Randall Amado v. Terri Gonzalez

Order; Opinion by Judge HELLERSTEIN; Dissent by Judge RAWLINSON.

ORDER

The Opinion and Dissent filed October 30, 2013, and appearing at 734 F.3d 936 (9th Cir.2013), are hereby withdrawn. They may not be cited as precedent by or to this court or any district court of the Ninth Circuit. A superseding Opinion and Dissent are being filed concurrently with this order.

With the amended disposition, Judge W. Fletcher voted to deny the petition for rehearing and to reject the suggestion for rehearing en banc. Judge Rawlinson voted to grant the petition for rehearing and to grant the suggestion for rehearing en banc. And Judge Hellerstein voted to deny the petition for rehearing and recommended rejection of the suggestion for rehearing en banc.

The full court has been advised of the petition for rehearing en banc and no judge has requested a vote on whether to *1125 rehear the matter en banc. See Fed. R.App. P. 35.

Accordingly, the petition for rehearing and rehearing en banc is hereby DENIED. The court will entertain further petitions for rehearing and rehearing en banc with respect to the superseding Opinion.

OPINION

HELLERSTEIN, Senior District Judge:

Violence between street…

dissenting:

I respectfully dissent from the majority’s conclusion that the state court’s denial of Randall Amado’s Brady 1 claim entitles Amado to habeas relief. As the majority acknowledges, this case is governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Majority Opinion, pp. 1130-31. Under the strictures set forth in AEDPA, our review of state court rulings is severely cabined. Under AEDPA, even de novo review is not really de novo. Rather, we review the state court decision for reasonableness. Only if the state court decision is objectively unreasonable is habeas relief warranted. See Wiggins v. Smith, 539 U.S. 510, 520-21 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003). Habeas relief is not warranted simply because we think the state court got it wrong. Rather, under AEDPA we must give deference to the state court decision, affording state courts “the benefit of the doubt ...” Cullen v. Pinholster, — U.S. -, 131 S.Ct. 1388, 1398 , 179 L.Ed.2d 557 (2011).

As the United States Supreme Court emphasized in Harrington v. Richter, 562 U.S. 86 , 131 S.Ct. 770, 785 , 178 L.Ed.2d 624 (2011), “an unreasonable application of federal law is…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RANDALL AMADO, No. 11-56420 Petitioner-Appellant, D.C. No. v. 2:03-cv-00078-

PA-E

TERRI GONZALEZ, Warden, California Men’s Colony, Respondent-Appellee. ORDER AND

OPINION

Appeal from the United States District Court for the Central District of California Percy Anderson, District Judge, Presiding

Argued and Submitted January 8, 2013—Pasadena, California

Filed July 11, 2014

Before: William A. Fletcher and Johnnie B. Rawlinson, Circuit Judges, and Alvin K. Hellerstein, Senior District Judge.*

Order; Opinion by Judge Hellerstein; Dissent by Judge Rawlinson

* The Honorable Alvin K. Hellerstein, Senior District Judge for the U.S. District Court for the Southern District of New York, sitting by designation. SUMMARY**

Habeas Corpus

The panel withdrew an Opinion and Dissent filed October 30, 2013, filed a superseding Opinion and Dissent, denied a petition for rehearing, and denied a petition for rehearing en banc on behalf of the court, in an appeal from the denial of a 28 U.S.C. § 2254 habeas corpus…