Armenia Cudjo, Jr. v. Robert Ayers, Jr.

injunc- a preliminary denial affirm the

tion. Jr., CUDJO, Levi

Armenia Petitioner-Appellant, Jr., Warden, AYERS, L. Robert at San State Prison Quentin, Respondent-Appellee.

No. 08-99028. Appeals, United States Circuit. Ninth Feb. 2012. Argued and Submitted Sept. Filed Littrell, Deputy Federal

John Lewis Black, Defender, Froyen Katherine Public Drozdowski, Office of the and Mark R. California, for Federal Public Defender CA, petitioner-appel- Angeles, Los for the lant. Bilderbaek, II, Supervising

James W. General, Attorney of the Office Deputy California, Attorney Ange- Los General les, CA, for the respondent-appellee. KOZINSKI, ALEX Before: Chief F. DIARMUID O’SCANNLAIN Judge, SMITH, Judges. RANDY Circuit and N. SMITH; N.R. Dissent Opinion Judge by Judge O’SCANNLAIN.

OPINION

SMITH, Judge: N.R. Circuit Mississippi,

In Chambers v. (1973), clearly Supreme the United States exclusion of trustwor- established that the thy necessary exculpatory process due a defendant’s trial violates clearly This present a defense. applied at the time established federal law semen found on the victim revealed Court decided Peo that it could have come from the Petition- er, ple Cudjo, Cal.4th but not or the victim’s (en banc) (per Shortly thereafter, 863 P.2d husband. Petitioner curiam), subject appeal. of this habeas with, charged among things, other in materially The facts Chambers are degree first murder engaged while in a ap from the distinguishable facts robbery burglary. and a Petitioner plead- Therefore, peal. the California guilty ed not to all charges. “contrary Court’s decision was to Investigating officers Greg- interviewed law, clearly established Federal as deter ory Cudjo (“Gregory”) day the after the by the

mined of the United victim’s murder and tape-recorded the in- 2254(d)(1), § States.” 28 the U.S.C. and interviews, terview. these Gregory Accordingly, error was not harmless. the maintained that he had remained in the district denial of court’s Petitioner’s habe camper throughout the but morning, REVERSED, RE petition is and we gone Petitioner had been for about two MAND this case to the district with Gregory that, hours. also said when he instructions to issue writ habeas and Petitioner saw officers following shoe as to corpus Petitioner’s conviction.1 tracks from the victim’s home to Petition- camper, er’s Petitioner confessed to Greg- I. AND FACTS PROCEDURAL ory he had murdered the victim. Ac- HISTORY cording Gregory, during the short Investigation

A. and Tri State Court amount of time that it police took the al of Petitioner2 walk the third aof mile to camper, Petitioner was relay Amelia Prokuda was found dead in her able to extensive de- apartment in March A tails about patholo- of 1986. crime and the house. gist These the cause death details included what the determined to be victim was wearing, that multiple pet blows to the back and there was a snake in sides of aquarium, that Investigating boy head. officers found there was little in semen house, that present jacket on the victim’s there was a thigh inner with medals closet, area, genital and but how there was no and the Petitioner hog- indica- tion tied the woman with Gregory of traumatic sexual assault. neckties. Tests nothing Prokuda’s blood found no or mentioned of Petitioner drugs raping alcohol. having with prelim- sex the victim. At the footprints Officers followed from the vic- inary hearing, Gregory largely repeated house a camper sight tim’s within of the story. this brother, victim’s house. Petitioner and his Gregory Cudjo trial, (“Gregory”), were found in At the prosecution called Proku- camper Analysis son, Kevin, were arrested. five-year-old da’s who was at claim, grant (9th 1. Cir.2010). Because we Washington, relief on this 614 F.3d need not address other issues raised in Accordingly, preliminary facts relevant to opening Petitioner's brief. See Hurles v. specific this issue have been summarized (9th Cir.2011). Ryan, 650 F.3d 1301 decision, state which are af- presumption forded a of correctness that The California Court's decision convincing rebutted clear and evi- Cudjo, 863 P.2d at 2254(e)(1); § dence. See 28 U.S.C. Hernan- issue, the last reasoned on this so decision Small, (9th 282 F.3d n. 1 dez this decision to which federal courts Cir.2002). heightened Cheney owe deference. See time, Gregory there. At that testified incarcerated Kevin murder. during

home house, put a in a cell with Culver. Culver into was locked man that a came cell, that, Gregory in the neck and demanded testified while mother’s knife his into asked him pacing restlessly. man mother Culver money. The took Kevin’s answered, wrong. Gregory and Kevin went up, and tied her what was room stayed “Man, they got there me in here for murder” into his own bedroom identify somebody.” Kevin could “I talk to long time. need [to] (altera- the perpetrator. Petitioner as P.2d at 647 that, day on the testified Kevin then “started original). tion in murder, his man threatened moth- who talking why he’d done and what about ” no arms and Culver, er had tattoos According he’d done.... tak- photograph hair. A rob, “I bur- Gregory said: went over facial day of the murder showed en on lady’s house and she seen me glarize or mustache as goatee Petitioner had all the stuff went and then that’s when biceps, his his well as tattoos on happened.” down and that’s what Id. shoulder, Gregory and his lower left arm. then he “went in Gregory described how day the mur- had no facial hair on the supposed the house and this woman der. clothes, caught washing and she been coming him in the house.” Id. “When the Grego- to call prosecution

The intended just beating woman seen him he started trial, Gregory re- ry a witness at but as up then she started the woman and and testify prosecution for the fused her screaming, so he knocked out and privilege against invoked his self-incrimi- her, hitting it again, kept went and done However, Gregory’s preliminary nation. kept hitting kept banging her.... He her testimony and hearing statements in the head.” Id. He “knocked around her read into police inculpating Petitioner were out,” back to” when she “came he and evidence. hitting hitting “started her and her with a theory at trial was that The defense’s hit her with.” hammer or whatever he Id. innocent, and that his Petitioner Culver, According Gregory said that Gregory had killed Prokuda. This brother guns jewelry he found the house. the tes- theory partially predicated explained he Gregory that knew vic- Culver, timony of who “was John witness tim, they dope had “smoked to- Cudjo testify prepared Gregory that Id. As gether.” the California for the murder responsibility had admitted noted, men- “Gregory Court also did not Gregory while Culver and [Prokuda] Id. raping tion the woman.” Antelope together were incarcerated Cudjo, 25 Valley sheriffs substation.” prosecutor The then cross-examined P.2d at Gregory “if had men- Culver asked objected admissibility prosecutor anyone being tioned besides the woman the evidence. in the house.” Culver re- present jury's sponded Gregory that had not mentioned presence, Out of the Culver testi- Petitioner and it at the time. “Culver had fied that he had known the shortly Gregory his for about 15 to 20 talked to before Culver’s Gregory brother and, conversation, testimony,” through this years. Gregory When and the Petitioner “probably that there brought Antelope Culver had learned were arrested and boy somebody a little in the house.” (shortly after the was Valley sheriffs station that, thereafter, victim), testified was also Id. Culver also murder of the Culver Gregory testimony had been removed from the cell travesty justice,” would be a necessary Gregory he with Culver. When lacked “indi- shared reliability.” cia of returned, the court he told Culver detectives ruled it was not admissible as a decla- about had interviewed him murder. against ration interest. The trial court Gregory prosecutor asked whether later explained also that it found Culver’s that he told Culver had blamed brother and untrustworthy,” “unreliable for at first the murder. Id. Culver said and that the interpretation court made this so, Gregory had done but then imme- “intepret[ed] when section 1230 of the diately explained supposed that he merely Evidence Code.” Id. It buttressed this con- Gregory had blamed Petitioner. That clusion with a finding (1) supposition was based on the fact that value the evidence “was outweighed by thereafter, shortly was released prejudice under section 352 of the Evi- Culver knew Petitioner’s criminal dence Accordingly, Code.” Id. Culver was history was than Gregory’s. worse On not allowed to testify, and Petitioner was cross, explained Culver further that he witness for the defense. spoke Gregory’s first about confession continued, When the trial Petitioner tes- investigator when defense contacted and tified he had known the victim for interviewed him three months before this time, some and that he had consensual sex testimony. with her in exchange drugs on the testimony, After Culver’s court morning Afterwards, of the crime. he argument presence heard outside the of went home and Gregory told what had jury on whether admit Culver’s and, happened; jog; went a after re- testimony. The prosecutor argued that home, turning he ran errands with his excluded, testimony should be because Gregory. mother and Petitioner testified demeanor, background, “Culver’s and rela- that he did kill Prokuda. defendant, tionship to the as well as the argument, In closing to discount Peti- testimony,” of content his made him a testimony, prosecutor tioner’s argued: Id., “unworthy “liar” that was belief.” And you what [defendant] wants to be- Cal.Rptr.2d 863 P.2d at 647-48. lieve, and what I perhaps believe to be The trial court asked whether it would be telling thing the most whole this “making fact, a judgment trier as who, woman this from all appear- taking away jury,” from the if it made happily ances is a married mother ... Id., Cal.Rptr.2d a determination. going strange intercourse with P.2d at prosecutor 648. The an- frankly man, any man —a black man— swered that the California rules of evi- her living on room couch with her five required that dence determination on some year old in the house. occasions. Id., 25 Cal.Rptr.2d P.2d at 661 (alteration added). contrast, argued original)

