Richard Adams HOVEY, Petitioner-Appellant, v. Robert L. AYERS, Jr., Acting Warden, California State Prison at San Quentin, Respondent-Appellee, 458 F.3d 892

WARDLAW, Circuit Judge. Richard Hovey appeals the district court’s denial of his petition for a writ of habeas corpus. He seeks relief from his 1982 conviction and sentence of death for first degree murder during the course of a kidnapping. He asserts that more than a dozen errors infected his trial, principally: denial of the due process right to be present at a mid-trial hearing on his attorney’s competence; ineffective assistance of counsel at the guilt and penalty phases; Griffin error, see Griffin v. California, 380 U.S. 609, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965); Brady error, see Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); and exclusion of forward-looking evidence to support a proper penalty-phase jury instruction. Because Hovey admitted that he had taken the young victim against her will and committed the acts that resulted in her death, Hovey cannot demonstrate the requisite prejudice to succeed on his claims of error in the guilt phase. The district court, therefore, correctly rejected all of Hovey’s guilt-phase claims, finding a number of errors but determining that none is alone or cumulatively sufficient to merit reversal of Hovey’s conviction.

We hold, however, that the district court erred in concluding that the deficient performance of counsel in the penalty phase did not prejudice Hovey. Counsel’s failure to investigate Hovey’s mental condition at the time of the murder and to adequately prepare Hovey’s penalty-phase expert witness sufficiently undermines our confidence in the verdict of death as to require us to reverse the denial of his petition as to the penalty phase. Therefore, we affirm in part and reverse in part the district court’s judgment denying Hovey’s habeas corpus petition. I.

Background On March 10, 1978, eight-year-old Tina Salazar was abducted while she was walking home from school in Hayward, California. Later that afternoon she was found by the side of a road, bound at the wrists and thighs. Doctors concluded that she had six depressed skull fractures and fourteen laceration wounds. Eight days later, Salazar died. Three months later, in June 1978, Hovey was arrested in connection with the kidnapping of another young girl, Amy Guard, in Albany, California. In December of that year, while in custody for the Guard kidnapping, Hovey was arrested for the Salazar kidnapping and murder.

Hovey was charged with kidnapping and with first degree murder with two “special circumstances”: murder during a lewd and lascivious act on a child, which was dismissed during trial, and murder during the course of a kidnapping. Under California law applicable at the time of Hovey’s trial, kidnapping was not a felony that could give rise to a first degree felony murder conviction; it could only support a finding of second degree murder. See Cal.Penal Code § 189 (1988); People v. Ford, 65 Cal.2d 41, 57, 52 Cal.Rptr. 228, 416 P.2d 132 (1966), overruled on other grounds by People v.

Satchell 6 Cal.3d 28, 98 Cal.Rptr. 33, 489 P.2d 1361 (1971); see also 1 B.E. Witkin & Norman L. Epstein, California Criminal Law § 470, at 220-21 (2d ed. Supp.1999) (discussing 1990 addition of kidnapping to California Penal Code

section 189). Furthermore, under the provisions of California law applicable to Hovey’s case, the fust degree murder in the course of a kidnapping special circumstance with which Hovey was charged required the jury to find a willful, deliberate, and premeditated murder. See CaLPenal Code § 190.2(c)(3) (1977). Thus, a finding of premeditation was critical to Hovey’s eligibility for the death penalty. After his arrest, but before trial on the Salazar kidnapping and murder, Hovey was convicted of the Guard kidnapping.

In return for the exclusion of the Guard conviction from the Salazar murder trial, Hovey stipulated that he had taken Salazar against her will and had committed the acts that caused her death. The stipulation thus conclusively established Hovey’s identity as Salazar’s killer. As a result, the central issue at the guilt-phase trial became whether the killing was sufficiently deliberate and premeditated to support a death-eligible first-degree murder conviction. Two attorneys from the Alameda County Public Defender’s Office were appointed to represent Hovey.

Early in the trial, the trial judge sua sponte convened an evidentiary hearing to address the judge’s concerns regarding the competency of Hovey’s primary attorney. Hovey was neither informed about the two-day hearing nor invited to participate. At the conclusion of the hearing, the court found counsel competent to represent Hovey. During the guilt phase, eyewitnesses testified that on the day of the kidnapping they saw a man struggling with and beating a young child with an object in a light blue car near the place where Salazar was found.

Two city employees testified that on the day of the kidnapping, while they were driving a City of Hayward marked car, they saw a light blue car that had been parked by the side of a road suddenly speed away. When they approached the place where the car had been parked, they discovered a grievously injured child lying on the ground. The prosecution argued that Hovey had a knife in his car when he kidnapped Salazar and used the knife to kill her. No knife was ever found. Two prosecution medical experts, Drs. Chow and Loquvam, testified that Salazar’s wounds could have been caused by a knife.

In addition, two jailhouse informants, Thomas Hughes and Donald Lee, each recounted that while sharing a cell with Hovey, Hovey had said that he brought a knife with him when he kidnapped Salazar and killed her with a knife. Hughes testified at trial, but Lee did not; instead, his testimony from Hovey’s pretrial hearing was read to the jury. The prosecution’s theory of motive was that Hovey had abducted Salazar to sexually molest her and killed her to prevent her from identifying him as her assailant.

Hughes and Lee each testified that Hovey told him that he had killed Salazar because he was afraid she would identify him after she kept trying to remove the blindfold, according to Lee, or the hood-bag, according to Hughes, that Hovey had placed over Salazar’s head to keep her from seeing him. No blindfold or hood-bag was reported by the individuals who found Salazar. The defense theory was that Hovey did not intend to kill Salazar but had struck her. in a panic. Hovey did not testify.

The defense attempted to discredit the knife testimony by portraying Hughes and Lee as sophisticated individuals who had fabricated their testimony to secure protection in jail and lenient treatment for the charges pending against them. The defense argued that Hovey had not brought a weapon with him when he kidnapped Salazar, but instead panicked and used a blunt instrument that he found in the car, possibly a shock absorber. A defense medical expert testified that Salazar’s wounds were caused not by a knife, but rather by a blunt instrument.

To support lack of premeditation, the defense argued that Hovey had pushed Salazar out of the car directly in front of the two City of Hayward employees to attract their attention so that she could get medical help, thus showing that he had not intended to kill her. The jury found Hovey guilty of first degree murder with the special circumstance of murder during a kidnapping, and guilty of kidnapping with infliction of great bodily injury. The jury also found that he had used a deadly weapon, a stabbing instrument, during the commission of the crime. In the penalty phase, Hovey’s key witness was Dr.

Satten, a psychiatrist who testified that Hovey suffered from schizophrenia, and that this mental illness caused Hovey to lose control and kill Salazar. The jury found that the aggravating circumstances of the crime outweighed the mitigating circumstances and returned a death verdict. Hovey’s conviction and sentence of death were affirmed on direct appeal. People v. Hovey, 44 Cal.3d 543, 244 Cal.Rptr. 121, 749 P.2d 776 (1988). After the state courts rejected Hovey’s petitions for habeas relief, Hovey filed a federal habeas petition in 1991.

In seven orders issued between 1996 and 2002, the district court rejected all of Hovey’s claims and ultimately denied his habeas petition. This appeal timely followed. II. Jurisdiction and Standard . of Review The district court had jurisdiction over this petition for habeas corpus pursuant to 28 U.S:C. § 2254. We have jurisdiction over final judgments of the district court pursuant to 28 U.S.C. § 2253(a). This is a pre-AEDPA case. See Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214.

Therefore, we review the district court’s decision to grant or deny a 28 U.S.C. § 2254 habeas petition' de novo. See Alcala v. Woodford, 334 F.3d 862, 868 (9th Cir.2003). Legal questions and mixed questions of law and fact are reviewed de novo. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir.1993). Factual findings made by the district court are reviewed under the “significantly deferential” clearly erroneous standard, in which we accept the district court’s findings of fact absent a “definite and firm conviction that a mistake has been committed.” Silva v.

