Nathaniel Flowers v. Scott McEwen

MEMORANDUM **

Nathaniel Flowers appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We have jurisdiction pursuant to 28 U.S.C. § 2253 , and we affirm.

We consider Flowers’ appeal under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), which requires that we deny habeas relief unless Flowers demonstrates that the state court’s decision “ ‘was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States or ... was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’ ” Runningeagle v. Ryan, 686 F.3d 758, 766 (9th Cir.2012) (quoting 28 U.S.C. § 2254 (d)).

Flowers failed to demonstrate that the California Court of Appeal’s rejection of his Brady 1 claim was the product of an unreasonable determination of the facts. See 28 U.S.C. § 2254 (d)(2). The record supports the vast majority of the state court’s factual findings. However, to the extent that the state court determined that Joshua Fells testified that he would not identify the shooter, that finding was factually…

concurring:

The conduct of the prosecution in this case was grossly improper. The State intentionally suppressed Brady material that, as the California Court of Appeal acknowledged, could have been used to impeach the State’s star witness, Anthony “Kaos” Perry.

Moreover, the State’s case against Flowers was tenuous. Flowers’ first trial re- *869 suited in a hung jury, and at his second, the jury voted to convict only after two days of deliberations and the substitution of an alternate juror. Other than Perry’s recanted testimony, the only evidence linking Flowers to the three shootings was: (1) Flowers’ ambiguous post-arrest statements regarding the Christmas Day shooting, which the prosecution claimed showed consciousness of guilt; (2) Perry’s alleged statement to a convenience store clerk immediately before the January shooting that he had been shot the week before and that “people were after him,” which both Perry and the clerk denied on the stand; (3) the account of the February shooting given by Luis Carmona, who admittedly caught only a glimpse of the shooter while not wearing his eyeglasses, and whose testimony contradicted another eyewitnesses’s statement regarding such…

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS FILED

FOR THE NINTH CIRCUIT OCT 01 2014

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

NATHANIEL FLOWERS, No. 11-56181

Petitioner - Appellant, D.C. No. 2:09-cv-03119-JST-SS

v.

MEMORANDUM*

SCOTT MCEWEN, Warden,

Respondent - Appellee.

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding

Argued and Submitted August 27, 2014 Pasadena, California

Before: O’SCANNLAIN and RAWLINSON, Circuit Judges, and RAKOFF, Senior District Judge.**

Nathaniel Flowers appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction pursuant to 28 U.S.C. §

2253, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Jed S. Rakoff, Senior District Judge for the United States District Court for the Southern District of New York, sitting by designation. We consider Flowers’ appeal under the Antiterrorism and…