In (emphasis defense counsel testimony should be admitted as an jury convicted Petitioner on all hearsay rule, exception to the because it counts, and subsequently Petitioner was against penal was a declaration interest sentenced to death.

under California Evidence Code Section Supreme B. The California Court’s agreed 1230. The trial court Appeal on Decision Direct hearsay

statement themet for a exception against penal statement interest. Howev- reviewing analysis trial court’s er, the court statutory found that “to allow this against-penal-interest excep- have been should rule, the California hearsay

tion to claimed, admitted, “if made Court concluded true,” IcL, probably be- ways. was statement] 25 [the several court had erred given was “under circumstances cause it P.2d 648. that the hearsay substantial assurances First, providing be under the admissible trustworthy.” Id., 25 Cal. in- penal confession against exception, declaration (emphasis at 649-50 863 P.2d by Rptr.2d who is made declarant terest must be added). unavailable, declaration must have and the sufficiently trustworthy. In deter- been acknowledged that some of passes this whether the statement mining by Gregory were alleged statements trustworthiness,” the Califor- “threshold phys- with the “inconsistent to some extent explained that the trial nia evidence, notably ical most just the “may into account not take hogtied she was that the victim was before under which the circumstances

words but death.” beaten to uttered, they possible motivation were the court ex- 649. declarant, rela- declarant’s discrepancies might plained “such Id., 25 to the defendant.” Cal. tionship Gregory’s Cul- agitation attributable Rptr.2d 863 P.2d misunderstanding....” ver’s law to the cir In its of this Second, Supreme Court the California cumstances, that the trial court did “not focus noted essentially indisputable it was held that exclusively, primarily, or even whether by unavailable virtue of might be Gregory’s statement against exercising privilege self-incrim Rather, false.” Id. the court “erred” Further, Gregory’s statement ination. “accepting] prosecution’s contention liability its face criminal was on risking probable a liar who should that Culver was Id., 25 interest. Cal. against Gregory’s be as a live therefore excluded witness.” Rptr.2d P.2d 648-49. Howev Supreme “dis- Id. The California Court er, that, if these the court continued even the agreefd]” government’s with conten- in findings dispute alleged were and the could properly tion that “the statutory not fit within the statement did credibility of consider the the in-court wit- against-penal-interest exception, ness,” “credibility that the explained and “discretion to conclude that court still had proper the in-court witness not a of hearsay char despite it admissible its was consideration in this context.” Id. Id., Cal.Rptr.2d P.2d acter.” explained “[n]either court also at 649. court noted that rule are con- exceptions nor its account, of [b]y credibility made his cerned with the witnesses Culver’s Thus, directly while testify jury.” alone spontaneously, statement who “[e]xcept in ... rare instances of demon- acquaintance, with an within hours after falsity, credibility about the Gregory, a murder which who had no strable doubts for alibi, left for custody prime suspect. was as the in-court witness should be in a of resolution; doubts do not descrip- jury’s fit Gregory tended to Kevin P.’s assailant, ground refusing a for admit evi- tion of the and much of the afford evidence, hearsay exception particular the incrimi- dence under other Id., penal interest.” nating prints, against was as consistent statements shoe Cal.Rptr.2d 863 P.2d at 650. guilt as Gregory’s with with defendant’s. Third, reviewing the trial court’s anal- cate the federal Constitution.” Id. It con- probative of versus val- strued the ysis prejudice Supreme United States Court’s (Evidence precedent only section on this as having ue of the evidence Code issue held 352), Court con- that “the to present the California constitutional trial court had abused its confront cluded that the material witnesses explained infringed by The court that there general discretion. rules of evidence or admitting procedure preclude claim Culver’s testi- which material testi- mony mony pertinent would have “taken undue amount cross-examination for time,” “any reasons, presented apparent danger arbitrary of such as unwarranted issues,” “any or created assumptions of confusion of and overbroad of untrustwor- prejudice’ prosecu- danger ‘undue thiness.” Id. The California hand, tion.” Id. On other the evidence Court stated that the United States Su- value,” preme “had substantial raised Court has a suggested “never “requisite regarding reasonable doubt” trial court commits constitutional error “highly individually material” issue whenever assesses and re- “highly necessary” comparable jects as “no material defense witness incredi- Gregory’s guilt” direct evidence was ble.” Id. explained available. Id. The court con- credibility, any doubts about Culver’s how- cluded while an individual witness’s legitimate, ‘preju- ever “do not constitute credibility properly the province “is evidentiary under” this rule. dice’ jury guidance absent clearer Rather, such a “proper- determination was above, lightly we will not assume that /¿.(internal

