MAXWELL v. ROE

e a history of working as an informant and "booking" other criminals. It is undisputed that in at least one such instance, Storch went so far as to suggest that fake checks be planted on an individual in order to "book" him. This testimony directly contradicts the district court's characterization of Storch as a "neophyte" informant in 1984. Finally, Porter's testimony that Storch was officially classified as a "K-9" by 1985 or 1986, a classification reserved for seasoned official informants, reasonably suggests that by 1984 Storch was well on his way to becoming, if not already, a professional informant.

Storch not only had an established history of working as an informant by the time of Maxwell's trial, but he also had a signature modus operandi for "booking" fellow inmates. That method — for which Storch became famous — was precisely the one that Maxwell alleges Storch employed in this case. Storch's method to "book" an inmate was to gain physical proximity to a high-profile defendant, get information about the case from the media, usually a newspaper, and then call the District Attorney or law enforcement and offer to testify. Several examples of Storch's use of this "booking" method came to light during the evidentiary hearing. Sergeant Porter testified that Storch once requested that a high-profile defendant, who had been in the news, be transferred to his row. Porter testified that he did not move the defendant because he believed that Storch planned to use a newspaper article to fabricate testimony against him. According to Porter, his suspicion was based on knowing Storch for five years and concluding that he "was not credible."

Porter's testimony that he could freely transfer inmates among cells was corroborated by the testimony of Phillip Sowers and William Patterson. Sowers was an investigator for the City of Los Angeles from 1971-92. He testified that detectives could easily get inmates moved within the jail. Similarly, Patterson, a former Los Angeles County Sheriff's Department employee, testified that in late 1982 and early 1983, he was able to move inmates in order to use them as informants.

John Kryniak, a former Pasadena police officer and Los Angeles District Attorney, testified that in 1986 Storch came forward and offered to testify for the government in the high-profile "Ninja murders" case. Kryniak explained that he decided not to use Storch when he learned that Storch had been placed in the defendant's cell after the time Storch claimed he was there. Kryniak further testified that he chose not to use Storch's testimony because he did not believe Storch was telling the truth and because Storch had a very checkered history as an informant.

Joseph Markus testified that he was assigned to prosecute a high-profile case in 1988. Storch testified at the preliminary hearing for that case. Markus testified that he found Storch's testimony suspiciously similar to newspaper stories about the case, and thus concluded that, "as a result of the similarities between his testimony and these newspaper stories, I felt that Storch could make up the information and did not believe his testimony." Markus also testified that he found Storch to be very manipulative and was surprised by his frequent access to the jailhouse phone.

According to evidence gleaned during the state court evidentiary hearing, Storch lied under oath about more than fellow inmates' confessions. In April 1985, Storch testified for the prosecution in People v. Stephen Naquin, No. A809434 L.A.Super.Ct. Oct. 7, 1985). At that trial, a mere nine months after Maxwell's trial, Storch lied about the benefit he received for testifying in Maxwell's trial and about his motivations for testifying in the Naquin trial itself, among other fabrications. In November 1985, Storch falsely testified for the prosecution in another case, People v. Carl Jones, No. A809938 (L.A.Super.Ct. Nov. 18, 1985). In that case, Storch falsely testified that he did not expect any benefit for his testimony and that he had no charges pending against him, among other lies.

In April 1988, at the trial of People v. Sheldon Sanders, No. A039120 (L.A.Super.Ct. Apr. 25, 1988), Storch lied while under oath when he denied getting a deal in exchange for his testimony in Maxwell's trial. This lie ultimately resulted in Storch's indictment for perjury. In seeking the indictment, the Deputy Attorney General told the grand jury that:

First of all, Mr. Storch . . . was a People's witness in People v. Sanders. He was testifying in a murder case, and he testified that the defendant indirectly admitted to the crime. Clearly that's a material matter. What he did was, after saying that the defendant admitted to the crime, he lied about his qualifications as a witness. He denied having received benefits. [Storch] knew he received the benefits, and he flat out denied it. . . . Storch was trying to present himself in that case as someone who was lily-white. He was an experienced witness, he was precise in his answers, and he jousted with the defense attorney during the course of his examination.

The Attorney General went on to testify: "We expect that persons are going to come in and tell the truth That just plain didn't happen in the Sanders case. Mr. Storch was a person who lied about his credibility, and it was a serious risk to the judicial system."