Woodford, 279 F.3d 825, 835 (9th Cir.2002) (as amended) (internal quotation marks omitted). “Although less deference to state court factual findings is required under the pre-AEDPA law which governs this case, such factual findings are nonetheless entitled to a presumption of correctness unless they are not fairly supported by the record.” Id. (internal quotation marks omitted); see also 28 U.S.C. § 2254(d)(8) (1996). We grant habeas relief only if the alleged errors “had substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted). III. Guilt Phase Hovey asserts five guilt-phase and two penalty-phase claims of error. We discuss his claims, and the relevant facts, in turn. A. Mid-Trial Attorney Competency Hearing Hovey claims that his rights to unconflicted counsel, to be present, and to confront witnesses against him each were violated at a mid-trial hearing on his attorney’s competence.

We agree with the district court that the hearing was not a critical stage at which Hovey’s right to unconflicted counsel attached and that Hovey had no right to confront witnesses at the hearing. We also conclude that even if Hovey had a due process right to ’ be present at the hearing, his exclusion from the hearing was harmless error. 1. Factual Background During a mid-trial colloquy outside the jury’s presence about the admissibility of a prosecution witness’s prior testimony, defense counsel stated that he was not prepared to make objections at that time.

Concerned that counsel might be rendering ineffective assistance, the trial court called counsel for both sides into chambers to discuss defense counsel’s conduct. Over the course of two days, the trial court held four in camera sessions in which the court queried defense counsel, his co-counsel, and his superiors in the Alameda County Public Defender’s Office about counsel’s competence. The prosecution was excluded from most of these sessions, Hovey from all of them.

The court initially appeared concerned only that counsel was not being honest about his lack of preparation and that he was attempting to build error into the record. The court soon broadened its inquiry, however, to examine counsel’s overall competence, including whether there was anything in his personal life that might be interfering with his ability to represent Hovey properly. At counsel’s request, the court instructed those present not to discuss the in-chambers proceedings with anyone. The court subsequently clarified that its ruling permitted defense counsel to discuss the proceedings with Hovey.

Throughout the hearing, counsel deflected the court’s inquiries, asserting attorney-client privilege and refusing to answer the court’s questions. Counsel objected to the court’s jurisdiction to hold the hearing and asked for counsel to represent him, and he made inconsistent statements about whom he was representing at the hearing. The court twice cited counsel for contempt, accused him of being “dishonest” during the hearing, and found his conduct “shocking.” At the conclusion of the hearing, however, the court found counsel competent to represent Hovey and absolved him of contempt.

Nothing in the record suggests that Hovey expressed dissatisfaction with counsel at any point during the remainder of the trial. 2. Discussion We reject Hovey’s claim that his Sixth Amendment right to counsel was violated because he was represented only by conflicted counsel, and thus effectively unrepresented, during the competency hearing. The right to counsel, and the “correlative right” to unconflicted counsel, Wood v. Georgia, 450 U.S. 261, 271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981), attach at all critical stages of a criminal prosecution. See, e.g., United States v.

Wade, 388 U.S. 218, 224-25, 87 S.Ct. 1926, 18 L.Ed.2d 1149 (1967). A critical stage is any “stage of a criminal proceeding where substantial rights of a criminal accused may be affected.” Mempa v. Rhay, 389 U.S. 128, 134, 88 S.Ct. 254, 19 L.Ed.2d 336 (1967); see also Bell v. Cone, 535 U.S. 685, 696, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002) (defining a critical stage as “a step of a criminal proceeding, such as arraignment, that [holds] significant consequences for the accused”). On the basis of Supreme Court precedent, principally Mempa and United States v.

Ash, 413 U.S. 300, 309, 313, 93 S.Ct. 2568, 37 L.Ed.2d 619 (1973), we have distilled a three-factor test for determining what constitutes a critical stage. We consider whether: (1) “failure to pursue strategies or remedies results in a loss of significant rights,” (2) “skilled counsel would be useful in helping the accused understand the legal confrontation,” and (3) “the proceeding tests the merits of the accused’s case.” Menefield v. Borg, 881 F.2d 696, 698-99 (9th Cir.1989). The presence of any one of these factors may be sufficient to render a stage of the proceedings “critical.” Cf.

Ash, 413 U.S. at 313, 93 S.Ct. 2568 (noting that the relevant inquiry is “whether the accused requirefs] aid in coping with legal problems or assistance in meeting his adversary”) (emphasis added)).

Based on the specific facts of this ease, we conclude that the attorney competency hearing did not involve a confrontation at which an attorney would be needed to help Hovey cope with complex legal problems, nor, relatedly, were Hovey’s interests subjected to a “critical eonfrontation[ ],” Wade, 388 U.S. at 227, 87 S.Ct. 1926, or to a power “imbalance” in the face of the state’s prosecuting authority, Ash, 413 U.S. at 309, 93 S.Ct. 2568 (factor 2). Nor did the hearing test the merits of Hovey’s case (factor 3). The first factor presents a closer question.

At a hearing on pre-trial matters held three weeks before the attorney competency hearing, Hovey asked to have another attorney appointed, “just somebody to kind of have a second opinion here, somebody' outside of the public defender’s office.” The record does not illuminate Hovey’s motivation for making this request, and the trial court denied the request without further inquiring into Hovey’s concerns.

To the extent Hovey felt counsel was inadequate, the competency hearing was arguably Hovey’s best opportunity to have new counsel appointed, and the presence of unconflicted counsel might have achieved that result. But whatever benefits Hovey might have enjoyed from having unconflicted counsel present at the hearing, the absence of counsel did not permanently deprive him of any rights.

During the hearing, the court repeatedly expressed a desire to know Hovey’s feelings about his representation, asked defense counsel and other members of the Public Defender’s Office to inquire into Hovey’s opinion, and explicitly left open the possibility that Hovey could bring his concerns to the court’s attention in the future. Nothing prevented Hovey from complaining about his attorney to the court at any point after the hearing and asking for appointment of new counsel, as he had shown himself capable of doing in the past.

Thus, Hovey was not at risk of permanent deprivation of any significant rights during the hearing. Under the guiding Supreme Court cases and Menefield, the competency hearing, therefore, was not a critical stage. Cf. LaGrand v. Lewis, 883 F.Supp. 451, 464 (D.Ariz.1995) (declining to “define a hearing on a motion to change counsel as a critical stage”), affd sub nom. LaGrand v. Stewart, 133 F.3d 1253 (9th Cir.1998). Hovey relies upon two cases in which we found prejudicial error in the conduct of defense counsel competency hearings. Neither case aids him. Unlike in United States v.

Wadsworth, 830 F.2d 1500 (9th Cir.1987), the hearing here was initiated by the trial judge, did not result in Hovey losing the right to obtain new counsel, did not compromise the time he had to prepare for trial, and did not force Hovey to proceed to trial unrepresented. Cf. id. at 1508-10. United States v. Adelzo-Gonzalez, 268 F.3d 772 (9th Cir.2001), did not address whether hearings prompted by the defendant’s motions for appointment of new counsel were critical stages, but rather whether the trial court abused its discretion in denying the motions. Id. at 777.

We also reject Hovey’s claim that he is entitled to habeas relief because his due process right to be present was- violated when he was excluded from the competency hearing. A criminal defendant has a due process right to be present at every stage of trial where his absence might frustrate the fairness of the proceedings. See United States v. Gagnon, 470 U.S. 522, 526, 105 S.Ct. 1482, 84 L.Ed.2d 486 (1985) (per curiam). The defendant bears the burden of showing “how this hearing was unfair or that his presence at the hearing would conceivably have changed the result.” Siripongs v.

Calderon, 35 F.3d 1308, 1321-22 (9th Cir.1994) (as amended). We need not decide whether Hovey’s right to be present was violated because, as we recently held in Campbell v. Rice, a violation of the right to be present is trial error, subject to harmless error review. 408 F.3d 1166, 1172 (9th Cir.2005) (en banc), cert. denied, — U.S.—, 126 S.Ct. 735, 163 L.Ed.2d 578 (2005). Even if Hovey had a right to be present at the competency hearing, his exclusion from the hearing was harmless. The hearing focused on the effectiveness of Hovey’s counsel.

