Richard Louis Arnold PHILLIPS, Petitioner-Appellant, v. Steven W. ORNOSKI, Respondent-Appellee, 673 F.3d 1168

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge KLEINFELD. OPINION REINHARDT, Circuit Judge: In this case we consider a capital habeas corpus petition filed prior to the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA) and thus governed by pre-AEDPA law. Petitioner Richard Louis Arnold Phillips appeals the district court’s denial of his habeas corpus petition on three grounds. First, he contends that the district court’s procedural rulings improperly denied him a full evidentiary hearing.

Second, he asserts that his trial counsel provided constitutionally ineffective assistance under the Sixth Amendment by allowing him to proceed with a manifestly unconvincing alibi defense without first investigating any alternative defenses. Third, he argues that the prosecution’s failure to reveal that a key prosecution witness received significant benefits in exchange for her testimony after the witness falsely testified she had been promised no such benefits, coupled with the prosecutor’s false representation to the jury that there was no agreement promising such benefits, violated his due process rights.

We conclude that the district court did not err in its rulings governing the evidentiary hearing below, and we affirm its denial of Phillips’s ineffective assistance of counsel claim. With respect to Phillips’s due process claim, we conclude, first, that, although the prosecution engaged in a deceptive ruse that this court has described as “a pernicious scheme without any redeeming features,” Hayes v. Brown, 399 F.3d 972, 981 (9th Cir.2005) (en banc) (quoting Willhoite v.

Vasquez, 921 F.2d 247, 251 (9th Cir.1990) (Trott, J., concurring)), the evidence withheld from Phillips and misrepresented to the jury.was not material to Phillips’s convictions for attempted and first-degree murder, nor to his convictions for robbery, and we accordingly affirm these convictions. We hold, however, that the prosecution violated Phillips’s due process rights by depriving him of, and willfully misleading the jury as to, critical evidence that was material to the special circumstance finding that the murder was committed during the course of a robbery (rather than vice versa).

We therefore reverse and remand with instructions to grant the writ as to the jury’s special circumstance finding, and, accordingly, Phillips’s death sentence. I. Factual Background A. The events of December 7, 1977 In September of 1977, Phillips met Ronald Rose and Bruce Bartulis, two partners in a general contracting business who were building a pair of houses on property adjacent to Phillips’s beachfront home in Newport Beach, California. The three men became acquainted when Phillips offered the contractors use of his electrical outlets to power their construction tools.

Phillips and the contractors became friendly, and Phillips began to visit the construction site regularly to speak with them. On the first or second day of November 1977, Phillips asked Rose and Bartulis if they wanted to invest in a cocaine deal with him. Under the deal as Phillips described it, Rose and Bartulis would contribute $25,000 to purchase cocaine that would be smuggled into the United States from Peru, and would receive a five-fold return on their investment.

Rose and Bartulis agreed to the illegal investment and provided Phillips with $10,000 on November 2,1977, with the $15,000 balance to be provided at a later date. Over subsequent weeks, Phillips inquired regarding the remaining balance multiple times. Approximately three to four weeks after the first payment, Rose provided Phillips with an additional $1,500. Rose explained to Phillips that he and Bartulis had intended to finance the transaction using funds derived from their contracting business, and that the business had encountered financial difficulties.

Rose at one point suggested that Phillips either use only the $11,500 already provided to finance Rose and Bartulis’s share of the cocaine deal or return the money, and Phillips agreed to use the funds he had already received. During the course of these discussions it emerged that Rose and Bartulis were having difficulty obtaining insulation for various construction projects. In late November or early December 1977, Phillips informed Rose that he was capable of acquiring stolen insulation and offered to arrange a sale of such material. Rose and Bartulis accepted Phillips’s offer.

According to Rose’s testimony at Phillips’s trial, Phillips told Rose “that his brother was a part of this deal,” that the insulation was stored in a warehouse in Fresno, and that Rose and Bartulis would have to receive the insulation there. Shortly thereafter, on December 7, Phillips informed Rose and Bartulis of the arrangements for the insulation transaction. Phillips told the two men to meet him that evening at a prearranged location in Fresno, a city in central California approximately four hours north of Newport Beach.

From that location, they would drive to a second rendezvous point to meet Phillips’s insulation source. That day, pri- or to leaving Newport Beach, Rose executed a notarized promissory note in the amount of $25,000 that he tendered to Phillips. Rose believed the note to be secured by property he owned, although he never signed the accompanying deed of trust. Of the $25,000 sum covered by the note, $13,500 constituted the balance on the cocaine deal and the remainder was intended as a down payment on a portion of the stolen insulation.

Rose and Bartulis were unsure as to the total quantity of insulation they would ultimately purchase from Phillips’s source, and Phillips therefore instructed them to bring as much additional cash to the meeting as possible. After Rose gave Phillips the promissory note, they parted ways with plans to meet that evening in Fresno. Rose and Bartulis drove to Fresno in a two-door Ford Ranchero truck purchased by Rose for the construction firm and regularly used by Bartulis.

In accordance with Phillips’s suggestion that he bring extra cash, Rose carried with him to Fresno between $3,500 and $5,000 in $100 bills inside the left breast pocket of his jacket. Rose also brought a .44 magnum pistol. Phillips flew to Sacramento, where his mother lived, intending to borrow his mother’s ear and drive to Fresno. Fresno is approximately two and half hours south of Sacramento by car. ■ That same day, Sharon Colman, Phillips’s girlfriend of two months, flew directly to Fresno. Colman had previously dated and lived with Phillips’s best friend since childhood, Richard Graybill.

Colman, a prostitute, had arranged to be picked up at the Fresno airport by a client. Her flight, however, ^was delayed, and her client was not there when she landed. She therefore called Phillips at his mother’s house in Sacramento and asked him to pick her up at the Fresno airport, which he did. From the Fresno airport, Phillips and Colman drove to meet Rose and Bartulis at a gas station. The four proceeded from there in two separate vehicles to Chowchilla, a town approximately thirty-five miles north of Fresno along Highway 99. Phillips and Colman led the way; Bartulis and Rose followed.

Along the way, both cars stopped at a second gas station so that Phillips could use the restroom. Returning to his car from the restroom, Phillips stopped to talk to Rose, from whom he requested a pack of matches. Both cars then continued north on Highway 99. Sometime after midnight, both cars pulled off the highway in Chowchilla and parked in a vacant lot. The lot was in a deserted area, with no buildings nearby. The vehicles parked alongside one another, with Phillips’s car to the left so that the passenger door of his car was in line with and a few feet from the driver-side door of the Ranchero.

Phillips sat in the driver’s seat of his car with Colman in the passenger seat; in the adjacent Ranchero, Bartulis sat in the driver’s seat, with Rose in the passenger seat. According to Colman, Phillips got out of his car and went to talk to Rose and Bartulis for a period of time through the driver-side window of the Ranchero before reentering his car through the passenger side, asking Colman to slide over.

Colman testified that at some point approximately thirty to forty-five minutes after their arrival at the lot — after Rose and Bartulis had each finished some beers and smoked a marijuana cigarette — Phillips again exited his car and went to talk to Rose and Bartulis, leaning into the Ranchero’s open driver-side window. Rose, however, stated that Phillips came and spoke to him and Bartulis through the driver-side window only once, and that the conversation occurred within five minutes, not thirty to forty-five minutes, of their arrival at the vacant lot.

This discrepancy as to timing aside, both Colman and Rose agree that, at some point after arriving at their destination, Phillips was leaning into the Ranchero’s driver-side window talking to Rose and Bartulis when he fired six shots at the two men using his .45 automatic pistol. Col-man saw the shots being fired from the. gun in Phillips’s left hand. Rose did not see the shots being fired, but he heard the shots come from his left. Rose was hit five times, with one bullet grazing his skull, another piercing his arm, and the remaining three entering his abdomen.

Bartulis was shot a single time through his heart and died almost instantly. Immediately after the shooting ceased, Phillips hit Bartulis on the head with the end of his gun, reached through the Ranchero’s window and, without opening the truck door, pulled Bartulis’s wallet out of the truck. He then walked to Rose’s side of the vehicle and removed Rose’s wallet and a handgun. Phillips returned to his car and handed both wallets, as well as his and Rose’s handguns, to Colman. In addition to Rose and Bartulis’s identifications, the two wallets contained a total of between $120 and $150.

