Armenia Cudjo, Jr. v. Robert Ayers, Jr. , 698 F.3d 752 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMENIA LEVI CUDJO, Jr., 
Petitioner-Appellant,
No. 08-99028
v.
ROBERT L. AYERS, Jr., Warden,  D.C. No.
2:99-cv-08089-JFW
California State Prison at San
OPINION
Quentin,
Respondent-Appellee.

Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Argued and Submitted
February 7, 2012—Pasadena, California
Filed September 28, 2012
Before: Alex Kozinski, Chief Judge,
Diarmuid F. O’Scannlain and N. Randy Smith,
Circuit Judges.
Opinion by Judge N.R. Smith;
Dissent by Judge O’Scannlain
11865
11868 CUDJO v. AYERS
COUNSEL
John Lewis Littrell, Deputy Federal Public Defender, Office
of the Federal Public Defender for California, Los Angeles,
California, for the petitioner-appellant.
James W. Bilderback, II, Supervising Deputy Attorney Gen-
eral, Office of the Attorney General for California, Los Ange-
les, California, for the respondent-appellee.
CUDJO v. AYERS 11869
OPINION
N.R. SMITH, Circuit Judge:
In Chambers v. Mississippi, 410 U.S. 284 (1973), the
United States Supreme Court clearly established that the
exclusion of trustworthy and necessary exculpatory testimony
at trial violates a defendant’s due process right to present a
defense. This clearly established federal law applied at the
time the California Supreme Court decided People v. Cudjo,
863 P.2d 635 (Cal. 1993) (en banc) (per curiam), the subject
of this habeas appeal. The facts in Chambers are materially
indistinguishable from the facts in this appeal. Therefore, the
California Supreme Court’s decision was “contrary to . . .
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1), and the
error was not harmless. Accordingly, the district court’s
denial of Petitioner’s habeas petition is REVERSED, and we
REMAND this case to the district court with instructions to
issue the writ of habeas corpus as to Petitioner’s conviction.1
I. FACTS AND PROCEDURAL HISTORY
A. Investigation and State Court Trial of Petitioner2
Amelia Prokuda was found dead in her apartment in March
of 1986. A pathologist determined the cause of death to be
1
Because we grant relief on this claim, we need not address the other
issues raised in Petitioner’s opening brief. See Hurles v. Ryan, 650 F.3d
1301 (9th Cir. 2011).
2
The California Supreme Court’s decision in Cudjo, 863 P.2d at 642, is
the last reasoned decision on this issue, so this is the decision to which
federal courts owe heightened deference. See Cheney v. Washington, 614
F.3d 987, 995 (9th Cir. 2010). Accordingly, the preliminary facts relevant
to this specific issue have been summarized from that state court decision,
which are afforded a presumption of correctness that may be rebutted only
by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Hernandez
v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir. 2002).
11870 CUDJO v. AYERS
multiple blows to the back and sides of the head. Investigating
officers found semen present on the victim’s right inner thigh
and genital area, but there was no indication of traumatic sex-
ual assault. Tests of Prokuda’s blood found no drugs or alco-
hol.
Officers followed footprints from the victim’s house to a
camper within sight of the victim’s house. Petitioner and his
brother, Gregory Cudjo (“Gregory”), were found in the
camper and were arrested. Analysis of the semen found on the
victim revealed that it could have come from the Petitioner,
but not from Gregory or the victim’s husband. Shortly there-
after, Petitioner was charged with, among other things, first
degree murder while engaged in a robbery and a burglary.
Petitioner pleaded not guilty to all charges.
Investigating officers interviewed Gregory Cudjo
(“Gregory”) the day after the victim’s murder and tape-
recorded the interview. In these interviews, Gregory main-
tained that he had remained in the camper throughout the
morning, but that Petitioner had been gone for about two
hours. Gregory also said that, when he and Petitioner saw
officers following shoe tracks from the victim’s home to Peti-
tioner’s camper, Petitioner confessed to Gregory that he had
murdered the victim. According to Gregory, during the short
amount of time that it took the police to walk the third of a
mile to the camper, Petitioner was able to relay extensive
details about the crime and the house. These details included
what the victim was wearing, that there was a pet snake in an
aquarium, that there was a little boy in the house, that there
was a jacket with medals in the closet, and how the Petitioner
hogtied the woman with neckties. Gregory mentioned nothing
of Petitioner raping or having sex with the victim. At the pre-
liminary hearing, Gregory largely repeated this story.