ly province jury.” trial court invites federal constitutional omitted). Thus, quotation marks doubts scrutiny decides, each and every time it credibility provide about did Culver’s circumstances, particular basis testimony, sufficient basis to exclude the unworthy to exclude a defense witness as do trial court’s decision to so was Id., credit.” an abuse of discretion. P.2d 652. Given that the court deter- 390, 863 at 651. mined a “state law error” had oc- curred, Lastly, the California Supreme apply the court did not the federal argument addressed the Defendant’s harmless test forth in Chapman. error set Id., 390, trial Cal.Rptr.2d “the court’s exclusion of tes- Culver’s 651-52. timony Instead, usurped process applied his federal court due the the lower rights,” fair depriving required and trial in essence error threshold harmless un- him of “right present his constitutional der California state law found that no Id., The prejudice defense.” court admitted that had occurred. 25 Cal. require such a if Rptr.2d violation would reversal 863 P.2d at 652-53. government prove the did not the error Two California Court Justices beyond a was harmless reasonable doubt. issue, on this arguing dissented that the Chapman v. (citing California, violated, federal Constitution had been 18, 24, 87 S.Ct. L.Ed.2d 705 error not therefore the was harmless un- (1967)). However, the court found “no rigorous der more federal harmless constitutional violation.” Id. Id., analysis. Cal.Rptr.2d error (Kennard, J., explained The court that “the mere erro- P.2d at dissenting). explained neous exercise of under Kennard that the appli- discretion Justice [evidentiary] impli- ‘normal’ rules does not cable federal law made clear “[r]e- De- Federal District Court’s present defense C. strictions Petition nial of the Habeas constitutionally if permissible are evidence legitimate inter- they ‘accommodate other The district court determined are process’ and the criminal trial ests testimony question” is Culver’s “there no ‘arbitrary disproportionate or not Gregory’s confession “would regarding ” Id., designed are to serve.’ they purposes crucial to defense have been deemed (quot- P.2d at 670 Cal.Rptr.2d notes that district court case.” The 44, 55-56, Arkansas, 483 U.S. Rock v. ing the- acknowledged defense’s trial court (1987); L.Ed.2d 37 only 107 S.Ct. when it said ory, “[t]he 1038). Chambers, murder, person shows one committed However, that the argued indicating it’s either Mr. Justice Kennard the evidence Cudjo.” Cudjo Gregory or Mr. “effectively concede[d]” Armenia majority had addition, pointed the district court out In case, excluding testimony this “[i]n admitted “this Culver, prosecutor witness, not John was defendant’s as is going to resolve itself this case any reasonably legiti- to further necessary out, felony murder com- either flat cold interest.” Id. governmental mate premeditated Armenia it is mitted “rejected] the ma- Kennard also Justice by Gregory.” committed The dis- murder that there was con- jority’s suggestion court also noted that the defense trict in this case because stitutional violation three to call to show that had witnesses was barred from the defendant’s witness Gregory, committed the murder: testifying ... as a result of Mitchell, and Culver. Howev- James John of state law.” court’s erroneous er, Gregory and Mitchell invoked both 863 P.2d at 671. only witness Fifth Amendment. view, “suggestion Kennard’s this Justice testimony present this available to of the to an odd distortion amounted] Culver, testimony making his crucial to the of the constitutional purpose nature theory of the case. defense’s guarantee. state and federal What the district conditioned the accused Constitution secure for import testimony upon of Culver’s defense, merely present a not right to it was reliable. The district court whether unduly right to be free of restrictive state found, contrary findings Cali- Id., 25 procedure.” laws of evidence and Court, fornia that such at 671-72. 863 P.2d enough be admitted reliable Thus, the concluded that when a dissent district into evidence. permitted witness was not “crucial defense reasoning,” fo- “adopt[ed] the trial court’s testify,” the defendant’s fact was an old cusing on the that Culver Id., 25 rights were violated. constitutional Petitioner, felony had a convic- friend 390, 672. Accord- 863 tion, many had relatives with criminal rec- applied the more ingly, Justice Kennard ords, anyone Gregory’s did tell about not demanding test and federal harmless error long time and came confession for that, success “[t]he [the] found investiga- when an forward interviewed large pro- in measure depended defense Additionally, court noted tor. the district viding jury with sufficient reasons be could inter- that some of explanation preted defendant’s as inconsistent with the evidence. credit defense,” Accordingly, “conclude[d] the district court ruling court’s eviscerated testimony would not have that Culver’s clearly prejudicial.

761 (2003)). substantially de- L.Ed.2d 144 bolstered We now address [Petitioner’s] theory exceptions fense committed the each these turn. Therefore, the district court de- murder.” First, as the “contrary to” petition corpus habeas nied clause, ‘contrary state court “[a] decision this issue. clearly to’ Supreme established if

precedent court applies state a rule governing that contradicts the law set II. STANDARD OF REVIEW forth in Court cases or if the review de novo the district “[W]e con state court fronts set of facts materi grant deny petition court’s decision to or ally indistinguishable from those at issue corpus.” for a writ of habeas Lambert v. and, decision of the (9th Cir.2004). 943, Blodgett, 393 F.3d 964 nevertheless, at a arrives result different precedent.” from its Id. (quoting Lam not Because Petitioner did initiate dis- bert, 974); Williams, 393 F.3d at see also 1999, An- proceedings trict court until 405-06, 120 529 U.S. at S.Ct. 1495. Penalty titerrorism and Effective Death (AEDPA) Act of 1996 applies. See Lindh analyzing When whether federal 2059, Murphy, v. 521 U.S. 117 S.Ct. clearly established, law was “only de (1997). 138 L.Ed.2d To obtain relief 481 clearly finitive source of established feder AEDPA, a under over- defendant must (as al law under AEDPA is holdings high come a threshold: dicta) opposed to the may grant- relief Federal habeas Court as the time of the state court 2254(d) § subject ed for claims unless decision.” Clark Murphy, v. 331 F.3d (9th 1062, 1069 Cir.2003), it is shown that the earlier state court’s overruled on oth to’ contrary grounds by Lockyer, decision ‘was federal law er 538 U.S. clearly then holdings 144; established S.Ct. L.Ed.2d also see Cul — Court, 2254(d)(1); § Pinholster, U.S. -, of this or that len 1388, 1399, (2011) ‘involved unreasonable 179 L.Ed.2d 557 (quot law, 2254(d)(1); 71-72, § ing it ‘was Lockyer, 538 U.S. S.Ct. 1166). on an based unreasonable determination light of the facts’ in of the record before Second, toas “the ‘unreasonable court, 2254(d)(2). §

the state clause, application’ a federal habeas court — Richter, Harrington U.S. -, may grant the writ if the state court iden 770, 785, S.Ct. governing legal tifies the correct principle (citation omitted). Thus, Supreme] these constitute [the Court’s decisions but 2254(d)’s “exceptions relitiga unreasonably § three applies that principle to the bar,” id., Moses, tion each prisoner’s of these clauses facts of the case.” separate “are distinct and have meani F.3d (quoting Lockyer, at 751 1166) (alteration ngs,” Payne, Moses v. 555 F.3d in original). S.Ct. (9th Cir.2009) Andrade, (citing Lockyer v. exception, Under this the Supreme Court 73-75, ap- U.S. 155 has made clear that “an unreasonable 362, 385-86, Though meanings separate Taylor, are and dis- Williams v. tinct, overlap. there be some For exam- (2000) ("We S.Ct. ple, "contrary a state that court decision cases, variety anticipate that there will be a of clearly may to” established law be an also one, phrases may like both be this which application” prin- legal "unreasonable of the implicated.”). ciple governing of rule law. See precedent at that Supreme from an lished