Phillips did not remove from the Ranchero approximately $162 from Rose’s pants pocket, nor did he take the $8,500 to $5,000 wad of one-hundred-dollar bills that was in the breast pocket of Rose’s jacket. Phillips then directed Colman to open the trunk of his car, from which, according to Colman, he retrieved a gas can, and proceeded to pour gasoline over Rose and Bartulis’s bodies inside the Ranchero. As Colman moved Phillips’s car across the street, Phillips lit the two bodies on fire and made his way back to his ear.

Upon being lit on fire, Rose (who had been shot five times) jumped out of the now burning Ranchero, and removed his flaming jacket. He was unable to remove the rest of his burning clothing and began to run around in pain. Phillips, upon seeing that Rose was still alive, drove toward him and hit him with his mother’s car, cracking the windshield. Phillips and Col-man then drove back to Phillips’s mother’s house in Sacramento.

Shortly after Phillips and Colman left the scene, Madera County Sheriffs discovered Rose (who was remarkably still alive), extinguished his burning clothing, and transported him to the hospital, where he underwent surgery followed by three months of burn treatment and rehabilitation. The deputies also found Rose’s smoldering jacket, which still contained the packet of $100 bills that Rose had carried with him from Newport Beach. The morning after the shootings, Phillips took his mother’s car to a shop to have the cracked windshield repaired.

Within a week, Rose was able to communicate to the Madera sheriffs the names of the people who accompanied him to the vacant lot. Arrest warrants for Phillips and Colman were issued on December 14th. Upon learning of the warrants, Colman and Phillips drove in a Corvette borrowed from Phillips’s brother-in-law to Salt Lake City, where Phillips got a job and assumed a false identity. Colman stayed with Phillips in Utah for one or two weeks and then returned to Sacramento in the Corvette. Shortly thereafter she turned herself in to the Madera County Sheriffs Department.

Colman was taken into custody and was appointed counsel on December 27, 1977, three weeks after the shooting. The next day, December 28, Colman and her counsel met with the lead investigating officers from the Madera sheriffs department and with the district attorney, David Minier. During that meeting, Colman gave a detailed account of the shooting and the events leading up to it.

Notably, during this hour-long interview, Colman did not indicate that Phillips had searched Rose for any length of time, nor did she say that he mentioned being unable to find the money that Rose had brought with him, or that he was disappointed by the absence of cash. To the contrary, she stated that on the ride back from Chowchilla Phillips disclosed to her his motive for the murder.

That motive, according to Colman, was not robbery but a desire to eliminate Rose and Bartulis because he was concerned that they were setting him up, that they would double-cross him, and that they knew “too much about where the coke was coming from.” In a subsequent interview with police on January 4, 1978, Colman changed her story on these points completely, now stating that Phillips complained after he returned to the car that he was disappointed not to have found Rose’s money.

She adhered to and indeed embellished upon the latter version of her story at trial, testifying that Phillips had spent “a lot longer” searching Rose than he had spent searching Bartulis, that upon returning to the car Phillips stated “that he couldn’t find the money that [Rose] had on him,” and that during the drive to Sacramento Phillips repeatedly expressed frustration that he had been unable to find the cash brought by Rose.

Although Colman was at the time of her second police interview subject to the same capital charges as Phillips, two months after she gave her statement to the District Attorney she was released on bail without explanation, and her bail status was eventually adjusted to personal recognizance. Once she was released from pre-trial custody, Colman moved back in with Richard Graybill, her former boyfriend. On March 13, 1978, just a few weeks after her release, Colman and Graybill were arrested for selling heroin to an undercover Fresno police officer.

After the Madera County Sheriffs Department made multiple calls to the Fresno police department on Colman’s behalf requesting that charges against her not be pursued because she was an important witness in a homicide investigation, the charges against her were dropped. With the assistance of Graybill, the Madera sheriffs and the FBI located Phillips in Salt Lake City. Phillips was arrested and was eventually extradited to California to face prosecution. He was charged with the first degree murder of Bruce Bartulis, the attempted murder of Ronald Rose, and the robbery of both Bartulis and Rose.

The prosecution also alleged as a special circumstance that the murder was committed in furtherance of a robbery. An affirmative jury finding with respect to the special circumstance was a necessary precondition to the holding of a capital sentencing proceeding and imposition of the death penalty. Phillips’s trial began in January of 1980. B. The Trial The prosecution’s theory at trial was that Phillips conned Rose and Bartulis from the start in order to rob them.

Mini-er, the Madera County District Attorney who prosecuted Phillips, argued that he never had any intention to import cocaine and there never was any stolen insulation, but rather Phillips had used the promised deals as ruses in order to steal tens of thousands of dollars from Rose and Bartulis before attempting to murder them and steal more.

The prosecution argued that on December 7, the night of the shooting, Phillips lured the two men to the remote lot in Chowchilla with the intention of killing them, stealing the cash they brought with them to the meeting, and keeping the money that he had already received from them without ever having to produce a profit on the non-existent cocaine deal. To support this theory, the prosecution highlighted a number of facts, drawn almost exclusively from the testimony of Rose and Colman, to show the careful planning that went into the killings.

As evidence of that planning, the prosecutor argued that Phillips sought to manufacture an alibi by flying to his mother’s house in Sacramento prior to driving to ■ Fresno, rather than simply flying to Fresno directly as Colman did. As further evidence of premeditation, the prosecutor emphasized that, prior to meeting up with Rose and Bartulis, Phillips put a gasoline can in the trunk of his mother’s car, and that Phillips had asked Rose for matches when the two cars stopped en route to the vacant lot, actions that the prosecution argued showed Phillips intended in advance to burn his victims.

The prosecutor likewise underscored evidence indicating that Phillips acted in a particularly methodical and cold-blooded manner. For example, he argued that Phillips sought to cover his tracks, not only by burning the bodies, but by picking up the bullet shell casings off the ground after the shooting, as there was only one shell recovered from the scene despite multiple shots being fired. He . further argued that Phillips’s cold-blooded manner was evidenced by Colman’s testimony that Phillips struck Rose and Bartulis in the head after shooting them.

In addition to emphasizing facts suggesting premeditation and extensive advanced planning, the prosecutor highlighted evidence supporting the contention that Phillips’s cocaine and insulation scheme was a ruse orchestrated to steal money from Rose and Bartulis. He emphasized that Phillips told Rose and Bartulis that the stolen insulation was going to be supplied by his brother even though Phillips does not have a brother.

The prosecutor also argued that the fact that Phillips told Rose to bring “as much money as he could get a hold of’ to Fresno showed that Phillips planned to rob Rose and Bartulis once they got to the deserted lot. Similarly, the prosecutor stressed that Phillips searched the bodies after the shooting and took Rose and Bartulis’s wallets. He also stressed that, according to Colman, Phillips said that he was upset that he could not find the money he expected Rose to be carrying. Phillips’s primary defense at trial was that he was not at the crime scene at all.

This alibi rested almost exclusively on Phillips’s own testimony. Phillips took the stand and testified that on the night of the shooting he was at an illicit business meeting at a disco. He claimed that he had helped set up the insulation deal, but that the deal itself was attended only by Rose, Bartulis, and Graybill (who was to supply the insulation). He further claimed that the real killers were Colman and Graybill, to whom he had loaned his mother’s car on the night of the shooting.

Phillips testified that Graybill returned to Phillips’s mother’s house at approximately 4:30 a.m. the morning of the shooting and that the windshield of the car was smashed. Finally, Phillips claimed that at some point he decided to take the fall for Graybill, thinking that he could plead guilty to second degree murder and thereby keep his longtime friend out of prison.

Phillips did not offer a single witness to corroborate his alibi, and, when pressed for any details or specifics supporting it, such as the names of the people at his supposed meeting, he refused to respond, opting instead to plead the Fifth Amendment or asserting that if he gave any details regarding his criminal associates he “wouldn’t be alive.” Phillips’s attorney, Paul Martin, emphasized two arguments in addition to Phillips’s improbable alibi.

