United States District Court, E.D. California
BERNARD C. HUGHES, Petitioner,
MARTIN BITER, Warden, Respondent.
FINDINGS AND RECOMMENDATION THAT COURT DENY PETITION
FOR WRIT OF HABEAS CORPUS (DOCS. 1, 34, AND 35)
K. OBERTO. MAGISTRATE JUDGE
is a state prisoner proceeding pro se with a
petition for writ of habeas corpus pursuant to 28 U.S.C.
about 3:00 p.m. on May 1, 2008, Bill and Janet Whitla
returned from vacation to their ranch near Hornitas,
California (Mariposa County). As they drove into the
property, the Whitlas saw an unfamiliar Chevy flatbed truck
next to their garage. Janet Whitla recognized Petitioner as
the driver. Petitioner said, “Rick, ” and twice
pointed toward the house before driving away. As he left,
Janet saw some of Bill’s equipment on
Petitioner’s truck bed. Bill turned his truck around
and followed Petitioner.
Whitlas eventually encountered Petitioner’s truck
abandoned on the side of the road and used their
truck’s OnStar security system to call the
Sheriff’s Department. While the Whitlas were speaking
with the OnStar operator, Petitioner’s girlfriend, Tami
Turner, drove up. In response to Janet’s questions,
Turner confirmed that the truck belonged to Petitioner but
insisted that Janet could not have seen Petitioner driving it
since he had been home in bed with her. Janet did not argue
with Turner, who appeared intoxicated. Turner left.
sheriff’s deputies arrived, the Whitlas identified a
number of items on the truck as having been taken from their
house and garage, including an air compressor, a generator,
jewelry valued at $2000, a loaded Colt pistol, and various
other personal items. Deputies searched the cab and found
bolt cutters, a pry bar, and leather gloves with fresh sweat
stains. Later forensics testing confirmed that the bolt
cutter had been used to cut the chain that connected the air
compressor and generator to the Whitlas’ garage wall.
The gloves yielded a partial DNA sample consistent with
determined that the burglar entered the Whitlas’ home
through the open garage. They concluded that the burglar had
removed the screen from the door to the house, reached
inside, and disengaged the door lock, possibly by using a pry
investigating the Whitlas’ home, deputies went to
Turner’s home to look for Petitioner. Petitioner was
not there. Turner and the Whitlas’ ranch caretaker,
Rick Skavdahl, were there together; both were intoxicated.
lived in a trailer on the Whitlas’ ranch. Before
leaving on vacation, the Whitlas told Skavdahl of their plan
to return on May 3, 2008. When they returned home early on
May 1, they saw and waved to Skavdahl while they picked up
their mail in Hornitas before heading out to the ranch.
next day, the Whitlas found a cigarette butt on the garage
floor and secured it in a sealed envelope. Janet delivered
the envelope to the sheriff’s office in Mariposa. DNA
extracted from the cigarette butt matched Petitioner’s
was not apprehended until May 30, 2008. Deputies found him
under the bed in Turner’s master bedroom. Behind
Turner’s front door, near the door to the bedroom,
deputies found a 30/30 rifle in a scabbard. In the living
room, deputies found a box containing documents and a
suitcase, both belonging to Petitioner. A white Dodge Caliber
was found parked behind Turner’s house: a folder and
prescription bottle bearing Petitioner’s name were
inside. Petitioner had the key to the Dodge in his pocket
when he was arrested.
Dodge had a Kansas license plate that had been issued to
another vehicle. The Dodge’s vehicle identification
number indicated that it was owned by a Los Angeles car
rental company. At trial, the parties stipulated that the
rental company had reported the Dodge stolen on May 11, 2008.
comments were recorded during the ride to jail. With regard
to the rifle, Petitioner said, “I seen a coyote the
other night fucking coming up to get the chickens . . . [s]o
I took a pretty good shot at him.” Petitioner admitted
that he knew the Dodge was stolen. During a sheriff’s
department interview, Petitioner explained that he had
borrowed the Dodge from a friend and had planned to return
it. When Turner told him the car had been reported stolen,
however, Petitioner decided to keep it since he needed a
vehicle. He obtained the Kansas plate from a friend to
replace the California plates that had been on the Dodge.
