (Noonan, J., concurring). Mr. Grizzle urges the Court to follow the lead of these six judges. 14 In any event, even if the AEDPA standard of review is constitutional, the Ninth Circuit has

15 held that its precedent, or any other federal circuit court precedent, has persuasive value in determining 16 "whether a particular state court decision is an `unreasonable application' of Supreme Court law, and . . . what 17 law is `clearly established." Duhaime v. Ducharme, 200 F.3d 597, 600 (9th Cir. 2000); see also Robinson v. 18 Ignacio, 360 F.3d 1044, 1057 (9th Cir. 2004) ("When faced with a novel situation we may turn to our own 19 precedent, as well as decisions of other federal courts, in order to determine whether the state decision violates 20 the general principles enunciated by the Supreme Court and is thus contrary to clearly established federal 21 law."). Other circuits agree with the Ninth Circuit on this point. See Williams v. Bowersox, 340 F.3d 667, 671 22 (8th Cir. 2003) ("[T]he objective reasonableness of a state court's application of Supreme Court precedent may 23 be established by showing other circuits having similarly applied the precedent."); Ouber v. Guarino, 293 F.3d 24 19, 26 (1st Cir. 2002) ("[T]o the extent that inferior federal courts have decided similar cases, reference to 25 those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the 26 contested issue.") (internal quotation marks and citation omitted); Matteo v. Superintendent, SCI Albion, 171 27 F.3d 877, 890 (3d Cir. 1999) (en banc) ("[W]e do not believe federal habeas courts are precluded from 28 considering the decisions of the inferior federal courts when evaluating whether the state court's application

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1 of the law was reasonable."). In short, as set forth below, Mr. Grizzle has multiple claims that entitle him to 2 relief even under the AEDPA standard of review.1 3 4 5 6 7 8 ARGUMENT I. MR. GRIZZLE'S RIGHTS UNDER THE FIFTH, SIXTH, AND FOURTEENTH AMENDMENTS WERE VIOLATED WHEN THE TRIAL COURT FAILED TO DECLARE A MISTRIAL DUE TO THE TAINT OF THE JURY. A. Factual Background At the end of the second day of trial, Juror 5 reported to the court a contact concerning the trial.

9 The juror worked at Pelican Bay teaching classes for inmates, and on the previous day, while at work during 10 the noon recess, was told by an inmate, "Well, I hear you are Juror No. 5." When asked, "Where did you hear 11 that?" The inmate replied, "Oh, word gets around." There was no further conversation, and the juror could 12 not figure out how the inmate had found out. The court inquired whether this would affect Juror 5's decision, 13 and he said it would not. On further questioning by defense counsel, the juror revealed that, while getting a 14 cup of coffee, he had discussed this development with Juror 12. Juror 5 was "sure" ("I didn't make a secret 15 out of it") that three or four other jurors had overheard their discussion. Ex. K at 25. 16 After Juror 5 left, the court and parties discussed what to do, and defense counsel, citing

17 concerns that jurors were "tainted" and would now be intimidated by the prospect of the Aryan Brotherhood 18 targeting them, ultimately requested a mistrial. The trial court denied the motion, reasoning that nothing had 19 gone to the "merits of the case" but invited questioning of the other jurors the next morning. The next 20 morning, Juror 5 approached the court with second thoughts. Having thought about it overnight, he requested 21 to be excused. Defense counsel inquired further and learned that Juror 5 had mentioned the incident generally 22 to the other jurors and that one juror had said something about getting a call years ago from a state institution 23 and having her phone number changed. Ex. K at 25-26. 24 The court then apprised each juror individually that Juror 5 had been excused and asked what

25 each knew about the circumstances. Each juror stated that he or she had heard, from Juror 5 or others, that 26 Mr. Grizzle has slightly changed the order of the claims as presented in the petition. Specifically, Mr. Grizzle has briefed "Claim Five" (alleging jury taint) as the first issue in this memorandum. 28 In addition, Mr. Grizzle has elected not to proceed on the ineffective assistance of counsel claim asserted in "Claim Six" of the petition, except as it relates to the procedural default issue surrounding the jury taint issue. 27
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1 Juror 5 worked or taught at the prison and had learned that some inmate knew he was a juror. One juror 2 surmised that Juror 5 could be "a little uneasy" about the situation. Two other jurors felt concern for Juror 3 5's "safety" and of him being "in danger." An alternate juror was seated in the place of Juror 5, and the trial 4 continued. Defense counsel did not renew his motion for a mistrial. Ex. K at 26. 5 6 B. Procedural Default Should Not Apply As to this claim, the last "reasoned" decision of the state courts was rendered by the California

7 Court of Appeal on direct review, as the Supreme Court of California summarily denied Mr. Grizzle's petition 8 for review. As a result, this Court "looks through" the summary decision of the California Supreme Court and 9 evaluates the decision of the court of appeal. See, e.g., Medley v. Runnels, 506 F.3d 857, 862 (9th Cir. 2007) 10 (en banc). 11 The California Court of Appeal stated that Mr. Grizzle waived the instant claim because

12 defense counsel failed to renew his objection and motion for mistrial; the court of appeal, however, then 13 proceeded to address the merits of the claim. Ex. K at 27. Under these circumstances, because the California 14 Supreme Court issued a summary denial, this claim is not procedurally defaulted. See, e.g., Barker v. Estelle, 15 913 F.2d 1433, 1436 n.3 (9th Cir. 1990); Huffman v. Ricketts, 750 F.2d 798, 800-01 (9th Cir. 1984). In short, 16 for this reason alone, procedural default does not apply. 17 Furthermore, "[u]nder the doctrine of procedural default, a petitioner who had defaulted on

18 his claims in state court is barred from raising them in federal court so long as the default is `pursuant to an 19 independent and adequate state procedural rule.'" Jackson v. Roe, 425 F.3d 654, 656 n.2 (9th Cir. 2005) 20 (citation omitted) (quoting Coleman v. Thompson, 501 U.S. 722, 750 (1991)). If an independent and adequate 21 state procedural default rule applies, federal habeas corpus review is denied unless a petitioner can show either 22 cause for the default and prejudice, or that the failure to consider the claims will result in a miscarriage of 23 justice. See, e.g., Bennett v. Mueller, 322 F.3d 573, 580 (9th Cir. 2003). Mr. Grizzle contends that the 24 procedural default rule relied upon by the court of appeal was not "adequate" or "independent," and therefore 25 his jury taint claim is not barred for this additional reason. 26 The state bears the burden of demonstrating the adequacy of the state procedural default rule.