First, Martin repeatedly highlighted evidence suggesting that Bartulis’s murder did not occur during the course of a robbery, stating in his closing argument, for example, that, This would be a dumb way to pull a plain, ordinary robbery, to meet two people in a rural area not knowing if they had any money or how much money, if any, ... this is no way to pull a robbery. This is a poor theory in my opinion, ... particularly when one of the individuals owes the man charged $25,000.

Later in his argument, Martin noted, regarding Phillips’s failure to find the cash stashed in Rose’s jacket pocket, that “[ijt’s hard to miss a wad the size of a cigarette package in the upper breast pocket. If the pocket has something in it the size of a package of cigarettes, it’s not easily missed if someone is a cool criminal.” Second, Martin insinuated that Colman was lying in exchange for offers of leniency from the prosecution.

Martin introduced evidence that Colman — who, like Phillips, had been charged with capital murder in connection with the events of December 7, 1977 — had been granted an unusual number of continuances for her preliminary hearing, and been released on her own recognizance notwithstanding the capital murder charges against her. In his closing statement, Martin emphasized that: She’s threatened with the charge of murder. Why has it been continued for two years, more or less? ... [S]he’s now on her own recognizance; doesn’t even have to post a bail bond. She’s out on the street....

What’s the purpose in continuing it for two years? Her case could have been resolved with whatever deal they’re going to make, and there’s, obviously, a deal of some kind anticipated.... [T]hey’re holding a murder charge over her head to compel her to testify, and she’s singing like a bird, the tune that they call.

Colman, however, flatly denied having received any beneficial treatment in exchange for her testimony, and stated only, “I’m expecting that they would take into consideration that I am willing to cooperate.” Colman further stated, “My attorney has advised me to testify and to put my confidence in my attorney,” explaining, “She asked me if I had confidence in her, and if I had confidence in her that — to go under her advisement, and that her advisement was to testify.” In his closing statement, the prosecutor, Minier, reaffirmed Colman’s denial that she had been promised any benefits, emphasizing that she had testified “she has never been promised anything for her testimony in this case,” and that any efforts by the defense to insinuate she had received a deal were “sheer fabrication, just pulled out of the air, totally meaningless.” The jury convicted Phillips on all counts, including the first-degree murder of Bartulis, and found the special circumstance of murder during the commission of a robbery to be true.

At the subsequent penalty phase of the trial, Phillips was sentenced to death. C. Posir-Conviction Proceedings Phillips appealed his conviction and sentence directly to the California Supreme Court. See People v. Phillips, 41 Cal.3d 29, 222 Cal.Rptr. 127, 711 P.2d 423 (1985). Five years after the appeal was filed, the court affirmed Phillips’s conviction but reversed his death sentence. The case was remanded for a new penalty phase trial. Id., 222 Cal.Rptr. 127, 711 P.2d at 459.

While he awaited a penalty phase retrial, Phillips filed a state habeas corpus petition making the claim, among others, that the trial prosecutor, Minier, had offered a plea deal to Colman’s attorneys with the proviso that" the deal not be communicated to Colman herself and that the deal was, in fact, communicated to Colman. Phillips argued that Minier violated his obligations under Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) by failing to disclose the benefits that Colman received in exchange for her testimony, and violated Napue v.

Illinois, 360 U.S. 264, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959) by failing to correct Colman’s false testimony regarding those benefits. The state court denied Phillips’s Brady/Napue claim for failure to demonstrate materiality. In October 1991, Phillips received a penalty phase retrial, and was again sentenced to death. On March 4, 1992, he filed this federal habeas petition in the district court, advancing his Brady/Napue claims and a claim of ineffective assistance of counsel, among others.

The district court declined to entertain Phillips’s petition because his appeal from his penalty retrial was at that time still pending in the California state courts. This panel reversed that decision on May 26, 1995, holding that Phillips could file a habeas petition as to the guilt phase separately from any petition as to the penalty phase. Phillips v. Vasquez, 56 F.3d 1030 (9th Cir.1995). On remand and after briefing, the district court denied Phillips’s petition without an evidentiary hearing, holding that Phillips had not set forth any colorable claims for relief.

We again reversed, holding that Phillips was entitled to an evidentiary hearing on both his ineffective assistance and Brady/Napue claims. Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001). On remand, the district court scheduled a three-day evidentiary hearing to begin on November 6, 2002. The date was later continued to December 4, 2002, and then to February 4, 2003. On October 15, 2002, Phillips moved to be rehoused in the Madera County jail to better assist his counsel in preparing for the hearing.

The district court denied his request, finding that “the convenience of counsel is not sufficient to justify the risk and expense involved with a federal court ordering a state entity to move a prisoner.” The district court denied reconsideration on November 19, 2002. On December 30, 2002, the district court issued an order stating: “After careful consideration, it is ORDERED that depositions in lieu of testimony be taken of David Minier, Paul Martin, Ron Rose, Sharon Colman, Tom Peterson, and Casandra Dunn.” Neither party objected to the order.

Depositions were conducted between January 6th and January 13th, 2003. On January 16, 2003, Phillips filed a motion for a temporary protective order to prevent his deposition from being taken. On January 21, 2003, the district court denied his request, finding no basis for the protective order.

The court then ruled, apparently acting sua sponte, that “all evidence in the upcoming evidentiary hearing will be presented by deposition ... and the evidentiary hearing set to begin February 4, 2003[is] vacated.” The district judge asserted that this ruling was “[bjased on prior agreement of the parties.” On October 21, 2003, Phillips filed a motion requesting permission to file supplemental exhibits. Phillips then filed a motion on November 5, 2003, asking the district court to reconsider its order vacating the evidentiary hearing.

The district court refused to reconsider its order, stating that, “[biased on prior representations by both parties, no witnesses remained to testify at a hearing, so written argument was determined to be more effective than oral argument and more effective than oral argument and briefs.” In that same order, the court refused Phillips’s request to file supplemental exhibits, holding that the documents were “untimely” and, in any event, were either duplicative or irrelevant.

On February 20, 2004, the district court denied Phillips’s guilt-phase claims, ruling on the merits that Phillips had not been prejudiced by any violations that occurred with respect to either his ineffective assistance of counsel claim or his Brady/Napue claims. II. Standard of Review Because Phillips filed his federal habeas petition before the effective date of the Anti-Terrorism and Effective Death Penalty Act (AEDPA), “AEDPA’s substantive provisions do not apply to this appeal.” Phillips, 267 F.3d at 973 (citing Lindh v. Murphy, 521 U.S. 320, 327, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).

We therefore review de novo questions of law or mixed questions of law and fact decided by the district court or by the state courts. Jackson v. Brown, 513 F.3d 1057, 1069 (9th Cir.2008). We review the district court’s factual findings for clear error, and accord state court factual findings a presumption of correctness. Id. The district court’s procedural rulings, including its decision to limit the evidentiary hearing to written evidence, are reviewed for abuse of discretion. Wade v. Calderon, 29 F.3d 1312, 1326 (9th Cir.1994). III.

Adequacy of the Evidentiary Proceeding Below Phillips claims that, in conducting the evidentiary hearing below, the district court abused it discretion by: (1) refusing to order Phillips transferred from death row in San Quentin to the Madera County jail; (2) canceling the live hearing scheduled for February 4, 2003; and (3) refusing to accept his “Supplemental Guilt Exhibits.” We now address each contention. A. Denial of Transfer Although Phillips presented several compelling reasons to justify his transfer from San Quentin to Madera, the district court did not abuse its discretion in denying this motion.

A prisoner has no right to be housed in a particular institution. Rizzo v. Dawson, 778 F.2d 527, 530 (9th Cir.1985); see also Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Moreover, as Phillips acknowledged in his motion for relocation, the power to order a prisoner transferred is to “be exercised at the sound discretion of the court.” The district court’s holding that the risks and costs of relocation so outweighed the inconvenience suffered by Phillips’s defense team does not constitute a “clear error of judgment,” as is required to find an abuse of discretion. See SEC v.