In sum, Storch perjured himself multiple times at Maxwell's trial and employed a signature method to "book" fellow inmates. Furthermore, Storch had a chronic pattern of dishonesty that both predated and followed Maxwell's trial. The evidence of Storch's later lies under oath does not establish the nature of his testimony at Maxwell's trial, but it remains relevant. It demonstrates a willingness to commit perjury and corroborates Maxwell's argument that Storch had a signature modus operandi that he employed as a witness for the prosecution at Maxwell's trial.

The preliminary inquiry, then, remains whether it was objectively unreasonable" in light of the evidence revealed over the course of the evidentiary hearing — for the Superior Court to find that Storch testified truthfully at the 1984 trial when he stated that Maxwell had confessed. The difficulty here is not whether Storch became a professional "snitch" who frequently committed perjury. That much is clear. Rather, the question is whether, as the state court concluded, in 1984 Storch remained an unsophisticated informant who was not yet employing the practices for which he would later be indicted. This requires us to determine whether the state court's factual determination was objectively unreasonable, a standard which, as we noted above, affords the state court determination the utmost deference.

Despite this deferential review, "deference does not by definition preclude relief. A federal court can disagree with a state court's credibility determination and, when guided by AEDPA, conclude the decision was unreasonable or that the factual premise was incorrect by clear and convincing evidence." Cockrell, 537 U.S. at 340, 123 S.Ct. 1029. We have, on occasion, concluded that a state court's factual determination was unreasonable. See, e.g., Cooke v. Solis, 606 F.3d 1206, 1216 (9th Cir. 2010) (holding that the state court's decision to uphold the Parole Board's denial of parole was an unreasonable determination of the facts in light of the evidence); Taylor, 366 F.3d at 1000 (holding that the state court's finding that petitioner's confession was voluntarily obtained was objectively unreasonable); Hall, 343 F.3d at 984 (holding that the state appellate court made an unreasonable determination of the facts in light of the evidence presented by finding that the falsity of the jailhouse informant's notes had not been proven at a hearing); Nunes v. Mueller, 350 F.3d 1045, 1057 (9th Cir. 2003) (holding that the state court's rejection of the petitioner's ineffective assistance of counsel claim was an unreasonable determination of the facts in light of the evidence before the state court); Bradley v. Duncan, 315 F.3d 1091, 1094 (9th Cir. 2002) (affirming the district court's holding that the state's finding that the petitioner did not present sufficient evidence to deserve an instruction on entrapment was an unreasonable determination of the facts).

Furthermore, we have recognized the unreliability of jailhouse informants — who are themselves incarcerated criminals with significant motivation to garner favor — and on occasion have granted habeas or other relief where a defendant was convicted as a result of fabricated or potentially fabricated testimony. See, e.g., Hall, 343 F.3d at 985 (reversing the district court's denial of habeas relief where a 1985 California jailhouse informant later confessed to perjury and the alteration of evidence); Jackson v. Brown, 513 F.3d 1057, 1060-61 (9th Cir. 2008) (affirming the district court's partial grant of habeas relief where a 1980s California jailhouse informant had not disclosed the full benefit he received in exchange for his testimony); Goldstein v. City of Long Beach, 481 F.3d 1170, 1171 (9th Cir. 2007), reversed on other grounds by Van de Kamp v. Goldstein, ___ U.S. ___, 129 S.Ct 855, 172 L.Ed.2d 706 (2009) (noting that Goldstein was granted habeas relief when it was revealed that a 1980s California jailhouse informant had not disclosed that his sentence was reduced in return for testimony); Reynoso v. Giurbino, 462 F.3d 1099, 1102 (9th Cir. 2006) (granting habeas relief where counsel was ineffective in failing to cross-examine the 1990 California jailhouse informant about his motivation for testifying and the informant's testimony was suspiciously similar to a recent television broadcast about the case); Bernal-Obeso, 989 F.2d at 333 (vacating a defendant's conviction on direct review and remanding the case back to the district court for an evidentiary hearing to determine whether the government informant had lied about prior convictions); but see Hovey v. Ayers, 458 F.3d 892, 898 (9th Cir. 2006) (denying habeas relief where failure to impeach a 1980 California jailhouse informant was not ineffective assistance of counsel); Morales v. Ornoski, 439 F.3d 529, 534 (9th Cir. 2006) (denying habeas relief where petitioner's claim that prosecution knowingly presented a 1980s California jailhouse informant's false testimony was harmless).

