NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 22 2022

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

TONY KHONG, No. 20-17032

Petitioner-Appellant, D.C. No. 2:18-cv-00580-KJM-DB v.

SCOTT FRAUENHEIM, Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Eastern District of California Kimberly J. Mueller, Chief District Judge, Presiding

Argued and Submitted November 15, 2022 San Francisco, California

Before: S.R. THOMAS and BENNETT, Circuit Judges, and LASNIK,** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Robert S. Lasnik, United States District Judge for the Western District of Washington, sitting by designation. Tony Khong, a California prisoner, was convicted of several crimes related

to prostituting two minors, S.T. and C.T. He was sentenced to an aggregate term

of twenty years. After unsuccessful state post-conviction proceedings, Khong

sought federal habeas relief under 28 U.S.C. § 2254, raising the same Brady1

violation that he raised in the state courts. The district court denied his habeas

petition. Khong appeals.

We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and affirm. “We

review the district court’s denial of a writ of habeas corpus de novo, and we may

affirm on any ground supported by the record.” Holley v. Yarborough, 568 F.3d

1091, 1098 (9th Cir. 2009). Our review is also governed by the Antiterrorism and

Effective Death Penalty Act (“AEDPA”) because Khong filed his habeas petition

in 2018. See id. at 1097.

1. The district court, adopting the magistrate judge’s findings and

recommendations in full, determined that it did not have to decide whether the

Brady claim had been exhausted or was subject to procedural default because the

claim was meritless. Khong argues that he properly exhausted his Brady claim.

We agree. The exhaustion requirement is satisfied when the petitioner has given

“the highest state court . . . a fair opportunity to consider each issue before

presenting it to the federal court.” Weaver v. Thompson, 197 F.3d 359, 364 (9th 2 Cir. 1999). A state court has “been given a sufficient opportunity to hear an issue

when the petitioner has presented the state court with the issue’s factual and legal

basis.” Id. Khong fairly presented his Brady claim because his petitions before the

California Superior Court, the California Court of Appeal, and the California

Supreme Court—all of which were substantially the same—presented the legal and

factual basis for his Brady claim.

Khong also argues that the State has waived any procedural default. We

agree because the procedural default bar is an affirmative defense, and the State

makes no argument that the state courts relied on an independent and adequate

state law basis for denying relief. See Bennett v. Mueller, 322 F.3d 573, 580, 585–

86 (9th Cir. 2003). Although we agree with Khong that his Brady claim is not

subject to procedural default and was exhausted, it ultimately fails on the merits.

2. Because the Brady claim fails under de novo review, we need not

resolve the parties’ dispute over whether AEDPA deference applies to the

California Supreme Court’s or Superior Court’s decision. See Fox v. Johnson, 832

F.3d 978, 986 (9th Cir. 2016).

“There are three components of a true Brady violation: The evidence at issue

must be favorable to the accused, either because it is exculpatory, or because it is

impeaching; that evidence must have been suppressed by the State, either willfully

or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S.

3 263, 281–82 (1999). Prejudice has ensued “only if there is a reasonable probability

that, had the evidence been disclosed to the defense, the result of the proceeding

would have been different. A ‘reasonable probability’ is a probability sufficient to

undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682

(1985).

Khong’s Brady claim, which is based on undisclosed impeachment evidence

against Officer Winchester, fails for lack of prejudice. S.T. was the key testifying

witness, as she was the only testifying witness with first-hand knowledge of

Khong’s crimes. No evidence showed that S.T. had a motive to lie. Some of

S.T.’s testimony was inconsistent, but her testimony as to the counts on which

Khong was convicted was largely consistent. Her testimony was also corroborated

by evidence beyond Officer Winchester’s testimony and thus did not hinge on

Officer Winchester’s testimony. Considering the record, even if Officer

Winchester’s testimony had been entirely discredited by the undisclosed

impeachment evidence, there is no reasonable probability that the outcome would

have been different. See Benn v. Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002).2

AFFIRMED.

2 We deny Khong’s motion to take judicial notice of the docket in Officer Winchester’s criminal case, Dkt. No. 14, as such information came into existence two years after Khong’s trial and thus has no bearing on whether there is a reasonable probability that, had the impeachment evidence been disclosed, the outcome would have been different.

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