Coldicutt, 258 F.3d 939, 941 (9th Cir.2001). B. Vacatur of the Live Hearing Applying pre-AEDPA law, we conclude that the district court’s decision to limit the evidentiary hearing to written evidence likewise did not constitute reversible error. This court has held that such a decision is within the district court’s discretion. Williams v. Woodford, 306 F.3d 665, 688 (9th Cir.2002) (“[A] district court in a habeas proceeding ‘need not conduct full evidentiary hearings,’ but may instead ‘expand the record ... with discovery and documentary evidence.’”) (quoting Watts v.

United States, 841 F.2d 275, 277 (9th Cir.1988) (per curiam)). Because, as the district court observed, “no witnesses remained to testify at [the] hearing” who had not already been deposed, avoiding the time and expense of the live hearing was a legitimate reason to vacate the earlier order. See Chang v. United States, 250 F.3d 79, 86 (2d Cir.2001) (“[A district court] may avoid the necessity of an expensive and time consuming evidentiary hearing in every [federal habeas] case.

It may instead be perfectly appropriate, depending upon the nature of the allegations, for the district court to proceed by requiring that the record be expanded to include letters, documentary evidence, and ... even affidavits.”) (quoting Raines v. United States, 423 F.2d 526, 529-30 (4th Cir.1970)).

Although Phillips argues that he was prejudiced by this ruling because had he known there would be no hearing he would have conducted his depositions differently, he had notice by at least December 30, 2002, that depositions would be used in lieu of live testimony for all witnesses, save one, then known to the court. C. Refusal to Admit Supplemental Exhibits Finally, the district court did not abuse its discretion by refusing to admit Phillips’s supplemental exhibits. The district court, in an order filed on January 21, 2003, set a clear briefing

schedule for its decision on the merits of Phillips’s habeas petition: Phillips’s opening brief and supporting documentation were due on January 31, 2003, and his reply was due on February 14, 2003. In a previous order, the court had ruled that the deadline for the end of discovery was January 15, 2003. Phillips attempted to file his supplemental exhibits on October 21, 2003, over eight months after the deadline for post-deposition filings and discovery had passed. All of the documents Phillips sought to introduce existed prior to 1991.

Phillips argued to the district court that the delay was due to the disarray of his former attorney’s files, but “[g]iven the discretion of the district court to ‘control proceedings before it,’ the district court did not abuse its discretion in finding that [the] motion ... came too late in the proceedings.” United States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir.2004) (quoting United States v. Oregon, 913 F.2d 576, 588 (9th Cir.1990)). IY.

Ineffective Assistance of Counsel Phillips’s ineffective assistance claim is straightforward: “[he] contends that his trial counsel, Paul Martin, rendered ineffective assistance by presenting [a] patently meritless alibi defense to the jury without investigating any other defenses — notably, the defense that Bartulis was killed during a shoot-out” between Phillips and Rose. Phillips, 267 F.3d at 976. In our 2001 opinion reversing the district court’s denial of an evidentiary hearing, we held that “Phillips’s defense counsel did not reasonably select the alibi defense used at trial.

In this case, ... the defense used at trial was not selected on the basis of a reasonable investigation or strategic decision.” Id. at 980. Martin’s performance in this case was, indeed, questionable. Without investigating any alternative defenses, Martin allowed his client, who was charged with capital murder, to present an improbable alibi defense despite the fact that his client was unwilling to divulge, as part of that defense, exactly where he was or what he was doing at the time of the murder.

What is more, Martin apparently committed to the alibi defense based upon his questionable conclusion that he was ethically prohibited from investigating a shoot-out theory once Phillips, in his very first discussion with him about the facts of the case, said he was not at the scene of the crime. However, after we issued our opinion holding that Martin performed deficiently when he failed to investigate alternatives to Phillips’s alibi defense, the Supreme Court held that the Sixth Amendment does not impose a strict “constitutional duty to investigate” upon attorneys working in capital cases. Cullen v.

Pinholster, - U.S. -, 131 S.Ct. 1388, 1406-07, 179 L.Ed.2d 557 (2011). In so doing, it relied on “the constitutionally protected independence of counsel and ... the wide latitude counsel must have in making tactical decisions,” id. at 1406 (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)), as well as the “strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment,” id. at 1407 (citations and internal quotation marks omitted).

Here, although Martin’s strategic decision to proceed with an alibi defense was highly questionable at best, the record suggests that Martin did attempt to explain to Phillips that alibi defenses generally are not feasible when the defendant refuses to account for his whereabouts at the time of the crime.

Moreover, Martin’s investigation did yield a witness whose testimony provided modest support for Phillips’s alibi defense: the proprietor of a business not far from the scene of the crime testified that the morning after the shootings, an individual other than Phillips loitered in his establishment brandishing a .45 automatic weapon of the sort used in the shootings, and that the individual’s car had multiple bullet holes in it. In short, Martin attempted to confront his client with the shortcomings of his alibi defense and, remarkably, found a witness whose testimony tended to corroborate that defense.

Although Martin’s decision to pursue the defense at trial was most assuredly ill-advised, we cannot, in light of Pinholster, maintain our conclusion that his decision to pursue the strategy urged by his client did not fall within the “wide latitude counsel must have in making tactical decisions.” 131 S.Ct. at 1406.

Accordingly, in light of the Supreme Court’s intervening decision, we are compelled to overrule our 2001 holding that Martin’s performance at Phillips’s trial was constitutionally ineffective, and to now hold that his shortcomings were not such as to overcome the “strong presumption that counsel made all significant decisions in the exercise of reasonable professional judgment.” Id. at 1407. V.

Violation of Phillips’s Due Process Rights It is a fundamental principle of the American criminal justice system that “deliberate deception of a court and jurors by the presentation of known false evidence is incompatible with [the] rudimentary demands of justice.” Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972) (internal quotation marks omitted).

When the government obtains a criminal conviction and deprives an individual of his life or liberty on the basis of evidence that it knows to be false, it subverts its fundamental obligation, embodied in the Due Process Clauses of the Fifth and Fourteenth Amendments, to provide every criminal defendant with a fair and impartial trial. The Supreme Court has accordingly held that the government may not knowingly suppress evidence that is exculpatory or capable of impeaching government witnesses. See Banks v. Dretke, 540 U.S. 668, 691, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (discussing Brady v.

Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963)). Similarly, it has held that the government is obligated to correct any evidence introduced at trial that it knows to be false, regardless of whether or not the evidence was solicited by it. See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959); Alcorta v. Texas, 355 U.S. 28, 78 S.Ct. 103, 2 L.Ed.2d 9 (1957); Pyle v. Kansas, 317 U.S. 213, 63 S.Ct. 177, 87 L.Ed. 214 (1942).

These duties provide fundamental protections that are vital to the successful operation of an adversarial system of criminal justice; they embody the state’s obligation not to obtain the accused’s conviction at all costs, but rather to do justice by furthering the truth-finding function of the court and jury.

In this case, the state went to elaborate lengths to suggest to the jury that Colman, whose testimony was critical to securing a finding that Phillips murdered Bartulis during the commission of a robbery, had received no benefits in exchange for her testimony, when in fact her attorney had entered into an agreement on her behalf that would allow her to escape prosecution on capital murder charges, and all other charges related to the offenses allegedly committed by her and Phillips, in exchange for her testifying against him.

Moreover, in furtherance of that agreement, Colman had testified against Phillips in reliance on her attorney’s recommendation that she do so. She also, as a result of the Sheriffs Department’s intervention on her behalf regarding a major drug trafficking offense she committed while on bail, was allowed to escape prosecution for that crime. At trial, Colman responded to questions from Phillips’s defense attorney Paul Martin by denying that she had been promised lenient treatment in exchange for her testimony: Q And you expect to receive some benefit for testifying here today? A No.

Q You don’t expect to receive any consideration whatsoever for testifying? A I’m hoping that there will be consideration but— Q You really expecting to receive some consideration? A Are you asking me if I have been promised or is that— Q I’m asking you for your expectation. A I’m expecting that they would take into consideration that I am willing to cooperate.... Q So you expect to receive some credit or benefit in giving testimony here? A I’m hoping that they will take that into consideration.