See also Goldstein v. Harris, 82 Fed.Appx. 592 (9th Cir. 2003) (affirming the grant of habeas relief); Goldstein v. City of Long Beach, 603 F.Supp.2d 1242 (C.D.Cal. 2009) (noting that the informant in Goldstein was likened to "another notorious informant, Sidney Storch. . . .").

Based on our review of the state court records, and in particular the evidence that was presented at the Superior Court's evidentiary hearing, we conclude that the state court's conclusion that Storch testified truthfully was an unreasonable determination of the facts. There is simply too much evidence of Storch's pattern of perjury to conclude otherwise. At the time of Maxwell's trial, Storch was already employing the "booking" formula that he would later teach others and for which he would become famous; the housing records show that Storch had physical proximity to Maxwell; Storch openly admitted that he was in possession of a newspaper article about the murders; the newspaper article itself mentioned all of the specific facts to which Storch testified — namely, that the police had found Maxwell's palm print on a nearby park bench; and, finally, Storch contacted Deputy District Attorney Sterling Norris with the news of his cellmate's spontaneous confession and negotiated his own deal in exchange for his testimony.

Storch and Sterling Norris seem to have had an ongoing relationship. After testifying in People v. Sheldon Sanders, No. A039120 (L.A.Super.Ct. Apr. 25, 1988), Storch asked the prosecution for money. Storch stated, "[p]lerhaps I've been spoiled by the likes of Mr. Norris . . . but I've usually been allowed $30.00 from petty cash . . . and an OK for the Investigator to stop and get me some smokes and candy."

The Superior Court arbitrarily cabined Storch's perjury methods to a time period starting after 1984, and, in spite of the numerous known lies Storch told at Maxwell's trial, unreasonably found his testimony truthful. In 1984, Storch was 37 years old and already a career criminal. He had committed crimes of deceit, and had been arrested at least 13 times and convicted of at least three felonies. Storch told numerous confirmed lies at Maxwell's trial, was known as dishonest at the time of trial, was an experienced informant according to the testimony of three LAPD officials, and employed his signature method to "book" Maxwell. If Storch was a neophyte informant at the time of Maxwell's trial, his inexperience showed not in his forthrightness, but, rather, in the lack of creativity in the lies he told. Storch simply repeated facts about the Skid Row Stabber killings contained in a newspaper article he admitted to possessing, and he offered no details about any of the crimes that were not already public and in wide-spread print. Storch testified at Maxwell's trial because he wanted to obtain a benefit — a reduction in his sentence — and, because he was dishonest, he was willing to say or do anything to obtain that goal.

As we have observed, "informants are cut from untrustworthy cloth and must be managed and carefully watched." Bernalobeso, 989 F.2d at 333. A failure of vigilance by the prosecuting authorities, as was epidemic in Los Angeles County in the 1980s, resulted in widespread failure to "prevent [criminal informants] from falsely accusing the innocent, from manufacturing evidence against those under suspicion of crime, and from lying under oath in the courtroom." Id. As our own Judge Stephen Trott has explained in a law review article on the topic: "The most dangerous informer of all is the jailhouse snitch who claims another prisoner has confessed to him. The snitch now stands ready to testify in return for some consideration in his own case. Sometimes these snitches tell the truth, but more often they invent testimony and stray details out of the air." Trott, supra, at 1394.

Here, Storch lied about Maxwell's confession in order to reduce his own jail time. Storch went on to testify for the prosecution, and to lie, in numerous other cases. He became one of Los Angeles County's most infamous jailhouse informants and he operated at the height of the County's jailhouse informant scandal. We cannot "reasonably conclude that the finding" that Storch testified truthfully at Maxwell's trial "is supported by the record." Taylor, 366 F.3d at 1000. "AEDPA, although emphasizing proper and due deference to the state court's findings, did not eliminate federal habeas review. Where there are real, credible doubts about the veracity of essential evidence and the person who created it, AEDPA does not require us to turn a blind eye." Hall, 343 F.3d at 984 n. 8. We conclude, based on the record before the state court, that it was an objectively unreasonable determination of the facts to find that Sidney Storch was telling the truth at Maxwell's trial in 1984. 28 U.S.C. § 2254(d)(2).