27 See Bennett, 322 F.3d at 584-86. 28

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To be deemed adequate, the state law ground for decision must be well-established and consistently applied. Although a state court's exercise of judicial discretion will not necessarily render a rule inadequate to support a state decision, to be considered adequate, the discretion must entail `the exercise of judgment according to standards that, at least over time, can become known and understood within reasonable operating limits.' State rules that are too inconsistently or arbitrarily applied to bar federal review `generally fall into two categories: (1) rules that have been selectively applied to bar the claims of certain litigants and (2) rules that are so unsettled due to ambiguous or changing state authority that applying them to bar a litigant's claim is unfair.'

6 Bennett, 322 F.3d at 583 (citations omitted). In this instance, the waiver rule applied by the California Court 7 of Appeal was not well-established and has been inconsistently applied, further demonstrating that procedural 8 default does not apply. Specifically, the Ninth Circuit has held that the California waiver rule has only been 9 consistently applied when a defendant has failed to make any objection at trial; the rule has not been 10 consistently applied when an objection has been made and the question is whether the objection was sufficient. 11 See Melendez v. Pliler, 288 F.3d 1120, 1125-26 (9th Cir. 2002) (citing several California cases where imprecise 12 objections were liberally construed). Thus, in this case, where an objection and motion for mistrial were 13 made, the procedural default doctrine does not apply. 14 Finally, the waiver rule applied in California is far from clear when the issue concerns the

15 fairness or impartiality of the jury. Indeed, the case relied upon by the California Court of Appeal, People v. 16 Fudge, 7 Cal. 4th 1075, 1100-01 (1994), see Ex. K at 27, suggests that a claim that a jury is tainted is a 17 fundamental flaw in the trial process that cannot be waived. For this additional reason, the waiver rule has 18 been inconsistently applied, and therefore procedural default does not apply.2 19 20 C. The Petition Should Be Granted Under Caliendo As for the merits, the California Court of Appeal reviewed the trial court's ruling on the

21 mistrial motion for an "abuse of discretion" and concluded that "there is no showing" that any of the jurors 22 were tainted. Ex. K at 27-28. This is not the standard. The question of jury taint is a constitutional question 23 that is subject to independent review, and, more importantly, a court must presume prejudice. See Caliendo 24 v. Warden of California Men's Colony, 365 F.3d 691, 692 (9th Cir. 2004). In short, the Ninth Circuit's 25 decision in Caliendo is directly on point and dictates that the instant petition should be granted. 26 If this Court determines that procedural default does apply, then Mr. Grizzle maintains that trial counsel rendered ineffective assistance of counsel by failing to renew his objection, which constitutes cause 28 for the default. If this Court determines that this claim is meritorious, then there is also prejudice. 27
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In Caliendo, a "detective who provided testimony that was crucial to the prosecution's case

2 had a twenty-minute conversation, factually unrelated to the trial, with three jurors in the hallway during a 3 break in deliberations." Id. at 692. The trial "judge questioned all the jurors one by one as to whether the 4 conversation would influence their judgment or cause them to view [the detective's] testimony any differently. 5 All the jurors testified that the conversation would not affect their deliberations." Id. at 694. The trial court 6 then denied a motion for a mistrial, reasoning that it would accept the jurors' representations that the contact 7 would not influence their verdict. Id. at 694. Likewise, the California Court of Appeal rejected Caliendo's 8 jury taint claim, reasoning: "The record as a whole disclosed no reasonable probability of actual harm to 9 appellant. . . . No topic discussed by [the detective] and Jurors 4 or 5 had any tendency to reflect upon or 10 bolster [the detective's] credibility, and every juror said that he or she would not be influenced by the 11 conversation between [the detective] and members of the jury." Id. at 697. 12 The Ninth Circuit granted the petition for a writ of habeas corpus, reasoning that a consistent

13 line of Supreme Court precedent over the last century has held that a presumption of prejudice must be applied 14 in these circumstances. Id. at 695-99 (citing Turner v. Louisiana, 379 U.S. 466 (1965); Remmer v. United 15 States, 347 U.S. 227 (1954); Mattox v. United States, 146 U.S. 140 (1892)); see also Parker v. Gladden, 385 16 U.S. 363 (1966). The Ninth Circuit concluded that the state courts "did not identify or apply the clearly 17 established Mattox rule." Caliendo, 365 F.3d at 697. Furthermore, the Ninth Circuit did not simply send the 18 case back to the state courts to apply the presumption. Instead, the Ninth Circuit ordered that Caliendo be 19 released or given a new trial, noting that the presumption could not be rebutted given the closeness of the case. 20 Id. at 698-99. In doing so, the Ninth Circuit noted that Caliendo had a previous trial in which the jury 21 deadlocked. Id. at 699. 22 This case is clearly governed by Caliendo. As in Caliendo, the California courts did not apply,