At trial, the prosecution called Prokuda’s five-year-old son,
Kevin, who was at home during the murder. Kevin testified
that a man came into the house, put a knife to his mother’s
CUDJO v. AYERS 11871
neck and demanded money. The man took Kevin’s mother
into the room and tied her up, and Kevin went into his own
bedroom and stayed there for a long time. Kevin could not
identify the Petitioner as the perpetrator. However, Kevin tes-
tified that, on the day of the murder, the man who threatened
his mother had no tattoos on his arms and no facial hair. A
photograph in evidence taken on the day of the murder
showed that Petitioner had a goatee or mustache as well as
tattoos on his biceps, his right shoulder, and his lower left
arm. Gregory had no facial hair on the day of the murder.
The prosecution intended to call Gregory as a witness at
trial, but Gregory refused to testify for the prosecution and
invoked his privilege against self-incrimination. However,
Gregory’s preliminary hearing testimony and statements to
the police inculpating Petitioner were read into evidence.
The defense’s theory at trial was that Petitioner was inno-
cent, and that his brother Gregory had killed Prokuda. This
theory was partially predicated on the testimony of John Cul-
ver, a witness who “was prepared to testify that Gregory
Cudjo had admitted responsibility for the murder of [Prokuda]
while Culver and Gregory were incarcerated together at the
Antelope Valley sheriff’s substation.” Cudjo, 863 P.2d at 646.
The prosecutor objected to the admissibility of the evidence.
Out of the jury’s presence, Culver testified that he had
known the Petitioner and his brother Gregory for about 15 to
20 years. When Gregory and the Petitioner were arrested and
brought to the Antelope Valley sheriff’s station (shortly after
the murder of the victim), Culver was also incarcerated there.
At that time, Gregory was locked in a cell with Culver. Culver
testified that, while in the cell, Gregory was pacing restlessly.
Culver asked him what was wrong. Gregory answered, “Man,
they got me in here for a murder” and “I need [to] talk to
somebody.” Id. at 647 (alteration in original). Gregory then
“started talking about why he’d done it and what he’d done
. . . .” Id. According to Culver, Gregory said: “I went over to
11872 CUDJO v. AYERS
rob, burglarize this lady’s house and she seen me and then
that’s when all the stuff went down and that’s what hap-
pened.” Id. Gregory then described how he “went in the house
and this woman supposed to have been washing clothes, and
she caught him coming in the house.” Id. “When the woman
seen him he just started beating the woman up and then she
started screaming, so he knocked her out and went and done
it again, kept hitting her, kept hitting her . . . . He kept bang-
ing her around in the head.” Id. He “knocked her out,” and
when she “came back to” he “started hitting her and hitting
her with a hammer or whatever he hit her with.” Id.According to Culver, Gregory said that he found guns and
jewelry in the house. Gregory explained that he knew the vic-
tim, because they had “smoked dope together.” Id. As the
California Supreme Court also noted, “Gregory did not men-
tion raping the woman.” Id.The prosecutor then cross-examined Culver and asked “if
Gregory had mentioned anyone besides the woman being
present in the house.” Id. Culver responded that Gregory had
not mentioned it at the time. However, “Culver had talked to
Gregory shortly before Culver’s testimony,” and, through this
conversation, Culver had learned that there “probably was a
little boy or somebody in the house.” Id. Culver also testified
that, thereafter, Gregory had been removed from the cell he
shared with Culver. When Gregory returned, he told Culver
that detectives had interviewed him about the murder. The
prosecutor asked whether Gregory told Culver that he had
blamed his brother for the murder. Id. Culver at first said that
Gregory had done so, but then immediately explained that he
merely supposed that Gregory had blamed Petitioner. That
supposition was based on the fact that (1) Gregory was
released shortly thereafter, and (2) Culver knew Petitioner’s
criminal history was worse than Gregory’s. On further cross,
Culver explained that he first spoke about Gregory’s confes-
sion when a defense investigator contacted and interviewed
him three months before this testimony.
CUDJO v. AYERS 11873
After Culver’s testimony, the trial court heard argument
outside the presence of the jury on whether to admit Culver’s
testimony. The prosecutor argued that the testimony should be
excluded, because “Culver’s demeanor, background, and rela-
tionship to the defendant, as well as the content of his testimo-
ny,” made him a “liar” that was “unworthy of belief.” Id. at
647-48. The trial court asked whether it would be “making a
judgment as a trier of fact, and taking it away from the jury,”
if it made such a determination. Id. at 648. The prosecutor
answered that the California rules of evidence required that
determination on some occasions.
In contrast, defense counsel argued that the testimony
should be admitted as an exception to the hearsay rule,
because it was a declaration against penal interest under Cali-
fornia Evidence Code Section 1230. The trial court agreed
that this statement met the hearsay exception for a statement
against penal interest. However, the court found that “to allow
this testimony would be a travesty of justice,” as the evidence
lacked the necessary “indicia of reliability.” Id. Thus, the
court ruled that it was not admissible as a declaration against
interest. The trial court also later explained that it found Cul-
ver’s testimony “unreliable and untrustworthy,” and that the
court made this interpretation when it “intepret[ed] section
1230 of the Evidence Code.” Id. It buttressed this conclusion
with a finding that the probative value of the evidence “was
outweighed by prejudice under section 352 of the Evidence
Code.” Id. Accordingly, Culver was not allowed to testify,
and Petitioner was the only witness for the defense.