Donato, who had been Turner’s friend, testified that
Turner provided her with beer to induce her to lie and tell
defense counsel that she had seen someone other than
Petitioner getting out of the truck near Hornitos.
parties stipulated that Petitioner was a convicted felon
before May 1, 2008.
conceded his ownership of the flatbed truck used in the
burglary and the Whitlas’ ownership of the property
found on it, but denied committing the May 1, 2008, burglary.
He maintained that Janet Whitla, who admittedly had only seen
the driver for a few seconds, misidentified Petitioner as the
truck’s driver. In his testimony, Charles Cahoone, the
defense investigator, contrasted Janet’s initial
description of the driver with details she added in later
interviews and her trial testimony. The defense also
presented expert testimony regarding problems associated with
perception, memory, and eyewitness identification.
testified that when he interviewed Donato in 2008 and 2009,
she told him that she saw Petitioner’s truck near the
Whitla ranch and saw someone other than Petitioner get out of
the driver’s door. The person Donato saw was a short,
heavy-set White male with short spiked hair. Cahoone never
heard the claim that Turner had bribed Donato to give a false
alibi until he interviewed Donato in April 2010.
experts testified that DNA testing excluded Petitioner as a
contributor to DNA samples extracted from a sweatshirt found
in the truck and a beanie found in the Whitlas’ garage
after the burglary.
testified that she and Petitioner awoke early on May 1, 2008,
to spray thistle. They returned to the house and were sitting
outside when Skavdahl and Humberto “Cheeto”
Arteaga stopped by. After Skavdahl and Arteaga left, Turner
and Petitioner went to bed, had sex, and fell asleep. Turner
woke up to the sound of Petitioner’s truck. She ran
outside, saw the truck going up the road, dressed, and set
out in her car to follow the truck. She found it crashed into
a bank with the Whitlas parked behind it. Turner told them
that it was Petitioner’s truck but that he was still
home in bed.
returned home, woke Petitioner, and told him that the sheriff
was coming because his truck had been used in a burglary.
Petitioner said he was not going back to jail for something
he didn’t do and ran off. He did not return to
Turner’s home until May 30, 2008.
denied that she tried to bribe Donato to say she saw someone
else driving Petitioner’s truck. She also dismissed
Petitioner’s claim that he had shot a coyote with the
30/30 rifle in her home. Turner testified that the rifle had
belonged to her father and that she had no ammunition for it
in her home.
January 2010, Petitioner filed a complaint and an emergency
grievance with the Mariposa County Sheriff’s Department
concerning the prison administration’s ability to
monitor his conferences with his attorney in the prison
visiting room, which was not soundproof. On January 13, 2010,
the sheriff found that the complaint did not meet the
requirements for an emergency grievance but directed that
adjacent phones and speakers be turned off during
Petitioner’s meetings with his attorney.
2010, Petitioner was tried in Mariposa County Superior Court.
A jury convicted him of (1) residential burglary (Cal. Penal
Code § 459), (2) two counts of being a felon in
possession of a firearm (Cal. Penal Code § 12021(a)(1)),
(3) being a felon in possession of ammunition (Cal. Penal
Code § 12315(b)(1)), (4) receiving stolen property (Cal.
Penal Code § 496(a)), and (5) falsifying a license plate
(Cal. Vehicle Code § 4463(a)(1)). The trial court found
true allegations that Petitioner had two prior serious felony
convictions (Cal. Penal Code § 667(a)(1)), two prior
strike convictions (Cal. Penal Code §§ 667(b)-(i)
and 1170.12(a) and (d)), and four prison terms (Cal. Penal
Code § 667.5(b)). The court sentenced Petitioner to an
aggregate prison term of 88 years to life.
filed a direct appeal to the California Court of Appeals. In
a May 16, 2013, decision, the court of appeals affirmed
Petitioner’s convictions but remanded for sentence
modification. The California Supreme Court denied the
petition for review on September 11, 2013.