23 or even identify, the Mattox rule. Instead, the California Court of Appeal affirmed because there was "no 24 showing" that the jurors were tainted. Of course, the state courts should have presumed prejudice and instead 25 required the prosecution to make a clear showing that there was no prejudice. Furthermore, as in Caliendo, 26 the prosecution could not possibly make such a showing. The jury taint involved the question of distorting 27 the judicial process through threats, and a central theme of the prosecution's case, as reflected in the testimony 28 of Clark and others, was that Mr. Grizzle and his gang had the ability to influence testimony by threats and

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1 other means. Furthermore, this was a closes case, as reflected by the previous trial of Littrell, the actual killer, 2 who was acquitted on the conspiracy charge and only convicted of second degree murder. In sum, the petition 3 should be granted based on Caliendo and the Supreme Court authority cited therein. 4 5 6 7 8 9 II. THE PROSECUTION KNOWINGLY, OR AT LEAST RECKLESSLY AND NEGLIGENTLY, PRESENTED PERJURED TESTIMONY AND FAILED TO CONDUCT INVESTIGATION TO ENSURE THAT IT WAS NOT PRESENTING PERJURED TESTIMONY IN VIOLATION OF MR. GRIZZLE'S FIFTH, SIXTH, AND FOURTEENTH AMENDMENT RIGHTS. A. Factual Background The prosecution secured Mr. Grizzle's convictions through the use of perjured testimony. In

10 a strange twist, the prosecution used two witnesses, Clark and Healy, who both claimed to have committed 11 perjury in the past. Clark claimed to have committed perjury at Littrell's trial, and Healy admitted that he had 12 committed perjury at his own murder trial. Healy, in particular, was evidently quite good at committing 13 perjury, as he was able to beat a first degree murder charge. See, e.g., Ex. E at 765; Ex. F at 880, 931-32; Ex. 14 N. 15 Unfortunately for Mr. Grizzle, such perjury was not simply a thing of the past and instead

16 infected the fairness of his trial. Indeed, the transcripts of the trial definitively establish that, at the very least, 17 one of the two committed perjury. Compare Ex. E at 766; with Ex. F at 895-96; see Ex. N. In actuality, it is 18 evident that they both committed perjury. What is worse, the prosecution knew of this perjury, or, at the very 19 least, was reckless and negligent in its eagerness to secure convictions based on this perjured testimony. 20 Indeed, despite the fact that the prosecution was put on notice before trial that it would likely

21 be using perjured testimony, it failed to conduct an investigation and instead remained willfully ignorant of 22 the facts. In a stunning admission at the time of the trial, Fallman flatly stated on the record that he had not 23 conducted an investigation into the likely perjury that he would be using. See Ex. C at 34-35. Even after the 24 trial testimony of Clark and Healy definitively established that at least one of them was committing perjury, 25 the prosecution still refused to inform the trial court of the perjury or to conduct an investigation. To the 26 contrary, Fallman heavily relied on the perjury throughout the trial, especially during closing arguments. See 27 Ex. G. After the trial, facts known to the prosecution have definitively revealed that Clark is a pathological 28 perjurer and that his testimony and the arguments made by the prosecutor based on his testimony were false.

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1 Yet, the prosecution continues to fail to inform the Court or investigate its use of the perjury. The facts 2 underlying this claim are somewhat involved but are not complicated. They are as follows: 3 4 1. Clark Testifies For Littrell Clark, an African-American inmate, testified for the defense in Littrell's trial. In essence, he

5 testified that he knew Healy well, having initially met him at Corcoran State Prison in the early 1990's. After 6 Marsh was killed, at around the end of 1997 and the beginning of 1998, he lived in the same pod as Healy. 7 Clark even provided the identification of the specific pod and the cells that they lived in. See Ex. B at 110-12. 8 Clark testified that the two talked while they were housed in the same pod. Initially, Healy

9 asked if Clark could help him make money selling drugs. As they continued to talk, Healy explained that 10 although he was serving a life sentence, he did not plan on staying in prison for the rest of his life. As a result, 11 he decided to concoct a story against Mr. Grizzle and Littrell by pumping a defense investigator for 12 information. He then cut a deal to testify for the prosecution, which would enable him to be moved to a less 13 secure facility and give him the ability to make an escape attempt. See Ex. B at 112-17. 14 15 2. Clark Does A 180 On January 5, 1999, several months after Littrell's trial and about a month before Mr. Grizzle's

16 trial, Clark met with James Rogers, an official with the Office of Internal Affairs. Rogers conducted a tape17 recorded interview with Clark. Clark met with Rogers to discuss his allegations that prison officials were 18 engaging in misconduct. During the interview, Clark stated that he had committed perjury at Littrell's trial. 19 See Ex. J. 20 Clark specifically stated that Gallegos, Mr. Grizzle's original attorney, requested that Mr.

21 Grizzle approach Clark about providing perjured testimony to discredit Healy. Clark stated that his sister, who 22 he would not identify, received $500 for his testimony, and he assumed that the payment came from Gallegos. 23 See Ex. J. Clark's statement, on its face, is patently absurd. Gallegos is currently the District Attorney for 24 Humboldt County, California, not the type of person one would expect to be soliciting perjury. 25 26 3. Fallman Is Put On Notice That Clark Is Likely Lying But Does Not Investigate Rogers wrote a memorandum to Fallman, dated January 13, 1999, summarizing his interview

27 of Clark and suggesting that Clark should not be believed. In addition to his apparent admission of perjury, 28 Rogers noted that Clark had made other allegations in the past that "have already been proved baseless." In

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1 the past, Clark had refused to take a polygraph examination, admitting to the polygraph examiner that he had 2 been untruthful in his prior statements. Furthermore, Clark stated that he would discuss his allegations against 3 Mr. Grizzle further, "but only if given immunity for his perjury." See Ex. J. In addition to his memorandum, 4 Rogers told Fallman and Daniel Smith, the lead investigative agent on Mr. Grizzle's case, that he had severe 5 doubts about Clark's credibility. See Ex. I at 100-01. 6 On January 19, 1999, Fallman, Smith, and at least one other officer conducted a videotaped