When the trial continued, Petitioner testified that he had
known the victim for some time, and that he had consensual
sex with her in exchange for drugs on the morning of the
crime. Afterwards, he went home and told Gregory what had
happened; went for a jog; and, after returning home, he ran
errands with his mother and Gregory. Petitioner testified that
he did not kill Prokuda.
11874 CUDJO v. AYERS
In closing argument, to discount Petitioner’s testimony, the
prosecutor argued:
And what [defendant] wants you to believe, and
what I believe to be perhaps the most telling thing in
this whole case, is that this woman who, from all
appearances is a happily married mother . . . is going
to have intercourse with a strange man — frankly
any man — a black man, on her living room couch
with her five year old in the house.
Id. at 661 (alteration in original) (emphasis added).
The jury convicted Petitioner on all counts, and Petitioner
was subsequently sentenced to death.
B. The California Supreme Court’s Decision on Direct
Appeal
In reviewing the trial court’s analysis of the statutory
against-penal-interest exception to the hearsay rule, the Cali-
fornia Supreme Court concluded that the trial court had erred
in several ways. Id. at 646, 648. First, to be admissible under
the hearsay exception, a declaration against penal interest
must be made by a declarant who is unavailable, and the dec-
laration must have been sufficiently trustworthy. In determin-
ing whether the statement passes this “threshold of
trustworthiness,” the California Supreme Court explained that
the trial court “may take into account not just the words but
the circumstances under which they were uttered, the possible
motivation of the declarant, and the declarant’s relationship to
the defendant.” Id. at 648.
In its application of this law to the circumstances, the Cali-
fornia Supreme Court held that it was essentially indisputable
that Gregory was unavailable by virtue of exercising his privi-
lege against self-incrimination. Further, Gregory’s statement
risking criminal liability was on its face against Gregory’s
CUDJO v. AYERS 11875
interest. Id. at 648-49. However, the court continued that,
even if these findings were in dispute and the alleged state-
ment did not fit within the statutory against-penal-interest
exception, the trial court still had “discretion to conclude that
it was admissible despite its hearsay character.” Id. at 649.
The court noted that
[b]y Culver’s account, Gregory made his statement
spontaneously, while alone with an acquaintance,
within hours after a murder for which Gregory, who
had no alibi, was in custody as a prime suspect.
Gregory tended to fit Kevin P.’s description of the
assailant, and much of the other evidence, in particu-
lar the incriminating shoe prints, was as consistent
with Gregory’s guilt as with defendant’s.
Id. Thus, the testimony should have been admitted, because
“if made as claimed, [the statement] was probably true,”
because it was given “under circumstances providing substan-
tial assurances that the confession was trustworthy.” Id. at
649-50 (emphasis added).
The court acknowledged that some of the alleged state-
ments by Gregory were “inconsistent to some extent with the
physical evidence, most notably the evidence that the victim
was hogtied before she was beaten to death.” Id. at 649. How-
ever, the court explained that “such discrepancies might be
attributable to Gregory’s agitation or Culver’s misunderstand-
ing . . . .” Id.Second, the California Supreme Court noted that the trial
court did “not focus exclusively, or even primarily, on
whether Gregory’s hearsay statement might be false.” Id.Rather, the court “erred” by “accept[ing] the prosecution’s
contention that Culver was a probable liar who should there-
fore be excluded as a live witness.” Id. The California
Supreme Court “disagree[d]” with the government’s conten-
tion that “the trial court could properly consider the credibility
11876 CUDJO v. AYERS
of the in-court witness,” and explained that the “credibility of
the in-court witness is not a proper consideration in this con-
text.” Id. The court also explained that “[n]either the hearsay
rule nor its exceptions are concerned with the credibility of
witnesses who testify directly to the jury.” Id. Thus, “[e]xcept
in . . . rare instances of demonstrable falsity, doubts about the
credibility of the in-court witness should be left for the jury’s
resolution; such doubts do not afford a ground for refusing to
admit evidence under the hearsay exception for statements
against penal interest.” Id. at 650.
