NOT FOR PUBLICATION FILED

UNITED STATES COURT OF APPEALS DEC 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

BRADLEY DAVID KNOX, No. 23-35078

Petitioner-Appellant, D.C. Nos. 3:21-cv-05272-RSM 3:21-cv-05273-RSM- v. BAT

DANIEL W. WHITE, Superintendent of Washington Corrections Center, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Ricardo S. Martinez, District Judge, Presiding

Submitted December 5, 2023 ** Seattle, Washington

Before: N.R. SMITH, SANCHEZ, and MENDOZA, Circuit Judges.

Bradley David Knox appeals the district court’s denial of his 28 U.S.C.

§ 2254 petition for a writ of habeas corpus, challenging his state conviction for

unlawful possession of a controlled substance with intent to deliver, two counts of

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). unlawful possession of a firearm, bail jumping, and solicitation to murder.

Following his conviction by a jury, the Washington Court of Appeals affirmed the

judgment in a lengthy and reasoned decision, the Deputy Commissioner of the

Washington Supreme Court affirmed that appellate decision, and the Washington

Supreme Court summarily denied Mr. Knox’s motion to modify the

Commissioner’s ruling. After Mr. Knox filed his petition for habeas relief in

federal court, the district court adopted the magistrate judge’s findings and

recommendations, and it too denied Mr. Knox’s habeas petition.

In his timely appeal to this Court, Mr. Knox presents two claims for habeas

relief, which were certified by the district court. First, he argues that the post-

conviction courts erred by finding that the state’s withholding of favorable

evidence lacked a reasonable likelihood of affecting the jury’s judgment under

Brady v. Maryland, 373 U.S. 83 (1963). And second, Mr. Knox maintains that a

set of errors, none of which individually violated his due process rights,

cumulatively deprived him of the right to a fundamentally fair trial. 1

We have jurisdiction over Mr. Knox’s appeal under 28 U.S.C. §§ 1291 and

2253. The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

governs our de novo review of the district court’s denial of Mr. Knox’s habeas

1 Because the parties are familiar with the underlying facts and issues in this case,

we do not recount them at length here.

2 petition. 28 U.S.C. § 2254(d); see Sanders v. Cullen, 873 F.3d 778, 793 (9th Cir.

2017). Under AEDPA, we defer to the last state court’s reasoned decision on any

claim that was adjudicated on the merits unless that decision is: “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States;” or “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d). Under AEDPA’s “demanding”

standard, Brown v. Davenport, 596 U.S. 118, 134 (2022), we affirm the post-

conviction courts’ denial of Mr. Knox’s habeas petition.

1. The post-conviction courts reasonably concluded that the prosecution did not

commit a Brady violation when it failed to disclose police reports, interviews, and

documentary evidence describing a key prosecution witness’s alleged misconduct.

Under Brady, a petitioner must show that (1) the evidence in question was

favorable to the defendant; (2) the prosecution possessed and withheld that

evidence; and (3) suppression prejudiced the petitioner. Strickler v. Greene, 527

U.S. 263, 281–82 (1999); see also Ochoa v. Davis, 16 F.4th 1314, 1326 (9th Cir.

2021). It is undisputed that the prosecution withheld favorable evidence, meeting

Brady’s first and second prongs. Under Brady’s third prong, withheld evidence is

prejudicial, and thus material, “if there is a reasonable probability that, had the

evidence been disclosed to the defense, the result of the proceeding would have

3 been different.” United States v. Alahmedalabdaloklah, 76 F.4th 1183, 1229 (9th

Cir. 2023) (quoting Ochoa, 16 F.4th at 1327) (emphasis omitted); see also Giglio

v. United States, 405 U.S. 150, 154 (1972) (holding that evidence is material if it

could “in any reasonable likelihood have affected the judgment of the jury”). In

Wearry v. Cain, the Supreme Court clarified that, under Brady, a petitioner “must

show only that the new evidence is sufficient to ‘undermine confidence’ in the

verdict”; he “need not show that he ‘more likely than not’ would have been

acquitted had the new evidence been admitted.” 577 U.S. 385, 392 (2016)

(quoting Smith v. Cain, 565 U.S. 73, 75–76 (2012)). Mr. Knox argues that the

post-conviction courts misstated and unreasonably applied Brady’s materiality

prong and made unreasonable factual determinations. We disagree.

The Washington Court of Appeals, as affirmed by the Commissioner,

accurately recited and applied Brady’s materiality standard throughout its opinion.

