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07-99001 RE; Debra Milke March 14

07-99001 RE; Debra Milke March 14

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Decision of the 9th Circuit Court of Appeals March 14, 2013
Decision of the 9th Circuit Court of Appeals March 14, 2013

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Published by: crimefile on Mar 15, 2013
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07/10/2013

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Charles L. Ryan is substituted for his predecessor, Dora B. Schriro,
*
as Director of the Arizona Department of Corrections, pursuant to Fed. R.App. P. 43(c)(2).
FOR PUBLICATION
UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
D
EBRA
J
EAN
M
ILKE
,
 Petitioner-Appellan
,v.C
HARLES
L.
 
YAN
,
*
 Respondent-Appellee
. No. 07-99001D.C. No.CV-98-00060-PHX-RCBOPINION
 
Appeal from the United States District Courtfor the District of ArizonaRobert C. Broomfield, Senior District Judge, PresidingArgued and Submitted November 3, 2010—San Francisco, CaliforniaFiled March 14, 2013Before: Alex Kozinski, Chief Judge, Jerome Farrisand Carlos T. Bea, Circuit Judges.Opinion by Chief Judge Kozinski;Concurrence by Chief Judge Kozinski
 
M
ILKE V
.
 
YAN
2
This summary constitutes no part of the opinion of the court. It has
**
 been prepared by court staff for the convenience of the reader.
SUMMARY
**
Habeas Corpus/Death Penalty
The panel reversed the district court’s denial of a28 U.S.C. § 2254 habeas corpus petition challenging aconviction and capital sentence for murder, conspiracy tocommit murder, child abuse and the kidnapping of her youngson.Petitioner Milke’s conviction was based largely on thetestimony of Police Detective Saldate, who allegedly obtainedher confession. The panel held that the state remainedunconstitutionally silent instead of disclosing informationabout Det. Saldate’s history of misconduct and accompanyingcourt orders and disciplinary action. The panel held that thestate court’s failure to comply with
 Brady v. Maryland 
,373 U.S. 83 (1963), and
Giglio
v.
United States
, 405 U.S. 150(1972), resulted in a decision by the state post-convictioncourt that was contrary to clearly established Supreme Courtlaw, and that the state post-conviction court so misread theevidence documenting the state’s
 Brady
violations that itsdecision was based on an unreasonable determination of thefacts. As a result of these two failings, the panel could notaccord deference to the state court’s decision under the Anti-Terrorism and Effective Death Penalty Act.Reviewing the
 Brady
claim on the merits, the panel firstheld that evidence in Det. Saldate’s personnel file,documenting the detective’s lack of compunction about lying
 
M
ILKE V
.
 
YAN
3during the course of his official activities, was favorable toMilke’s defense and likely would have affected the sentence.The panel next held that state knew of the evidence in the personnel file and had an obligation to produce thedocuments, and that there is a reasonable probability thatdisclosure of the evidence would have led to a differentresult.The panel remanded with instructions that the districtcourt grant a conditional writ of habeas corpus setting asidethe conviction and sentence. The panel also ordered thedistrict court to order the state to provide Milke’s counselwith Det. Saldate’s police personnel records covering all of his years of service. The panel further ordered that, after thestate has turned over the records, it shall provide a statementunder oath certifying that all records have been disclosed andnone have been omitted, lost or destroyed, otherwise thedistrict court shall hold an evidentiary hearing to determinewhether and why any records have not been produced.Afterwards, the district court shall order Milke releasedunless the state decides to retry her. The panel retained jurisdiction over any appeal arising from this remand.Finally, the panel ordered the clerk of this court to sendcopies of this opinion to the U.S. Attorney for the District of Arizona and to the Assistant U.S. Attorney General of theCivil Rights Division, for possible investigation into whether Det. Saldate’s conduct, and that of his supervisors and other state and local officials, amounts to a pattern of violating thefederally protected rights of Arizona residents.Chief Judge Kozinski concurred to comment on this“troubling case.” He would reverse the district court’sfinding that Milke knowingly waived her 
 Miranda
rights

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