*1 major private brands or label In- brands.
deed, advertising cited Lucas Auto- Robert GARCEAU, Frederick in support motive of its cluster-market ar- Petitioner-Appellant, gument original includes both equipment major brand private brand labels. Thus, the district court was correct Jeanne WOODFORD, Acting Warden concluding that the evidence sup- does not Quentin of San Prison, State
port a theory. cluster-market Respondent-Appellee. No. 99-99022.
III. United States Court of Appeals, The district court imposed sanc Ninth Circuit. Lucas, tions when Stanley President of Automotive, Lucas failed to attend a medi Argued and Submitted May ation session. Lucas Automotive claims Filed Dec. that Lucas missed the session because he was suffering from incapacitating head
ache, and that his failure to appear was not
intentional.
However, inasmuch as Lucas did not
notify parties beforehand nonap- of his
pearance, the imposition district court’s pursuant
sanctions Fed.R.Civ.P.
the local rules for the Central District of
California was appropriate.
IV.
We the district grant REVERSE court’s summary judgment, and REMAND for
further proceedings consistent with this
opinion. We AFFIRM the district court’s
imposition of sanctions for Stanley Lucas’
failure to attend the mediation session.
three of his claims. jurisdiction We have over timely appeal pursuant to 28 § U.S.C. and we reverse. *3 I. FACTUAL BACKGROUND AND PRIOR PROCEEDINGS Lynne Coffin, S. State Public Defender Robert Garceau was convicted in Kern California, for the Francisco, State of San County, California, of degree first California, murder Kendall, and Denise Mill Val- September California, stabbing ley, deaths for the petitioner-appellant. girlfriend, of his Bautista, Maureen Clayton Tanaka, S. Deputy Attorney 14-year-old and her son, Telesforo Bautis- California, Sacramento, General Califor- ta. Their bodies were not found until six nia, for the respondent-appellee. later, months in a bedroom dresser buried
under a layer of
concrete
the backyard
of one of Garceau’s drug partners, Greg
Rambo. There was no physical evidence
linking
to
Garceau
the murders. The
State’s case
him
against
consisted largely
O’SCANNLAIN,
Before:
TASHIMA,
of the testimony of several persons with
THOMAS,
Judges.
Circuit
whom Garceau manufactured methamphet-
amine. These drug partners testified that
Opinion by Judge TASHIMA;
Garceau had confessed to them that he
Judge THOMAS;
Concurrence by
Partial
had killed the Bautistas because he was
Concurrence and Partial
by Judge
Dissent
worried that they would
drug
reveal his
O’SCANNLAIN.
activities to law enforcement authorities.
TASHIMA,
Judge:
Circuit
They further testified that after Garceau
Robert Garceau was convicted of a dou
Bautistas,
murdered the
he returned to
ble homicide in California state court and the scene of the crime with
drug
of his
two
sentenced to death. The California Su
partners and stuffed the Bautistas’ bodies
preme Court affirmed his conviction and
into a bedroom dresser.
Greg
Garceau and
sentence,
Garceau,
People v.