2. Due Process Right

Having concluded that Storch's testimony was false, we next consider whether being convicted on the basis of Storch's false testimony violated Maxwell's right to due process under the Fourteenth Amendment. See Agurs, 427 U.S. at 103, 96 S.Ct. 2392. Maxwell argues that his conviction based on false material evidence violated his due process rights under the Fourteenth Amendment, and we agree.

First, because the state court's decision was "based on an unreasonable determination of the facts" under § 2254(d)(2), the AEDPA deference no longer applies. Detrich, 619 F.3d at 1059. Therefore, we proceed to "`resolve [Maxwell's related due process] claim without the deference AEDPA otherwise requires.' " Id. (quoting Panetti v. Quarterman, 551 U.S. 930, 953, 127 S.Ct. 2842, 168 L.Ed.2d 662 (2007)). As we recently explained in Detrich, this makes sense and is in accord with the deference principles of AEDPA because — in light of the state court's reliance on incorrect facts" "we do not know what the state court would have decided . . . [and] there is no actual decision to which we can defer." Id. at 1060.

In Killian, as here, the defendant was convicted of murder based, in large part, on the testimony of a jailhouse informant. 282 F.3d at 1206-07. In that case, we concluded that irrespective of whether the prosecutor knew that the informant had given false testimony, "one [could not] reasonably deny that [the jailhouse informant] gave perjured testimony at [petitioner's] trial." Id. at 1208. We went on to "determine whether `there is a reasonable probability that [without all the perjury] the result of the proceeding would have been different.'" Id. at 1204, 1208 (citing United States v. Young, 17 F.3d 1201, 1204 (9th Cir. 1994) and United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985)) (alterations in the original). We concluded that the perjury of "the prosecution's main witness" undermined confidence in the verdict and, therefore, to permit the defendant's conviction to stand on the basis of such evidence violated the petitioner's due process rights. Id. at 1208, 1211. Accordingly, we reversed the district court's denial of habeas relief. Id. at 1211. We explained that "a government's assurances that false evidence was presented in good faith are little comfort to a criminal defendant wrongly convicted on the basis of such evidence. A conviction based in part on false evidence, even false evidence presented in good faith, hardly comports with fundamental fairness." Id. at 1209 (internal quotation marks omitted).

Hall similarly concerned a habeas defendant who challenged his conviction, arguing that it was based on false material evidence in violation of his due process rights. 343 F.3d at 981. In that case, the habeas defendant objected to the admission of incriminating handwritten notes that a jailhouse informant supplied to the prosecution. See id. The defendant argued that whether or not the prosecution knew that the jailhouse notes admitted into evidence at trial were false at the time of trial, "to allow his conviction to stand, based on the present knowledge that the evidence was falsified, is a violation of his right to due process under the Fourteenth Amendment." Id. (citing Agurs, 427 U.S. at 103, 96 S.Ct. 2392). We agreed. We first determined that the alleged written confession, which a jailhouse informant had provided, was false and material evidence. Id. at 982-85. Accordingly, we concluded that to permit the petitioner's conviction to stand on the basis of such false material evidence violated his constitutional rights, and we reversed the denial of habeas relief. Id. at 985 (reversing the denial of habeas relief "[b]ecause false and material evidence was admitted at [petitioner's] trial in violation of his due process rights"). The Second Circuit has similarly explained that "[i]t is simply intolerable . . . if a state allows an innocent person to remain incarcerated on the basis of lies." Sanders v. Sullivan, 863 F.2d 218, 224 (2d Cir. 1988) (reversing the denial of habeas relief and holding that the petitioner's due process rights were violated when the petitioner in that case was convicted based on the material testimony of a witness who recanted); see also United States v. Walktch, 935 F.2d 445, 473 (2d Cir. 1991) (holding that the perjury by a key government witness, irrespective of whether the government knew of the perjury at the time of trial, "infected the trial proceedings" and required reversal).

Here, we have resolved the threshold factual question of falsity and concluded that Storch perjured himself when he testified that Maxwell confessed. We have also resolved the threshold legal question and conclude that under Hall and Killian, to permit a conviction based on uncorrected false material evidence to stand is a violation of a defendant's due process rights under the Fourteenth Amendment. We proceed, therefore, to consider whether Storch's testimony was material.