Third, in reviewing the trial court’s analysis of the preju-
dice versus probative value of the evidence (Evidence Code
section 352), the California Supreme Court concluded that the
trial court had abused its discretion. The court explained that
there was no claim that admitting Culver’s testimony would
have “taken an undue amount of time,” presented “any appar-
ent danger of confusion of the issues,” or created “any danger
of ‘undue prejudice’ to the prosecution.” Id. On the other
hand, the evidence “had substantial probative value,” raised
the “requisite reasonable doubt” regarding a “highly material”
issue in the case, and was “highly necessary” as “no compara-
ble direct evidence of Gregory’s guilt” was available. Id. The
court explained that any doubts about Culver’s credibility,
however legitimate, “do not constitute ‘prejudice’ under” this
evidentiary rule. Id. Rather, such a determination was “prop-
erly the province of the jury.” Id. (internal quotation marks
omitted). Thus, doubts about Culver’s credibility did not pro-
vide a sufficient basis to exclude the testimony, and the trial
court’s decision to do so was an abuse of discretion. Id. at
651.
Lastly, the California Supreme Court addressed the Defen-
dant’s argument that “the trial court’s exclusion of Culver’s
testimony usurped his federal due process and fair trial
rights,” in essence depriving him of his constitutional “right
to present a defense.” Id. The court admitted that such a viola-
tion would require reversal if the government did not prove
CUDJO v. AYERS 11877
the error was harmless beyond a reasonable doubt. Id. (citing
Chapman v. California, 386 U.S. 18, 24 (1967)). However,
the court found “no constitutional violation.” Id.The court explained that “the mere erroneous exercise of
discretion under . . . ‘normal’ [evidentiary] rules does not
implicate the federal Constitution.” Id. It construed the United
States Supreme Court’s precedent on this issue as having held
only that “the constitutional right to present and confront
material witnesses may be infringed by general rules of evi-
dence or procedure which preclude material testimony or per-
tinent cross-examination for arbitrary reasons, such as
unwarranted and overbroad assumptions of untrustworthi-
ness.” Id. The California Supreme Court stated that the United
States Supreme Court has “never suggested that a trial court
commits constitutional error whenever it individually assesses
and rejects a material defense witness as incredible.” Id.Thus, the California Supreme Court concluded that while
an individual witness’s credibility “is properly the province of
the jury . . . absent clearer guidance from above, we will not
lightly assume that a trial court invites federal constitutional
scrutiny each and every time it decides, on the basis of the
particular circumstances, to exclude a defense witness as
unworthy of credit.” Id. at 652. Given that the court deter-
mined only a “state law error” had occurred, the court did not
apply the federal harmless error test set forth in Chapman. Id.
at 651-52. Instead, the court applied the lower threshold of
harmless error required under California state law and found
that no prejudice had occurred. Id. at 652-53.
Two California Supreme Court Justices dissented on this
issue, arguing that the federal Constitution had been violated,
and therefore the error was not harmless under the more rigor-
ous federal harmless error analysis. Id. at 669 (Kennard, J.,
dissenting). Justice Kennard explained that the applicable fed-
eral law made clear that “[r]estrictions on the right to present
defense evidence are constitutionally permissible if they
11878 CUDJO v. AYERS
‘accommodate other legitimate interests in the criminal trial
process’ and are not ‘arbitrary or disproportionate to the pur-
poses they are designed to serve.’ ” Id. at 670 (quoting Rock
v. Arkansas, 483 U.S. 44, 55-56 (1987); Chambers, 410 U.S.
at 295). However, Justice Kennard argued that the majority
had “effectively concede[d]” that “[i]n this case, excluding
the testimony of defendant’s witness, John Culver, was not
reasonably necessary to further any legitimate governmental
interest.” Id.Justice Kennard also “reject[ed] the majority’s suggestion
that there was no constitutional violation in this case because
the defendant’s witness was barred from testifying . . . as a
result of the trial court’s erroneous application of state law.”
Id. at 671. In Justice Kennard’s view, this “suggestion amoun-
t[ed] to an odd distortion of the nature and purpose of the con-
stitutional guarantee. What the state and federal Constitution
secure for the accused is the right to present a defense, not
merely the right to be free of unduly restrictive state laws of
evidence and procedure.” Id. at 671-72. Thus, the dissent con-
cluded that when a “crucial defense witness was not permitted
to testify,” as in this case, the defendant’s constitutional rights
were violated. Id. at 672. Accordingly, Justice Kennard
applied the more demanding federal harmless error test and
found that, because “[t]he success of [the] defense depended
in large measure on providing the jury with sufficient reasons
to credit defendant’s explanation . . . the trial court’s ruling
eviscerated this defense,” and was clearly prejudicial. Id.
C. The Federal District Court’s Denial of the Habeas
Petition
The district court determined that “there is no question”
Culver’s testimony regarding Gregory’s confession “would
have been deemed crucial to the defense case.” The district
court notes that the trial court acknowledged the defense’s
theory, when it said “[t]he evidence only shows one person
committed the murder, the evidence indicating it’s either Mr.