6 Cal.4th
Rambo then transported the dresser
to
Cal.Rptr.2d 664,
(1993),
buried occasions, and that he many other prose- of the single one every Virtuaily mitigation, kidnaping. in a involved connection had some cution’s witnesses history his presented Garceau or some other Bautistas the murder character, his upbringing, prison, testifying against reason for self-interested people. relationships caring and his digging assisted Rambo Susan Garceau. penalty death. fixed the in which backyard in her hole was bur- Bautistas containing the dresser his conviction appealed under testified She for six months. ied to the California *4 and sentence Whitting- Tom Larry immunity. of grant and Court, affirmed the conviction which into bodies the Bautistas’ helped stuff ton habeas his state It also denied sentence. scene. Patricia the crime at the dresser requested the Garceau petition on merits. she girlfriend; Whittington’s Shepard was pursue his counsel to appointment the of the up blood- cleaned Whittington and stay a of and federal habeas remedies day after crime scene at the stains May on court in federal district execution Hariyn Codd removed. bodies were June appointed on 12, 1995. Counsel body. Rambo’s dispose of helped Garceau 1995, filed his federal 26, and Garceau appear not that does only The witness 2,1996.1 July petition habeas mur- the three of any a hand had was, howev- He Wayne James. ders eventually dis court The district manufacturing drug er, illegal involved claims 28 habeas two of Garceau’s missed come forward Garceau, and he did court in state them failure to exhaust for he days before a police until few a motion next filed Garceau proceedings. weapons argues testified. Garceau of his evidentiary hearing on several for an dropped after were James charges against Ultimately, the claims, was denied. which defense testify. agreed he petition, as his habeas court district denied drug of these that one or more trial was of aof certificate as the issuance well the Bautistas. partners killed of filed a notice cause. probable Garceau August judgment on the final from appeal prosecution sentencing phase, At the of 1999, a certificate 26, and we issued prior con- of presented evidence Garceau’s 21, January cause on 2000.2 probable charges. weapons burglary and victions for regarding the of the AEDPA provisions of for the writ 2. petition Although Garceau's 1. (COA) appealability of of a after effective certificate corpus was filed issuance habeas ap- Death and Effective of review in the court predicate date of Antiterrorism as a (AEDPA), No. Pub.L. Penalty Act of 1996 of in which notice apply to all peals cases 1214, 104-132, the AEDPAdoes Stat. 110 AEDPA’s effective was filed after appeal This is the petition. generally apply McDaniel, to his 24, date, April See Slack v. apply to does not the AEDPA case because 1595, 473, 482, S.Ct. 146 120 U.S. 529 effec “pending” as of the were petitions that (2000). his notice Garceau filed 542 L.Ed.2d AEDPA, Calderon v. United of the tive date circum- date. appeal after these of 530, (Kelly), 539 163 F.3d States Dist. stances, appeal we treat Garceau's notice denied, banc), Cir.1998) (en cert. Whelchel v. application a COA. See for as an 143 L.Ed.2d S.Ct. n. 1 Washington, (1999), is considered petition Garceau's AEDPA, 2000). may court a Cir. Under he May the date "pending” as of a applicant has made "the a COAwhen issue be habeas counsel that federal requested both a consti- showing the denial of substantial stayed, be execution and that his appointed 2253(c)(2). § To right.” U.S.C. tutional id. at 540. II. DISCUSSION instruction to regarding this evi- dence, which read as follows: Garceau contends that the district court Evidence has been introduced for the (1) by: erred denying his request for an purpose showing that the defendant evidentiary hearing on his ineffective assis- committed other crimes other than that tance of counsel equal protection for which he is on trial. (2) claims; dismissing his claim evidence, Such if believed, may be con- State used its peremptory challenges in a by you sidered any purpose, includ- (3) racially manner; discriminatory for dis- limited, ing but not any of the follow- missing his claim that the “other crimes” ing: jury instruction violated the Due Process Clause; His any character or dismissing his trait claim that his charac- ter;
the trial
give
court’s failure to
“voluntary intoxication” instruction violat-
His
conduct on
specific occasion ....