plication of law is different federal specifically Mississip- time: Chambers federal law.” application incorrect (internal 1038, 35 L.Ed.2d Richter, pi 410 quota- at 785 (1973). omitted). that the words, responds California In marks other tion implicate not trial court’s error did state inappropriate application state court’s rights, constitutional federal petitioner’s habeas relief does not warrant the law testimony not proffered was error was unless the prong under Su- This allowed the California are reliable. federal courts unreasonable. apply more lenient preme Court precluded granting relief under this analysis. law harmless error We state long jurists “so as ‘fairminded could prong agree with Petitioner. on the correctness of state disagree’ “[Evaluat- court’s Id. at 786. decision.” matter, con preliminary As was ing a rule unrea- whether that the district court erred clude requires considering rule’s sonable reasoning of court adopting the rule, specificity. general more rejecting the factual conclusions in the reaching have in out- leeway more courts from the last reasoned state decision Cali case-by-case determinations.” comes Lambert, Court. See Supreme fornia (internal (alteration in original) quota- determined F.3d at 964. district court omitted). tion marks been Gregory’s that confession would have for Petitioner’s crucial defense. Third, dealing as to the clause with court import the district conditioned “an unreasonable determination testimony upon whether it was Culver’s facts,” facts from last the statement of reliable. The district court relied on court “is reasoned state decision afforded reasoning, trial court’s rather California presumption of correctness Supreme than the California Court’s rea only by evi convincing rebutted clear soning, and determined that Culver’s unre Moses, n. dence.” 555 F.3d testimony liable would not substan (2), (e)(1)); 2254(d)(1), § (citing 28 U.S.C. theory tially defense bolstered Petitioner’s F.3d Ryan, see also Hurles committed the murder. Cir.2011) (9th (the reasonability court, of the facts the state court’s determination contrast district present Supreme light viewed “in of the evidence Court did find testimony justifiably ed in the was excluda- proceeding”). State court Culver’s any reliability. ble based on concerns about Instead, confession, Gregory’s regarding III. DISCUSSION that, if it were “made concluded A. Error Constitutional claimed, probably [the statement] true,” Cudjo, Petitioner contends that Cali added), unreasonably (emphasis fornia denied at 649 because it was it given providing his claim that the trial court erred when “under circumstances sub- testimony confession was regard excluded John Culver’s stantial assurances id., ing trustworthy,” Gregory’s confession. Petitioner points The California expressly out that found P.2d trustworthy enough found that Culver’s this evidence Court also value,” raised should have been admitted. Petitioner “had substantial “requisite regarding argues also the California reasonable doubt” material” issue in the contrary “highly Court’s decision to estab- necessary” court, comparable as “no Before this “highly California relies (9th Gregory’s guilt” Henry, direct evidence of was Rhoades v. 638 F.3d 1027 Cir.2011), support to available. the California court’s decision P.2d at 650. exclude Culver’s testi- mony credibility (despite based on its rele- Supreme Because California Court’s value). vance and But in that findings by factual not been rebutted case, upheld we the exclusion of the hear- evidence, convincing clear and the district evidence, say because the underlying hear- required give presumption court was a (from say testimony a drunk party) third Supreme of correctness to the California ‘persuasive “lacked assurances of trustwor- regarding Court’s conclusions the facts. ” thiness.’ 1034-35. issue was Moses, See at 746 n. 1. The F.3d not whether the live witness was reliable. district court’s failure to do so was error. Thus, this is inapposite. case See id. also cor- Supreme California Court Supreme Given that the California Court rectly regarding ques- described law trustworthy found that and material excul- credibility. explained tions of The court patory erroneously evidence was excluded credibility, “doubts” about “however trial, from Petitioner’s must determine legitimate,” prejudice did not constitute Supreme whether United States Court Cudjo, under the rules of evidence. (at time) precedent clearly had estab- “Except 863 P.2d at 650. lished that the testimony exclusion of in ... rare instances falsi- demonstrable as Culver’s violated pro- Petitioner’s due ty, credibility doubts about the of the in- rights cess and Sixth Amendment to pres- jury’s court witness should be left for the defense, ent or whether the California resolution; such doubts do not afford a Supreme Court'was correct that no such ground refusing for to admit un- right clearly by established federal der the exception.” Id. review, law. After we conclude that the Court’s decision was precedent Court makes clear “contrary clearly to” established federal questions credibility for are law. v. Mississippi Chambers is control- jury to decide. See United States Bai- ling Supreme Court precedent that existed 394, 414, ley, 444 U.S. 100 S.Ct. time, at the “materially with indistinguish- (1980)(“The L.Ed.2d 575 Anglo-Saxon tra- 295-97, able” facts. U.S. at 93 S.Ct. justice dition of criminal embodied contrary to the dissent’s United ju- States Constitution ... makes assertions, dowe hold the Califor- judges rors the credibility of testi- nia in an engaged “unrea- mony them, by offered witnesses. It sonable application” of Chambers in a new generally, say particular wit- here, Rather, factual context. there where ness the truth or spoke fabricated cock- are no constitutionally significant distin- story.”); Washington and-bull see also guishable facts between Chambers and this Texas, 14, 19, Chambers mandates re- different L.Ed.2d 1019 (discussing sult that reached the California testimony jury). offer witness Supreme Court. Accordingly, the California Supreme Chambers, in noting was correct court’s error the defendant sought in analyzing credibility of a live witness introduce the three different when determining parties whether to exclude who testify third would that anoth- testimony. witness’s er man named McDonald had confessed govern- the against evidence reliability of de- the which murder for committing interests). 289, ment at Id. accused. being was fendant sus- court the trial 1038. of application S.Ct. the trial court’s Regarding this objection to government’s party tained third to exclude hearsay rules confession, ruled that testimony and McDonald’s testimony about 289-93, S.Ct. Id. at admissible. explained: the Court individuals, these one of at For least 1038. rule of evidence Although perhaps noted States the United fre- or more respected been more has why it specify did not court jury in trials than applied quently evidence; the state hearsay, to exclude chose of the exclusion to applicable anon was based assumed supreme the introduc- to allow tailored exceptions at 293 Id. hearsay rule. likely of in fact is application which tion of evidence also The defendant S.Ct. 1038. The n. existed. long have trustworthy be about McDonald to cross-examine trial unable testimony rejected by confession, of because murder written assurances persuasive here bore state’s of the with- trial court’s was well and thus trustworthiness exception rule. Id. of the voucher rationale in the basic tes- That interest. against declarations ex- Supreme Court States United The to Chambers’ critical timony also was in a an accused “right of plained circumstances, where In these defense. essence, is, in process due trial to criminal directly affecting rights constitutional opportunity defend fair right implicat- are guilt the asceHainment of the State’s accusations. against applied may not be ed, hearsay rule wit- and cross-examine rights to confront the ends mechanistically to defeat own in one’s to call witnesses and nesses justice. as essen- recognized long been behalf (emphasis at 93 S.Ct. U.S. S.Ct. at Id. process.” due tial to that the added). held Similarly, the Court explained also The Court 1038. applied rule “as the voucher use of state’s may, and is “not absolute to defend right cross-examination prevent this case” cases, to accommodate bow appropriate with “plainly interfered of McDonald in the criminal interests legitimate other against defend Chambers’ 1038. 93 S.Ct. Id. process.” trial 1038. 93 S.Ct. Id. at charges.” State’s must interests government’s evi- ... critical Thus, this “exclusion em- examined,” they are and often “closely refusal dence, with the State’s coupled procedure rules by “established bodied to cross-examine defendant] permit [the fair- assure both designed to and a trial McDonald, defendant] [the denied 295, 302, 93 reliability....” ness fundamental with traditional accord 1038. S.Ct. 302, 93 process.” of due standards balanced Supreme Court simi- case with Supreme Court inter- Another against the accused interests Georgia, facts Green in the lar evidentia- embodied of the state ests 95-96, 60 L.Ed.2d took interest which ry rule to determine Green, curiam). at the penalty Id.; (per also see situation. in this priority excluded (9th the court trial of the phase F.2d Stagner, Miller confession of a third-party account weigh- Cir.1985) as a test (describing this court found co-defendant, value, necessity, ing hearsay. appeal, constituted at Id. On we held the defendant’s right present 2150. The Court “by S.Ct. defense was violated that, “[r]egardless of held whether the exclusion of admissible evi- testimony within proffered person may comes Geor dence that another have com- rule, gia’s hearsay the facts of this Lunbery, under mitted crime.” 605 F.3d at Specifically, case its exclusion constituted a violation of 760. we explained that controls,” Due Process Clause of Fourteenth “Chambers because there the Id. at 2150. Court Amendment.” S.Ct. focused the exclusion of explain exculpatory The Court went on to relevant “[t]he evidence that “bore testimony highly guarantees relevant to excluded substantial of trustworthiness in punishment phase a critical and was critical [the issue de- defendant’s] trial, substantial reasons existed to fense.” Id. at 761. in and We noted that “[a]s (citation Chambers, reliability.” Id. testimony assume its omit the excluded here ted). in “unique held that these persuasive The Court ‘bore assurances of trustworthi- circumstances, hearsay ‘the rule not ness’ and ‘was to [the critical defendant’s] mechanistically applied application to defeat the defense. California’s of its evi- ” Chambers, justice.’ (quoting dentiary ends of Id. rules denied [the defendant] her 1038). present U.S. at Accord constitutional a defense.” (citation omitted). ingly, held Id. exclusion at such evidence had the defendant a held that the appeal’s denied “California court of fair contrary trial. Id4 Court vacated the sen to the conclusion constitutes an objectively tence and remanded. application unreasonable Chambers.” That Chambers the factual cir controls (as Here, supported this case our in by