A constitutional error resultirig from the prosecution's failure to correct false testimony requires a new trial only if there is "any reasonable likelihood that the false testimony could have affected the judgment of the jury." Hayes v. Brown, 399 F.3d 972, 985 (9th Cir. 2005) (en banc). In order to determine whether Storch's perjury here undermines confidence in the verdicts, we again compare this case to Hall and Killian. In Hall, there was "absolutely no physical or forensic evidence connecting [the defendant] to the body or the alley in which it was found," and the notes supplied by the informant, like Storch's testimony, provided a confession in what was otherwise a weak case. 343 F.3d at 978 (noting that "[u]nable to find any physical evidence to connect Hall to the murder, the prosecution relied upon two documents provided by a jailhouse informant"). Because there was "a reasonable likelihood that the introduction of the falsified notes affected the jury's verdict," we concluded that the jailhouse notes were material and reversed the district court's denial of habeas relief. Id. at 984-85 (citing Giglio, 405 U.S. at 154, 92 S.Ct. 763).

Like Hall, Killian required us to "decide whether the use of perjured testimony . . . justified] habeas relief." 282 F.3d at 1206. In Killian, the jailhouse informant made "virtually the whole case for the government," and the prosecution emphasized the informant's testimony during closing arguments. Id. at 1209. Because the jailhouse informant was the "make-or-break witness" for the state, we concluded that there was a "reasonable probability that without all the perjury the result of the proceeding would have been different." Id.

Here, as in Hall and Killian, Storch was the "make-or-break" witness for the State. Storch's testimony was the centerpiece of the prosecution's case. Nearly all of the other evidence against Maxwell was circumstantial. In deciding whether to file murder charges against Maxwell, the prosecution itself acknowledged in internal written notes that were discovered during the evidentiary hearing that its case was "weak from an evidential standpoint." The only evidence that linked Maxwell to the Jones murder was the incourtroom voice identification of Maxwell by a witness who had been unable to pick Maxwell out of a lineup in which he spoke, and the fact that Maxwell possessed a knife consistent with Jones's stab wound. The only evidence that linked Maxwell to the Garcia murder was Maxwell's palm print on a nearby bench in an area Maxwell admitted frequenting, some muddy and consistent footprints, and a generic Bic lighter found in Maxwell's pocket at the time of arrest. In sum, Storch's testimony that Maxwell confessed to making a "mistake" in the commission of the Garcia murder was the prosecution's prize evidence. Furthermore, Storch's testimony went to both the Garcia and Jones murders; in fact, Storch's testimony was offered to establish Maxwell as the perpetrator of all ten of the Skid Row Stabber killings. Specifically, the State argued during closing arguments and continues to argue in its brief on appeal, that Storch's testimony "was offered primarily to prove that [Maxwell] had admitted responsibility for each of the ten murders."

Storch's testimony is significant not just because of the paucity of other evidence but also because of the content of his testimony. As this court and the Supreme Court have noted, the importance of "`the defendant's own confession is probably the most probative and damaging evidence that can be admitted against him.'" Arizona v. Fulminante, 499 U.S. 279, 296, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991) (quoting Bruton v. United States, 391 U.S. 123, 139-40, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968) (White, J., dissenting)); see also Moore v. Czerniak, 574 F.3d 1092 (9th Cir. 2009) (citing Fulminante and concluding that counsel's failure to move to exclude the petitioner's confession was prejudicial). The importance of Storch's testimony was underscored by the prosecution in its closing argument, when Norris emphasized Storch's testimony. See Hail, 343 F.3d at 976 (finding it significant' that the prosecutor emphasized the jail-house informant's note in his closing argument in reversing denial of habeas relief). The jury also asked to see the transcript of Storch's testimony during deliberation, highlighting its import.

In sum, the Superior Court's finding that Storch testified truthfully at Maxwell's trial was an unreasonable determination of the facts in light of the evidence that was presented at the state court evidentiary hearing, and Storch's false testimony prejudiced Maxwell's trial. The State's reliance on that perjured testimony undermines confidence in the verdict. See Killian, 282 F.3d at 1210 (citing Strickler v. Greene, 527 U.S. 263, 290, 119 S.Ct. 1936, 144 L.Ed.2d 286 (1999)). Because there is a reasonable probability that Storch's perjury affected the judgment of the jury, we must reverse the denial of Maxwell's habeas petition as to this claim. See Agurs, 427 U.S. at 103, 96 S.Ct. 2392.