7 interview with Clark. See Ex. N. The videotaped portion of the interview lasts just under one hour. The 8 video clearly demonstrates that the prosecution knowingly, or at least negligently and recklessly, used perjured 9 testimony to convict Mr. Grizzle. 10 At the beginning of the interview, Fallman explained to Clark that he would receive immunity

11 for the supposed perjury that he committed at Littrell's trial. Fallman also reminded Clark that this was 12 important, for although Clark was a "short-timer" scheduled to be released within the year, another conviction 13 would have constituted a third strike for Clark, subjecting him to life imprisonment. Fallman also informed 14 Clark that it was his understanding that there was at least one outstanding referral for prosecution that had been 15 made to his office concerning Clark. Fallman said that he had not seen the referral yet and could not promise 16 anything. Once on the prosecution team, however, the likelihood that Clark would be subjected to a three17 strikes prosecution was slim, and Clark, an experienced and manipulative convict, undoubtedly knew this. 18 See Ex. N. 19 At the beginning of the interview, after acknowledging that he had to be truthful, Clark

20 proceeded to describe his relationship with Healy. Once again, Clark stated that he had known Healy for years 21 and that they were celled in the same pod together. Clark again stated that he spoke with Healy on a daily 22 basis in the pod and provided specifics about their housing locations. Clark actually stated that, at Littrell's 23 trial, the only subject matter that he testified truthfully about was his relationship with Healy. Clark even 24 stated that the two had discussed Healy's family. Clark specifically stated that Healy had told him that he had 25 family in Ohio. See Ex. N. 26 Clark then related his tale regarding the request for perjury made by Mr. Grizzle and Gallegos.

27 In addition to his allegations concerning the perjury at Littrell's trial, Clark also stated that Mr. Grizzle had 28 offered to pay him if he could find out where Healy's young daughter lived. Clark maintained that it was

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1 known in the prison that he had an unspecified relative, presumably with some law enforcement ties, who 2 could access personal information. Clark maintained that Mr. Grizzle wanted the girl's address so that the 3 Aryan Brotherhood could have her killed to retaliate against Healy's cooperation with law enforcement. See 4 Ex. N. 5 Despite the serious questions raised about Clark's credibility, the prosecution did nothing to

6 ascertain the accuracy of his story. For example, the prosecution never attempted to interview Gallegos about 7 the allegations. Moreover, the supposed unnamed "sister" presumably could have corroborated Clark's story 8 that she was paid $500 for the false testimony at Littrell's trial, but no follow up on this subject was 9 undertaken. Similarly, the prosecution failed to ascertain who the supposed relative was with the law 10 enforcement contacts. The videotape is remarkable in its display of the utter failure of Fallman and the 11 officers to probe the accuracy of Clark's fanciful statements. They did not even ask Clark for the names of 12 the mystery relatives. All that was done was that Fallman asked Clark, who was in segregated housing at 13 Pelican Bay thereby making it difficult to communicate with the outside world, to see if he could get in contact 14 with his supposed family members to check if they would back up his story. Of course, that is what 15 government-paid investigators are supposed to do, and it could have been accomplished with a simple 16 telephone call. See Ex. N. 17 At a hearing held on February 4, 1999, less than a week before the trial, Clanton stated that he

18 wanted discovery of "all reports relating to the investigation of Mr. Clark's sister as it relates to the report filed 19 by James Rogers. I am told absolutely by Mr. Fallman and Officer Willis that there are no attempts at 20 investigation in that particular area and I'm going to take them on their word at that." Ex. C at 34. In 21 response, Fallman stated: "Well, what ­ what's been said is we've asked Clark to see if the person will be 22 willing to come forwards [sic] and cooperate, but there's so little time left before trial that we don't have the 23 wherewithal to send people where this person may be and invest in that in case that ends up being a wild goose 24 chase. So we're not affirmatively doing that, but if he comes back and says that his sister will testify, we 25 would accept that if it happens and that's what we've told him." Ex. C at 34-35. 26 In essence, Fallman specifically stated on the record that he was taking a course of action that

27 is forbidden under the Constitution. Fallman stated that he would finesse the problem by pressing ahead 28 without a diligent and good faith attempt to resolve the question of the truthfulness of Clark's testimony.

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1 Fallman even acknowledged that Clark may have been sending the prosecution on a "wild goose chase." Put 2 simply, Fallman avoided his obligation by refusing to search for the truth and remaining willfully ignorant of 3 the facts. 4 In the middle of the trial, after Clark had testified, Rogers concluded his investigation of Clark.

5 He submitted his findings to both the Del Norte County District Attorney's Office and the California Attorney 6 General's Office with a request to charge Clark with filing a false citizen complaint against a peace officer. 7 See Ex. J. It is not clear whether this was the referral that Fallman mentioned to Clark when he began the 8 videotaped interview or whether this was yet another potential three-strike case. In any event, the prosecution 9 did not inform the trial court or the defense about Rogers' findings until after the trial. See Ex. I at 98-99; Ex. 10 J. Of course, despite Rogers' request, Clark, who at that point was part of the prosecution team, was not 11 prosecuted. As will be demonstrated below, the reckless decision not to do so ultimately cost a pastor his life. 12 Had Clark been prosecuted for his third strike, this pastor would likely be alive today. 13 14 4. Clark And Healy Commit Perjury At The Trial If this were not bad enough, Clark and Healy provided testimony at the trial that definitively

15 established that at least one of them committed perjury. In reality, it is clear that both committed perjury. 16 Despite this fact, the prosecution failed to advise the trial court of the perjury and failed to do anything to 17 investigate the matter. 18 As has been set forth above, Fallman had a problem with Clark's testimony. He had nothing

19 to corroborate Clark's account, as he had done no investigation despite the overwhelming indicia of perjury. 20 Fallman, however, seized on one aspect of Clark's story and made it a central theme of his case. Fallman 21 argued that Clark knew the name of Healy's daughter, and Clark only could have obtained the name from Mr. 22 Grizzle. As a result, Fallman contended that this fact demonstrated that Clark was telling the truth, and he 23 strenuously argued this point during summations. See Ex. G at 1252-53, 1327, 1339-40. 24 In order for this point to have any validity, however, Fallman had to establish that Clark did

25 not get the name of the daughter from Healy himself. As a result, during direct examination, Fallman asked 26 Healy if he ever discussed his daughter with Clark. Healy testified that he had not. Fallman went further, 27 however, and had Healy testify that he had never had any discussions whatsoever with Clark. In fact, Healy 28 testified that he had never "even seen that guy." Ex. F at 895-96.