Minier, the prosecutor who entered into the immunity agreement on behalf of the state, emphasized Colman’s testimony to the jury in his closing argument: If the defense, in their arguments, suggests she is a liar, she is motivated by her desire for leniency, and you can’t trust her.... Well, look at what she said. She testified ... that she has never been promised anything for her testimony in this case. She also testified that she was hoping for consideration. ... And it only seems reasonable that she would hope and anticipate that she would be treated leniently, and, of course, that’s why she’s testifying.

Likewise, in his rebuttal closing Minier told the jury: [Defense counsel] Martin suggested that on the day of the defendant’s arrest ... that was the day the bargain was struck with Colman. What bargain we don’t know. It doesn’t even make any sense. I’d suggest to you, that that kind of an argument is sheer fabrication, just pulled out of the air, totally meaningless. Over the course of his habeas proceedings Phillips has established that, contrary to her testimony and Minier’s statements, Colman was offered and received significant benefits from the state in exchange for testifying as she did.

Phillips points to substantial, possibly life-saving benefits that Colman received in exchange for her testimony, and claims that the prosecution’s failure to disclose these benefits or correct Colman’s statements that she expected no such benefits, and perhaps even more important Minier’s deliberate efforts to mislead the jury and the court as to the existence of an immunity agreement, violated his due process rights under Napue and Brady. We examine the benefits cited by Phillips, and conclude that they involved violations of both Napue and Brady.

We also consider a separate Brady violation that arises from the state’s failure to divulge a prior plea offer and Colman’s possible initial acceptance of it. Because these violations constitute a deprivation of Phillips’s right to due process only if they were material to Phillips’s various convictions, we then consider whether Phillips was prejudiced as to any of them by the prosecution’s failure to comply with the dictates of Napue and Brady. A.

Colman’s Immunity Agreement The principal undisclosed benefit that Colman received for her testimony flowed from an immunity agreement struck between Minier and her trial lawyer, Cassandra Dunn, on Colman’s behalf. This agreement was reached after Dunn replaced Colman’s first lawyer, Tom Peterson.

As Minier acknowledged in a 1990 declaration, “I did have an agreement with [Dunn] about the benefit Colman would receive for testifying.” Under the terms of that deal all charges, including capital murder, against Colman relating to her role as Phillips’s accomplice would be dropped completely if and when she testified against Phillips.

Dunn, in a 2003 deposition, confirmed the nature and existence of this agreement with Minier, and testified that, after asking Minier to put the agreement in writing, ■ she “shortly thereafter” received a letter in which he “confirmed that he had met with [Dunn] and that he had agreed that [her] client would receive immunity if she testified truthfully.” Although neither Minier nor Dunn could recall during postconviction proceedings exactly when they had negotiated this deal, Dunn testified that it was reached some time before Phillips’s preliminary hearing in July 1979.

Consistent with Minier’s practice at the time, the deal was offered to Dunn on the condition that it not be communicated to Colman, so that Colman would be capable of “truthfully” representing to the jury that she had received no offers of leniency in exchange for her testimony. Both Dunn and Colman contend that Dunn acceded to Minier’s wishes, and did not communicate the existence of the offer to Colman. Dunn did, however, urge Colman to put her confidence in her, and then advised her to testify. Colman stated at trial that she did testify against Phillips in reliance on Dunn’s advice to do so.

All charges against Colman were dropped within a month of Phillips’s conviction. Hayes v. Brown, 399 F.3d 972 (9th Cir.2005) (en banc) controls this case. It compels us to hold that the prosecution’s failure to disclose the existence of the agreement to dismiss the charges against Colman, and to correct her and Minier’s own statements at trial that no such deal existed, violated both Napue and Brady. The facts in Hayes are virtually-identical.

In Hayes, as here, the prosecutor had reached a deal with the attorney for a key state witness, James, providing for the dismissal of all felony charges against him — including those relating to the murder with which the defendant Hayes was charged — if he testified against Hayes at trial. Id. at 977. As in this case, the prosecution elicited a promise from James’s attorney that James would not be informed of the deal, and at trial James testified that he had received no promise of benefits in exchange for his testimony. Id. at 977, 980.

As. we observed in Hayes, and as is equally applicable here, that a witness may have been unaware of the agreement entered into on his behalf may mean that his testimony denying the existence of such an agreement is not knowingly false or perjured, but it does not mean it is not false nevertheless.

As we explained in Hayes: [T]hat the witness was tricked into lying on the witness stand by the State does not, in any fashion, insulate the State from conforming its conduct to the requirements of due process____It is reprehensible for the State to seek refuge in the claim that a witness did not commit perjury, when the witness unknowingly presents false testimony at the behest of the State. “This saves [the witness] from perjury, but it does not make his testimony truthful.” Willhoite v. Vasquez, 921 F.2d 247, 251 (9th Cir.1990) (Trott, J., concurring).

The fact that the witness is not complicit in the falsehood is what gives the false testimony the ring of truth, and makes it all the more likely to affect the judgment of the jury. That the witness is unaware of the falsehood of his testimony makes it more dangerous, not less so. Id. at 981. Minier’s effort to “insulate” Colman from her own immunity agreement was a deliberate effort to deceive the jury — a ruse that flagrantly violated basic due process principles.

As in Hayes, Colman’s denial that she expected to receive benefits for testifying carried with it a necessarily implied falsehood: it created the impression that she was not the beneficiary of any sort of deal. Id. at 981, 983; see also Alcorta, 355 U.S. at 31, 78 S.Ct. 103 (holding that a habeas petitioner had been denied due process of law when a prosecutor allowed a witness to give the jury a “false impression” of his relationship with the petitioner’s wife).

In fact, there was a deal, one that would allow her to escape prosecution entirely after having confessed in open court to being an accomplice to capital murder. This deal was not only not disclosed to the defense, see Giglio, 405 U.S. at 154, 92 S.Ct. 763, but it also served to facilitate the presentation of false testimony to the jury by inducing Colman to testify that she had received no promise of benefits in exchange for her testimony, when, in fact, her attorney, who was her agent, had accepted the immunity agreement on her behalf.

In Hayes we made clear in no uncertain terms that the practice of “insulating” a witness from her own immunity agreement so that she can profess ignorance of the benefits provided in exchange for her testimony is an egregious violation of the prosecution’s obligations under Napue. We explained that: There is nothing redemptive about the sovereign’s conspiring to deceive a judge and jury to obtain a tainted conviction.

This is, as Judge Trott put it, “a pernicious scheme without any redeeming features.” Napue forbids the knowing presentation of false evidence by the State in a criminal trial, whether through direct presentation or through covert subornation of perjury. Hayes, 399 F.3d at 981 (internal citation omitted).

We concluded such deception violates Napue because, regardless of whether or not the prosecution’s offer is communicated to the witness prior to her testimony, the practice poses “the distinct risk that, in preparing [a witness] for his testimony ... counsel — who did know about the deal — might have influenced the content of that testimony, deliberately or not.” Id. at 981 n. 1.

Here, Dunn’s advice to Colman almost certainly conveyed the implicit message that she would be treated favorably by the prosecution if she testified, and may well have led her to testify in a manner she believed would satisfy the prosecution’s wishes: only an expectation on Colman’s part that she would receive treatment similar to or more favorable than that embodied in the earlier offer of a one year term could explain her decision not to accept that offer and then proceed to incriminate herself in open court of being an accomplice to capital murder.

Indeed, if Minier did not expect that the offer would affect Colman’s willingness to testify or influence the contents of her testimony, it is hard to fathom why he made an immunity deal at the time he did for the benefit of an individual charged as an accomplice to capital murder. See id. at 987. Viewed in the most favorable light to the prosecution, Minier’s deplorable tactic allowed Colman to falsely deny having received any promise of beneficial treatment in exchange for her testimony without knowing that her testimony was false.

It resulted in Minier arguing to the jury in the most unequivocal terms (albeit in terms designed to deliberately mislead the jury and the court) that Colman had received no leniency or other promise of benefits in exchange for her testimony, emphasizing that “[s]he testified ... that she has never been promised anything for her testimony in this case,” and that any attempts by the defense to intimate that an agreement existed were “sheer fabrication, just pulled out of the air, totally meaningless.” In this respect, the prosecution’s misconduct went even beyond that which this court held to be reprehensible in Hayes, where the prosecution vouched for the truthfulness of its key witness but did not directly deny to the jury that a deal had been reached granting him immunity from all pending charges.