At most, Hovey’s presence at the hearing could have resulted in the trial judge appointing new counsel (although Hovey has presented no evidence suggesting he had anything useful to contribute at the mid-trial competency hearing). As we explain below, however, Hovey’s counsel was not ineffective at the guilt phase in any respect reasonably likely to have affected the outcome of his trial. Accordingly, there is no reasonable probability that obtaining replacement counsel would have changed the outcome of the guilt-phase proceedings, and Hovey’s exclusion from the competency hearing was not prejudicial.

See id. (concluding that because petitioner suffered no adverse effect from counsel’s conflict of interest, no prejudice resulted from petitioner’s exclusion from a hearing in which the trial judge investigated the extent of the conflict of interest); see also United States v. Wheat, 813 F.2d 1399, 1404-05 (9th Cir.1987) (as amended), aff'd, 486 U.S. 153, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988).

As discussed below, we conclude that Hovey’s counsel rendered ineffective assistance in the penalty phase and that it is reasonably probable that the outcome of the penalty phase would have been different had counsel been competent. Because we grant Hovey’s habeas petition as to the penalty phase, we need not independently consider any penalty-phase prejudice caused by Hovey’s exclusion from the hearing on his counsel’s competence. Finally, we reject Hovey’s claim that his exclusion from the hearing violated his Sixth Amendment right to confront witnesses against him.

To ensure a fair and accurate trial, the Confrontation Clause protects a defendant’s ability to effectively cross-examine prosecution witnesses testifying against him. See, e.g., Maryland v. Craig, 497 U.S. 836, 845-46, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990); Coy v. Iowa, 487 U.S. 1012, 1019-20, 108 S.Ct. 2798, 101 L.Ed.2d 857 (1988). . The confrontation right attaches when an individual testifies against a defendant in an adversary proceeding before the trier of fact, see Craig, 497 U.S. at 845, 110 S.Ct. 3157, not merely when an individual’s testimony is potentially adverse to a defendant.

Hovey had no confrontation right because neither his counsel nor any other witness in the hearing testified “against” Hovey. See, e.g., Miller v. Stagner, 757 F.2d 988, 996 (9th Cir.) (“Appellants were not denied their Sixth Amendment right ‘to be confronted with the witnesses against [them]’ because jurors are not witnesses against the defendant.” (alteration in original)), as amended, 768 F.2d 1090 (9th Cir.1985). Moreover, the hearing addressed counsel’s competence, which was not an issue before the jury, rather than any evidence against Hovey. B.

Ineffective Assistance of Counsel in the Guilt Phase We reject Hovey’s claim that he suffered ineffective assistance of counsel in the guilt phase of trial based on: (1) counsel’s overall trial strategy and decision against moving to strike the lewd and lascivious charge until very late in trial, and his eventual decision to move to strike the charge; (2) counsel’s closing argument; (3) counsel’s failure to adequately investigate government informants Hughes and Lee, resulting either from counsel’s conflict of interest due to the Public Defender’s Office’s prior representation of the two, or from counsel’s deficient performance; and (4) counsel’s failure to conduct an adequate voir dire.

Hovey additionally claims the district court abused its discretion in excluding expert testimony from the evidentiary hearing on this claim. To prove ineffective assistance of counsel, Hovey must first show that counsel’s performance was deficient, measured under a standard of “reasonably effective assistance.” Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Second, Hovey must establish prejudice by showing that “there is a reasonable probability,” defined as “a probability sufficient to undermine confidence in the outcome,” that “but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694, 104 S.Ct. 2052. Although counsel’s performance was deficient in some respects, Hovey fails to show prejudice. 1.

Trial Strategy and the Special Circumstance Charge Because his decision was motivated by sound trial strategy, counsel was not deficient in choosing not to challenge the lewd and lascivious conduct special circumstance charge at the outset of trial. Courts must “indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action might be considered sound trial strategy.” Id. at 689, 104 S.Ct. 2052 (internal quotation marks omitted).

Counsel believed that because of the circumstances of the crime, the jury almost certainly would return a first degree rather than second degree murder verdict. Accordingly, counsel aimed for a first degree conviction on felony murder grounds, rather than on premeditation grounds. Although kidnapping would not support a first degree felony murder conviction, the felony of committing a lewd and lascivious act on a child would. See CaLPenal Code § 189 (1988).

This strategy was the only way that the jury could convict Hovey of first degree murder without exposing him to the possibility of a death sentence, and was not deficient performance. Hovey faced substantial evidence pointing toward premeditation, including the informants’ testimony about the knife, as well as medical testimony indicating that Salazar’s wounds could have been caused by a knife. Counsel’s strategy to avoid the death penalty may have carried some risk, as the district court noted, but it was a reasonable one in light of the circumstances. See Hendricks v.

Calderon, 70 F.3d 1032, 1042 (9th Cir.1995) (as amended) (“The choice to pursue a bad strategy makes no comment on an attorney’s judgment where no better choice exists.”). Moreover, even if we were to find counsel’s performance deficient, there was no prejudice.

Hovey argues that the jurors were further inclined to return a verdict against him because they were read the charge of lewd and lascivious conduct at the beginning of trial; they were told by the prosecutor in his opening statement that he would prove molestation; and they heard testimony of the two government informants suggesting that Hovey had molested Salazar. But even if counsel had moved to strike the special circumstance at the beginning of the trial, most of the evidence would have been admitted anyway.

The trial judge herself stated that she would have allowed the prosecution to introduce evidence showing attempted molestation as relevant to motive. The only-difference a successful motion to strike the charge, or a distinct overall trial strategy, for that matter, would have made is that the jury would not have been read the lewd and lascivious conduct charge at the outset of trial. This different circumstance is insignificant in light of the entirety of the evidence presented against Hovey throughout the guilt phase.

There is not a reasonable probability that, but for counsel’s decision against moving to strike the charge, the outcome of the proceeding would have been different. As for counsel’s decision to move to strike the lewd and lascivious conduct charge at the close of the prosecution’s case-in-chief, Hovey again fails to establish prejudice.

Even if counsel was deficient in making a decision that “may have been motivated in part by his own interests” to avoid charges of incompetence, as the district court found, a question we do not decide here, counsel’s decision to strike the charge did not prejudice Hovey because the course of the trial would have proceeded in the same way had counsel chosen to make the motion at the outset of trial, or not at all. Therefore, we find that there is not a reasonable probability that the result of the proceeding would have been different.

We further hold that counsel’s overall trial strategy did not constitute ineffective assistance of counsel. Hovey argues that counsel’s choice to settle for a goal of felony murder rather than aiming for a second degree verdict derived from incompetence.

Hovey contends that because counsel failed to investigate the government informants adequately, whether owing to a conflict of interest or to deficient performance, counsel could not make a reasonable judgment as to whether the prosecution’s case for premeditation, which rested largely on the informants’ testimony, was sufficiently strong to justify a strategy based on the impossibility of a second degree verdict. The evidence shows, however, that counsel’s tactical decision was not affected by the strength of the government’s case.

Counsel explained that he chose to settle for a first degree murder conviction that would avoid death-eligibility because he believed an attempt to convince the jury of second degree murder would be “an absurd request.” Counsel based this assessment on the egregiousness of the crime. He believed that because the victim was an abducted child who was brutally attacked, facts admitted by Hovey, the jury would lean heavily toward first degree murder, regardless of whatever evidence there might be to support a second degree conviction.

There is no evidence to suggest that counsel formulated this theory of defense in response to the informants’ role in the prosecution’s case. Thus, counsel’s failure to investigate the informants does not bear on his trial strategy, and his choice was strategic, not incompetent. See Anderson v.

Calderon, 232 F.3d 1053, 1087-90 (9th Cir.2000) (holding that counsel was not deficient in seeking a conviction for first degree murder, rather than felony murder, in order to avoid exposing his client to the death penalty, and concluding that counsel “made a reasonable assessment that the jury would be very unlikely to let Anderson off of the hook completely”); overruled on other grounds by Osband v. Woodford, 290 F.3d 1036 (9th Cir.2002). 2. Closing Argument We also reject Hovey’s claim that counsel’s closing argument constituted ineffective assistance.