C. Brady violation

Next, Maxwell argues that the prosecution violated his due process rights under Brady, 373 U.S. at 87, 83 S.Ct 1194, when it failed to disclose material evidence about Sidney Storch. Because no state court has offered a reasoned decision for denial of the claim, we conduct an independent review of the record to determine whether the California Supreme Court's summary denial of Maxwell's Brady claim constituted an unreasonable application of Brady. See Greene, 288 F.3d at 1088-89. "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). Here, we conclude that the state court could not have reasonably determined that the suppressed evidence relating to the deal Storch received and Storch's prior cooperation with law enforcement as an informant was not material. The failure to disclose this information undermines confidence in the verdict, and we, therefore, reverse the district court's denial of habeas relief on this claim.

Maxwell also argues that the prosecution withheld material evidence related to Storch's reputation, Storch's heroin use, the housing records, and the Sheriff's Department's practice of moving informants into cells with defendants to facilitate police investigations. Because Maxwell has failed to establish that any of this evidence, if suppressed, was material, we do not discuss Maxwell's Brady claim with respect to this evidence.

There are three components of a Brady claim: (1) the evidence at issue must be favorable to the accused, either because it is exculpatory or because it is impeaching; (2) the evidence must have been suppressed by the State, either willfully or inadvertently; and (3) prejudice must have ensued. Strickler, 527 U.S. at 281-82, 119 S.Ct. 1936. The prosecution's suppression of evidence favorable to an accused violates due process where the evidence is material, irrespective of the good faith or bad faith of the prosecution. Brady, 373 U.S. at 87, 83 S.Ct. 1194; see Kyles, 514 U.S. at 437, 115 S.Ct. 1555 (holding that an "individual prosecutor has a duty to learn of any favorable evidence known to the others acting on the government's behalf in the case, including the police"). Evidence is material if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different," Strickler, 527 U.S. at 280, 119 S.Ct. 1936. A reasonable probability is one that is sufficient to undermine confidence in the outcome of the trial, see Kyles, 514 U.S. at 434, 115 S.Ct. 1555. Whether the suppressed evidence was material must be considered collectively, not item by item. Id.

Here, Maxwell argues that the State failed to disclose (1) that the sixteen-month deal Storch received in exchange for his testimony was not the original deal offered to him, but rather a deal Storch independently negotiated for himself; and, (2) Storch's prior informant history.

1. Failure to disclose the details of Storch's deal

At the time of trial, Storch maintained that his primary motivation for testifying was to do his civic duty, and Storch completely denied the existence of any deal with the prosecution. Storch did ultimately concede during cross-examination that he had received a reduced sentence of sixteen months for his pending cases in exchange for his testimony. Yet, Storch never revealed that his sixteen-month deal was the second deal he received and, more importantly, one he had negotiated independently from his public defender. In fact, when he was asked directly on cross-examination, Storch denied any prior deals and the prosecution never corrected this lie.

At the evidentiary hearing, Arnold Lester, the public defender who represented Storch at the time of Maxwell's trial, testified that he had worked out a guilty plea deal to consolidate Storch's five pending cases into a combined total sentence of 36 months. Lester further testified that this was a reasonable sentence given the number of counts and Storch's prior record. Lester testified that Storch, however, proceeded to work out privately the sixteen-month sentence deal that he ultimately received. Maxwell was not informed before or at trial of the prior 36-month deal, and the prosecution never corrected Storch when he stated that there was no prior deal. Maxwell argues that the State violated Brady when it failed to disclose that the sixteen-month deal was Storch's second deal, one that he privately negotiated without the assistance of his public defender.

In general, Brady requires prosecutors to disclose any benefits that are given to a government informant, including any lenient treatment for pending cases. See, e.g., Giglio, 405 U.S. at 150, 92 S.Ct. 763; Benn v. Lambert, 283 F.3d 1040, 1057 (9th Cir. 2002). The question here is whether the prosecution's failure to disclose the details of the prior deal, specifically Storch's negotiation of a subsequent deal, was material. In Benn, we held that, among other evidence withheld by the prosecution, the prosecution's failure to disclose a subsequent deal — even where that deal resulted in minimal benefit to the informant — prejudiced the defendant. Benn, 283 F.3d at 1057. "The undisclosed benefits that [the informant] received added significantly to the benefits that were disclosed and certainly would have `cast a shadow' on [the informant's] credibility. Thus, their suppression was material." Id. at 1058.