January 2014, Petitioner filed a writ of habeas corpus with
the Mariposa County Superior Court. On February 6, 2014, the
superior court denied the petition, finding that it failed to
establish a prima facie case for relief. The Court of Appeal
summarily denied the petition on March 14, 2014; the
California Supreme Court summarily denied the petition on
June 18, 2014.
August 7, 2014, Petitioner filed a habeas petition pursuant
to 28 U.S.C. § 2254. On April 30, 2015, the Court
dismissed two state claims over which it had no
Standard of Review
person in custody as a result of the judgment of a state
court may secure relief through a petition for habeas corpus
if the custody violates the Constitution or laws or treaties
of the United States. 28 U.S.C. § 2254(a); Williams
v. Taylor, 529 U.S. 362, 375 (2000). On April 24, 1996,
Congress enacted the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), which applies to all
petitions for writ of habeas corpus filed thereafter.
Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). Under
the statutory terms, the petition in this case is governed by
AEDPA's provisions because Petitioner filed it after
April 24, 1996.
corpus is neither a substitute for a direct appeal nor a
device for federal review of the merits of a guilty verdict
rendered in state court. Jackson v. Virginia, 443
U.S. 307, 332 n. 5 (1979) (Stevens, J., concurring). Habeas
corpus relief is intended to address only "extreme
malfunctions" in state criminal justice proceedings.
Id. Under AEDPA, a petitioner can prevail only if he
can show that the state court's adjudication of his
(1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. § 2254(d); Lockyer v. Andrade, 538
U.S. 63, 70-71 (2003); Williams, 529 U.S. at 413.
its terms, § 2254(d) bars relitigation of any claim
'adjudicated on the merits' in state court, subject
only to the exceptions set forth in §§ 2254(d)(1)
and (d)(2)." Harrington v. Richter, 562 U.S.
86, 98 (2011).
threshold matter, a federal court must first determine what
constitutes "clearly established Federal law, as
determined by the Supreme Court of the United States."
Lockyer, 538 U.S. at 71. To do so, the Court must
look to the holdings, as opposed to the dicta, of the Supreme
Court's decisions at the time of the relevant state-court
decision. Id. The court must then consider whether
the state court's decision was "contrary to, or
involved an unreasonable application of, clearly established
Federal law." Id. at 72. The state court need
not have cited clearly established Supreme Court precedent;
it is sufficient that neither the reasoning nor the result of
the state court contradicts it. Early v. Packer, 537
U.S. 3, 8 (2002). The federal court must apply the
presumption that state courts know and follow the law.
Woodford v. Visciotti, 537 U.S. 19, 24 (2002). The
petitioner has the burden of establishing that the decision
of the state court is contrary to, or involved an
unreasonable application of, United States Supreme Court
precedent. Baylor v. Estelle, 94 F.3d 1321, 1325
(9th Cir. 1996).
federal habeas court may not issue the writ simply because
the court concludes in its independent judgment that the
relevant state-court decision applied clearly established
federal law erroneously or incorrectly."
Lockyer, 538 U.S. at 75-76. "A state
court's determination that a claim lacks merit precludes
federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of the state
court's decision." Harrington, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Thus, the AEDPA standard is difficult to satisfy
since even a strong case for relief does not demonstrate that
the state court's determination was unreasonable.
Harrington, 562 U.S. at 102.
Motion for Expansion of Record
moves to expand the record (Doc. 34) to include (1)
confidential communication between the jail commander and the
court (pages 2706A and 2707) and (2) pages 1101-1102 of Day 8
of the jury trial, which includes a statement from defense
counsel to the jury that “he decides whether Petitioner
is to take [the] stand.” Beyond stating that the these
pages are not included in the state court record, Petitioner
offers no explanation of his need for these supplementary
has already filed the state court record in this case.
“[R]eview under § 2254(d)(1) is limited to the
record that was before the state court that adjudicated the
claim on the merits.” Cullen v. Pinholster,
563 U.S. 170, 181 (2011). The Court should, therefore, deny
Petitioner’s motion for expansion of the record.