ed the Due Process Clause. Because we Garceau,
the trial court’s instruction violated Cali- B. The Jury “Other Crimes” Instruc- fornia 1101, § Evidence Code which reads: tion (a) Except provided as in this section 1102, 1103, 1108, in Sections
During trial, the State 1109, person’s evidence introduced two character or types of evidence of other of (whether a trait his or her crimes character committed Garceau: evidence of in the form opinion, of an that he evidence of illegal manufactured drugs and reputation, or evidence of that, specific testimonial in- evidence several months conduct) of stances his or her he allegedly after inad- Bautistas, murdered the missible when (a he to his or Greg prove murdered her Rambo crime for offered specified on a conduct convicted). which he occasion. already had been Al though object (b) Garceau did not to this evi Nothing in this prohibits section (in fact, dence he planned had to introduce admission person evidence that a himself), it object he did to the crime, trial court’s committed a wrong, civil or other standard, meet petitioner this dem- (1983) (in- "must 77 L.Ed.2d onstrate that the among issues are debatable omitted) (emendation ternal quotation marks reason;
jurists of that a court could resolve original)). in it Because is clear that manner]; [in issues a different or that standard, meets this grant we questions are adequate encourage- to deserve jurisdiction COA exercise over all issues proceed ment to art, Lambright further.” v. Stew- presented Whelchel, in appeal. See (9th Cir.2000) 220 F.3d (quot- F.3d at 1202 n. 1. Estelle, ing n. Barefoot in- limiting that the say explicitly not did prove some relevant act when fact the constitu- necessary to intent, struction motive, opportunity, (such as evi- crimes of the other admission identity, tional knowledge, plan, preparation, existence dence, on the accident, it relied or or of mistake absence there holding limiting instruction for prosecution in a defendant whether 562, 87 Id. at violation. process due no un- was attempted act or unlawful sexual an 648(“This effect type prejudicial reasonably and S.Ct. act did sexual lawful prac- criminal inhere in acknowledged to con- the victim faith believe good grounds justified on the tice, it is but disposition her sented) his or than other follow instruc- expected jury is ... act. such to commit proper its limiting this evidence tions (em- (b) 1101(a), § Evid.Code Cal. function....”). added). Supreme The California phasis instruction hold holding that circuits to agreed, has led two rebanee Court This jury to consider evi invited the crimes of other “impermissibly the admission killed defendant (e.g., that than show dence, purposes other certain establishing therewith, Rambo) violates purpose conformity for the conduct limiting to commit murder.” aof propensity in the absence process defendant’s due The Califor- Garceau, P.2d at v. Wain Panzavecchia instruction. See however, Cir.1981) concluded, nia wright, there because harmless for the process that the error was that it violated due (holding of Garceau’s “overwhelming evidence” references “repeated to hear any lim past Id. at 691-92. guilt. criminal without defendant’s this evidence to relate iting that, only was argues *6 and to disre firearm violation only to the law, but contrary to California instruction the considering in mur altogether it gard by per- Clause the Due Process it violated count”); Murray Superintendent, v. der his evidence to use the mitting jury the 451, 453 Penitentiary, 651 F.2d Ky. State pro- criminal to establish crimes other Cir.1981) Cir (6th (noting that the Sixth i.e., that he commit- likelihood pensity, the converse logical “[t]he cuit has held crimes. charged ted the it and violative is unfair [Spencer] that it is held has Supreme Court The crimes if of other evidence process of due process admit of due a violation instruction”). limiting a without is admitted evidence, purposes for other crimes other has Nonetheless, Supreme Court the conformity there- show than to conduct it due violates expressly held limiting never with, jury given the where evidence other crimes to admit process the consider it should not “that showing conduct purpose for