Hovey contends that counsel conceded guilt of first degree murder when, referring to a chart that compared the requirements for first degree premeditated murder with those for second degree murder, he stated: I submit to you that it’s within the realm that there could be findings ... of willful, deliberate and premeditated ... yet ... there may be some reasonable doubt. I think under the law as it’s presented by [the prosecutor] in this case, there are theories that could support a second degree murder. In fact, absent willful, deliberate[ ] premeditation, it is second degree murder.

I do think also it could be first degree murder and I recognize it also could be special circumstance. I believe that that is within your province to find as you see because you’re the judges to pass on the facts and you will. Counsel did not concede premeditation with these words. Although he stated that “there could be findings ... of willful, deliberate and premeditated,” he made this point in the context of weighing the jury’s options. Moreover, the evidence presented at the evidentiary hearing shows that counsel’s statement was a reasonable strategic determination.

In response to questioning about the closing argument, counsel explained, “I knew that if I tried to sell a second degree that I would not sell it and I would lose credibility.” When asked to explain the rationale for his statement to the jury, counsel responded, “It’s one of credibility.” Rather than a concession of guilt, counsel engaged in rhetoric to preserve his credibility in the eyes of the jurors.

Because counsel’s statement was driven by strategy, and Strickland requires deference to informed strategic choices, see 466 U.S. at 689,104 S.Ct. 2052, we do not find deficient performance in the closing argument. Our conclusion that counsel’s closing argument did not amount to deficient representation is supported by recent decisions from the Supreme Court stressing the deference owed to the choices made by defense counsel in crafting summations. In Yarborough v.

Gentry, 540 U.S. 1, 7-10, 124 S.Ct. 1, 157 L.Ed.2d 1 (2008) (per curiam), for example, the Court counseled that defense attorneys often must make strategic decisions as to what arguments to include in closing arguments and may choose to acknowledge the “shortcomings” of their client’s case in order to build credibility with the jury. In Bell, the Supreme Court approved of a strategic decision by counsel to waive closing argument altogether, to prevent the prosecutor from having an opportunity at a rebuttal closing. 535 U.S. at 701-02, 122 S.Ct. 1843. And in Florida v.

Nixon, 543 U.S. 175, 192, 125 S.Ct. 551, 160 L.Ed.2d 565 (2004), the Court stated that when facing the distinct possibility of a penalty phase, it can be reasonable for defense counsel to concede guilt in a guilt-phase closing argument in an attempt to “impress the jury with his candor,” for purposes of building on that impression during the penalty phase. Even if we were to find counsel’s performance deficient, moreover, once again Hovey fails to show how he was prejudiced.

Hovey argues for presumed prejudice, because the closing argument fits within the limited set of circumstances that are “so likely to prejudice the accused that the cost of litigating their effect in a particular case is unjustified.” United States v. Thomas, 417 F.3d 1053, 1056-57 (9th Cir.2005) (internal quotation marks omitted), cert. denied, — U.S. —, 126 S.Ct. 1095, 163 L.Ed.2d 909 (2006). However, we will presume prejudice only where “counsel entirely fails to subject the prosecution’s case to meaningful adversarial testing.” United States v.

Cronic, 466 U.S. 648, 659, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984); see also Nixon, 543 U.S. at 189, 125 S.Ct. 551 (noting that Cronic is “reserved for situations in which counsel has entirely failed to function as the client’s advocate”). Where counsel’s failure to oppose the prosecution occurs only in isolated points during the trial, we will not presume prejudice. See Bell, 535 U.S. at 697,122 S.Ct. 1843. Counsel’s closing statements, even if properly characterized as concessions, constituted only a few isolated sentences within the entire trial.

At no point did counsel recommend that the jury find Hovey guilty of first degree murder. As a whole, counsel’s closing argument attempted to expose the deficiencies in the prosecution’s case. Counsel correctly identified the testimony of Hughes and Lee as the only direct evidence of premeditation and vigorously attacked their credibility, characterizing their account of events as “unreliable” and “suspect.” Counsel also argued that the medical testimony “doesn’t support an intent to kill.” Finally, counsel’s closing argument reminded the jury of the government’s burden by arguing that reasonable doubt existed.

In contrast, in cases such as United States v. Swanson where prejudice was presumed, the defense attorney stated several times in closing that he would not “insult [the jurors’] intelligence” by attempting to argue that there was a reasonable doubt as to whether his client had committed the robbery for which he was being tried. 943 F.2d 1070, 1076-77 (9th Cir.1991). There we explained, By arguing that no reasonable doubt existed regarding the only factual issues in dispute, [counsel] shouldered part of the Government’s burden of persuasion.

We cannot envision a situation more damaging to an accused than to have his own attorney tell the jury that there is no reasonable doubt that his client was the person who committed the conduct that constituted the crime charged in the indictment. Id. at 1075. Hovey’s claim mirrors that in Thomas, where counsel conceded his client’s guilt to protect his own credibility and avoid conviction on other charges.

In holding that counsel had not “fail[ed] to subject the prosecution’s case to meaningful adversarial testing,” Thomas, 417 F.3d at 1057-58, we emphasized that Cronie requires wholesale failure by counsel to defend the client; isolated statements, especially those made for strategic reasons, do not qualify. See id. Accordingly, the Strickland standard, not that of Cronie, applies. Under Strickland, Hovey fails to show prejudice. Hovey grounds his claim of prejudice on the prosecutor’s reiteration of his counsel’s statements during his own closing.

This mere mention of counsel’s comments, however, does not establish any likelihood that the jury considered them, especially in light of the court’s instruction to the jury that “statements made by the attorneys during the trial are not evidence,” and fails to show any probability that had counsel not made those comments, the outcome of the trial would have been any different. 3. Investigation and Impeachment of the Informants Hovey argues that counsel’s failure to adequately investigate and impeach the government informants was ineffective assistance of counsel. He bases this claim on two alternative theories.

First, he argues that because of the Public Defender’s Office’s prior representation of both Hughes and Lee, and co-counsel’s prior representation of Hughes, there was an actual conflict of interest that adversely-affected counsel’s handling of his trial. See Cuyler v. Sullivan, 446 U.S. 335, 348-50, 100 S.Ct. 1708, 64 L.Ed.2d 333 (1980). Second, he contends that even setting aside the conflict, counsel’s failure to adequately investigate the informants was deficient and caused prejudice. We disagree.

The Sixth Amendment right to counsel encompasses a right to representation “free from conflicts of interest.” Wood, 450 U.S. at 271, 101 S.Ct. 1097. To establish ineffective assistance of counsel based on a conflict of interest, Hovey must show an actual conflict of interest that adversely affected counsel’s performance. Cuyler, 446 U.S. at 348-50, 100 S.Ct. 1708. A showing of prejudice from any such adverse effect is not required. See United States v. Hearst, 638 F.2d 1190, 1194 (9th Cir.1980).

An “actual conflict” results when counsel “actively represented conflicting interests.” Strickland, 466 U.S. at 692, 104 S.Ct. 2052 (internal quotation marks omitted). An actual conflict need not be a direct conflict, and it need not be established separately from adverse effect. See Mickens v. Taylor, 535 U.S. 162, 172 n. 5, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002). Instead, an actual conflict “is a conflict of interest that adversely affects counsel’s performance.” Id. Successive representation is sufficient to establish a conflict, see Belmontes v.

Brown, 414 F.3d 1094, 1118 (9th Cir.2005) (holding that “conflicts of constitutional magnitude can arise from cases of successive representation”), cert. granted sub nom. Ornaski v. Belmontes, — U.S. —, 126 S.Ct. 1909, 164 L.Ed.2d 662 (U.S. May 1, 2006) (No. 05-493), as is imputed rather than direct conflict, see United States v. Rodrigues, 347 F.3d 818, 824 (9th Cir.2003) (noting the Ninth Circuit’s refusal “to draw a distinction between direct and imputed conflicts for purposes of the Sullivan analysis”).

Because actual conflict is defined by its impact, “[generally, it is more difficult to show an actual conflict resulting from successive rather than simultaneous representation.” Mannhalt v. Reed, 847 F.2d 576, 580 (9th Cir.1988). “In successive representation, conflicts of interest may arise if the cases are substantially related or if the attorney reveals privileged communications of the former client or otherwise divides his loyalties.” Id.