This case is different than Benn insofar as Benn concerned a failure to disclose a better (albeit only slightly) deal. Here, Maxwell was informed at trial of the deal that Storch ultimately received. Nonetheless, the fact that Storch pursued an additional benefit to himself — independent of and subsequent to the agreement worked out by his public defender — would have provided Maxwell with impeaching evidence relevant to Storch's motivation for testifying and of a different character than the other impeachment evidence which came to light. Storch testified that "his initial contact with anybody about [testifying in the Maxwell case] was with the chaplain's office in terms of this . . . I was looking for guidance, more or less." When asked during cross-examination if he had any "intention to lighten [his] load [i.e., sentence]," Storch adamantly stated that his intentions were not to reduce his sentence: "Initially, no, sir, and I will say strongly that way, initially no." Evidence that Storch had already secured a plea agreement and came forward to testify at Maxwell's trial for the sole purpose of working a new and better deal would have directly impeached Storch's testimony for why he came forward. As the Supreme Court noted in Napue, "we do not believe that the fact that the jury was apprised of other grounds for believing that the witness . . . may have had an interest in testifying against petitioner turned what was otherwise a tainted trial into a fair one." 360 U.S. at 270, 79 S.Ct. 1173. Furthermore, the details of Storch's plea negotiations would have helped to establish Storch's sophistication and directly contradicted the naivete he professed at trial. The fact that Storch had worked a deal with Norris without his public defender would have been the only evidence — other than the evidence of Storch's informant past, which was also suppressed — of Storch's informant sophistication. Such evidence differed substantially from Storch's other lies, which came to light during cross-examination. Storch was not some innocent inmate who happened to overhear his cellmate's confession and then had to struggle with the moral dilemma of whether to come forward, seeking religious guidance, as he represented. Storch knew that his testimony against Maxwell was bartering material. He used his know-how and connections to negotiate a better deal.

In sum, the evidence the government withheld would not simply have been cumulative of the impeachment evidence brought out during cross-examination of Storch at trial. Rather, it would have created substantial doubt as to Storch's credibility, particularly with respect to his professed naivete. The details of Storch's own agreement with the prosecution, and the fact that Storch had negotiated the subsequent deal independent of his public defender, would have allowed defense counsel to discredit Storch on a novel basis. The prosecution's failure to correct Storch's false testimony about his prior deals was prejudicial.

2. Failure to disclose Storch's experience as an informant

Maxwell further argues that the prosecution violated his due process rights when it failed to disclose Storch's prior informant activities. This evidence, Maxwell argues, would have impeached Storch's credibility and shown him to be a sophisticated informer. The Superior Court did not dispute that Storch was an undisclosed police informant, but the court characterized him as unsophisticated because there was no record of him receiving any benefit in exchange for his informant activities prior to Maxwell's case.

Here, as in Benn, Storch denied that he had previously worked as an informant. Benn, 283 F.3d at 1058; see also United States v. Shaffer, 789 F.2d 682, 688-89 (9th Cir. 1986). Specifically, Storch stated that he had never testified for the district attorney and represented himself as someone new to the informant world. For its part, the prosecution did not reveal that, although Storch may technically not have testified for the state, he had on several occasions aided in investigations and acted as an informant on numerous previous occasions.

At the evidentiary hearing, Maxwell learned for the first time that Storch had assisted the LAPD's forgery division in the investigation of multiple forgery cases prior to Maxwell's trial. As this court explained in Benn, "[t]he state argues that this undisclosed evidence about [the informant's] history was not material; however . . . undisclosed evidence that an informant had previously participated in a . . . investigation was important impeachment evidence that could have been used to discredit the informant's trial testimony that he had not previously participated in that type of investigation." Benn, 283 F.3d at 1058; see also Shaffer, 789 F.2d at 688-89 (holding that defendant's undisclosed prior involvement in a state investigation contradicts his prior testimony and was material).