See id. at 980.

Minier not only failed to disclose the agreement reached with Colman’s counsel, thus contravening Brady, but even more significant, he violated Napue by allowing Colman to falsely testify that no such deal existed, failing to correct that false testimony, and then wilfully, deliberately and unequivocally falsely representing to the jury in his closing argument that Colman had “never been promised anything for her testimony in this case.” In doing so, Minier violated his fundamental obligation to ensure that convictions be obtained in a manner compatible with the “rudimentary demands of justice.” Giglio, 405 U.S. at 153, 92 S.Ct. 763.

B. State Assistance With Respect to Col-man’s Heroin Arrest Next, Phillips established through depositions before the district court that, within weeks of her release on bail in 1978, Colman was arrested for participating in the sale of heroin to an undercover Fresno police officer, and that the Madera County Sheriffs Department subsequently made multiple calls to the Fresno police department on Colman’s behalf advising it that she was an important cooperating witness in a homicide investigation and requesting that charges against her not be pursued. Ultimately no charges against Colman were filed.

That the police officers investigating the Phillips case interceded on Colman’s behalf multiple times with respect to an unrelated felony offense was a tangible benefit to Colman in consideration for her testimony against Phillips. The receipt of such a benefit could have been used to impeach Colman’s credibility.

The state was thus not only obligated under Brady to disclose to Phillips that such an intervention had occurred, but also obligated under Napue to correct Colman’s claim that she had been promised no benefits, along with Minier’s assertion that any intimation that she had received such treatment was “sheer fabrication”: contrary to these statements, Colman had already received substantial benefits for her testimony in the form of direct assistance that enabled her to escape prosecution for a serious drug-trafficking offense.

The state insists that Minier was unaware of any calls made by the Madera sheriffs department to the Fresno police on Colman’s behalf. However, even if true, “[t]he Supreme Court has made abundantly clear ... that the prosecutor’s duty to disclose evidence favorable to the accused extends to information known only to the police.” Jackson v. Brown, 513 F.3d 1057, 1072 (9th Cir.2008) (citing Kyles v. Whitley, 514 U.S. 419, 438, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995)).

We have thus held that the Constitution “compel[s] prosecutors to disclose evidence favorable to the accused, even when that evidence was known only to the police and not to the prosecutor.” Id. at 1074; see also Giglio, 405 U.S. at 154, 92 S.Ct. 763 (holding that the duty to correct false evidence under Napue extends to evidence not known to be false by a particular prosecutor but known to be false by the government).

Thus, even if Minier himself did not know about the phone calls made on Colman’s behalf — a somewhat dubious proposition — it is immaterial to the state’s duty to disclose those phone calls and to correct Colman’s false testimony, and Minier’s false statements, that she had received no benefits in exchange for her testimony. The state likewise notes that Colman has testified that she “never had any understanding that there was any connection between her status as a witness in Madera County and her treatment in Fresno County.” Brief of Respondent-Appellee at 134.

The record reflects otherwise — in particular, the Fresno Police Department officer who investigated Colman’s heroin offense testified that Colman knew that the Madera County Sheriffs Department had interceded on her behalf.

However, even if, contrary to the testimony of the police, Colman had been unaware of the intercession, and thus did not realize that she provided the jury with misleading testimony when she stated that she would not receive any benefit in exchange for testifying against Phillips, her own ignorance of the benefits she had been granted did not relieve the state of its obligation to correct her false testimony, nor, certainly, did it make the prosecution’s conduct in deliberately misrepresenting the facts to the jury and the court any less egregious. See Hayes, 399 F.3d at 981. C.

Plea Offer to Tom Peterson The separate Brady violation arises out of a plea offer made to Colman’s first attorney, Tom Peterson. Peterson, in state post-conviction hearings, testified that three weeks after the murder Minier orally offered him a plea agreement for Colman that would have allowed her to plead guilty as an accessory to murder for a one-year sentence if she testified against Phillips. Peterson further stated that he communicated the agreement to Colman, who accepted it.

Colman disputes that she accepted the offer, and the state argues that the behavior of Minier, Colman, and Colman’s trial attorney, Dunn, indicates that the offer did not survive the termination of Peterson’s representation of Col-man in February of 1978. However, the key parties — Peterson, Minier, and Col-man — all appear to be in agreement that such an offer was, in fact, extended. Its existence was, they acknowledge, never communicated to Phillips or his attorney.

That such an offer was extended was indisputably evidence “favorable to the accused ... because it is impeaching,” and was clearly subject to the duty of disclosure established in Brady. See Jackson, 513 F.3d at 1071 (citing Strickler v. Greene, 527 U.S. 263, 281-82, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Evidence of the offer would have allowed Phillips to challenge Colman’s credibility by providing the jury with concrete evidence that she had good reason to expect beneficial treatment in exchange for her testimony.

Such an expectation of leniency in and of itself would have provided valuable impeachment of Colman’s credibility. Contrary to Phillips’s contention, however, the existence of the Peterson offer did not obligate the prosecution under Napue to correct Colman’s testimony that she had not been promised any benefits.

The existence of the offer provided evidence from which a jury could conclude that Colman had testified falsely when she denied expecting any benefit in exchange for her testimony, but because, viewing the facts most generously from the state’s standpoint, the offer was never accepted, its existence did not render Colman’s testimony inherently false. We therefore hold that the prosecution’s failure to divulge the Peterson offer amounted to a violation of its duty under Brady, but did not implicate its Napue obligation to correct false evidence. D.

Prosecutorial Misconduct Before proceeding to consider the materiality of the Napue and Brady violations, we note that the prosecutor’s statements in his closing argument that any contention that a bargain had been struck with Colman was “sheer fabrication, just pulled out of the air, totally meaningless” also likely constituted the separate due process violation of prosecutorial misconduct. Unconstitutional prosecutorial misconduct occurs where the prosecutor engages in actions that “so infec[t] the trial with unfairness as to make the resulting conviction a denial of due process.” Greer v.

Miller, 483 U.S. 756, 765, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)) (alteration in original). Minier vouched for the credibility of a crucial witness by assuring the jury that Colman had not received any sort of immunity agreement in exchange for her testimony. See United States v.

Weatherspoon, 410 F.3d 1142, 1146 (9th Cir.2005) (finding improper vouching where prosecutor had told the jury in closing arguments that testifying officers had “no reason to come in here and not tell ... the truth,” because by lying they would risk losing their jobs and face possible perjury charges). That Minier’s assurances were, in fact, false only heightens the extent to which this prosecutorial misconduct violated Phillips’s right to due process.

Because neither party has expressly raised the issue of whether Minier’s representations in his closing argument that no deal with Colman existed constituted prosecutorial misconduct, but both have argued the issue in terms of Napue, and because Minier’s reenforcement of the false testimony of a key witness is what renders his statements particularly egregious, we consider the statements in terms of a Napue violation rather than in terms of prosecutorial misconduct. E. Materiality The prosecution’s multiple Napue and Brady violations warrant reversal of the jury’s verdicts only if they were material to

(1) Phillips’s convictions for first degree murder and attempted murder, (2) his robbery convictions, or (3) the jury’s finding that the special circumstance of murder in the commission of a robbery had been proven. The test for materiality under Napue is distinct from that under Brady: a Napue violation is material when there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury,” United States v.

Agurs, 427 U.S. 97, 103, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (emphasis added); in contrast, a Brady violation is material to a jury’s verdict when “there is a reasonable probability that ... the result of the proceeding would have been different” but for the violation, United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985) (emphasis added).

Where, as here, the prosecution has violated its constitutional obligations under both Napue and Brady, we first consider the Napue violations collectively and ask whether there is “any reasonable likelihood that the false testimony could have affected the judgment of the jury.” If so, habeas relief must be granted.