cumstance of as Chambers well as Green Hombeak, Lunbery recent in Lunbery), decision and point- the evidence at trial (9th Cir.2010). Lunbery, murder, 605 F.3d In single person ed to a committing prosecuted a woman was for her husband’s identity the issue of the case was the sought Chambers, murder and to introduce perpetrator. “evidence Chambers, the murder had in been committed” 93 S.Ct. 1038. As Peti- partners of a dealer drug grounds who had tioner “endeavored develop two previously couple’s victim, lived home. Id. of defense”: that he did not kill the at 758. court excluded this testi but that an person identifiable other did. finding 288-89, mony, In evidence inadmissible Id. at 93 S.Ct. 1038. both hearsay eases, without “sufficient indicia of suspect allegedly relia the alternate had bility,” prejudicial prosecution previously crime; confessed the de- with only slight probative Lunbery value.5 prevented cross-examining fense was Hombeak, S-07-1279, trial; No. CIV 2008 the suspect alternate and the trial (E.D.Cal. 4851858, at WL *17-18 hearsay Nov. court’s rules 2008). prevented the defendant’s witness from case, Similarly 4. Notably, exactly in Petitioner’s 5. is almost the same expressly found that whether ruling that the state trial court made Peti- or not came Culver’s within that, noting tioner’s case. worth Also un- rule, state it should have been admit- case, Lunbery like Chambers or Petitioner’s ted, "highly it was material” question attempt there was no the alterna- necessary,” "highly and it would not have tive murderer himself. up prejudicial. taken too much time or been Cudjo, 863 P.2d at 650. story from the alternate murderer suspect’s confes- native to the alternate testifying present 289-94, himself. Petitioner sion. Id. testimony of unable to set forth the case, the California Su- In Petitioner’s directly Greg- any witnesses that indicated this confes- preme Court determined inability to ory’s guilt. While Petitioner’s claimed, sion, it came Culver if about likely not cross-examine did true,” given “under and was probably “was violation, to a clause amount confrontation assur- providing substantial circumstances it of Petitioner’s make the admission did was trustwor- ances that confession testimony from Culver all proposed P.2d Cudjo, Cal.Rptr.2d 25 863 thy.” presenting adequate more critical to added). That (emphasis is al- at 649-50 defense. of most the conclusion the Su- precisely Moreover, preme Chambers. Court possible It that California Supreme explained Court that California of factual Court was unaware Supreme testimony this had “substantial its similarities between case Chambers value,” “highly “highly material” and or it made of mention Green. was no other necessary,” and there “com- it parenthetical; was in a Chambers’ facts Gregory’s guilt.” of parable direct evidence that dealt not observe Chambers also did Furthermore, the court determined application of rules of with the prejudicial, that evidence would not be this testimony very evidence to exclude similar confusing, unduly time-consuming. or Cudjo, to that this case. 25 Cal. See Thus, government outweighed interest Though Rptr.2d at 652. admitting the value of relevant evidence explanation of state court’s awareness or presenta- highly necessary to Petitioner’s authority Court Supreme irrelevant Consequentially, tion his defense. of determining the correctness the state Supreme that California Court determined result, Packer, 3, 8, Early court testimony have at should been allowed (per S.Ct. Id., Cal.Rptr.2d trial. 863 P.2d curiam), may explain lack unawareness result, have 651. As Chambers should factually discussion these similar Supreme controlled. Court cases. should have determined synthesize attempt In an the United court’s errors and abuse of discretion vio- Supreme right precedent, lated constitutional to States Court the Cali- Petitioner’s Supreme explained fornia present a defense. distinguishable States has Nor is Petitioner’s case United [t]he ground Grego- pres- from constitutional Chambers on held ry may his Fifth and confront right, invoked Amendment ent material witnesses infringed by general rather than voucher rule rules of evidence the outdated fact, procedure preclude In the situation or which material Chambers. prejudicial pertinent more to Peti- or cross-examina- been even Chambers, reasons, un- arbitrary tioner. the defense tion for such as assumptions least McDonald read writ- warranted and overbroad able make confession, high though ten he countered untrustworthiness. even Chambers, it has a trial suggested with a renunciation. never commits although U.S. at constitutional error when- S.Ct. individually rejects not it the defendant could cross-examine the ever assesses and witness, jury this material witness as incredible. least the heard alter- defense Cudjo, outweighed P.2d at certain by other factors such added). as unfair (emphasis prejudice, issues, The court then confusion cited potential to mislead eight jury.” (empha- States Court cases United Rock, added)); Id., 56,107 sis 483 U.S. at support proposition. Cal. (“In evidentiary its applying rules a Rptr.2d 863 P.2d at 651-52. State must evaluate whether the interests entirely It is clear what Califor- justify served a rule the limitation im- nia Court meant when referred posed on the defendant’s constitutional “general rules of evidence.” right....”). Clearly the government (alteration 863 P.2d at 651 would not be able override a defendant’s omitted). To the extent Califor- important in presenting interest a defense nia Supreme describing Court was these merely government because the action was only precedents upholding facial chal- whim, arbitrary based on an not a rule evidence, lenges general to rules of this is of Scheffer, evidence. United See States v. clearly Both incorrect. Chambers and 303, 308, 523 U.S. 118 S.Ct. 140 challenged application Green (1998) (a L.Ed.2d 413 right defendant’s to given rules of in a factual evidence scenar- present “may a defense thus to ac- bow io, but the Court did not strike down the legitimate commodate other interests in in rule as invalid either case. See Cham- process” criminal trial gov- when the bers, 300, 302, 410 U.S. ernment “not arbitrary dispro- action is or (“While rationale the limitation th[e] [for ” added) (internal portionate (emphasis deelaration-against-interest hearsay on the omitted)). Thus, quotation typi- marks exception] subject been the of consid- has presence general cal evidentiary rule criticism, scholarly erable we need not de- in the cases cited the California Su- whether, case other cide this under cir- preme requirement Court results from a cumstances, might some serve valid government, on the require- rather than a purpose by untrustworthy state excluding ment on the defendant. To hold otherwise rule testimony.... [T]he right would be to turn the constitutional to to applied mechanistically defeat the present a on its defense head. added)); Green, justice” (emphasis ends of To the extent the California Su- (same). U.S. at S.Ct. preme Court believed that it would be Thus, the dissent is inaccurate when it extremely say to difficult that a state trial these dealt asserts that cases with the in an engaged applica- “unreasonable application “impermissible of a rule.” Dis- tion” of this rule when with new faced senting Op. 773. factual challenges circumstances and new Supreme that many It is true Court rules, See, to evidentiary agree. we e.g., cases in this area of law deal with Moses, (upholding F.3d challenges to rules of well-established evi- right state’s not to decision extend the merely dence. this reflects the present a to a defense new factual chal- types embody fact that these often rules lenge evidentiary important government interest neces- regarding admissibility expert rules sary to overcome a defendant’s testimony). preclude But does not present defense. See Holmes South being “contrary state decision from to” Carolina, 319, 327,126 S.Ct. precedent when “facts (2006) (“[W]ell-estab- materially ... indistinguishable” are Williams, permit judges present lished rules U.S. at case. Here, if any to exclude evidence its value is distinctions analysis dis to defer to that under quired Chambers are this case and between it was unreasonable. AEDPA unless without a difference.6 tinctions However, if “the state court’s harmless holding was Supreme Court’s California contrary holding error Feder clearly established “contrary to precedent objectively or unreason- 2254(d)(1). § al 28 U.S.C. law.” able, then re- no deference is owed. We independent harmless vert error B. Harmless Error had analysis apply that we would there con we conclude that Because holding.” Inthavong been state error occurred stitutional (9th Lamarque, F.3d whether the error must determine Cir.2005). “The state er- court’s harmless proceedings, federal habeas harmless. holding ‘contrary’ precedent ror if it analysis requires federal harmless error au- apply controlling fails correct “whether the error courts to determine (internal thority. quotation ...” Id. at 1061 in injurious had substantial and effect omitted). mark determining jury’s verdict.” fluence Here, Abrahamson, 619, 687, Brecht v. apply Chapman did not the harm Court 1710,