To show an actual conflict resulting in an adverse effect, Hovey must demonstrate “that some plausible alternative defense strategy or tactic might have been pursued but was not and that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” United States v. Wells, 394 F.3d 725, 733 (9th Cir.2005) (internal quotation marks omitted); see also United States v.

Shwayder, 312 F.3d 1109, 1118 (9th Cir.2002) (alternatively describing the standard as requiring “that counsel was influenced in his basic strategic decisions” by the conflict (internal quotation marks omitted)). Here, there was no defense strategy or tactic that counsel abandoned as a result of the conflict. Hovey argues that counsel should have followed up on the informants’ histories of mental health problems and drug and alcohol dependency.

Counsel stated that he faced an “impediment” due to the prior representation of the informants by the Public Defender’s Office and by co-counsel and that there was a certain amount of investigation that he did not undertake because he felt constrained by the conflict. The district court, however, did not take counsel’s testimony at face value, but instead made a factual finding that counsel’s failure to fully investigate the informants was not motivated by any conflict of interest, but rather by counsel’s own incompetence. Based on a review of the evidence, that finding was not clearly erroneous.

Counsel’s no-holds-barred impeachment of the informants, adopting a trial strategy of portraying the informants as untrustworthy individuals who fabricated testimony for their own benefit, supports the district court’s conclusion that counsel’s handling of the informants was not affected by the indirect conflict.

Because the district court properly-found that any failure to investigate the evidence supporting an alternative defense theory stemmed from neglect, not from divided loyalties, we focus our inquiry on the traditional inquiry into deficiency and prejudice that is applicable to such ineffective assistance claims. “[CJounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary.” Strickland, 466 U.S. at 691,104 S.Ct. 2052.

We evaluate the scope of the duty to investigate in light of the context of the trial. “In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel’s judgments.” Id. Here, despite counsel’s awareness that Hughes and Lee were the key to the prosecution’s case, he failed to take any reasonable steps to follow up on information that was in his files. Included in counsel’s files on Hughes were several items that “reasonably competent counsel” would have investigated.

First, counsel had a memorandum written by his investigator summarizing the report that was completed during Hughes’s ninety-day diagnostic evaluation at a state facility in Vacaville. Counsel acknowledged that, although he had no independent recollection of the document, it had probably been sent to him while he was representing Hovey, but that he failed to follow up on it.

Second, the investigator submitted a second memorandum recommending that counsel obtain records concerning Lee’s incarceration in a mental facility in Oklahoma and indicating that Lee was “described as being mildly retarded.” Counsel testified that he did not recall seeing the memorandum and admitted that he never obtained the records. These decisions not to investigate the informants fell below an objective standard of reasonableness. However, Hovey was not prejudiced by this failure.

The district court correctly found that the information that Hovey thought counsel should have investigated, such as the records of Lee’s treatment for mental illness, likely would have been unavailable even if counsel had attempted to obtain it, and the information regarding the informants’ mental health and histories of drug and alcohol abuse would have conflicted with counsel’s strategy of portraying them as “crafty snitches.” Hovey responds that had counsel investigated any of this information, he might have realized that a more effective strategy would have been to portray the informants as unreliable individuals with histories of psychological problems that skewed their memory and perception of Hovey’s story.

We disagree. Such an impeachment strategy would have been futile, given that Hughes and Lee testified to admissions by Hovey that were identical in most material respects. Any suggestion that the same story being recounted by two different individuals was the product of mental problems or drug use would have defied logic. Instead, counsel adopted the only impeachment strategy that would have been effective — -that Hughes and Lee were liars who concocted their testimony against Hovey whether jointly or after coaching by the police to curry favor with the government.

Accordingly, there is not a “reasonable probability” that the outcome of the trial would have been different but for counsel’s deficiency, as required by Strickland. 4. Voir Dire We reject Hovey’s claim that counsel’s voir dire was so perfunctory that counsel failed to protect Hovey’s right to an impartial jury. Counsel generally limited his voir dire to three questions that covered whether the juror could “follow the law,” “be fair to both sides,” and “wait until all the evidence is in” before forming an opinion on the verdict.

Hovey argues that counsel should have questioned potential jurors on both the widespread pretrial publicity and Hovey’s decision not to testify. We disagree. Although counsel’s decision not to question prospective jurors more extensively may seem a questionable decision in hindsight, it was guided by a reasonable strategy and was not deficient performance. The conduct of voir dire “will in most instances involve the exercise of a judgment which should be left to competent defense counsel.” Gustave v. United States, 627 F.2d 901, 906 (9th Cir.1980).

We are cognizant of the “wide latitude counsel must have in making tactical decisions,” and are mindful that “[a] fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate the conduct from counsel’s perspective at the time.” Strickland, 466 U.S. at 689, 104 S.Ct. 2052.

Counsel testified to his belief that in defending a capital ease, “the least voir dire is the best tactic,” explaining that he preferred to rely on “nonverbal communication” to make determinations about potential jurors because that avoids exposing potentially favorable jurors to prosecutorial challenges.

When asked why he did not inquire into potential jurors’ reaction to the pretrial publicity, counsel stated that because four years had passed since the publicity, he was hoping the jurors had forgotten about it, and he did not “want to go back and wake anybody up.” He also explained that he did not inquire about jurors’ attitudes toward a defendant’s failure to testify because he was concerned that Hovey might change his decision. He also felt that he could address any juror concerns through jury instructions later in the trial.

As in Gustave, counsel’s “decision whether to request certain voir dire questions was a strategic decision of the attorney and his failure to do so ... is not ineffective representation.” 627 F.2d at 906; see also Wilson v. Henry, 185 F.3d 986, 991 (9th Cir.1999) (holding that there was no ineffective assistance of counsel where counsel relied on jurors’ statements that they would be fair and follow the law without asking about their views on criminal history). 5.

Exclusion of Experts The district court did not abuse its discretion in excluding the testimony of four expert witnesses during the evidentiary hearing on Hovey’s ineffective assistance of counsel claims. See United States v. Morales, 108 F.3d 1031, 1035 (9th Cir.1997) (en banc). “A district court abuses its discretion when it bases its decision on an erroneous view of the law or a clearly erroneous assessment of the facts.” Id. Reversal is appropriate “where we have a definite and firm conviction that the district court committed a clear error of judgment.

However, a trial court has broad discretion in assessing the relevance and reliability of expert testimony.” United States v. Finley, 301 F.3d 1000, 1007 (9th Cir.2002) (citation and internal quotation marks omitted). Expert testimony, while not necessary, is sometimes relied upon in determining claims of ineffective assistance of counsel. See, e.g., Karis v. Calderon, 283 F.3d 1117, 1133 n. 9 (9th Cir.2002).

A court reviewing an ineffective assistance claim should consider counsel’s performance in the context of then “ ‘prevailing professional norms,’ which include[ ] a context-dependent consideration of the challenged conduct as seen ‘from counsel’s perspective at the time.’ ” Wiggins v. Smith, 539 U.S. 510, 523, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052).

Nonetheless, this standard does not “require[] that expert testimony of outside attorneys be used to determine the appropriate standard of care.” LaGrand, 133 F.3d at 1271 n. 8; see also Fed.R.Evid. 702 (“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert ... may testify thereto in the form of an opinion or otherwise .... “ (emphasis added)).

The Supreme Court has cautioned against evaluating ineffective assistance claims based on generalized rules, noting that “[n]o particular set of detailed rules for counsel’s conduct can satisfactorily take account of the variety of circumstances faced by defense counsel or the range of legitimate decisions regarding how best to represent a criminal defendant.” Strickland, 466 U.S. at 688-89, 104 S.Ct. 2052. The district court’s rationale for excluding the experts echoed this statement.

The court concluded that “it would be inappropriate for an expert to purport to articulate a general standard of care at the level of fact-specific detail that would be required to accommodate all of the unique facts and circumstances [counsel] encountered while formulating his strategy in this case.” The district court may have underestimated the potential value of the experts’ testimony. Each proffered expert had reviewed the state court opinions, the transcripts of the trial, and the briefs.