Motion for Evidentiary Hearing
that the record is insufficient to support his federal habeas
claims, Petitioner moves for an evidentiary hearing to
explore further the various grounds he advances for habeas
relief. Petitioner also proposes to use the evidentiary
hearing to further argue the application of numerous
documents included within the state record.
is an important safeguard whose goal is to correct real and
obvious wrongs. It was never meant to be a fishing expedition
for habeas petitioners to ‘explore their case in search
of its existence.’” Rich v. Calderon,
187 F.3d 1064, 1067 (9th Cir. 1999) (quoting
Calderon v. United States District Court for the Northern
District of California (Nicolaus), 98 F.3d 1102, 1106
(9th Cir. 1996). Habeas petitioners are not
routinely entitled to discovery. Bracy v. Gramley,
520 U.S. 899, 904 (1997). The discovery provisions of the
Federal Rules of Civil Procedure do not generally apply in
habeas cases. Harris v. Nelson, 394 U.S. 286, 295
(1969). See Rule 6(a) of the Rules Governing
§ 2254 Cases (“A judge may, for good cause,
authorize a party to conduct discovery under the federal
Rules of Civil Procedure and may limit the extent of
2254(e)(2) of AEDPA bars most evidentiary hearings if the
applicant “failed” to develop the factual basis
for the claim in state court. In this context,
“failed” “connotes some omission, fault, or
negligence on the part of the person who has failed to do
something.” Williams, 529 U.S. at 431-32.
“Under § 2254(e)(2), a petitioner who failed to
develop the facts of the claim in state court may not obtain
a hearing in federal court except in limited
circumstances.” See, e.g., Atwood v. Schriro,
489 F.Supp.2d 982, 1007 (D.Ariz. 2007). If the court
determines that the applicant failed to develop the factual
basis for a claim in state court, the district court can hold
an evidentiary hearing only if the petitioner meets two
demanding requirements: (1) the allegations, if proven, would
entitle the petitioner to relief and (2) the state court
trier of fact has not reliably found the relevant facts.
Rich, 187 F.3d at 1068. A habeas petitioner who has
failed to develop a factual basis for his claims in state
court and requests an evidentiary hearing before a federal
district court must demonstrate that “the claim relies
on . . . a factual predicate that could not have been
previously discovered through the exercise of diligence and .
. . the facts underlying the claim would . . .establish by
clear and convincing evidence that but for constitutional
error, no reasonable factfinder would have found the
applicant guilty of the underlying offense.” 28 U.S.C.
failure to develop the factual basis of a claim is not
established unless there is lack of diligence, or some
greater fault, attributable to the prisoner or the
prisoner’s counsel.” Williams, 529 U.S.
at 432. “A petitioner has not neglected his or her
rights in state court if diligent in efforts to search for
evidence.” Bragg v. Galaza, 242 F.3d 1082,
1090, amended by 253 F.3d 1150 (9th Cir. 2001).
The question is not whether the facts could have been
discovered but instead whether the prisoner was diligent in
his efforts. The purpose of the fault component of
“failed” is to ensure the prisoner undertakes his
own diligent search for evidence. Diligence for purposes of
the opening clause depends upon whether the prisoner made a
reasonable attempt, in light of the information available at
the time, to investigate and pursue claims in state court; it
does not depend . . . upon whether those efforts could have
Williams, 529 U.S. at 435.
does not argue that good cause entitles him to pursue
discovery but simply assumes that he is entitled to an
evidentiary hearing to buttress his many claims.
habeas petitioner may not presume entitlement to an
evidentiary hearing, discovery, or both. Bracy, 520
U.S. at 903-05. “The mere request for an evidentiary
hearing may not be sufficient to establish diligence if a
reasonable person would have taken additional steps.”
Atwood, 489 F.Supp.2d at 1007. See also Koste v.