the any as evidence conviction prior therewith, it violates or that conformity on charge which on the guilt defendant’s crimes evi- other Texas, admit process due Spencer v. tried.” being he was in- without an purposes (1967); for other dence 558, accord 554, 563-64 385 U.S. jury’s the consideration bmiting McGuire, 74-75 struction Estelle Indeed, purposes. such of the evidence (1991). Spencer The defendant declined has expressly Supreme the Court the trial court and murder charged Estelle, 502 see questions, these the to answer fact that the into admitted (“Because 5, 112 n. S.Ct. at 75 of U.S. been convicted had previously defendant issue, express the we reach 87 we need Spencer, murder. law would state opinion whether no Although S.Ct. violate the Due per- Process Clause if it other crimes evidence process violated due ‘prior mitted the (1) use crimes’ evidence where: prosecution’s balance of the propensity to show charged commit a against case the defendant was “solely cir- crime.”).3 (2) cumstantial;” the other crimes evi- dence, which involved past the defendant’s
The Ninth Circuit has addressed the knives, use of was similar to stabbing first of the open by left issues the Su- (3) trial; which he was on prosecu- preme Court by holding that the admission tor relied on the other crimes evidence at evidence, of other crimes where there were several points trial; during the and no permissible jury inferences the could other crimes evidence was “emotionally (in have drawn from the evidence other charged.” McKinney, 1381-82, 993 F.2d at words, no inference other than conduct 1385-86. therewith), conformity pro- violates due Rees,
cess. See McKinney v. Application of the McKinney factors to Cir.1993); Jammal v. Van this ease similarly leads to the conclusion Kamp, de Cir.1991). that the other crimes jury instruction vio- In Jammal McKinney, however, we process. First, lated due case, the State’s did not have one, us a before like this absent impermissible propensity infer- where there is permissible inference that ence, was not a strong one. There was no could from draw the other crimes physical evidence connecting Garceau to evidence, but where the was expressly alleged murders. The State’s case invited to draw the additional inference of entirely consisted of testimony by Gar- criminal propensity.4 drug partners ceau’s that Garceau had told them that he question
The
had
answer, therefore,
we
committed the
must
murders
is whether
circumstantial
express
evidence.
propensity
Garceau ar-
instruc-
gued
tion in
“by
jury,
this case
not implausibly,
itself so infected the
that this
testimony
entire trial
was tainted
resulting
conviction
self-interest.
Estelle,
Second,
violates
process.”
impermissible
due
propensity
U.S. at
in-
475(internal
quotation
ference in this
very
case was
strong.
marks
omitted).
crime,
citations
other
murder,
The analysis un-
Rambo’s
precise-
*7
derlying McKinney
ly
supports the
the
conclu-
same crime for which Garceau was
sion that
jury
the
on
addition,
instruction at
In
issue so
trial.
proximity
the
be-
offended fundamental conceptions
jus-
of
tween Rambo’s murder and the murders
tice
play
and fair
toas
rise to the
for
of a
which
level
on
very
trial was a
'
constitutional violation. Specifically,
in
Third,
close five months.
prosecutor
McKinney, we held that the
of
fairly
admission
relied
heavily on the Rambo murder
partial
In
Spencer,
dissent in
Jus
Chief
other crimes evidence
3.
make
inferences
argued
tice Warren
that "[w]hile this Court
propensity
about character or
in a criminal
has never held
prior
that the use of
convic
deeply
case
so
"is
jurispru-
in our
imbedded
nothing
tions to show
more than a disposition
dence as to assume
pro-
almost constitutional
to commit crime would violate the Due Pro
portions.”
404(a) advisory
Fed.R.Evid.
com-
Amendment,
cess Clause of the Fourteenth
(1972).
mittee note
our
suggest
decisions ...
that evidence of
prior crimes
purpose
introduced for no
other
Jammal,
limiting
there was no
instruc-
than
disposition
to show criminal
vio
would
tion, but
the defendant was "barred from
late the Due Process Clause.” 385 U.S. at
complaining” about its absence because he
572-74, 87 S.Ct.
comports
648. This
did
request
one.