In light of the import of Storch's testimony, evidence of Storch's prior dealings with the forgery unit could have been used to discredit Storch had it been revealed at the time of trial. Furthermore, it would have provided additional evidence that Storch was a sophisticated informant with developed connections and relationships within the LAPD. Such information may have led Maxwell to investigate Storch more thoroughly and led to the discovery of the information that only came to light at the evidentiary hearing — namely, that Storch was an experienced informant with a history of lying. Storch's involvement in prior forgery investigations contradicts his representations at trial that he had never worked as an informant for the District Attorney's office. It also provides additional grounds for a jury to question Storch's credibility, grounds which relate to the prosecution's failure to disclose the fact that Storch's plea deal was a subsequent one that he negotiated.

3. Cumulative Brady errors

In determining whether the suppression of impeachment evidence is sufficiently prejudicial to rise to the level of a Brady violation, we must analyze the totality of the undisclosed evidence "in the context of the entire record." Agurs, 427 U.S. at 112, 96 S.Ct. 2392; see also Bagley, 473 U.S. at 682, 105 S.Ct. 3375. The cumulative effect of all the undisclosed evidence may violate due process and warrant habeas relief under AEDPA. Barker v. Fleming, 423 F.3d 1085, 1094 (9th Cir. 2005) (explaining the "Supreme Court's requirement that the materiality of the with-held evidence be analyzed cumulatively . . . not item by item" (citing Kyles, 514 U.S. at 436, 115 S.Ct. 1555)).

Here, the prosecution itself admitted that the evidence against Maxwell was weak, that Maxwell had consistently maintained his innocence, and that the police testimony about the date of the palm print was speculative. For these reasons, and those explained previously, Storch's testimony was crucial to the prosecution's case.

The prosecution failed, however, to disclose multiple pieces of critical impeachment information that could have been used to undermine the credibility of Storch. Analyzed collectively, the withheld impeachment evidence that Storch had negotiated himself a better deal coupled with the evidence of Storch's undisclosed informant past would not simply have been cumulative of the impeachment evidence introduced at trial, which included lies about his level of education and number of felony convictions, but would have created substantial doubt as to Storch's credibility for different reasons. The withheld evidence went to Storch's sophistication and motivation in his capacity as a prosecution informant and not, like the other evidence produced at trial, to his general propensity for dishonesty. Even if the lies did not provide a novel angle of attack on Storch's credibility, which we believe they do, as we explained in Killian, "the finders of fact were deprived of the fundamental inference that if [the government informant] lied about X, Y, and Z, it is quite likely that he lied about Q, R, and S." 282 F.3d at 1209. The evidence with-held revealed that Storch, like the witness in Benn, was "completely unreliable, a liar for hire, [and] ready to perjure himself for whatever advantage he could squeeze out of the system." 283 F.3d at 1059 (holding that the prosecution's failure to disclose multiple pieces of critical impeachment evidence that could have been used to undermine credibility of the jailhouse informant who testified that defendant admitted committing the murders was sufficient to violate Brady).

Because Storch's testimony implicating Maxwell was critical to Maxwell's conviction, the jury's assessment of Storch's credibility was crucial to the outcome of the trial. If the jury had not believed Storch, Maxwell may not have been convicted. The prosecution's failure to disclose this impeachment evidence undermines confidence in the outcome of Maxwell's trial, and the California Supreme Court's decision to the contrary was an unreasonable application of Brady.

VI. Conclusion

Storch was one of the most infamous jailhouse informants in Los Angeles history. In particular, as confirmed by Kryniak's and Markus's testimony, Storch had a propensity to go after high profile cases. The "Skid Row Stabber" case would have been just such a case, and Storch's testimony at Maxwell's trial is a textbook example of the "booking" method that Storch helped make famous. Based on the evidence brought to light during the lengthy evidentiary hearing, we conclude that the state court's finding that Storch did not give false testimony was an unreasonable determination of the facts in light of the evidence. We further conclude that there is a reasonable probability that this false testimony affected the jury's verdict. Because the State convicted Maxwell on the basis of false and material evidence in violation of his due process rights, we direct the district court to grant Maxwell habeas relief on this claim. We further conclude that the prosecution withheld material evidence in violation of Brady.

We reverse the district court's judgment and remand with directions to grant a writ of habeas corpus directing the state to provide Maxwell with a new trial in a reasonable amount of time or to release him.

REVERSED AND REMANDED.