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There was only one problem; Clark had testified differently earlier in the trial. During direct

2 examination, Fallman asked Clark whether Mr. Grizzle asked him to lie about Healy at Littrell's trial. In the 3 midst of Clark's answers, he also testified that he had known Healy "for a long time" at least "since the early 4 `90s." Ex. E at 766. Of course, Clark had also repeatedly told Fallman and the investigators in his videotaped 5 interview that he had known Healy for years, that the two lived in the same pod and spoke on a daily basis, 6 that Healy told him about his family in Ohio, and that his relationship with Healy was the only truthful aspect 7 of his previous testimony at Littrell's trial. See Ex. N. Thus, at least one committed perjury. Either Healy 8 lied when he testified that he had never even seen Clark, or Clark lied when he testified that he and Healy had 9 known each other for years and had a tight relationship. The prosecutor never brought this perjury to the 10 attention of the trial court and never did anything to investigate which of its witnesses was lying. 11 Of course, housing records and prison logs could have easily answered the question of which

12 one was lying. Clark had previously testified at Littrell's trial that he and Healy lived in the same pod towards 13 the end of 1997 or the beginning of 1998, where they spoke on a daily basis, and Clark confirmed the accuracy 14 of these facts in his videotaped interview with Fallman. Clark had even named the specific pod and cells. See 15 Ex. B at 110-12; Ex. N. Yet, the prosecution did not even take the basic step of investigating the prison 16 records to determine which of its witnesses was committing perjury. Even more troubling, the prosecution 17 successfully obstructed Mr. Grizzle's efforts to obtain this information. See Ex. H at 29-36. 18 The reality is that both Clark and Healy committed perjury at Mr. Grizzle's trial. Virtually all

19 of Clark's testimony was perjury. He concocted the story about Mr. Grizzle paying for his false testimony at 20 Littrell's trial. Perhaps even more appalling, Clark fabricated the story about Healy's daughter, testifying that 21 he came forward because he could not stand the thought of seeing an innocent, young girl killed, comparing 22 it to a "Poly Klass situation." See Ex. E at 768-69. Clark testified as if his intentions were to protect a 23 helpless victim, and Fallman heavily argued during closings that Clark had reformed, comparing him to the 24 likes of various biblical figures, such as Barabbas, Saul, Matthew, Zacchaeus, King David, King 25 Nebuchadnezzar, and Mary Magdalene. Ex. G at 1251-52, 1259-68. As will be demonstrated in the next 26 section, Clark's testimony was patently false, and Fallman's argument was misleading. Clark was not a 27 reformed protector of young girls. Instead, he had been convicted of raping an underage girl in the past, and, 28 just months after his testimony, he savagely killed a helpless pastor. See Ex. B at 118; Ex. L.

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The one point that Clark testified truthfully about was his relationship with Healy. On this

2 point, it was Healy who committed perjury. Healy did so because he knew that Fallman needed it. The 3 bottom line, however, is that the prosecution was on notice that Clark may be committing perjury. Indeed, 4 at least one government investigator had warned the prosecution team that Clark's testimony was not credible. 5 Yet, the prosecution did nothing to investigate the veracity of his allegations. Instead, it stuck its head in the 6 sand and pressed forward because the prosecutor liked the testimony. Even when it became evident that either 7 Clark or Healy had lied at the trial, the prosecution did not bring the perjury to the attention of the trial court 8 or do anything to investigate. Amazingly, the prosecution heavily relied on the perjury to obtain a conviction. 9 10 5. Clark Murders A 68-Year Old Pastor By Stabbing Him 24 Times As mentioned earlier, at least one government official was wise enough to recognize that Clark

11 was incredible and should be prosecuted for false allegations. If the prosecution had followed his request, 12 Clark would have been convicted of a third strike and would not have been released. Predictably, the 13 prosecution declined to charge Clark, as he had given the perjury that was needed to secure Mr. Grizzle's 14 conviction. This gross exercise of prosecutorial decision-making led to the death of an innocent victim. 15 Indeed, although Clark had testified at the trial that he could not live with the killing of a helpless young girl, 16 he committed a grizzly murder of a pastor within four months of his release from Pelican Bay. 17 Clark was paroled in June 1999, approximately four months after testifying for the prosecution

18 against Mr. Grizzle. Just four months later, on October 20, 1999, he stabbed Edward Sherriff, a 68-year old 19 pastor, to death. Although several of the wounds took substantial force to inflict and would have quickly 20 caused death, Clark, who according to Fallman resembles King David and Mary Magdalene, apparently felt 21 that he needed to stab the helpless victim 24 times. See Ex. L at 2-3. 22 Clark confessed to the murder after his arrest and during his testimony at trial. Although Clark

23 predictably testified that he committed the murder to protect young boys from the pastor's sexual desires 24 (sound familiar), the evidence was overwhelmingly clear that he committed the murder for money. Clark 25 brutally stabbed Sherriff in Sherriff's own bedroom and then began to ransack his home, looking for anything 26 valuable. Officers found speakers, a videocassette recorder, and other valuable items stacked in the middle 27 of the pastor's living room. Clark had to leave the stacked items because neighbors began to investigate. 28 Clark fled the scene by stealing Sherriff's car. See Ex. L at 3-5.