Thus their professional opinions were based not on their expertise in general standards of representation, but instead on thorough and detailed research of Hovey’s particular situation. But in determining the admissibility of expert testimony, a district court “must consider the [testimony’s] probativeness,” United States v. Rahm, 993 F.2d 1405, 1412 (9th Cir.1993), and in making that determination, a district judge’s own ability to assess the issues is critical. For example, in Bonin v.

Calderon, in holding that the district court did not abuse its discretion in refusing to allow an expert on juror psychology to testify regarding Bonin’s claim that he was prejudiced by his attorney’s conduct, we noted, “The district judge is himself qualified to assess the likely responses of a jury to certain evidence and is also qualified to understand the legal analysis required by Strickland.” 59 F.3d 815, 838 (9th Cir.1995). Here, the district court was qualified to assess the factual and legal issues involved in Hovey’s Strickland claim.

While the experts’ testimony may have provided additional perspective, given the “broad discretion” accorded a trial court in determining the relevance of expert testimony, Finley, 301 F.3d at 1007, exclusion of their testimony was not an abuse of discretion. We also reject Hovey’s contention that the district court effectively treated Hovey’s defense counsel and co-counsel as experts and, in so doing, erred by failing to allow Hovey to rebut their opinions. Both attorneys, however, were called as percipient witnesses who were questioned only about their strategic choices throughout the trial.

The district court’s ruling precluding expert testimony, therefore, was not error. C. Griffin Violations The district court correctly rejected Hovey’s claim that the prosecutor vior lated Griffin v. California, 380 U.S. 609, 615, 85 S.Ct. 1229, 14 L.Ed.2d 106 (1965), when he made two comments in closing argument that touched on Hovey’s decision not to testify at his trial. We agree with the district court that the prosecutor’s statements violate the rule of Griffin, but that they were harmless.

In the first statement Hovey complains of, which occurred at the outset of the closing argument, the prosecutor remarked, ‘Well, [Hovey] has admitted in effect the kidnapping and he has admitted in effect the killing, but he’s never said anything to you about why, why he did these things.” • Later, in summarizing the evidence about the instrument that killed Salazar, the prosecutor stated: Now, you weigh the testimony of those witnesses, you decide who is credible and who isn’t credible and you make a decision as to what was used, whether or not he used a knife. He said he used a knife.

He’s never told you anything different. (Indicating the defendant) There’s nothing different. At the end of the prosecutor’s closing, the defense asked the court to cite the prosecutor for misconduct in referring to the defendant’s silence before the jury. The trial judge denied the motion, commenting that she did not believe that “in the whole context” the prosecutor was commenting on Hovey’s silence. The Due Process Clause prohibits a prosecutor from commenting on a defendant’s decision not to testify. Griffin, 380 U.S. at 615, 85 S.Ct. 1229.

While a direct comment about the defendant’s failure to testify always violates Griffin, a prosecutor’s indirect comment violates Griffin only “if it is manifestly intended to call attention to the defendant’s failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify.” Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir.1987). Although the prosecutor’s comments here did not refer directly to Hovey’s decision not to testify, they were indirect comments impermissible under Griffin.

By focusing on Hovey’s failure to explain his actions or to contradict the informants’ testimony, the prosecutor’s indication that Hovey “never said anything ... about why ... he did these things” and that Hovey “never told [the jury] anything different” called attention to Hovey’s decision against taking the stand in his own defense. The prosecutor’s statement that “[t]here’s nothing different” naturally and necessarily implicates Hovey’s decision not to testify, as Hovey is the only person who could definitively answer the question of whether he used a knife.

See id. at 810 (“Courts have distinguished between those cases in which the defendant is the sole witness who could possibly offer evidence on a particular issue, and those cases in which the information is available from other defense witnesses as well.”); see also Williams v.

Lane, 826 F.2d 654, 665 (7th Cir.1987) (“Prosecutorial references to ‘uncontradicted’ testimony are more readily deemed indirect references to the defendant’s failure to testify in cases where it is ‘highly unlikely that at least a portion of the testimony could have been contradicted by anyone other than the defendant.’ ” (quoting United States v. Buege, 578 F.2d 187, 189 (7th Cir.1978)). The Griffin error, however, was harmless.

Reversal is warranted only “ ‘where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal.’ ” Lincoln, 807 F.2d at 809 (quoting Anderson v. Nelson, 390 U.S. 523, 524, 88 S.Ct. 1133, 20 L.Ed.2d 81 (1968) (per curiam)). Here, the prosecutor’s inappropriate comments were isolated statements, and they were minimal in comparison with the weight of the evidence presented against Hovey.

There was considerable evidence weighing in favor of conviction, including testimony that Hovey’s weapon could have been a knife, and suggestions that Hovey had a motive to kill Salazar. The absence of a curative instruction does not change our conclusion. Although the trial court’s failure to offer a curative instruction may “compound[ ]” the Griffin error, see Beardslee v.

Woodford, 358 F.3d 560, 588 (9th Cir.2004) (as amended), whether an instruction is given is not dis-positive. “[W]hen the comments are limited in nature and could not have affected the verdict, we have declined to reverse even in the absence of curative instructions.” Id.

Moreover, the trial court instructed the jury that [i]n deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him, and no lack of testimony on the defendant’s part will supply a failure of proof by the People so as to support a finding against him on any such essential element. The court also instructed the jury that “statements made by the attorneys during the trial are not evidence.” We presume that juries follow their instructions.

See Francis v. Franklin, 471 U.S. 307, 324 n. 9, 105 S.Ct. 1965, 85 L.Ed.2d 344 (1985). Given the insignificance of the comments in the course of the trial as a whole, and the weight of the evidence against Hovey, the Griffin error was harmless. D. Brady/Napue Violations We also affirm the district court’s denial of Hovey’s claim that the prosecution failed to disclose critical impeachment evidence on the informants and to correct inaccurate or misleading portions of their testimony. Specifically, Hovey argues that the prosecution violated Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), by failing to disclose: (1) information indicating that Hughes received lenient treatment in exchange for his testimony against Hovey; (2) an audiotape of a prosecution interview of Lee in which he refused to provide evidence against Hovey unless he received leniency in exchange; (3) a letter written by a deputy district attorney to the California Department of Corrections requesting Lee’s transfer out of San Quentin; and (4) a teletype sent to law enforcement by the prosecution’s chief investigator stating that Tina Salazar “was not molested.” In addition, Hovey contends that the prosecution violated Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959), by failing to correct certain false testimony by the informants, including statements that they had received no promises in exchange for their cooperation in the State’s case against Hovey. Because, as a matter of law, these nondisclosures did not violate Brady or Napue, we affirm the district court. 1. Background Hovey’s claim centers on two sets of facts about Hughes and one about Lee, each of whom testified that Hovey told him that he had killed Salazar with a knife and that he killed her to prevent her from identifying him.

Hughes became Hovey’s cellmate in October 1978, while Hughes was awaiting sentencing for an escape conviction in Alameda County. The district attorney (D.A.) had recommended a sentence of one year and a day. Hughes testified that he met Sergeant Hess, an officer investigating the Salazar murder, a few days after he became Hovey’s cellmate, but that they did not discuss Hovey until the second time they spoke. In December 1978, Hughes gave Hess a tape-recorded statement recounting Hovey’s admissions about the killing of Tina Salazar. Hughes returned to court for sentencing the following month.

After the public defender declared a conflict of interest, Hughes elected to represent himself. When deposed in these proceedings, Hughes explained that he chose to represent himself “mainly because [he] was confident that Mr. Hess ... was going to somehow intervene and . see that [he] got probation,” even though Hess had told Hughes “[t]hat he couldn’t promise [him] anything, couldn’t make [him] any promises; and, anyway, he couldn’t do anything until after [his] testimony.” Hughes was sentenced to three years’ probation and was released to drug treatment.

At Hovey’s trial, Hughes testified that he had already made the probation deal with the Alameda County D.A. before he ever spoke with Hess about Hovey and before he agreed to cooperate with Hess against Hovey and gave his tape-recorded statement.

That testimony conflicts with Hughes’s deposition testimony before the district court that even before giving the tape-recorded statement, he had asked Hess to ensure that he would receive only probation, and that when he was informed of the public defender’s conflict of interest and consequent withdrawal, he chose to represent himself, confident that Hess would intervene on his behalf. A month after sentencing, Hughes violated the terms of his probation by leaving his drug treatment program without permission. His probation was revoked, and a bench warrant was issued for his arrest.