CUDJO v. AYERS 11879
Armenia Cudjo or Mr. Gregory Cudjo.” In addition, the dis-
trict court pointed out that the prosecutor admitted that “this
case is going to resolve itself as this is either a flat out, cold
felony murder committed by Armenia or it is a premeditated
murder committed by Gregory.” The district court also noted
that the defense only had three witnesses to call to show that
Gregory committed the murder: Gregory, James Mitchell, and
John Culver. However, both Gregory and Mitchell invoked
the Fifth Amendment. Thus, the only witness available to
present this testimony was Culver, making his testimony cru-
cial to the defense’s theory of the case.
However, the district court conditioned the import of Cul-
ver’s testimony upon whether it was reliable. The district
court found, contrary to the findings of the California
Supreme Court, that such testimony was not reliable enough
to be admitted into evidence. The district court “adopt[ed] the
trial court’s reasoning,” focusing on the fact that Culver was
an old friend of Petitioner, had a felony conviction, had many
relatives with criminal records, did not tell anyone about
Gregory’s confession for a long time and only came forward
when interviewed by an investigator. Additionally, the district
court noted that some of his testimony could be interpreted as
inconsistent with the evidence. Accordingly, the district court
“conclude[d] that Culver’s testimony would not have substan-
tially bolstered [Petitioner’s] defense theory that Gregory
committed the murder.” Therefore, the district court denied
the petition for habeas corpus as to this issue.
II. STANDARD OF REVIEW
“[W]e review de novo the district court’s decision to grant
or deny a petition for a writ of habeas corpus.” Lambert v.
Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).
Because Petitioner did not initiate district court proceedings
until 1999, the Antiterrorism and Effective Death Penalty Act
of 1996 (AEDPA) applies. See Lindh v. Murphy, 521 U.S.
11880 CUDJO v. AYERS
320 (1997). To obtain relief under AEDPA, a defendant must
overcome a high threshold:
Federal habeas relief may not be granted for claims
subject to § 2254(d) unless it is shown that the ear-
lier state court’s decision ‘was contrary to’ federal
law then clearly established in the holdings of this
Court, § 2254(d)(1); or that it ‘involved an unreason-
able application of’ such law, § 2254(d)(1); or that it
‘was based on an unreasonable determination of the
facts’ in light of the record before the state court,
§ 2254(d)(2).
Harrington v. Richter, 131 S. Ct. 770, 785 (2011) (citation
omitted). Thus, these constitute three “exceptions to
§ 2254(d)’s relitigation bar,” id., and each of these clauses
“are distinct and have separate meanings,”3 Moses v. Payne,
555 F.3d 742, 751 (9th Cir. 2009) (citing Lockyer v. Andrade,
538 U.S. 63, 73-75 (2003)). We now address each of these
exceptions in turn.
First, as to the “contrary to” clause, “[a] state court decision
is ‘contrary to’ clearly established Supreme Court precedent
if the state court applies a rule that contradicts the governing
law set forth in Supreme Court cases or if the state court con-
fronts a set of facts materially indistinguishable from those at
issue in a decision of the Supreme Court and, nevertheless,
arrives at a result different from its precedent.” Id. (quoting
Lambert, 393 F.3d at 974); see also Williams, 529 U.S. at
405-06.
3
Though the meanings are separate and distinct, there may be some
overlap. For example, a state court decision that is “contrary to” clearly
established law may also be an “unreasonable application” of the legal
principle of the governing rule of law. See Williams v. Taylor, 529 U.S.
362, 385-86 (2000) (“We . . . anticipate that there will be a variety of
cases, like this one, in which both phrases may be implicated.”).
CUDJO v. AYERS 11881
When analyzing whether federal law was clearly estab-
lished, the “only definitive source of clearly established fed-
eral law under AEDPA is the holdings (as opposed to the
dicta) of the Supreme Court as of the time of the state court
decision.” Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.
2003), overruled on other grounds by Lockyer, 538 U.S. 63;
see also Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011)
(quoting Lockyer, 538 U.S. at 71-72).
Second, as to “the ‘unreasonable application’ clause, a fed-
eral habeas court may grant the writ if the state court identi-
fies the correct governing legal principle from [the Supreme]
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Moses, 555 F.3d at 751(quoting Lockyer, 538 U.S. at 75) (alteration in original).
Under this exception, the Supreme Court has made clear that
“an unreasonable application of federal law is different from
an incorrect application of federal law.” Richter, 131 S. Ct. at
785 (internal quotation marks omitted). In other words, a state
court’s inappropriate application of the law does not warrant
habeas relief under this prong unless the error was unreason-
able. Thus, federal courts are precluded from granting relief
under this prong “so long as ‘fairminded jurists could dis-
agree’ on the correctness of the state court’s decision.” Id. at
786. “[E]valuating whether a rule application was unreason-
able requires considering the rule’s specificity. The more gen-
eral the rule, the more leeway courts have in reaching
outcomes in case-by-case determinations.” Id. (alteration in
original) (internal quotation marks omitted).