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Clark was seen counting money shortly after the murder. He also gave a young woman two

2 jewelry boxes and their contents and asked her to get rid of them. Despite Clark's "Poly Klass" testimony at 3 Mr. Grizzle's trial, he "threatened to hurt her if she told her mother and ordered her to tell anyone who asked 4 that he had been home all night." Ex. L at 4. Clark also had another individual call the police from a pay 5 phone with the location of Sherriff's stolen vehicle and with the name of a false suspect, continuing his pattern 6 of false accusations. Clark then wiped the phone with a rag. See Ex. L at 4. 7 Just when one would think it could not get any worse, there is still more. Clark manipulated

8 his public defender, starting a romantic relationship with her. Jail officials believed that the girlfriend/attorney 9 was bringing Clark contraband and also providing him with information on other criminal defendants housed 10 at the jail to enhance his status and his own civil lawsuits, which alleged abuse against prison officials. Clark 11 then used this information "to intimidate and threaten other inmates into acting as witnesses to false claims 12 of abuse." Ex. L at 7. Specifically, Clark was alleging that jail officials forcibly sodomized him with a baton. 13 See Ex. L at 6. 14 15 6. Fallman Concedes That The Perjured Testimony Must Have Affected The Verdict Although the prosecution engaged in woeful misconduct in failing to investigate the perjury

16 of Clark and Healy at the time of trial, one would think that the subsequent developments concerning Clark 17 would have sparked some inquiry. Unfortunately, such is not the case. Unbelievably, Fallman actually 18 attempted to come to Clark's rescue by testifying for him at his sentencing proceedings. See Ex. M. 19 During this testimony, Fallman admitted that Clark's testimony was critical in obtaining

20 convictions against Mr. Grizzle. Fallman explained that "largely because of Clark's testimony that there was 21 a different result" from the Littrell trial. Ex. M at 13. Fallman further explained: "Case number one, not guilty 22 on the conspiracy to commit murder, and only a second degree murder on the actual strangler, where ­ who 23 was in the cell with the victim. Whereas on case number two, the large difference in the case was Clark's 24 testimony. I got a first degree murder." Ex. M at 14-15. Fallman's assessment of the impact of Clark's 25 testimony corresponded with his closing argument at Mr. Grizzle's trial, where he argued to the jury that it 26 should return a different verdict than the Littrell jury because of Clark's testimony. Ex. G at 1326-27. 27 Perhaps amazed by the fact that Fallman could still be blindly crediting Clark's testimony, the

28 prosecutor handling the Clark case asked Fallman whether there was any way he could corroborate Clark's

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1 testimony at Mr. Grizzle's trial. As one would expect, all Fallman could do was rely on his trial theory, and 2 he simply responded that Clark knew the age of Healy's child. The prosecutor pressed Fallman, explaining 3 that if Clark had a source who could obtain information, then he could have obtained the information on 4 Healy's daughter from the source. Fallman's response was simply: "Well, I suppose, but he had very specific 5 information." Ex. M at 16-17. Fallman also admitted that nothing has ever happened to Healy's family. Ex. 6 M at 22. 7 Fallman's assessment of the materiality of Clark's testimony corresponded with the court of

8 appeals' assessment. Indeed, the court of appeals relied on Clark's testimony in finding sufficient evidence 9 and in rejecting Mr. Grizzle's collateral estoppel argument. See Ex. K at 15, 45. Of course, as recognized by 10 the trial court, the case against Mr. Grizzle was primarily based on witnesses with "slimy" motives and was 11 even weaker than the case against Littrell, who was acquitted of conspiracy. See Ex. C at 65-66; Ex. D at 2212 24. Given the weak prosecution case, the perjury was clearly prejudicial. 13 Finally, as explained above, not only did Clark commit perjury, but Healy also committed

14 perjury when he testified that he did not know Clark and had never even seen him. Healy's testimony played 15 a major role in the prosecution's case. For this additional reason, the jury's verdict was tainted by prosecution 16 perjury. 17 18 B. Legal Analysis The superior court issued a "reasoned" decision denying Mr. Grizzle's perjury claim. The

19 California Court of Appeal and the Supreme Court of California summarily denied Mr. Grizzle's petition. 20 See Ex. O. As a result, this Court "looks through" the summary decisions of the California appellate courts 21 and evaluates the decision of the superior court. See, e.g., Medley, 506 F.3d at 862. 22 23 1. The Law Governing The Use Of Perjured Testimony Claims that the prosecution used perjured testimony are often referred to as Mooney-Napue

24 claims based on the two landmark Supreme Court cases addressing the issue. In Mooney v. Holohan, 294 U.S. 25 103, 112 (1935), the Supreme Court held that a conviction obtained through the use of testimony known to 26 be perjured violates the Due Process Clause of the Fourteenth Amendment. Twenty-five years later, in Napue 27 v. Illinois, 360 U.S. 264, 269-70 (1959), the Supreme Court clarified that a due process violation occurs if a 28 prosecutor fails to correct perjured testimony, even if he did not solicit it. The Supreme Court also clarified

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1 in Napue that the use of perjured testimony triggers a due process violation even if the testimony does not go 2 directly to a defendant's guilt and instead only bears on a witness's credibility: "A lie is a lie, no matter what 3 its subject, and, if it is in any way relevant to the case, the district attorney has the responsibility and duty to 4 correct what he knows to be false and elicit the truth. That the district attorney's silence was not the result of 5 guile or a desire to prejudice matters little, for its impact was the same, preventing, as it did, a trial that could 6 in any real sense be termed fair." Napue, 360 U.S. at 269-70 (citation omitted). 7 The Supreme Court has also clarified that a Mooney-Napue violation does not only arise when