He was apprehended in early 1981. In his deposition for this habeas proceeding, Hughes testified that he sought help from Meloling, the prosecutor in Hovey’s case, who responded that “he wouldn’t help [Hughes ] until after the testimony,” if at all. When Hughes appeared in court in March 1981, he was released on his own recognizance, on the D.A.’s recommendation. Hughes initially failed to appear for Hovey’s trial, and a bench warrant subsequently issued. Hughes testified at Hovey’s trial in November 1981.

When he returned to court in February 1982 for a hearing on the probation violation, according to Hughes, the D.A. called Meloling at Hughes’s insistence. After they spoke, according to Hughes’s deposition testimony, the D.A. asked that Hughes’s case be dismissed “in the interest of justice.” Probation was terminated and Hughes was freed on the Alameda County conviction. In addition to the Alameda County charges, Hughes had been arrested and charged with two counts of burglary in San Francisco.

Hughes testified in this habeas proceeding that while he was being held on those charges, he asked Meloling to call the San Francisco County D.A. on his behalf, but that Meloling responded that “he couldn’t do anything or make any promises until after [he] testified in the Hovey case.” After Hughes testified, Meloling said that he would make the call. Passaglia, the San Francisco deputy D.A. handling Hughes’s case, testified that he received a call from Meloling shortly before Hughes’s scheduled trial date in October 1981 asking for a continuance so that he could testify in Hovey’s case.

Hughes also stated in his deposition for this habeas proceeding that Meloling was responsible for having Hughes’s trial postponed until after he testified at Hovey’s trial. Passaglia’s superior, Benson, spoke with Meloling, who told Benson that after Hughes testified he would send a letter to the San Francisco D.A. requesting that he consider Hughes’s testimony when offering a plea agreement to Hughes. Rosenbaum, the public defender representing Hughes on the San Francisco charges in 1981, declared that he spoke with Alameda County D.A. Traback and Hughes regarding Hughes’s testimony against Hovey.

Traback wanted Hughes to testify in Hovey’s trial, but Hughes demanded a promise of leniency in exchange. According to Rosenbaum, Traback said that he could make no promises, but said “off the record” that he would do whatever he could for Hughes. Hughes testified in a deposition in this habeas proceeding that he met with Meloling the day before he testified in Hovey’s trial, and that Meloling instructed him to say that there were no promises made in exchange for his testimony. According to Hughes, Meloling explicitly told Hughes that there were no promises.

However, in his deposition Hughes also stated that Meloling said several times, “Don’t worry. We’ll take care of it.” Hughes also characterized his discussion with Meloling as an “unspoken agreement” in which it was “insinu[ated] that something would be done” for him. Hughes’s testimony at Hovey’s trial, however, was somewhat different. During his trial testimony, Hughes stated that no promises had been made to him, but that after testifying against Hovey, he had “hopes of not going to prison” on the San Francisco burglary charges.

The San Francisco D.A.’s initial offer to Hughes was to plead guilty to one count of second degree burglary and a fire-arms enhancement for a sentence of three years in state prison. After Hughes testified against Hovey, Meloling communicated with the San Francisco D.A.’s office, which then revised its offer to Hughes. He received a suspended sentence, but the term of imprisonment offered as part of the deal was actually increased from three years to four years and eight months. Meloling testified that he did not discuss any “consideration” for Hughes’s testimony and that he never made “any promises” to Hughes.

Meloling conceded, however, that he may have told Hughes that “things would be better for him” if he testified. He denied ever discussing a “deal” with the San Francisco D.A.’s Office, but he admitted that he “may have” spoken with someone in the D.A.’s Office about Hughes. Donald Lee was sent to California state prison in Santa Rita in 1978 after he had escaped from a work furlough program while on parole. On October 10, 1978, he was assaulted in prison. That night, he spoke about the assault with Hess.

The following day, other inmates accused him of being an informant, and he asked to be placed in protective custody. As a result, he was placed in a cell with Hovey. A few days later, Lee was brought to see Hess. Lee testified that he and Hess only discussed the assault during this conversation and did not talk about Hovey. A few minutes after he was returned to his cell following the conversation, Lee was brought back out to talk with Hess. At this time, Hess stated that he did not know the identity of Lee’s cellmate, but that Lee should not mention Hess’s name to his cellmate. Lee was then returned to his cell.

At his October 19 arraignment, Lee pleaded guilty to escape charges and was sentenced to two years in prison. He testified that protective custody was part of the plea agreement. Lee had expected to be granted probation, and when that did not happen, Lee immediately called Hess to discuss Hovey. Later that day, Hess and Lee met, and their subsequent conversation was tape-recorded. During the taped interview, Lee repeatedly asked Hess for consideration in exchange for his cooperation against Hovey, and Hess repeatedly refused.

Hess did offer, however, to place Lee in protective custody if Lee agreed to testify against Hovey. After Lee testified at the preliminary hearing in Hovey’s case, Deputy D.A. Parrilli sent a letter to the Law Enforcement Liaison at San Quentin and requested Lee’s transfer to another facility. The request was granted, and Lee was transferred. In his testimony at the preliminary hearing in Hovey’s case, which was subsequently read to the jury at Hovey’s trial, Lee stated that he knew that if he gave information to the guards and police, he would benefit.

At Santa Rita, Lee was in protective custody because he had provided information to the authorities about an assault on him by other prisoners. He admitted that “snitching on Hovey” put him in a position to “get a little protection from the badge.” Nonetheless, he testified that neither Hess nor any other law enforcement officer had promised him anything in exchange for his testimony against Hovey. 2.

Discussion Under Brady, “suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” 373 U.S. at 87, 83 S.Ct. 1194. To prevail on a Brady claim, “[t]he 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.” Banks v.

Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (internal quotation marks omitted). Prejudice occurs if the evidence is “material.” Silva v. Brown, 416 F.3d 980, 985 (9th Cir.2005). “Evidence is material if there is a reasonable probability that, had it been disclosed to the defense, the outcome of the trial would have been different.” Belmontes, 414 F.3d at 1113. A “reasonable probability” of a different result exists “when the government’s evidentiary suppression ‘undermines confidence in the outcome of the trial.’ ” Kyles v.

Whitley, 514 U.S. 419, 434, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (quoting United States v. Bagley, 473 U.S. 667, 678, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)). In evaluating materiality, however, the question is “not whether the defendant would more likely than not have received a different verdict with the evidence,” and “is not just a matter of determining whether, after discounting the inculpatory evidence in light of the undisclosed evidence, the remaining evidence is sufficient to support the jury’s conclusions.” Strickler v.

Greene, 527 U.S. 263, 289-90, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999) (internal quotation marks omitted). Instead, we focus on our confidence in the verdict. Id. In making this determination, we consider Brady violations cumulatively. See Kyles, 514 U.S. at 436-37,115 S.Ct. 1555. Napue holds that the knowing use of false evidence by the state, or the failure to correct false evidence, violates due process. 360 U.S. at 269, 79 S.Ct. 1173.

To prevail on a Napue claim, the petitioner must show that “(1) the testimony (or evidence) was actually false, (2) the prosecution knew or should have known that the testimony was actually false, and (3) ... the false testimony was material.” Hayes v. Brown, 399 F.3d 972, 984 (9th Cir.2005) (en banc) (omission in original) (internal quotation marks omitted). For the purpose of Napue claims, materiality is determined by whether “there is ‘any reasonable likelihood that the false testimony could have affected the judgment of the jury,’ “ in which case the conviction must be set aside.

Belmontes, 414 F.3d at 1115 (quoting United States v. Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976)). “Under this materiality standard, [t]he question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence.” Hayes, 399 F.3d at 984 (alteration in original) (internal quotation marks omitted).

Evidence of a deal or promise of lenient treatment in exchange for a witness’s testimony against a defendant may constitute evidence that must be disclosed under Brady and Napue. See Giglio v. United States, 405 U.S. 150, 154-55, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). The deal or promise need not be express; failure to disclose an agreement or guarantee of leniency “indicated without making a bald promise” also' may violate Brady. United States v. Butler, 567 F.2d 885, 888 n. 4 (9th Cir.1978) (as amended).