Third, as to the clause dealing with “an unreasonable deter-
mination of the facts,” the statement of facts from the last rea-
soned state court decision “is afforded a presumption of
correctness that may be rebutted only by clear and convincing
evidence.” Moses, 555 F.3d at 746 n.1, 751 (citing 28 U.S.C.
§ 2254(d)(1), (2), (e)(1)); see also Hurles v. Ryan, 650 F.3d
1301, 1309 (9th Cir. 2011) (the reasonability of the state
11882 CUDJO v. AYERS
court’s determination of the facts is viewed “in light of the
evidence presented in the State court proceeding”).
III. DISCUSSION
A. Constitutional Error
Petitioner contends that the California Supreme Court
unreasonably denied his claim that the trial court erred when
it excluded John Culver’s testimony regarding Gregory’s con-
fession. Petitioner points out that the court expressly found
this evidence trustworthy enough that it should have been
admitted. Petitioner also argues that the California Supreme
Court’s decision was contrary to established Supreme Court
precedent at that time: specifically Chambers v. Mississippi,
410 U.S. 284 (1973). California responds that the state trial
court’s error did not implicate petitioner’s federal constitu-
tional rights, because the proffered testimony was not reliable.
This allowed the California Supreme Court to apply the more
lenient state law harmless error analysis. We agree with Peti-
tioner.
[1] As a preliminary matter, we conclude that the district
court erred by adopting the reasoning of the trial court and
rejecting the factual conclusions in the last reasoned state
decision from the California Supreme Court. See Lambert,
393 F.3d at 964. The district court determined that Gregory’s
confession would have been crucial for Petitioner’s defense.
However, the district court conditioned the import of Culver’s
testimony upon whether it was reliable. The district court
relied on the California trial court’s reasoning, rather than the
California Supreme Court’s reasoning, and determined that
Culver’s unreliable testimony would not have substantially
bolstered Petitioner’s defense theory that Gregory committed
the murder.
In contrast to the district court, the California Supreme
Court did not find that Culver’s testimony was justifiably
CUDJO v. AYERS 11883
excludable based on any concerns about reliability. Instead,
regarding Gregory’s confession, the court concluded that, if it
were “made as claimed, [the statement] was probably true,”
Cudjo, 863 P.2d at 649 (emphasis added), because it was
given “under circumstances providing substantial assurances
that the confession was trustworthy,” id. at 650. The Califor-
nia Supreme Court also found that Culver’s testimony “had
substantial probative value,” raised the “requisite reasonable
doubt” regarding a “highly material” issue in the case, and
was “highly necessary” as “no comparable direct evidence of
Gregory’s guilt” was available. Id. at 650.
[2] Because the California Supreme Court’s factual find-
ings have not been rebutted by clear and convincing evidence,
the district court was required to give a presumption of cor-
rectness to the California Supreme Court’s conclusions
regarding the facts. See Moses, 555 F.3d at 746 n.1. The dis-
trict court’s failure to do so was error.
The California Supreme Court also correctly described the
law regarding questions of credibility. The court explained
that “doubts” about credibility, “however legitimate,” did not
constitute prejudice under the rules of evidence. Cudjo, 863
P.2d at 650. “Except in . . . rare instances of demonstrable fal-
sity, doubts about the credibility of the in-court witness
should be left for the jury’s resolution; such doubts do not
afford a ground for refusing to admit evidence under the hear-
say exception.” Id.Supreme Court precedent makes clear that questions of
credibility are for the jury to decide. See United States v. Bai-
ley, 444 U.S. 394, 414 (1980) (“The Anglo-Saxon tradition of
criminal justice embodied in the United States Constitution
. . . makes jurors the judges of the credibility of testimony
offered by witnesses. It is for them, generally, . . . to say that
a particular witness spoke the truth or fabricated a cock-and-
bull story.”); see also Washington v. Texas, 388 U.S. 14, 19
(1967) (discussing the right to offer witness testimony to the
11884 CUDJO v. AYERS
jury). Accordingly, the California Supreme Court was correct
in noting the trial court’s error in analyzing the credibility of
a live witness when determining whether to exclude this wit-
ness’s testimony.
Before this court, California relies on Rhoades v. Henry,
638 F.3d 1027 (9th Cir. 2011), to support the California trial
court’s decision to exclude Culver’s testimony based on credi-
bility (despite its relevance and probative value). But in that
case, we upheld the exclusion of the hearsay evidence,
because the underlying hearsay testimony (from a drunk third
party) “lacked ‘persuasive assurances of trustworthiness.’ ”
Id. at 1034-35. The issue was not whether the live witness was
reliable. Thus, this case is inapposite. See id.[3] Given that the California Supreme Court found that
trustworthy and material exculpatory evidence was errone-
ously excluded from Petitioner’s trial, we must determine
whether United States Supreme Court precedent (at that time)
had clearly established that the exclusion of testimony such as
Culver’s violated Petitioner’s due process and Sixth Amend-
ment rights to present a defense, or whether the California
Supreme Court was correct that no such right was clearly
established by federal law. After review, we conclude that the
California Supreme Court’s decision was “contrary to” clearly
established federal law. Chambers v. Mississippi is control-
ling Supreme Court precedent that existed at the time, with
“materially indistinguishable” facts. 410 U.S. at 295-97.