Dormire, 345 F.3d 974, 985-86 (8th Cir. 2003)
(finding lack of diligence despite request for evidentiary
hearing when the petitioner made no effort to develop the
record or to assert facts supporting ineffective assistance
of counsel claim); Dowthitt v. Johnson, 230 F.3d
733, 758 (5th Cir. 2000) (finding the petitioner
not to have been diligent when he failed to secure affidavits
of family members that were easily obtained without a court
order and at reasonable expense).
in the record suggests that Petitioner ever sought an
evidentiary hearing or additional discovery in the course of
his habeas proceedings in state court. To the contrary, the
state petitions alleged that the claims were supported by the
existing record. The Court should decline to conduct an
evidentiary hearing and proceed to resolve the petition on
Due Process: Denial of Access to DNA Evidence
claims violation of his due process rights arising from the
trial court’s failure to order the prosecution to
identify the individual whose DNA was identified on the
beanie recovered from the Whitlas’ garage after the
burglary. Petitioner contends that the trial court should
have ordered the prosecution both to upload the DNA profile
to CODIS for potential matching and to compare the DNA
profile from the beanie to the DNA profile for Humberto
“Cheeto” Arteaga in California’s state DNA
first raised this claim in his state petition for writ of
habeas corpus, contending that the prosecution violated his
rights by suppressing exculpatory evidence.
the claim as “vague references to a failure of the
prosecution to produce exculpatory ‘DNA evidence’
to the defense, the Mariposa County Superior Court denied it,
along with the other habeas claims, as conclusory and
insufficient to constitute a prima facie case for
relief. See Lodged Doc. 8 at 2-3. Thereafter, the
California Court of Appeals and Supreme Court summarily
denied petitions for habeas corpus.
prosecution’s suppression of evidence favorable to an
accused violates due process if the evidence is material
either to guilt or punishment, irrespective of the good faith
or bad faith of the prosecution. United States v.
Agurs, 427 U.S. 97, 107 (1976); Brady v.
Maryland, 373 U.S. 83, 87 (1963). Although Petitioner
characterizes this claim as the prosecution’s having
withheld exculpatory evidence, this is not accurate. The
failure of DNA testing to link the beanie to Petitioner was
the exculpatory evidence. The prosecution fully disclosed to
Petitioner that the DNA samples derived from the beanie were
not consistent with Defendant’s DNA. That evidence was
introduced at trial. Petitioner fully received the due
process he was entitled to with regard to the disclosure of
exculpatory DNA evidence.
claim, however, Petitioner contends that he was entitled to
more than disclosure and presentation of the exculpatory
evidence: he argues that he was entitled to a comparison of
the DNA evidence with DNA samples included within CODIS
(Combined DNA Index System) and the California DNA Database
to identify whose DNA was consistent with the samples derived
from the beanie. Petitioner speculates that the beanie could
be linked to Arteaga, but presents no reasoned factual basis
supporting the speculation. Because Arteaga had previously
worked at the Whitlas’ ranch, even if his DNA had been
identified on the beanie discovered in the garage after the
burglary, that evidence alone would not be sufficient to link
Arteaga to the burglary.
state court reasonably concluded that the prosecution did not
fail to disclose exculpatory evidence to Petitioner.
Due Process: Exclusion of Evidence Supporting Third-Party
contends that his Fourteenth Amendment right to due process
was violated when the trial court excluded the items of
evidence supporting his defense that a third party committed
the burglary: (1) Turner’s testimony that Arteaga had
asked to use Petitioner’s truck on the morning of the
burglary; (2) evidence of the earlier burglary of another
residence on the Whitla ranch; and (3) testimony of three
inmates to whom Skavdahl made statements implicating someone
other than Petitioner.
Evaluation of State Court Evidence Rulings, in
regarding the admission of evidence are matters of state law,
generally outside the purview of a federal habeas court.
Holley v. Yarborough, 568 F.3d 1091, 1101
(9th Cir. 2009). On federal habeas review, the
sole issue is whether or not the state proceedings satisfied
due process. Jammal v. Van de Kamp, 926 F.2d 918,
919-20 (9th Cir. 1991). The Due Process Clause
neither permits the federal courts to engage in a finely
tuned review of the wisdom of state evidentiary rules nor
does it guarantee the right to introduce all relevant
evidence. Montana v. Egelhoff, 518 U.S. 37, 42
(1996); Marshall v. Lonberger, 459 U.S. 422, 438 n.