same factors had used to determine that (5th Cir.) (holding that admission of a constitutional violation had occurred. Id. other crimes evidence was harmless Following at 1386. McKinney, order light of defendant’s police confession to to determine jury whether the instruction and overwhelming guilt), evidence of cert. — error, in this case constituted harmless we denied, -, quality, significance, therefore examine the (2001). L.Ed.2d 800 The confessions intro- pervasiveness of the evidence related case, however, duced in this were not propensity instruction. police, made to the assertedly but drug partners arguably who had above, reasons to lie. As discussed a review of the rec- This considerably weakens evidentiary ord leads the conclusion that in- weight and, result, struction did not confessions as a constitute harmless error. significantly against The evidence undermines the State’s asser- Garceau was not fact, tion weighty; weight that the physi- guilt there was no direct the evidence of overwhelming. cal evidence implicating Garceau and the When viewed in the context of the testimony po- entirely conviction turned on the circumstantial and tentially addition, biased witnesses. self-interested nature of the evidence Garceau, against other pervasive- jury crimes evidence was used the fact that the Indeed, ly throughout the trial. instructed to infer prose- propensity criminal cutor from the significant testimony made other crimes clearly reference to the prejudiced conclude, during Rambo murder Garceau’s case. closing argument. We Moreover, therefore, ques- admittedly one of the other unconstitu- crimes jury tional tion—Rambo’s murder —was identical was not harmless trial, the crime for and that the writ of corpus which Garceau was on habeas should issue. heightening impact its emotional and evi-
dentiary significance.6 In light of these facts, highly it was probable that III. CONCLUSION court’s instruction to the to consider reasons, foregoing For the we conclude judge other crimes to his con- the district court in denying erred injurious duct had a substantial and effect petition ground Garceau’s habeas on the on determining jury’s verdict. See id. instruction, the “other crimes” argues, erroneous,
The State
and the Califor
albeit
was harmless error. Be-
concluded,
nia
cause Garceau’s trial and conviction were
*9
balance of the
against
State’s case
Garceau
infected with constitutional error which
Calderon,
(1993);
6. Nor was the other crimes evidence in this
see also Laboa v.
224 F.3d
972,
(9th Cir.2000)
properly
case “cumulative” of
admitted evi-
(holding improperly
Abrahamson,
dence. See Brecht v.
admitted confession was harmless because it
619, 639,
1710,
evidence”).
nothing
113 S.Ct.
We review See id. on these issues. for an abuse evidentiary deny hearing an Borg, 60 F.3d Lawson v. of discretion. Tamayo-Reyes prejudice Because the Cir.1995). In this with the ineffective prong is coextensive denying erred district court un- prejudice prong of counsel assistance evidentiary hearing con- request for an Washington, 466 U.S. v. der Strickland assistance claim of ineffective cerning his (1984), L.Ed.2d 674 phase. penalty of counsel at prejudice have satisfied the will hearing on an if evidentiary Tamayo-Reyes he estab- “To an under prong obtain claim, a counsel ineffective assistance ineffective assistance lishes a colorable (1) Correll, at petitioner must establish See habeas counsel claim. proven, if would constitute allegations, his claim, entitling him to thereby a colorable dispute that Garceau parties do of fact the state court trier
relief and evidentiary hearing a state did not receive not, hearing, reli- a full and fair has after therefore, issues; state court on these Correll ably relevant facts.” found the facts,” “reliably the relevant has not found Stewart, Cir. and he will be entitled see id. 1998). addition, petitioner ... if the “In a col- if he establishes evidentiary hearing in state develop facts has failed to material orable claim. must demon- he or proceedings, court she inef- “To a colorable claim or her establish adequate cause for his strate [1] counsel, [petitioner] resulting fective assistance prejudice actual failure and [2] from that failure.” Id. must demonstrate [1] counsel’s *10 deficient, performance at trial was and [2] and an attorney, declared that at the time performance that the deficient prejudiced of the arrest and trial “it was common Strickland, (citing his defense.” Id. 466 knowledge among virtually all mental 687, 104 2052). at