However, contrary to the dissent’s assertions, we do not hold
that the California Supreme Court engaged in an “unreason-
able application” of Chambers in a new factual context.
Rather, here, where there are no constitutionally significant
distinguishable facts between Chambers and this case, Cham-
bers mandates a different result from that reached by the Cali-
fornia Supreme Court.
In Chambers, the defendant sought to introduce the testi-
mony of three different third parties who would testify that
CUDJO v. AYERS 11885
another man named McDonald had confessed to committing
the murder for which the defendant was being accused. Id. at
289. However, the trial court sustained the government’s
objection to this testimony and ruled that the testimony was
not admissible. Id. at 289-93. For at least one of these individ-
uals, the United States Supreme Court noted that the trial
court did not specify why it chose to exclude the evidence; the
state supreme court assumed it was based on an application of
the hearsay rule. Id. at 293 n.6. The defendant was also unable
to cross-examine McDonald about his written murder confes-
sion, because of the trial court’s application of the state’s
voucher rule. Id.[4] The United States Supreme Court explained that the
“right of an accused in a criminal trial to due process is, in
essence, the right to a fair opportunity to defend against the
State’s accusations. The rights to confront and cross-examine
witnesses and to call witnesses in one’s own behalf have long
been recognized as essential to due process.” Id. at 294. The
Court also explained that this right to defend is “not absolute
and may, in appropriate cases, bow to accommodate other
legitimate interests in the criminal trial process.” Id. at 295.
The government’s interests must be “closely examined,” and
they are often embodied by “established rules of procedure
and evidence designed to assure both fairness and reliability
. . . .” Id. at 295, 302.
[5] Thus, the Supreme Court balanced the interests of the
accused against the interests of the state embodied in the evi-
dentiary rule to determine which interest took priority in this
situation. Id.; see also Miller v. Stagner, 757 F.2d 988, 994
(9th Cir. 1985) (describing this test as a weighing of the pro-
bative value, necessity, and reliability of evidence against the
government interests).
Regarding the trial court’s application of the hearsay rules
to exclude third party testimony about McDonald’s confes-
sion, the Court explained:
11886 CUDJO v. AYERS
Although perhaps no rule of evidence has been more
respected or more frequently applied in jury trials
than that applicable to the exclusion of hearsay,
exceptions tailored to allow the introduction of evi-
dence which in fact is likely to be trustworthy have
long existed. The testimony rejected by the trial
court here bore persuasive assurances of trustwor-
thiness and thus was well within the basic rationale
of the exception for declarations against interest.
That testimony also was critical to Chambers’
defense. In these circumstances, where constitutional
rights directly affecting the ascertainment of guilt are
implicated, the hearsay rule may not be applied
mechanistically to defeat the ends of justice.
410 U.S. at 302 (emphasis added). Similarly, the Court held
that the state’s use of the voucher rule “as applied in this
case” to prevent cross-examination of McDonald “plainly
interfered with Chambers’ right to defend against the State’s
charges.” Id. at 298. Thus, this “exclusion of . . . critical evi-
dence, coupled with the State’s refusal to permit [the defen-
dant] to cross-examine McDonald, denied [the defendant] a
trial in accord with traditional and fundamental standards of
due process.” Id. at 302.
Another Supreme Court case with similar facts is Green v.
Georgia, 442 U.S. 95, 95-96 (1979) (per curiam). In Green,
at the penalty phase of the trial the court excluded a third-
party account of a confession from a co-defendant, because
the trial court found this evidence constituted hearsay. Id. at
96. The Supreme Court held that, “[r]egardless of whether the
proffered testimony comes within Georgia’s hearsay rule,
under the facts of this case its exclusion constituted a viola-
tion of the Due Process Clause of the Fourteenth Amend-
ment.” Id. at 97. The Court went on to explain that “[t]he
excluded testimony was highly relevant to a critical issue in
the punishment phase of the trial, and substantial reasons
existed to assume its reliability.” Id. (citation omitted). The
CUDJO v. AYERS 11887
Court held that in these “unique circumstances, ‘the hearsay
rule may not be applied mechanistically to defeat the ends of
justice.’ ” Id. (quoting Chambers, 410 U.S. at 302). Accord-
ingly, the Court held that the exclusion of such evidence had
denied the defendant a fair trial. Id.4 The Court vacated the
sentence and remanded. Id.That Chambers controls the factual circumstance of this
case is supported by our recent decision in Lunbery v. Horn-
beak, 605 F.3d 754 (9th Cir. 2010). In Lunbery, a woman was
prosecuted for her husband’s murder and sought to introduce
“evidence that the murder had been committed” by the part-
ners of a drug dealer who had previously lived in the couple’s
home. Id. at 758. The trial court excluded this testimony, find-
ing the evidence inadmissible hearsay without “sufficient
indicia of reliability,” and prejudicial to the prosecution with
only slight probative value.5 Lunbery v. Hornbeak, No. CIV
S-07-1279, 2008 WL 4851858, at *17-18 (E.D. Cal. Nov. 10,
2008).