Although it twice used the word “likelihood” in discussing prejudice, it did not

misapply Wearry by swapping Brady’s “reasonable probability” standard for a

“more likely than not” standard. Instead, “reading the opinion as a whole” and “in

context,” Mann v. Ryan, 828 F.3d 1143, 1157 (9th Cir. 2016), the Washington

Court of Appeals clearly understood and applied Brady’s requirements, and

phrases like “unlikely [to have] affected the result at trial” were acceptable

shorthand. See Holland v. Jackson, 542 U.S. 649, 655 (2004) (characterizing a

4 post-conviction court’s use of the “unadorned word ‘probably’” as “permissible

shorthand when the complete Strickland standard is elsewhere recited”); see also

Woodford v. Visciotti, 537 U.S. 19, 23–24 (2002) (reasoning that it was not error to

use “the term ‘probable’ without the modifier ‘reasonably,’” and criticizing the

appellate court for its “readiness to attribute error [that] is inconsistent with the

presumption that state courts know and follow the law”). 2

The Washington Court of Appeals also reasonably concluded that the

withheld evidence was not prejudicial to Mr. Knox. Mr. Knox was charged with

solicitation to murder three individuals while incarcerated at the Cowlitz County

Jail. The prosecution based its solicitation-to-murder case on (1) the testimony of

a jail-house informant and (2) an audio recording, in which Mr. Knox asked the

informant to kill a man in exchange for drugs and cash. Of note, the audio

recording only recorded Mr. Knox seeking to murder one individual; it did not

discuss his desire to have the other two individuals murdered. Although the

prosecution withheld information from Mr. Knox’s counsel about the informant’s

2 Mr. Knox argues that the post-conviction courts ought to have applied the “one

juror” rule announced in Buck v. Davis, 580 U.S. 100, 119–20 (2017). The Supreme Court has not applied the “one juror” rule—which assesses whether “at least one juror would have harbored a reasonable doubt” in light of new evidence, id. at 120—outside of capital habeas cases, rendering any errors in its application likely outside the scope of AEDPA’s ambit. See 28 U.S.C. § 2254(d)(1). Regardless, the post-conviction courts reasonably determined that the “one juror” rule is encompassed by the reasonable-probability standard applied by the Washington Court of Appeals.

5 past alleged misconduct, the Washington Court of Appeals reasonably concluded

that the jury was well aware of the informant’s motivation to help the state, his

previous run-ins with law enforcement, and his criminal history.

It also reasonably concluded that further discrediting information about the

informant would have done little to move the needle. Unlike in United States v.

Obagi, 965 F.3d 993, 998 (9th Cir. 2020) and United States v. Kohring, 637 F.3d

895, 900 (9th Cir. 2011), in which convictions were based on witness testimony

later found to be incredible and lacking in sufficient corroborating evidence, Mr.

Knox’s conviction rested on objective evidence. The jury found Mr. Knox guilty

of soliciting the murder caught on tape, and it acquitted him of the solicitation-to-

murder charges exclusively based on the informant’s testimony. Thus, it was not

“objectively unreasonable for [the Washington Court of Appeals] to conclude that”

further discrediting information about the informant would not have a “reasonable

probability” of affecting the jury’s judgment, foreclosing this basis for habeas

relief. See Browning v. Baker, 875 F.3d 444, 464 (9th Cir. 2017).

Nor does Mr. Knox demonstrate that the post-conviction courts sufficiently

mischaracterized, misapprehended, or misstated the facts to warrant habeas relief.

The post-conviction courts carefully weighed the withheld evidence against the

evidence presented at trial, and they reasonably found that the withheld evidence

would not have a reasonable probability of affecting the jury’s judgment. Mr.

6 Knox’s frustration with those courts’ findings of fact do not render them so

“unreasonable” that “‘reasonable minds reviewing the record’ could not agree with

them.” Ayala v. Chappell, 829 F.3d 1081, 1094 (9th Cir. 2016) (citation omitted).

So we affirm the district court’s decision rejecting Mr. Knox’s Brady claim.

2. Mr. Knox separately claims that cumulative trial error resulted in a

deprivation of his constitutional rights. “The Supreme Court has clearly

established that the combined effect of multiple trial court errors violates due

process whe[n] it renders the resulting criminal trial fundamentally unfair.” Parle

v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007) (citing Chambers v. Mississippi, 410

U.S. 284, 298, 302–03 (1973)). “We have granted habeas relief under the

cumulative effects doctrine when there is a ‘unique symmetry’ of otherwise

harmless errors, such that they amplify each other in relation to a key contested

issue in the case.” Ybarra v. McDaniel, 656 F.3d 984, 1001 (9th Cir. 2011)

(quoting Parle, 505 F.3d at 933). The cumulative impact of the errors must render

the trial and sentencing “fundamentally unfair.” Id. (quoting Parle, 505 F.3d at

927). When “no error of constitutional magnitude occurred, no cumulative

prejudice is possible.” Hayes v. Ayers, 632 F.3d 500, 524 (9th Cir. 2011).

The Washington Court of Appeals, as affirmed by the Commissioner, had a

reasonable basis for finding that Mr. Knox’s trial was affected by only two, non-

prejudicial errors: first, the Brady violation discussed above and, second, the

7 prosecution’s failure to “tie up” a set of suggestive cross-examination questions.

But it was not “an objectively unreasonable application of clearly established due

process law” to find that those errors did not deny Mr. Knox a fair trial. Parle, 505

F.3d at 929. And Mr. Knox does not show otherwise. Instead of explaining how

these errors compounded one another to violate his constitutional rights, he merely

relitigates his previously considered and rejected collateral attacks on the jury

verdict. So we deny relief on this claim as well.

The district court’s denial of Mr. Knox’s habeas petition is AFFIRMED.

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