6 (1983). A trial court’s exclusion of evidence does
not violate the Due Process Clause unless “it offends
some principle of justice so rooted in the traditions and
conscience of our people as to be ranked as
fundamental.” Patterson v. New York, 432 U.S.
197, 201-02 (1977).
the fundamental rights that may be violated by the erroneous
exclusion of evidence is the right to present a defense
guaranteed by the Sixth Amendment. De Petris v.
Kuykendall, 239 F.3d 1057, 1062 (9th Cir.
2001) (citing Chambers v. Mississippi, 410 U.S. 284,
294 (1973), and Washington v. Texas, 388 U.S. 14,
18-19 (1967)). Under California law, third-party culpability
evidence is evaluated using the same evidence rules
applicable to other evidence. People v. Hall, 41
Cal.3d 826, 834 (1986). In evaluating on direct appeal the
claimed violation of Petitioner’s right to present a
third-party culpability defense, the Court of Appeal relied
on Holmes v. South Carolina (547 U.S. 319, 324-25
(2006)) for the proposition that the U.S. Constitution grants
states broad latitude to establish evidence rules for
excluding evidence in criminal trials. Hughes, 2013
WL 2103414 at *10.
Standards for Reviewing Third-Party Culpability
Holmes, the U.S. Supreme Court reversed and remanded
a decision of the South Carolina Supreme Court. The South
Carolina court held that a trial court could exclude all
evidence tending to show commission of the crime by another
person “where there is strong evidence of [a
defendant’s] guilt, especially where there is strong
forensic evidence, the proffered evidence about a third
party’s alleged guilt may (or perhaps must be)
excluded.” 547 U.S. at 329 (internal quotes omitted).
The U.S. Supreme Court held that state courts cannot
determine the admissibility of third-party culpability
evidence by weighing the evidence supporting the
accused’s guilt. In doing so, it “did not depart
from the rule that state lawmakers have broad latitude in
establishing rules of evidence so long as they do not
infringe upon a weighty interest of the accused and are
[neither] arbitrary [n]or disproportionate to the purposes
they are intended to serve.” Duvardo v.
Giurbino, 649 F.Supp.2d 980, 1007 (N.D.Cal. 2009).
Holmes Court began its analysis by citing legal
encyclopedias to recall the basic evidentiary rules
concerning admission of third-party culpability evidence:
Evidence tending to show the commission by another person of
the crime charged may be introduced by [the] accused when it
is inconsistent with, and raises a reasonable doubt of, his
own guilt; but frequently matters offered in evidence for
this purpose are so remote and lack such connection with the
crime that they are excluded.
Holmes, 547 U.S. at 327 (quoting 41 C.J.S., Homicide
§ 216 at 56-58 (1999)).
The accused may introduce any legal evidence tending to prove
that another person may have committed the crime with which
the defendant is charged . . . [Such evidence] may be
excluded where it does not sufficiently connect the other
person to the crime, as, for example, where the evidence is
speculative or remote, or does not tend to prove or disprove
a material fact in issue at the defendant’s trial.
Holmes, 547 U.S. at 327 (quoting 40A Am.Jur.2d,
Homicide § 286 at 136-38 (1999)).
challenging exclusion of evidence intended to prove
third-party culpability, “[t]he defendant, not the
state, bears the burden to demonstrate that the principle
violated by the evidentiary rule ‘is so rooted in
traditions and conscience of the people as to be ranked as
fundamental.’” Morales v. Scribner, 621
F.Supp.2d 808, 819-20 (N.D.Cal. 2008) (quoting
Egelhoff, 518 U.S. at 47). “The accused does
not have an unfettered right to offer [evidence] that is
incompetent, privileged, or otherwise inadmissible under
standard rules of evidence.” Egelhoff, 518
U.S. at 42 (quoting Taylor v. Illinois, 484 U.S.
400, 410 (1988)). For example, hearsay rules appropriately
“prohibit the introduction of testimony which, although
unquestionably relevant, is deemed sufficiently
unreliable.” Egelhoff, 518 U.S. at 42. A
petitioner’s right to present a defense should not be
construed to permit the petitioner to
“constitutionalize” claims arising from
compliance with “established rules of procedure and
evidence designed to assure both fairness and reliability in
the ascertainment of guilt and innocence.” United
States v. Waters, 627 F.3d 345, 353 (9th Cir.