8 the prosecution knowingly uses perjured testimony. Instead, such a violation arises when "the prosecution 9 knew, or should have known, of the perjury." United States v. Agurs, 427 U.S. 97, 103 (1976) (emphasis 10 added). Thus, courts have consistently held that a Mooney-Napue violation occurs when the use of perjured 11 testimony by the prosecution was knowing, reckless, or even negligent. See, e.g., United States v. Tierney, 12 947 F.2d 854, 860-61 (8th Cir. 1991). 13 Recognizing that reckless or negligent use of perjured testimony can trigger a Mooney-Napue

14 violation, the Ninth Circuit has recently explained the duties that the prosecution must undertake when 15 confronted with the potential perjury of one of its witnesses. See Morris v. Ylst, 447 F.3d 735, 743-44 (9th Cir. 16 2006). In Morris, the Ninth Circuit described the issue before it as follows: "Often it is clear that false 17 evidence was presented. Here, however, there is only an allegation or suspicion that a witness lied, but no 18 follow-up investigation or explanation by the state. As a result, we must decide whether the prosecution had 19 a duty to investigate an allegation or suspicion of perjury, separate from its duty to disclose perjury that has 20 definitely taken place." Id. at 743-44 (citation omitted). 21 The Ninth Circuit provided a definitive answer to that question: "When a prosecutor suspects

22 perjury, the prosecutor must at least investigate. The duty to act `is not discharged by attempting to finesse 23 the problem by pressing ahead without a diligent and good faith attempt to resolve it. A prosecutor cannot 24 avoid this obligation by refusing to search for the truth and remaining willfully ignorant of the facts.' This 25 principle is supported by Mooney, Napue, and their progeny." Id. at 744 (quoting Northern Mariana Islands 26 v. Bowie, 243 F.3d 1109, 1118 (9th Cir. 2001)). The Ninth Circuit further explained that the truth-seeking 27 function of a trial "cannot be fulfilled when the state, knowing that a witness may have perjured herself, 28 proceeds without conducting an investigation to ensure that a new trial is not warranted. The duty to

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1 investigate flows from `the constitutional obligation of the State and its representatives to collect potentially 2 exculpatory evidence, to prevent fraud upon the court, and to elicit the truth.'" Id. at 744 (quoting Bowie, 243 3 F.3d at 1117). 4 If a defendant can demonstrate that the prosecution knowingly, intentionally, or recklessly used

5 perjured testimony, or, as in Morris, recklessly or negligently used potential perjury and failed to investigate, 6 then the defendant has established the first part of a Mooney-Napue claim. In order to obtain relief, however, 7 a defendant must also make a second showing ­ that the use of perjury or the failure to investigate potential 8 perjury resulted in prejudice. See Morris, 447 F.3d at 745. "The test for prejudice for a Mooney-Napue claim 9 is the same as that for materiality in a Brady [v. Maryland, 373 U.S. 83 (1963)]claim. That is, [the court] must 10 decide whether, despite the use of perjured testimony, Petitioner received a `trial resulting in a verdict worthy 11 of confidence.'" Id. at 745 (quoting Kyles v. Whitley, 514 U.S. 419, 434 (1995)). Stated differently, prejudice 12 is shown "if there is any reasonable likelihood that the false testimony could have affected the judgment of 13 the jury." Agurs, 427 U.S. at 103; see, e.g., Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc). 14 In Kyles, the Supreme Court emphasized four points regarding this standard of prejudice. First,

15 a showing of prejudice does not require that a defendant demonstrate by a preponderance of the evidence that 16 the result of the trial would have been different. See Kyles, 514 U.S. at 434. Second, the prejudice inquiry 17 "is not a sufficiency of evidence test. A defendant need not demonstrate that after discounting the inculpatory 18 evidence [in light of the revelation of perjury] there would not have been enough left to convict." Id. at 43419 35. Instead, a defendant merely needs to show that the revelation of the perjury "put[s] the whole case in such 20 a different light as to undermine confidence in the verdict." Id. at 435. Third, once a reviewing court "has 21 found a constitutional error there is no need for further harmless-error review." Id. at 435. Fourth, a reviewing 22 court should look at the perjury "collectively, not item by item." Id. at 436. 23 Finally, the standard governing the knowing, reckless, or negligent use of perjured testimony

24 "generally requires that the conviction be set aside." Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002). 25 On the other hand, if the perjury was presented in "good faith" (in other words, the prosecution did not act 26 knowingly, intentionally, or recklessly), then the standard is whether there is a "reasonable probability" that 27 without the perjury the result of the proceeding would have been different. See Killian, 282 F.3d at 1208; 28 United States v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994).

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2. Application Of The First Mooney-Napue Prong The prosecution failed in at least three respects under the first Mooney-Napue prong. First,

3 the prosecution jumped into bed with two witnesses who claimed to have committed perjury in the past. Thus, 4 any reasonable prosecutor would have been suspicious from the outset. Indeed, with respect to Clark, the 5 indicia of dishonesty were overwhelming from the very beginning. The first investigator to speak with Clark 6 specifically advised the prosecutor and the lead investigative agent that Clark should not be believed. While 7 Mr. Grizzle would certainly contend that Clark's background and claim that he had previously committed 8 perjury were alone enough to trigger a duty to investigate under Morris, certainly a duty to investigate was 9 triggered when the first officer to speak with Clark specifically suggested that Clark was not credible. The 10 prosecution, however, did nothing to investigate. Instead, the prosecution simply accepted Clark's fanciful 11 allegations without making any effort to determine whether what he was saying had any basis in reality. 12 Furthermore, there were potential avenues of investigation that the prosecution could have