113 L.Ed.2d S.Ct. 123 353 analysis error required less constitu (internal omitted). quotation marks Un violations, tional the court deter analysis, der “the is so this when record mined that “constitutional no violation” evenly judge balanced that a conscientious 390, Cudjo, Cal.Rptr.2d had occurred. 25 in grave doubt as to the harmlessness Thus, P.2d 863 at 651. the California Su petitioner an must win.” error the only preme Court determined that a “state McAninch, 437, 432, v. 513 O’Neal U.S. occurred, error” had and the law harmless (1995). 992, L.Ed.2d S.Ct. analysis applied error the court was This standard more deferential to demanding law This less state test. Chapman, analysis state court than the prejudice test said there was no if it did 18, required for direct review. 386 U.S. appear reasonably probable” “not that the 824, 17 anal- Chapman 5.Ct. L.Ed.2d 705. (citing verdict affected. v. People was Id. ysis prov- whether asks the error has been Watson, 818, 299 46 Cal.2d beyond en harmless a reasonable doubt. (1956)). legal contrary This rule was Filler, 119-120, 112, Fry See 551 U.S. Chapman government the rule in that the (2007). 127 S.Ct. prove beyond must harmless the error was Thus, if the California Su doubt, at reasonable U.S. preme had appropriately applied and thus we owe this no deference to analysis in this Con Chapman analyzing analysis. Lamarque, harmless error error, Rather, stitutional be re- F.3d at apply this would 1059. we our “inde holding ignores "general the fact The dissent mischaracterizes our dissent that a rule of and then a new evidence” in was trial dissents from conclusion at issue both cases do not advocate: rule of Chambers court's of the rule. The argues should be extended to a new factual situation. dissent also that Culver was reli less may agree We that were the of this case able than the witnesses Chambers. Even if facts Chambers, true, distinguishable would be this from were fact that say requires credibility questions difficult to be left engaged appli- jury Court had in an without a unreasonable makes distinction rule, Bailey, cation of that but the dissent is not able difference. See 624; Texas, any constitutionally Washington point significant dif- instance, ferences between the cases. For 87 S.Ct. 1920. under analysis” body error nard noted “the victim’s bore pendent harmless no assault, signs traumatic sexual Brecht. Kevin’s testimony assault, did not sexual mention a Many highlighted of the facts in dissent- physical and the evidence consistent analysis ing Chapman Justice Kennard’s with defendant’s account of consensual to our error are also relevant harmless sexual relations with the victim.” analysis We sum- under Brecht. therefore 863 P.2d at 672-73. here. marize those facts Justice Kennard strongest against noted that success of defen- th[e the de- “[t]he fendant, Kennard, depended large according dant’s] defense measure to Justice providing jury “Gregory’s with rea- previous on sufficient came from statements ” Id., explanation,” investigators.... sons credit defendant’s to sheriffs 25 Cal. ruling Rptr.2d and the court’s “eviscerated 863 P.2d at 673. Yet “this Cudjo, more, this defense.” equally, evidence too was if con- (Kennard, J., dissenting). 863 P.2d at 672 Gregory’s sistent with guilt,” because it was “far com- prosecution’s case how knowledgeable illustrated Gregory young murder pelling.” Id. “The victim’s was about crime victim’s home. son, Kevin, defendant, not identify could Id. But since not testify “did did recognize nor he the survival knife or trial, jury given opportu- never jeans camp- cut-off Cudjo found nity judge credibility.” Cul- were fingerprints er.” “Defendant’s major ver’s “would have filled a home, not found at victim’s gap in the defense and would have defen- any bloodstains were detected likelihood greatly increased the any clothing, dant’s on articles seized jury’s entertaining a reasonable doubt of Cudjo or on the camper, shoes seized guilt.” defendant’s Id. mother’s from defendant’s automobile.” prosecutor’s reference to Pe “No Id. articles taken from the victim’s during closing argument titioner’s race in pos- residence were found defendant’s weighs heavily our prejudice also on session, any testify nor did witness to such analysis. The California possession.” Id. that prosecutor indicated committed Indeed, Justice Kennard noted that law when closing misconduct he said initially on equally enforcement “focused argument implausible it was Gregory.” Greg- and defendant Id. “Both “this is going woman to have intercourse ory and were present defendant in the strange frankly any with a man—a man— led, camper to which the shoe and tracks man, living black room her couch Gregory both and defendant owned shoes year five with her old in the house.” could cut- have made tracks. The (ma 390, 863 P.2d jeans camper and knife found in off added). jority opinion) (emphasis equally and were accessible defendant correctly prosecutorial noted that Further, Gregory.” Ken- Id. Justice statement, that includes racial references “[s]ome nard observed that of the evidence likely prejudice, to incite racial violates strongly pointed more as the (citing the Fourteenth Amendment. Id. described,” intruder Kevin 279, McCleskey v. Kemp, 309 n. U.S. Gregory’s lack of or facial Id. tattoos hair. 1756, (“The Although body racially the victim’s contained se- prohibits Constitution bi men that come from prosecutorial arguments.”); could have the defen- ased United Doe, Gregory, dant and not from Justice Ken- States v. 903 F.2d 24-25 comment, the exclu- Smith, inflammatory racial (D.C.Cir.1990); v. McFarland (2d Cir.1979); testimony became even Miller sion of Culver’s 416-417 F.2d (4th dramatically increasing Carolina, prejudicial, F.2d more v. North “had rel. Cir.1978); Haynes [a] ex its exclusion United States likelihood (2d McKendrick, injurious or influ- F.2d effect substantial Cir.1973); Grey, mining jury’s verdict.” States ence in deter United Cir.1970)). (6th Brecht, F.2d 1045-1046 there no Therefore, “grave also