S.Ct. professionals health capital most attor- neys with whom [he] familiar that case, In this per- Garceau’s counsel experiences such [as combat service in Vi- deficiently preparing formed for and produce etnam] could longlasting psycho- conducting sentencing Garceau’s hearing. logical problems of the sort [Garceau] was investigate Counsel failed to mitigating ev- and, experiencing also, many persons relating drug idence post- addiction and suffering from psychological these prob- (“PTSD”). traumatic stress disorder Coun- lems used alcohol drugs and illicit in an investigate sel also failed to and rebut effort to ‘self-medicate’ and pain blunt the aggravating evidence regarding Garceau’s and mask the emotional and participation in behavioral alleged an kidnapping. consequences post-traumatic stress “[WJhere counsel is on notice that his they were experiencing.” Given the com- may client mentally impaired, be counsel’s service, bat use, the drug the violence of to investigate failure his client’s mental attacks, the statements mitigating condition as a in penal- factor drug partners paranoia about and delu- phase hearing, ty a supporting without behavior, sional counsel should have known reason, strategic per- constitutes deficient to investigate PTSD a possible as mitigat- Calderon, formance.” Hendricks ing factor. The failure to do so falls “out- (9th Cir.1995). side the range wide professionally com- Counsel testified that he knew of Gar- petent Strickland, assistance.” ceau’s cocaine use and that he “was aware 690,104 at S.Ct. 2052. significant that cocaine use caused alterna- The decision to present mitigating tions in functioning behavior, mental capital evidence at a sentencing hearing including that widely cocaine was recog- product “should be the of a reasoned nized to psychosis cause aas result of choice. duty Counsel has ‘a to make rea- Nonetheless, chronic use.” he did not in- sonable investigations or to make a reason- vestigate use, the extent of Garceau’s nor able decision that particular makes investi- question did he the witnesses about Gar- gations Cornil, unnecessary.’” ceau’s use or changes although behavioral Strickland, (quoting 466 U.S. at prosecution’s even witnesses described 2052). S.Ct. counsel paranoid Garceau’s and delusional behav- choice; did not make a reasoned Furthermore, simply he expert ior. he hired an who failed to investigate potentially mitigating diagnose could document or impact evidence. See id. of chronic dependence cocaine and was not a psychopharmacologist. strategic No Additionally, performed counsel “outside supported reason counsel’s failure to inves- range the wide of professionally competent tigate drug Garceau’s addiction. See id. assistance,” Strickland, 466 U.S. at
Similarly, investigate counsel failed to or in utterly S.Ct. failing to investi- present Although evidence of gate PTSD. coun- and rebut the aggravating evidence of sel stated that he was not aware that alleged involvement kid- PTSD, Garceau suffered from napping. he did prosecution know presented con- that Garceau served Vietnam and siderable during the sentencing heavy abused hearing amounts cocaine. Dr. about this event. Garceau was Craig Haney, psychology professor W. initially charged as in kidnap- the driver
780 the drug through of use learned Garceau’s however, dropped charges were the ping; to witnesses, failed but counsel prosecution a produced wit- attorney defense after the use, history, and drug social alleged put the victim claimed ness who jury in a in the experience before voluntarily. Counsel Vietnam truck into the got and explain addiction prior way attor- could his contact the did not this case so, perfor prosecu- failing In to his any of the do his behavior. ney, not interview did v. attempt to See Caro witnesses, prejudiced Garceau. and did mance tion’s fact, Calderon, In Cir. F.3d 1227-28 percipient witnesses. find other Stewart, witnesses, 1999); the co-defendant also Wallace of the see one counsel, Cir.1999) (“Does contacted kidnapping, even the him and speak responsibility to with attorney professional counsel refused a but been he had him to arrive when attention of just bring told investigate to hear- sentencing the During examining subpoenaed. who are experts health mental present bother to did not even ing, client, experts counsel the do facts that had dis- charges been answer, at the sen at request? least failure investi- utter missed. Counsel’s yes.”), phase capital of a tencing evidence constitutes aggravating this gate denied, 120 S.Ct. cert. performance. (2000). deficient constitutionally 145 L.Ed.2d Correll, at 1412-13. 