Pulido

MEMORANDUM *

Michael Pulido, the petitioner-appellant, cross-appeals the denial of his habeas petition on several grounds. In a concurrently filed opinion, we affirm the grant of habeas relief. See Pulido v. Chrones, Nos. 05-15916 & 05-16308 (filed_). The facts and prior proceedings are known to the parties and are repeated herein only as necessary.

I

A

First, Pulido contends that the prosecution “knew, or should have known” that testimony given during his trial was perjured. See United States v. Agurs, 427 U.S. 97, 103 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976). To make a successful Agurs claim; Pulido must show that the perjured testimony “was material, that is, there is a reasonable likelihood that the false evidence or testimony could have affected the judgment of the jury.” Morris v. Ylst, 447 F.3d 735, 743 (9th Cir.2006).

Pulido does not — indeed, cannot — explain how Moore’s testimony was material. Pulido’s explanation for the murder was that he was with Aragon at the Shell station, but that Aragon committed the murder. The jury — having deadlocked on the issue whether Pulido had personally committed the murder — apparently believed that Aragon was the shooter, and that…