The court noted because we justification prosecu- for “compelling of [this] as to harmlessness doubt[s] ” in this case.... error,” tor’s racial reference must rule for the Petitioner. we O’Neal, 115 S.Ct. 992. IV. CONCLUSION prej- was not concluded that the statement udicial, prosecutor’s reasons, remark foregoing grant because the For the isolated,” many was one of appealability was “brief certificate of for issue credibility listed to undermine factors court’s denial district REVERSE testimony, and it added the defendant’s petition. habeas We RE- Petitioner’s argument. to the force little to the district MAND with instructions addition, by there “no continued effort corpus, the writ of habeas to issue attention to defen- prosecutor elects, days to call within 90 unless California jury against prejudice mandate, retry race or dant’s Peti- the issuance of account of his race.” Id. him on Any such retrial shall commence tioner. within thereafter a reasonable time whether the We do determine Cali- court. set the district analysis prejudice fornia Court’s this racial isolation was comment and REMANDED. REVERSED Rather, we consider the unreasonable. O’SCANNLAIN, Judge, Circuit

prejudicial effect of this comment con- dissenting: exclusion of text of court’s Cul- testimony. exculpatory ver’s written, forty years In since it was 284, 410 present Mississippi the trial court’s Chambers v. 93 (1973), 1038, of meant that S.Ct. 35 L.Ed.2d 297 “has exclusion Culver’s sup- by been only testimony Petitioner had to used convictions; times to theory his case was his own. handful of overturn port argument hinged jury on the and the Court’s standards are Petitioner’s quite Murphy, 257 believing willing vague.” victim would be Fortini v. (1st Cir.2001). 39, today F.3d Yet have sex with Petitioner. to consensual “clearly hold prosecutor’s inappropriate established] racial that Chambers trustworthy core of and nec- statements struck at the this de- the exclusion fense, testimony at trial essary exculpatory vio- by using racial bias discredit Pe- Grey, process lates due testimony. titioner’s See F.2d a defendant’s (“At worst, present Maj. Op. a defense.” Be- gratuitous at 1045 refer- holding cause one to the race of the “the Chambers—if [woman] ence can a fact-intensive attempt employ as a be discerned read deliberate certainly not that a defendant is strengthen hand of case—is prejudice racial opportunity fair to defend Peti- denied ‘a [prosecution].”). by against the State’s accusations whenever testimony was discredited tioner’s critical him Though evidence’ favorable to is ex- Kevin pick could assailant cluded,” 37, Egelhoff, Montana v. out a lineup identify or several other 53, 2013, (1996), scene, pieces evidence from the Armenia respectfully I dissent. asserts that he must have been talking Id.,

about his brother Gregory. 25 Cal. 390, I Rptr.2d 863 P.2d at 645. sought Armenia story make his sound A plausible by calling more John Lee Culver All points evidence this case to the Culver, According stand. Grego- Cudjo conclusion that either Armenia ry confessed to the crime while the two Gregory brutally his brother murdered Id., jail. shared a cell in the local 25 Cal. engaging

Amelia Prokuda after in (appar- 390, Rptr.2d Culver, 863 P.2d at 647. ently) consensual sexual intercourse. After however, was far from an ideal witness. murder, against Armenia He was both a criminal and a decades-long quickly mounted. told officers Armenia, friend of and his account of that he had confessed to the crime in some Gregory’s confession did not match the detail, shortly and he was thereafter linked physical Id., evidence of the crime. bound, to the semen found on her gagged, Cal.Rptr.2d 863 P.2d at 649. More beaten, nearly body. People naked importantly, Culver admitted that he filled Cudjo, Cal.Rptr.2d Cal.4th any gaps in Gregory’s confession with (1993). 863 P.2d 643-64 own speculation, (stating see id. initial- deny

Unable to that he had been at ly that Gregory had confessed to implicat- likely house—and thus would have left the ing Armenia admitting before “that he single footprints set of found in the rain- merely inferred that Gregory had blamed home, ground id., washed defendant”), outside her or through conference with 644—Armenia id., Armenia’s family team, and defense tried to (no convince officers that Mrs. Proku- Cal.Rptr.2d 863 P.2d at 647 men- da had traded sexual favors for worth $50 tion of a confession all until contacted Id., cocaine. defense team and none of a boy little P.2d at 645. He then claimed to gone speaking until with Gregory shortly before long, jog on a slow someone while else testifying). committed the crime (apparently without prosecutor argued that this testimo-

leaving any prints). shoe story This had ny should be “inherently excluded as in- gaping Among several holes. the most credible.” 25 Cal.Rptr.2d blatant were was no there cocaine at P.2d 648. The trial agreed, apply- found in the Prokuda home that Mrs. a ing evidentiary state provision allowing it negative Prokuda’s “blood tested for alco- to exclude evidence whose value array illegal hol and an drugs, including substantially out-weighed by the danger Id., cocaine.” 25 Cal.Rptr.2d 863 P.2d prejudice of undue or misleading jury. 642. at Id., Cal.Rptr.2d 863 P.2d at 648

But, (Cal. 352). protested, (The Armenia § could not Evid.Code district have been him. He had a goatee and court also decided that the evidence was tattoos, but only eye several insufficiently witness— reliable warrant to admission five-year-old Prokuda’s son Kevin—said hearsay exception under for state- (Cal. that the man who attacked his mother was against penal ments interest. Id. 1230).) clean shaven and § had no tattoos. Id. Evid.Code II B majority concludes that panel conclud- Supreme Court The California interpretation an unreasonable was It an of state law. that this was error ed I disagree. Chambers. reliability ordinarily only clarified Chambers, the was accused In defendant the admissi- declarant relevant to of the shooting police No one saw officer. testimony pursuant bility of officer, and there was shoot Chambers Id., 390, 863 Cal.Rptr.2d 1230. section fire- no evidence Chambers owned It that in certain recognized at 649. P.2d By at 1038. arm. 93 S.Ct. instances,” court could ex- “rare contrast, a third Mc- party named Gable hearsay statements based on “doubts clude shooter, Donald was identified as the of the in-court wit- credibility about crime gun, owned confessed Id., 863 P.2d at ness.” (once affidavit). times three a sworn case, however, In this the California 650. pre- at S.Ct. 1038. Chambers Supreme Court concluded because evi- offering much of this vented that Culver proof there was insufficient McDonald, call dence. He was allowed to said, falsely recounted what government but on cross-examination the should left for the questions have “be[en] repudiated had established McDonald jury’s Similarly, the court resolution.” Id. one of his Chambers at least confessions. reli- concluded concerns about Culver’s give was not allowed re-direct not a role ability played should his confession over jury reasons credit 352. Id. prejudice calculus under section repudiation Mississippi contin- rule, which to adhere to “voucher” ued there It determined nonetheless or party assertions of his binds Having re- no constitutional error. He witness. Id. 93 S.Ct. 1038. her cases, the viewed the Chambers line of testimo- was not even allowed to offer the ex- concluded that “mere erroneous McDonald con- ny people whom normal ercise of discretion under most other fessed because—unlike implicate rules” of evidence “does not Mississippi recognized had not states — Constitution.” federal hearsay for exception against to the bar and its 652. Chambers against interest. penal statements decided, implicat- progeny, the court were 293-94, Deeming both of 1038. when “the ed constitutional arbitrary, these rules to be outdated and material witnesses present confront specif- concluded that under the the Court by general infringed rules of evidence [is] ic circumstances of that Chambers which material tes- procedure preclude or process due at 302- was denied of law. Id. timony pertinent OS, cross-examination for reasons,