137 F.3d See Furthermore, focused prosecution also performance Counsel’s deficient during kidnapping intently alleged on the prej- “To establish Garceau. prejudiced closing, the sentencing hearing. In standard, the Strickland prong udice of escalating a argued trend prosecutor must show there defendant ‘[t]he mur- culminated the three violence that that, coun- but for probability reasonable ... this defen- “consider whether ders: errors, result of unprofessional sel’s isolated is a man who has committed dant would have been different. proceeding this conduct or whether acts of criminal probability is a probability A reasonable pattern of developed rather offender has in the confidence sufficient undermine began the bur- conduct that criminal Hendricks, at 1036 outcome.’” ultimately exploded into what glary Strickland, (alteration (quoting original) you murders.” I’m to tell is three about 2052). Failing at Hr’g at Sentencing Tr. Rep. Ct. State miti- potentially reasonably investigate an essential kidnapping was 172. The without reasonable gating circumstances to- of violence “first manifestation outward prejudice. explanation constitutes tactical argument. person” ward another (“[A]bsent any Correll, 137 F.3d at Sentencing Hr’g Rep. Tr. of State Ct. potentially into investigation reasonable pivotal kidnapping’s of the 173. Because any reason- mitigating circumstances coun- argument, prosecution’s role in the must conclude explanation, we tactical able investigate and rebut failure sel’s utter claim made a colorable [petitioner] has characterization prosecution’s capi- at his of counsel ineffective assistance violence, at least crime of incident as a sentencing.”). tal had been dis- mentioning charges that the claimed that a witness testimony at missed expert because put on no
Counsel
voluntarily accompanied
victim
alleged
phase.1 The
during
penalty
all
the al-
whom
about
fact,
exclusively
nesses—most of
testified
on the
relied
counsel
family
and the
testimony
kidnapping.
members
leged
of two
wit-
prosecution’s
cross-examination
*12
defendants,
is “sufficient
(unless
to undermine writ of
corpus
habeas
California
Strickland,
trial)
confidence in the
grants
outcome.”
him a new
based on the “oth-
694, 104
466 U.S. at
S.Ct. 2052.
er
crimes”
instruction. Because I
believe that even if the
might
instruction
Garceau has established a colorable
have violated
process
rights
due
claim of ineffective assistance of counsel
any error was harmless under the deferen-
during his sentencing hearing. He has
tial
Abrahamson,
standard of Brecht v.
507
also demonstrated cause
prejudice,
see
619, 637,
1710,
113 S.Ct.
123 L.Ed.2d
Tamayo-Reyes,
6,
court
denying
erred in
request
for an
evidentiary hearing on these
See
issues.
majority
The
forthrightly admits that
Cornil, 137
at
“the Supreme Court has
expressly
never
held
...
it
that
violates
process
due
to
O’SCANNLAIN,
Judge,
Circuit
admit other crimes
pur-
evidence for other
concurring
part
and dissenting
part:
poses without an instruction limiting the
I agree
Judge
with
Thomas
jury’s
that we
consideration of the evidence to such
must “reverse and remand with
purposes.”
instruc-
Supra, Maj. Op. at 775.
tions to the district court to
Nonetheless,
hold an evi-
majority
extends this
dentiary hearing on Garceau’s claim of in-
court’s precedents to hold that the “other
effective assistance of
during
counsel
crimes”
given
case,
in this
sentencing phase”; indeed, even “the
explicitly
war- which
allowed
to use
den conceded as much during
argu-
oral
of
evidence Garceau’s other
pro-
crimes as
Supra,
ment of this case.”
pensity evidence,
Concurrence
“so offended fundamental
(Thomas, J.,
778
concurring). But
conceptions
the ma-
justice
play
and fair
as to
jority goes further, reversing and remand-
rise to the level of a constitutional viola-
ing with
grant
tion,”
to
instructions
Garceau a
id. at 775.1
course,
1. Of
it
majority
is
clear that the
one
jurist
that "a reasonable
... would not
could have reached this conclusion had it
compelled
adopt”) (emphasis
felt
add-
Lane,
grapple
been
Teague
forced to
ed).
v.
288,
1060,
489 U.S.
109 S.Ct.
103 L.Ed.2d
Alas,
Teague
the state did not
raise
its
(1989)
(plurality
334
opinion). The Su
recognize
before this court. And I
briefs
preme
explained
Court has
that in the usual
that we have
Teague
discretion to consider
federal habeas
application
"[t]he
waived
briefing.
if it is not raised in the
Teague
question....”
is a threshold
Goekev.
