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Hughes v. Biter

United States District Court, E.D. California

June 27, 2016

BERNARD C. HUGHES, Petitioner,
v.
MARTIN BITER, Warden, Respondent.

          FINDINGS AND RECOMMENDATION THAT COURT DENY PETITION FOR WRIT OF HABEAS CORPUS (DOCS. 1, 34, AND 35)

          SHEILA K. OBERTO. MAGISTRATE JUDGE

         Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

         I. Factual Background[1]

         A. Prosecution’s Case

         At 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.

         The 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.

         When 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 Petitioner’s DNA.

         Deputies 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 bar.

         After 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.

         Skavdahl 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.

         The 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 DNA.

         Petitioner 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.

         The 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.

         Petitioner’s 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.

         Lillian 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.

         The parties stipulated that Petitioner was a convicted felon before May 1, 2008.

         B. Defense Case

         Petitioner 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.

         Cahoone 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.

         Defense 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.

         Turner 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.

         Turner 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.

         Turner 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.

         II. Procedural Background

         In 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.

         In May 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.

         Petitioner 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.

         In 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.

         On 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 jurisdiction.[2]

         III. Standard of Review

         A 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.

         Habeas 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 claim:

(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; or
(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.

         "By 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).

         As a 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).

         "A 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.

         IV. Motion for Expansion of Record

         Petitioner 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 materials.

         Respondent 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.

         V. Motion for Evidentiary Hearing

         Arguing 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.

         “Habeas 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 discovery”).

         Section 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. § 2254(e)(2).

         “[A] 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 been successful.
Williams, 529 U.S. at 435.

         Petitioner 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.

         A 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).

         Nothing 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 its merits.

         VI. Due Process: Denial of Access to DNA Evidence

         Petitioner 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 database.

         Petitioner first raised this claim in his state petition for writ of habeas corpus, contending that the prosecution violated his rights by suppressing exculpatory evidence.

         Describing 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.[3] Thereafter, the California Court of Appeals and Supreme Court summarily denied petitions for habeas corpus.

         The 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.

         In this 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.

         The state court reasonably concluded that the prosecution did not fail to disclose exculpatory evidence to Petitioner.

         VII. Due Process: Exclusion of Evidence Supporting Third-Party Culpability Defense

         Petitioner 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.

         A. Evaluation of State Court Evidence Rulings, in General

         Issues 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).

         One of 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.

         B. Standards for Reviewing Third-Party Culpability Evidence

         In 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).

         The 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)).

         When 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)).

         In 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.

         The 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.

         Morales, 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 object. Id.

         The 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 quotes omitted).

         In 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.

         Similarly, 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 ...


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