arbitrary such as unwarranted does the same present This case of untrustwor- assumptions and overbroad Chambers, there was circumstances. thiness.” Id. Because this case did not reliability about of those question assumption, an involve such overbroad Mc- recounting who individuals were prej- court reviewed whether Armenia tes- McDonald also Donald’s confessions. errone- under standard rule for udiced himself, prosecution offering tified evidentiary Finding ous decisions. Id. no veracity test of his con- opportunity to Here, 301, prejudice, the California Id. at 93 S.Ct. 1038. fession. contrast, Grego- by only affirmed conviction. Court ry Cudjo to disproportionate admitted the crime was the that they ends are veracity. promote” word of a of asserted to witness dubious but not under “well- 390, Cudjo, per- 863 P.2d 651 established rules evidence [which] judges mit trial to (agreeing “doubts exclude evidence if court’s its value is credibility outweighed about Culver’s reason- certain [were] other factors such prejudice able as unfair ... legitimate”). potential to jury”). mislead the Moreover, court’s error was majority a single The has not cited materially from that Su different found preme extending Court decision Chambers process due violation in Chambers. beyond situations There, correctly where the state question before Court mechanistically applied impermissi but an was whether the state could “mechanisti- ble rule to those where it made mistake cally apply” different two rules that most in applying a perfectly permissible rule.1 jurisdictions abandoned had to the “facts say We therefore cannot that the Califor and circumstances of Cham- [that] case.” nia Supreme uphold Court’s decision bers, 302, 410 U.S. at 93 S.Ct. The 1038. involving only verdict the latter error “was Court did examine the not issue here: contrary to or an unreasonable single ruling regard- whether a erroneous [Supreme precedent.” Penry Court] v. ing evidentiary law state could render a Johnson, 782, 794, 1910, 532 U.S. 121 S.Ct. process. conviction a violation of due (2001). 150 L.Ed.2d As have recog we same is true the entire on line of cases nized, a “state court’s decision not [is] which Armenia relies. See v. Geor- Green contrary clearly established federal law 95, 2150, gia, 442 U.S. S.Ct. 60 L.Ed.2d ... required would have [if it] exten (1979) (holding that due re- process specialty sion of doctrine.” Benitez [a] v. quired against penal a statement interest Garcia, (9th 640, Cir.2007). 495 F.3d phase exception penalty Even if think such we an extension is the case); Arkansas, of a capital Rock v. logical of existing precedent, result we 44, 58, 2704, 107 S.Ct. 97 L.Ed.2d 37 may grant corpus only writ of habeas “if (1987) (rule against hypnotically-refreshed previous refusal extend [the Court’s prevent a defendant holdings] was objectively unreasonable.” defense); testifying her own see Id.; Ala., see also Hawkins v. 318 F.3d 683, 686, Kentucky, also Crane v. 476 U.S. (11th 1302, 1306 Cir.2003). n. 3 2142, (1986); 106 S.Ct. 90 L.Ed.2d 636 Texas, Washington v. 388 U.S. S.Ct. The California did not (1967); v. Holmes unreasonably act when it declined to ex- Carolina, South simple tend Chambers cover a error in (synthe- L.Ed.2d 503 prejudicial balancing against effect sizing holding this line of cases as probative value of a piece evidence. prohibits “the ... exclu- Constitution majority The rule the “in- now endorses sion of defense evidence under scrutiny rules vites federal constitutional each time, serve legitimate purpose or that are every particular the basis Indeed, Hombeak, (9th already 1. recognized Lunbery we that the 605 F.3d Cir. 2010) "Supreme unavailing. hardly has not Lunbery per addressed issue [the] discretionary a trial [of] whether court's suasive when it resurrected —without cita interpretation exclude determination to evidence violated a tion —an of Chambers Moses, rights.” rejected, already defendant’s constitutional Moses had 543 F.3d at (9th Cir.2008). Payne, repudiated, 543 F.3d Court had attempt majority's gap Egelhoff, to fill this with 518 U.S. at Coopera Generating Northwest to Pacific

circumstances, decides] district [a Members; Public Power unworthy of tive witness exclude a defense Council; Corporation; Idaho Avista Cudjo, 25 credit.” Pacificorp; Company; Port line of cases Power The Chambers P.2d at 652. Company; Pub Electric clearly estab- land General alone suggest did not —let Oregon; Utility mandates clause lic Commission process the due lish—that Inc., Energy, Interve Puget of a state court’s review Sound such intrusive Fortini, nors, 257 F.3d rulings. evidentiary Cf (“[N]ot mistake every ad hoc v. rules, in a even state evidence applying ADMINIS POWER BONNEVILLE called a violation should be murder TRATION; Department U.S. every significant otherwise process; due Energy, Respondents. of- excluding error state court would be basis by the defendant fered Utility Board, Petitioner, Canby conviction.”). undoing the Inc., Intervenor,

Alcoa, Ill v. Administration, Power Bonneville extension, all that is left of Without Respondent. law, albeit a an error of state this case is authority we lack significant one. Because Council, Petitioner, Power Public upon relief based to issue habeas — Cooke, see, error, e.g., v. Swarthoui Inc., Intervenor, Alcoa, U.S. -, 859, 178 L.Ed.2d 732 131 S.Ct. v. McGuire, (2011); 502 U.S. Estelle 67-68, L.Ed.2d 385 112 S.Ct. Administration; Bonneville Power 764, 780, (1991); Jeffers, Lewis v. Energy, Department of U.S. (1990), I 111 L.Ed.2d 110 S.Ct. Respondents. respectfully dissent.2 of Northwest Industrial Customers

Utilities, Petitioner, Alcoa, Inc., Intervenor, Administration, Power Bonneville Respondent. Requirements Northwest Utilities, Petitioner, Petitioner, ALCOA, INC., 646-47, 40 L.Ed.2d prosecu- 94 S.Ct. majority’s U.S. assertion (1974) (finding constitutionally race to the defendant’s revers- tor’s isolated reference similarly closing violated in his statement improper isolated comments error in but ible similarly process rights Armenia’s due closing arguments); Parker v. during see also prop- flawed. The California -, Matthews, misconduct, cor- erly but noted (2012) (reaffirming rectly controlling Supreme Court case applied Donnelly). See, DeChristoforo, e.g., Donnelly v. law.

Case Details

Case Name: Armenia Cudjo, Jr. v. Robert Ayers, Jr.

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Sep 28, 2012

Citation: 698 F.3d 752

Docket Number: 08-99028

Court Abbreviation: 9th Cir.