However, if the Napue errors are not material standing alone, we consider all of the Napue and Brady violations collectively and ask whether “there is a reasonable probability that, but for [the errors], the result of the proceeding would have been different.” At both stages, we must ask whether the defendant “received ... a trial resulting in a verdict worthy of confidence.” Sivak v. Hardison, 658 F.3d 898, 912 (9th Cir.2011) (quoting Jackson, 513 F.3d at 1076).

In this case, we have found that there are two important facts that the government was obligated to provide to the jury under Napue: first, that an immunity agreement had been entered into at the time of Colman’s testimony ensuring that no charges whatsoever relating to the events in Chowchilla would be brought against her; second, that the Sheriffs Department had already arranged for charges stemming from a heroin offense committed by her in Fresno to be dropped in order to facilitate her testimony against Phillips.

We also consider the prosecutor’s deliberate lies regarding the existence of the immunity agreement. For each of the jury’s findings, we begin our analysis by examining whether there was “any reasonable likelihood” that the prosecution’s Napue violations “could have affected the judgment of the jury.” Agurs, 427 U.S. at 103, 96 S.Ct. 2392.

If we conclude that there is no reasonable likelihood that these violations alone could have affected the jury’s judgment, we then must ask whether they in combination with the prosecution’s failure to disclose to the defense the plea deal offered to Colman’s first attorney, Peterson — a Brady violation — would satisfy Brady’s higher standard of materiality.

We proceed to examine: first, whether the government’s Napue violations, or, if not, its Napue and Brady violations together, were material to Phillips’s conviction for first-degree murder; second, whether they were material to his convictions for robbery; and third, whether they were material to the jury’s special circumstance finding that the murder was committed during the commission of a robbery. i. Firstr-Degree Murder We hold that the prosecution’s Napue violations, although “pernicious” and “reprehensible,” Hayes, 399 F.3d at 981, were not material to Phillips’s conviction of first-degree murder.

The disclosure of the benefits Colman received in exchange for her testimony could not have had any effect on the jury’s determination that Phillips was guilty of the murder of Bartulis. Rose provided extensive testimony identifying Phillips as the culprit, and the prosecution played at trial an audio tape of a phone conversation recorded after Bartulis’s murder but before Phillips’s arrest in which he described to his friend Richard Graybill that “a .45 sure did put a big hole right through him.

I mean, it didn’t fuck around.” In addition, Phillips’s flight to another state and his effort to conceal his identity provided further significant evidence of his guilt.

Thus, even had the government disclosed the evidence showing that aspects of Colman’s testimony and the prosecutor’s statements were false, and had Phillips succeeded in undermining Colman’s credibility, a reasonable juror, in order to conclude that Phillips was not proven guilty of murdering Bartulis, would not only have had to disregard Phillips’s recorded statement to Graybill, his flight, and other post-murder conduct, but would also have had to conclude that Rose was wrong when he identified the individual who shot him multiple times, set him on fire and ran him over with his car, despite the fact that he knew the individual well and had traveled .with him from Fresno to the site of the shooting.

It is unimaginable that the jury could have come to such a conclusion with or without Colman’s testimony, and we therefore hold that the state’s Napue violations were not material to the jury’s finding that Phillips was guilty of Bartulis’s murder.

Although whether the state’s Napue violations were material to the jury’s finding that Phillips had premeditated Bartulis’s murder is a closer question, we hold that the evidence of premeditation the prosecution presented was sufficiently powerful and abundant that there is not a “reasonable likelihood” that the prosecution’s failure to correct Colman’s testimony, and its deliberate falsehood in telling the jury that there was no agreement, could have affected the jury’s judgment that Phillips premeditated the murder.

Again, with or without Colman’s testimony, the jury’s conclusion, would undoubtedly have been the same.

The prosecution pointed out: that Phillips sought to manufacture an alibi by flying to his mother’s house in Sacramento prior to driving to Fresno, rather than simply flying to Fresno directly; that Phillips lured Rose and Bartulis to an isolated remote lot, far from his hometown where he might have been a suspect for the shootings; that Phillips asked Rose for matches when the two cars stopped en route to the vacant lot, suggesting that Phillips intended in advance to set the victims and their car on fire in order to conceal'their identities; and that Phillips told-Rose and Bartulis that the stolen insulation was going to be supplied by his brother even though Phillips does not have a brother, and no insulation was ever produced.

The state also presented evidence that Phillips methodically attempted to hide his role in the murder, not only by concealing his victims’ identities by pouring gas on them and lighting them on fire after shooting them, but also by removing the bullet shell casings from the scene after the shooting. The prosecution did offer Colman’s testimony to augment its case that the murder had been premeditated.

Colman’s statement that Phillips had pulled a gas can out of the trunk of his mother’s car supported a finding of premeditation in light of Phillips’s mother’s testimony that she did not ordinarily keep a gas can in the car.

Likewise, the prosecution sought to demonstrate Phillip’s cold-blooded manner by highlighting Colman’s testimony that Phillips struck Rose and Bartulis in the head after shooting them, which buttressed the testimony of the doctor who treated Rose that Rose had a wound “that was probably due to a blow on the head.” Given the extensive evidence of planning, however, and of the methodical manner in which the murder was committed, there is not a “reasonable probability” that, had the jury learned of the benefits Colman had received and of the prosecutor’s deliberate falsehood as to the immunity agreement, it might have found that there was a reasonable doubt as to whether Phillips had premeditated the murder.

We therefore conclude that the prosecution’s Napue violations were not material to the jury’s conclusion that Phillips premeditated Bartulis’s killing, or to its attendant conclusion that Phillips was guilty beyond a reasonable doubt of first-degree murder.

Having found that the Napue violations were not, standing alone, material to Phillips’s first-degree murder conviction, we must consider the Napue violations collectively with the Brady violation, asking whether “there is a reasonable probability that, but for [the state’s violations], the result of the proceeding would have been different.” Jackson, 513 F.3d at 1076 (citations and quotation marks omitted).

As is explained above, the only piece of evidence in this case that was subject to disclosure under Brady but not Napue was the fact that prior to trial, while still represented by her first attorney, Colman had received a plea offer that would have limited her jail sentence to one year. Because Colman’s testimony was not material to the conviction on the first-degree murder count, this additional violation is of no consequence. ii. Robbery We likewise hold that the prosecution’s Napue and Brady violations were not material to Phillips’s convictions for the robberies of Rose and Bartulis.

California law defines “robbery” as “the felonious taking of personal property in the possession of another, from his person or immediate presence, and against his will, accomplished by means of force or fear.” Cal.Penal Code § 211 (Deering 1977). The only items that Phillips was alleged to have taken from the persons or presence of Rose and Bartulis were their wallets and Rose’s gun. Rose testified directly that Phillips had taken his wallet, and the jury had no reason not to credit his testimony.

Although Colman’s testimony was the primary direct evidence that Phillips took Bartulis’s wallet, substantial circumstantial evidence supported Phillip’s conviction for this crime, including his attempt to destroy the car and the bodies inside it. The only plausible explanation of the occurrences on December 7, 1977 is that if Phillips took one wallet he took them both; no rational explanation would support taking one but not the other.

Given all of the circumstances present in this case, we can not conclude that the jury’s verdict that Phillips was guilty of the robberies “could” have been different but for the prosecution’s Napue violations, nor that it “would” have been different but for the prosecution’s Napue violations and its additional Brady violation. iii.

Special Circumstance Finding We turn now to the question whether the prosecution’s Napue violations were material to the jury’s special circumstance finding that Bartulis’s murder was committed during the commission or attempted commission of a robbery, a finding that was a necessary prerequisite to Phillips’s being eligible for the death penalty. We hold that the violations were material to that finding.

To prove that Phillips murdered Bartulis “during the commission” of a robbery or attempted robbery, the state bore the burden of proving beyond a reasonable doubt not just that Phillips had taken the property of Rose or Bartulis unlawfully, but that Phillips had the independent purpose of robbing Rose and Bartulis when he lured them to the lot in Chowchilla.

Under the special circumstance statute that was applied at Phillips’s trial, the jury was required to make two findings: first, that Phillips was guilty of the underlying offense of attempted or completed robbery; second, that the murder had been committed “in order to advance an independent felonious purpose” of robbery. Green, 164 Cal.Rptr. 1, 609 P.2d at 505 (interpreting Cal.Penal Code § 190.2(c)(3) (Deering 1978)); see also People v. Morris, 46 Cal.3d 1, 249 Cal.Rptr. 119, 756 P.2d 843, 854 (1988).