However, in the absence of a promise or deal, a witness’s subjective belief that he might receive lenient treatment in exchange for testifying does not render perjurious his testimony that he received no promises that he would benefit from testifying. See Williams v. Calderon, 52 F.3d 1465, 1475 (9th Cir.1995). This appeal presents three categories of alleged prosecutorial misconduct: (

i) suppression of evidence that was not favorable to Hovey, and thus cannot form the basis of a claim alleging a due process violation; (ii) suppression of evidence that was favorable to Hovey, and thus must be analyzed for materiality; and (iii) failure to correct false testimony, which must also be analyzed for materiality. i.

Suppression of Evidence That Was Not Favorable to Hovey Three pieces of evidence that the government failed to produce, the tape of Lee’s conversation with Hess, the letter from Parilli, and the teletype stating that Salazar was not molested, were not in fact favorable to Hovey, as none was impeaching or exculpatory. Suppression of this evidence therefore could not have violated due process under Brady. The tape recording of the October 19, 1978 conversation between Lee and Hess does not suggest that there was any deal between Lee and the State.

The conversation demonstrates only that Hess told Lee repeatedly that the State could not promise lenient treatment. Therefore, the tape could not have been used by the defense to impeach Lee’s testimony from the preliminary hearing.

That Lee ultimately chose to provide information, despite his insistence on the tape that he would not do so without some guarantee of leniency, is not sufficient to render the tape exculpatory or impeaching, even viewing the evidence in the light most favorable to Hovey, as there is no evidence that suggests that Lee made this decision because the prosecution eventually gave in to his demands.

Especially because Lee stated at the preliminary hearing in Hovey’s case that he eventually chose to cooperate with the State’s case against Hovey to “relieve [his] mind” of the information Hovey told him, the tape does not overcome the inference that Lee chose to talk with Hess because he wanted to, not because he made a deal with the prosecution. Accordingly, the State’s failure to disclose the tape could not have violated Brady. Similarly, the State’s failure to disclose the April 16, 1979 letter from Deputy D.A.

Joanne Parrilli to Emmett Hurst of the Department of Corrections could not have violated due process under Brady. In the letter, Parrilli explained that Lee had testified in a preliminary hearing in a murder case, that without his testimony the prosecution’s case was “primarily circumstantial,” and that Lee had been threatened by “known enemies.” Parrilli closed the letter with a statement that if a transfer for Lee’s safety was possible, her office would appreciate it. Two weeks later, Lee was transferred out of San Quentin.

Parrilli testified in a deposition in this habeas proceeding that she did not recall offering any consideration to Lee. As the district court noted, neither the letter nor the fact of the transfer were potentially exculpatory or impeaching, as neither one demonstrates, nor raises an inference, that Lee’s testimony was preceded by a deal. Making all reasonable inferences in favor of Hovey, the evidence shows at most that Lee was offered some protection following his testimony in the preliminary hearing.

That Lee received favorable treatment after he testified does not have any bearing on the credibility of his testimony or on his motives in cooperating in the State’s case against Hovey. Furthermore, the letter may only evidence a desire on the part of the State to ensure Lee’s safety so that he would be available to testify at Hovey’s trial. Therefore, the evidence is not exculpatory or impeaching. The same is true of the teletype issued on April 10, 1978, before Hovey had been apprehended.

The teletype described where Salazar was found, her condition when found, eyewitness accounts, and possible motives for the kidnapping. The teletype observed that Salazar “was fully clothed, had no bruises below the shoulders and was not molested,” and it speculated that “[i]nterrupted sexual molestation is a possibility along with the possibility of a psychopath with no apparent motive.” Hovey’s habeas counsel became aware of the teletype only in 1994. Hovey argues that the teletype was exculpatory in that it supported a finding that there was no physical evidence of sexual activity.

But no testimony that there was physical evidence of sexual activity was presented at trial, so an affirmative statement that there was no physical evidence of sexual activity would not have affected Hovey’s defense. Although the informants testified that Hovey had “play[ed] with” Salazar’s body and indicated that he had intended to molest her, they did not suggest that there had been sexual activity that would produce physical evidence.

Therefore, the teletype was not inconsistent with any testimony presented at trial, and could not have served to impeach the informants’ testimony of molestation even if the State had provided the evidence to the defense. Accordingly, there can be no due process violation. ii. Suppression of Evidence That Was Favorable to Hovey The prosecution did, however, fail to disclose certain evidence regarding favorable treatment of Hughes that was potentially impeaching or exculpatory, and we therefore evaluate whether suppression of this favorable evidence violated due process.

The district court found that the prosecution’s failure to disclose that Hughes received lenient treatment — in the form of release on his own recognizance despite his probation violation — at the time between his sentencing on the Alameda County charges and his testimony against Hovey “did not render any of Hughes’s testimony misleading, because he was not asked about the course of his probation at trial.” We disagree with this characterization.

We believe that this evidence could have been useful to Hovey, as the defense attempted to portray Hughes and Lee as sophisticated liars motivated by self-interest to fabricate evidence. Although the jury was aware of Hughes’s hope of receiving leniency in exchange for testifying against Hovey, the fact that he did receive lenient treatment during the time between his plea and his testimony at Hovey’s trial could have given the jury an additional reason to distrust Hughes’s testimony.

As a result of the State’s nondisclosure of this evidence, the development of a more comprehensive theory of the informants’ incentives in testifying was hindered. See Banks, 540 U.S. at 691, 124 S.Ct. 1256 (“Corresponding to the second Brady component (evidence suppressed by the State), a petitioner shows ‘cause’ when the reason for his failure to develop facts in state-court proceedings was the State’s suppression of the relevant evidence.”). Accordingly, we analyze the suppression of this evidence for a due process violation under Brady.

In addition, as the district court did find, the evidence here, taken in the light most favorable to Hovey, reveals “an implicit agreement to provide some assistance to Hughes” on the San Francisco charges, which the prosecution did not disclose before trial. Hughes testified that he asked Meloling to call the San Francisco D.A. for him, a request to which Meloling acceded. Passaglia testified that Meloling did indeed call before Hughes’s trial testimony and that Meloling agreed to send a letter on Hughes’s behalf after he testified against Hovey.

Meloling denied making an explicit deal with the San Francisco D.A.’s office, but he admitted that he “may have” spoken with the office on Hughes’s behalf. Because existence of this implicit agreement was not disclosed by the State and was potentially impeaching, we analyze the suppression of this evidence as a Brady violation. iii. Knowing Use of False Testimony by the State Hovey claims that the prosecution violated Napue by failing to correct Hughes’s testimony that he received “no promises” in exchange for his cooperation in the State’s case against Hovey.

Evaluating this claim, the district court concluded that “there is no factual dispute as to whether an explicit agreement for lenient treatment existed; all the witnesses involved testified that no explicit promises were made.” But even though an explicit agreement for lenient treatment was not made, there were explicit agreements to attempt to secure lenient treatment for Hughes.

Before Hughes testified in Hovey’s trial, Meloling told an attorney in the San Francisco D.A.’s office that after Hughes testified he would write to the San Francisco D.Á. requesting that it consider Hughes’s testimony when negotiating his plea agreement on the San Francisco charges, and he allegedly agreed to make a phone call on Hughes’s behalf. Hughes’s San Francisco counsel also testified that the Alameda County D.A. told him that he would do whatever he could for Hughes in exchange for his testiihony.

Furthermore, Meloling himself conceded that he might have told Hughes that “things could be better for him” if he testified. Although a specific deal was not promised to Hughes, the promise of a letter or a phone call, or a vow to use one’s best efforts to secure a deal, are sufficient to constitute evidence that was potentially favorable to Hovey, as these promises belie Hughes’s testimony that “no promises” had been made to him.

Hovey further argues that the State should have corrected Lee’s false testimony during the preliminary hearing that Lee did not receive any promises in exchange for cooperating against Hovey, which was read to the jury at Hovey’s trial. Hovey. urges us to find that Lee’s pretrial testimony that Lee and Hess did not discuss Hovey during their second meeting was false based on Lee’s deposition testi

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