2010) (quoting United States v. Perkins, 937 F.2d
1397, 1401 (9th Cir. 1991)).
Morales, the district court restated the elements
for analyzing a petitioner’s claim that exclusion of
evidence violated his due process rights:
In deciding whether the exclusion of evidence violates the
due process right to a fair trial or the right to present a
defense, the Court balances five factors: (1) the probative
value of the excluded evidence on the central issue; (2) its
reliability; (3) whether it is capable of evaluation by the
trier of fact; (4) whether it is the sole evidence on the
issue or merely cumulative; and (5) whether it constitutes a
major part of the attempted defense. Chia v. Cambra,
360 F.3d 997, 1004 (9th Cir. 2004); Drayden v.
White, 232 F.3d 704, 711 (9th Cir. 2000). The
court must also give due weight to the state interests
underlying the state evidentiary rules on which the exclusion
was based. See Chia, 360 F.3d at 1006; Miller v.
Stagner, 757 F.2d 988, 995 (9th Cir. 1985).
Even if exclusion of the evidence amounts to constitutional
error, in order to justify federal habeas relief, the
erroneous exclusion must have had “a substantial and
injurious effect” on the verdict. Brecht [v.
Abrahamson, 507 U.S. 619, 623 (1993).] Habeas
petitioners must therefore establish that the error resulted
in “actual” prejudice. See id.
Morales, 621 F.Supp.2d at 820.
Morales decision illustrates the application of
these general rules in analyzing whether the trial
court’s exclusion of evidence violated the
defendant’s right to present a defense.
who had been convicted of sexually assaulting a
fifteen-year-old relative, argued that his due process rights
were denied when the trial court excluded impeachment
evidence of the victim’s past sexual conduct.
Id. at 819. He sought to introduce evidence
purporting to show that in a prior incident, the victim had
falsely accused another relative, Valencia, of sexual
assault. Id. In a pretrial evidentiary hearing in
Morales’ case, however, the victim testified that she
had never told her father or the police that she had been
penetrated by Valencia’s penis, only that she had felt
a sharp pain between her legs. Id. Her father first
characterized the assault as a “rape” when he
reported the incident to police. Id. Following an
investigation in the earlier incident, the police department
concluded that the rape charge against Valencia was
unsubstantiated but that the evidence supported another
forcible sexual assault, such as penetration by a foreign
trial court barred Morales from introducing the
victim’s sexual history for impeachment purposes,
holding that there was insufficient evidence from the prior
incident to challenge the victim’s credibility.
Id. “[T]he court concluded that even if there
was enough evidence, such evidence is at most tenuous and the
probative value of such evidence, if any, is minimal and
greatly outweighed both by undue consumption of court time
and resources . . . and by the public policy protecting the
witness from being unnecessarily publicly embarrassed and
even savaged by such evidence.” Id. (internal
proceedings concerning Morales’ federal habeas
petition, the district court held that the state court
decision was not an unreasonable application of Supreme Court
precedent. Id. at 820. Applying the Chia
criteria, the court determined that the probative value of
the excluded evidence was minimal since the evidence did not
support a conclusion that the victim had made a prior false
rape accusation. Id. at 821. In contrast, the
victim’s testimony about the current allegations, given
under oath, was reliable. Id. The jury was clearly
able to evaluate the victim’s testimony. Id.
at 822. The testimony was neither the only, nor the major,
part of the evidence against the petitioner. Id.
Defense counsel was able to cross examine the victim using
other examples of past behavior to impeach her testimony and
to probe inconsistences between her testimony and various
police reports. Id. Evaluating petitioner’s
claim as a whole, the district court found that Morales
failed to carry his burden of proving that the error resulted
in actual prejudice. Id.
in Duvardo, the petitioner, who had been convicted
of his parents’ murders, sought to introduce evidence
of three cars parked near his parents’ home after the
date on which the petitioner was alleged to have killed them.
649 F.Supp.2d at 1006. Petitioner contended that the cars
were evidence of ...