In Green, the California Supreme Court held that the “goal” of the special circumstance statute “is not achieved ... when the defendant’s intent is not to steal but to kill.” 164 Cal.Rptr. 1, 609 P.2d at 505. Green illustrates the distinction between a robbery that is merely a “second thing to” a murder and murder committed in order to advance the felonious purpose of robbery. Id. In Green, the defendant, before killing his wife, took her clothes, ring and purse in order to conceal her identity when her body was found. Id., 164 Cal.Rptr. 1, 609 P.2d at 501.

The court held that there was sufficient evidence to find the defendant guilty of robbery. Id., 164 Cal.Rptr. 1, 609 P.2d at 503. It then held, however, that the special circumstance of murder during the commission of a robbery had not been proven because the murder and the taking of property “was not ... a murder in the commission of a robbery but the exact opposite, a robbery in the commission of a murder.” Id., 164 Cal.Rptr. 1, 609 P.2d at 505.

Here, likewise, proof that Phillips had robbed his victims was not enough: the state bore the burden of proving beyond a reasonable doubt that the robbery was a motivating purpose of Phillips’s criminal actions, that Phillips had led his victims to an isolated location and shot them because, inter alia, he intended to rob them. In the words of the California Supreme Court, the prosecution’s obligation was to prove beyond a reasonable doubt that what occurred in Chowchilla was a “murder in the commission of a robbery, [not] the exact opposite, a robbery in the commission of a murder.” Id.

Considerable evidence in the record suggests that Phillips had not, in fact, orchestrated the events of December 7, 1977 for the purpose of robbing Rose and Bartulis, i.e., that the murder was not committed in order to further the robbery, but rather that the robbery was incidental to the murder.

For example, although Rose testified that Phillips told him to bring as much cash as possible to the putative insulation deal, there is no evidence that Phillips ever followed up on this request or otherwise attempted to confirm that Rose planned to or actually brought cash, despite the fact that, as Rose testified, he had told Phillips over the preceding month that he was experiencing financial difficulties that limited his access to funds.

Similarly, the evidence at trial indicated that after shooting Rose and Bartulis, Phillips did not search them thoroughly; rather, he conducted a search of Rose so cursory that he failed to find the wad of bills totaling $3,500-$5,000 that Rose had placed in his jacket’s breast pocket, and did not enter the truck to search either Rose or Bartulis. As Phillips’s attorney, Martin, repeatedly pointed out to the jury, these facts are inconsistent with the notion that Phillips committed murder in order to further a scheme to rob Rose and Bartulis.

One would generally expect an individual who, for the purpose of robbing his victims had elaborately planned a double murder, developed an alibi, flown from Orange County to Sacramento, driven from Sacramento to Fresno, and shot two men, to, at the very least, confirm that they had or had not brought cash with them, instead of setting their bodies on fire and leaving the scene with only the minimal funds contained in their wallets and without conducting a thorough search of their persons or vehicle.

As Martin noted at the conclusion of his closing argument, “this would be a stupid way to plan a robbery, taking potluck [sic] on what you might get, if anything,” and, we might add, without even seriously looking for the intended proceeds. Given the minimal evidence that the government presented in support of its theory that Phillips lured Rose and Bartulis to Chowchilla in order to rob them, Colman’s testimony was essential to the prosecution’s special circumstance case.

Especially crucial to that case, and emphasized in its closing argument, was Col-man’s testimony that, when Phillips returned to his car after the shooting, and then again while driving back to Fresno from Chowchilla, he told her that he was “disturbed” by the absence of the money he had asked Rose to bring, and complained about his failure to find any cash.

Also integral was Colman’s testimony that Phillips had searched Rose extensively for the money, which was otherwise uncorroborated (Rose testified only that he felt hands “moving [him] around such as searching [his] pockets,” but did not testify as to the duration or thoroughness of these actions). Colman’s testimony “was not only the prosecution’s most specific evidence” regarding Phillips’s intent to rob Bartulis and Rose, “it was also the most powerful.” Silva v. Brown, 416 F.3d 980, 987 (9th Cir.2005).

As the prosecution stated when it appeared that Colman might not be available to testify during Phillips’s penalty-phase retrial, “[If] Miss Colman declined to show up, I don’t even know if we can proceed.... Without her testimony, we have about half a case.

If she didn’t show up, I think we would re-evaluate our case.” Were Colman’s testimony discredited as a result of the revelation of her false testimony and her motivation for lying, the jury could and likely would have concluded that the theft of the wallets, or any minimal unsuccessful attempt to steal any other cash on Rose’s person, was simply a “second thing to” the murder, and thus not a special circumstance under California law.

Had the defense been able to impeach Colman and cross-examine her regarding her false testimony and her secret deal, the jury might well have concluded that in planning the murder Phillips was motivated by unrelated purposes, such as to cover up his prior narcotics dealings with Rose and Bartulis and to prevent them from double-crossing him, as Colman told the investigators prior to the deal but never told the jury.

Alternatively, the jury might have concluded that Phillips was motivated by a desire to retain the payments Rose and Bartulis had already made to him — the prosecution itself repeatedly argued for this motivation at trial, observing that “if he killed Mr. Rose and Mr.

Bartulis, he’d not only have the $11,500 [Rose and Bartulis had initially given him in cash], but he would have a note for an additional $25,000.” The evidence presented at trial, apart from Col-man’s testimony, was entirely consistent with each of these alternative motivations, and offered little if any support for the theory that Phillips’s reason for luring Rose and Bartulis to Chowchilla was to rob them, and that the murder was in furtherance of that objective: Phillips may-have told Rose to bring money with him to the putative insulation deal in order to render the existence of that deal more believable to Rose, and he may have taken his victims’ wallets in order to conceal their identities (an interest he also furthered by setting their car on fire).

There were, indeed, various possible explanations for why the murder took place, but only Colman’s testimony purported to provide an explanation offered by Phillips himself, one that served as the foundation for the jury to find that the special circumstance had been proved. Disclosure of either Colman’s secret deal or the assistance she received with respect to her heroin arrest would have allowed Phillips’s counsel to impeach and discredit a witness whose testimony was absolutely crucial to the state’s special circumstance case.

As we explained in Hayes, and as is equally true here: The jury was not permitted to assess whether [the critical prosecution witness] had an expectation of favorable treatment that could have affected [her] testimony because the State affirmatively placed false evidence before the jury that there was no deal.... If [the witness] had known of the secret deal and had testified about it [s]he would have been subject to impeachment — not only on the existence of the favorable deal, but also on the State’s attempts to keep the deal from the jury.

The State could not have falsely buttressed [her] credibility before the jury. Thus, the violation of Napue was material. 399 F.3d at 987-88. The district court came to a contrary determination regarding the materiality of the state’s violations of its constitutional obligations by concluding that Colman’s credibility was sufficiently put before the jury by Phillips’s counsel, Martin. The dissent also embraces this reasoning.

Martin introduced evidence that Colman had been released on her own recognizance and had received an unusual number of continuances, and repeatedly intimated that Colman had negotiated some sort of deal with the prosecution. But as we explained in Bern v. Lambert, 283 F.3d 1040 (9th Cir.2002), “In cases in which the witness is central to the prosecution’s case, the defendant’s conviction indicates that in all likelihood the impeachment evidence introduced at trial was insufficient to persuade a jury that the witness lacked credibility.

Therefore, the suppressed impeachment evidence ... takes on even greater importance.” Id. at 1055.

Here, hard evidence that a deal had actually been agreed upon that would allow Colman to escape prosecution would have had far more persuasive force than Martin’s assertions, wholly unsupported by any evidence, that such a deal might have existed, especially in light of the prosecution’s sarcastic and false dismissal of Martin’s suspicions as “sheer fabrication.” See Jackson, 513 F.3d at 1077 (“[Although the witness had been cross-examined about his own attempts to benefit from his cooperation, evidence of an explicit promise of assistance by the trial prosecutor l

[…]