13 pursued to ascertain the veracity of Clark's allegations. The prosecution could have confronted Gallegos with 14 Clark's allegations, or it could have tried to confirm the allegations with Clark's mystery "relatives." The 15 prosecution, however, never conducted any follow-up with Gallegos and never even obtained the names or 16 contact information for the supposed "relatives." Indeed, Fallman even admitted shortly before the trial that 17 Clark may have been sending the prosecution on a "wild goose chase," but he unbelievably decided not to 18 investigate. In essence, Fallman decided to "finesse" the problem. This failure to investigate Clark's 19 allegations constitutes the first error under Morris. See United States v. Wallach, 935 F.2d 445, 457 (2d Cir. 20 1991) (government insufficiently investigated potential perjury of cooperating witness even when it 21 extensively questioned witness and contacted friends who corroborated him). In short, "given the importance 22 of [Clark]'s testimony to the case, the prosecutors may have consciously avoided recognizing the obvious ­ 23 that is, that [Clark] was not telling the truth." Id. at 457. 24 The second error occurred when the prosecution was confronted with flatly conflicting

25 testimony from two of its untrustworthy witnesses. Clark testified, consistent with his interview, that he and 26 Healy knew each other for a long time. Healy, on the other hand, testified that he had never even seen Clark. 27 As a result, one of the prosecution's witnesses was committing perjury. Of course, at this point, the 28 prosecution had a duty to inform the trial court of the perjury, but it failed to do so. Moreover, under Morris,

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1 the prosecution had a duty to investigate which of its two witnesses was lying. Once again, the prosecution 2 had ample information by which it could have conducted an investigation. Clark had provided details 3 regarding his relationship with Healy, including when and where they first met and specific information about 4 the pods and cells that they lived in. The prosecution could have checked prison records to determine whether 5 they had been celled near each other, and it could have questioned prison guards about whether the two 6 communicated with each other. The prosecution did none of this. Instead, the prosecution failed to call the 7 perjury to the attention of the trial court, failed to investigate who was telling the truth, and heavily relied on 8 Healy's testimony that the two did not know each other even though the facts overwhelmingly suggest that 9 Clark was telling the truth on this one point. 10 The third error occurred when the prosecution failed to conduct any investigation after it

11 learned of Clark's unthinkable actions within months of his release from prison. Clark's testimony, which 12 again was never investigated by the prosecution in the first place, was that Mr. Grizzle and Gallegos paid him 13 to commit perjury at Littrell's trial, and Mr. Grizzle then asked him to help in the Aryan Brotherhood's attempt 14 to kill Healy's daughter. Clark further testified that he came forward because he just could not bear the 15 thought of an innocent girl being killed. The prosecution then argued in closings that the jury should believe 16 Clark because he had reformed, much the way several biblical figures had reformed. Clark's actions 17 demonstrate that this was all a farce. Within four months of his release from prison, Clark brutally murdered 18 a pastor. He confessed to the killing but concocted a similar, false story that he did so to protect young boys 19 from the sexual desires of the victim. Indeed, the objective evidence revealed that he actually killed the pastor 20 while burglarizing his home. After the murder, he attempted to frame another individual and threatened a 21 young woman to cover up his crime. While he was detained pending trial, he manipulated his lawyer into 22 giving him sensitive information about other inmates' cases which he could then use to threaten them into 23 giving false testimony on his behalf. Clark also made ludicrous false accusations against a variety of prison 24 officials. 25 It strains credulity to think that the prosecution did not immediately become aware of Clark's

26 actions. Indeed, the prosecution's complicity in allowing the release of Clark must have been a source of 27 horror and embarrassment for the District Attorney's Office. In any event, there can be no doubt that the 28 prosecution eventually became aware of Clark's actions because Fallman testified at his sentencing

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1 proceedings. At this point, one would think that the prosecution would have investigated whether Clark 2 committed perjury at Mr. Grizzle's trial. Indeed, Clark's subsequent actions mirrored what he did at the trial 3 and suggested a similar pattern of perjury. Clark testified at Mr. Grizzle's trial that he came forward to protect 4 a young and innocent girl, and therefore the prosecution urged the jury to believe that Clark had reformed. 5 Yet, Clark then brutally killed an innocent pastor and falsely claimed that he did so to protect children. Clark 6 then threatened to hurt a young woman in order to get her to provide him with an alibi, attempted to frame 7 other individuals to maintain his own freedom, and continued to throw out ridiculous false accusations about 8 others. He also manipulated a lawyer into giving him sensitive information so that he could concoct false 9 testimony. Actually, if this did not awaken the prosecution, it surely should have recognized its duty to 10 investigate when the Clark prosecutor asked Fallman during his testimony whether he could corroborate any 11 of Clark's testimony at Mr. Grizzle's trial. Fallman was caught flat-footed and simply responded that he knew 12 about Healy's daughter, an explanation that is wanting when considering Clark's repeated testimony that he 13 knew Healy well and had discussed Healy's family with him. Of course, the prosecution has still failed to 14 conduct any investigation or advise the court of the perjury committed at Mr. Grizzle's trial. 15 16 3. Application Of The Second Mooney-Napue Prong While the above discussion demonstrates that the first prong of the Mooney-Napue test has

17 clearly been satisfied, the second prong is just as easily demonstrated. As an initial matter, this is an unusual 18 case because the Court is actually presented with two trials that reached two different results. Consequently, 19 it has clear proof that the perjury could have affected the judgment of the jury. Indeed, Fallman flatly admitted 20 at Clark's sentencing that his testimony was the difference between the result in Littrell's trial and the result 21 in Mr. Grizzle's trial. The court of appeals also relied on Clark's testimony in finding sufficient evidence and 22 in rejecting Mr. Grizzle's collateral estoppel argument based on Littrell's acquittal. Moreover, Clark's perjury 23 was highly inflammatory, as it alleged that Mr. Grizzle was i