See,
Navarro,
e.g., United States v.
160 F.3d
Branch,
115, 117,
1275,
514 U.S.
115 S.Ct.
1254,
1998)
1256
(“Teague
Cir.
can be
curiam).
(per
L.Ed.2d 152
Teague,
....”)
Goeke,
(citing
waived
514 U.S. at
course,
a
considering
bars
court
federal
a
116-18,
1275).
given
115 S.Ct.
But
pre-AEDPA
petition
granting
habeas
from
majority's candid admission that the new
petition
vindicating
petitioner's
where the
today
rule
compelled by
it announces
claim would
a "new
create
rule." Id. at
any
precedents,
our
would
I
hesitate to
Certainly, given
S.Ct. 1060.
that neither
forego
Teague analysis
if
the state had
yet
Court nor this court has
only implicitly
Teague by
question
failing
addressed the
waived
today's opinion
answers,
See,
very
e.g.,
raise it in his
state has at the
briefs.
Jackson v.
least a
Johnson,
argument
Cir.2000)
colorable
today
majority
217 F.3d
rule,”
("[A]bsent compelling
announces a "new
on which it cannot
reasons to the con
grant Garceau relief. See O’Dell
trary,
apply Teague
v. Nether
a federal court should
land,
151, 164,
even
implicitly
when it has been
waived
(1997) (stating
State.").
L.Ed.2d 351
that a
tule is
new
trial,
in murder
re-
propensity evidence
point.
may
right on
majority
be
“Hold,
now?
you doing
marking,
not en
what are
does
Constitution
Certainly, “[t]he
his whole life?
arraign
rules
cus
legal
you going
Are
all traditional
compass
be;
longstanding
not to
toms,
Away, away,
ought
how
no matter
Trial,
matter”);
may
Hampden’s
be.” Unit
widespread
practices
such
nothing
(With-
(K.B.1684)
LeMay,
Tr.
ed States
St.
9 Cob.
*13
indeed,
Cir.2001).
J.)
And
prior forger-
ins,
(excluding evidence
the wholesale
against
has warned
trial
man accused of
from the
of a
ies
law and evidentia
of common
importation
the evidence
explaining that
forgery,
Process Clause
the Due
ry
life,
rules into
to
into men’s course
would “rak[e]
Thus,
v.
Dowling
United
Constitution.
pre-
they
that
cannot be
pick
evidence
up
a rule or
States,
that
explained
the Court
to”).
Louis
generally
answer
See
pared to
matter of “fundamental
practice must be
Natali,
Stigall, “Are
Stephen
& R.
M.
Jr.
may
said to be of
it
be
fairness” before
Arraign His Whole
Going to
You
Life?”:
342,
magnitude. 493 U.S.
constitutional
Propensity Evidence Violates
How Sexual
(1990);
668,
352,
the instruction was Johnson, 782, 121 Penry v.
Cf.
1910, 1920,
(concluding error a “substantial did not have under on the verdict
injurious effect” “was evidence admitted Brecht where America, STATES of UNITED case”). key to the State’s by no means the Plaintiff-Appellee, Ill disputes that seriously one No GALLAHER, Jr., H. James Cali- in this case violated given Defendant-Appellant. But that alone evidentiary law. fornia No. 00-30068. relief. to merit federal habeas enough before, explained
As we Appeals, Court of United States supreme state court are not a We Ninth Circuit. errors; questions review we do July Argued and Submitted law. On federal habeas state evidence peti- whether the may only we consider 26, 2001 Filed Dec. violated constitution- tioner’s conviction norms.... al
[Fjailure rules comply with the state’s necessary nor
of evidence is neither re- granting
sufficient basis habeas to state evidentia-
lief. While adherence con- that the trial was
ry suggests rules manner, it fair procedurally in a
ducted trial certainly possible to have fair violat- standards are
even when state
ed....