On appeal, we held that the defendant’s right to present a
defense was violated “by the exclusion of probative admissi-
ble evidence that another person may have committed the
crime.” Lunbery, 605 F.3d at 760. Specifically, we explained
that “Chambers controls,” because there the Supreme Court
focused on the exclusion of relevant exculpatory evidence that
“bore substantial guarantees of trustworthiness and was criti-
cal to [the defendant’s] defense.” Id. at 761. We noted that
“[a]s in Chambers, the excluded testimony here ‘bore persua-
4
Similarly in Petitioner’s case, the California Supreme Court expressly
found that whether or not Culver’s testimony came within the state hear-
say rule, it should have been admitted, because it was “highly material”
and “highly necessary,” and it would not have taken up too much time or
been prejudicial. Cudjo, 863 P.2d at 650.
5
Notably, that is almost exactly the same ruling that the state trial court
made in Petitioner’s case. Also worth noting is that, unlike Chambers or
Petitioner’s case, in Lunbery there was no attempt to question the alterna-
tive murderer himself.
11888 CUDJO v. AYERS
sive assurances of trustworthiness’ and ‘was critical to [the
defendant’s] defense. California’s application of its evidenti-
ary rules denied [the defendant] her constitutional right to
present a defense.” Id. at 762 (citation omitted). Thus, we held
that the “California court of appeal’s conclusion to the con-
trary constitutes an objectively unreasonable application of
Chambers.” Id.[6] Here, as in Chambers (as well as Green and Lunbery),
the evidence at trial pointed to a single person committing
murder, and the issue of the case was the identity of the per-
petrator. Chambers, 410 U.S. at 297. As in Chambers, Peti-
tioner “endeavored to develop two grounds of defense”: that
he did not kill the victim, but that an identifiable other person
did. Id. at 288-89. In both cases, the alternate suspect had
allegedly previously confessed to the crime; the defense was
prevented from cross-examining the alternate suspect at trial;
and the trial court’s application of the hearsay rules prevented
the defendant’s witness from testifying to the alternate sus-
pect’s confession. Id. at 289-94.
[7] In Petitioner’s case, the California Supreme Court
determined that this confession, if it came about as Culver
claimed, “was probably true,” and was given “under circum-
stances providing substantial assurances that the confession
was trustworthy.” Cudjo, 863 P.2d at 649-50 (emphasis
added). That is almost precisely the conclusion of the
Supreme Court in Chambers. Moreover, the California
Supreme Court explained that this testimony had “substantial
probative value,” was “highly material” and “highly neces-
sary,” and there was no other “comparable direct evidence of
Gregory’s guilt.” Id. Furthermore, the court determined that
this evidence would not be prejudicial, confusing, or unduly
time-consuming. Id. Thus, no government interest outweighed
the value of admitting relevant evidence highly necessary to
Petitioner’s presentation of his defense. Consequentially, the
California Supreme Court determined that the testimony
should have been allowed at trial. Id. at 651. As a result,
CUDJO v. AYERS 11889
Chambers should have controlled. The California Supreme
Court should have determined that the trial court’s errors and
abuse of discretion violated Petitioner’s constitutional right to
present a defense.
Nor is Petitioner’s case distinguishable from Chambers on
the ground that Gregory invoked his Fifth Amendment right,
rather than the outdated voucher rule from Chambers. In fact,
the situation may have been even more prejudicial to Peti-
tioner. In Chambers, the defense was at least able to make
McDonald read his written confession, even though he coun-
tered it with a renunciation. Chambers, 410 U.S. at 291. Thus,
although the defendant could not cross-examine the witness,
at least the jury heard this alternative story from the alternate
murderer himself. In the present case, Petitioner was unable
to set forth the testimony of any witnesses that directly indi-
cated Gregory’s guilt. While Petitioner’s inability to cross-
examine Gregory likely did not amount to a confrontation
clause violation, it did make the admission of Petitioner’s pro-
posed testimony from Culver all the more critical to present-
ing an adequate defense.
It is possible that the California Supreme Court was
unaware of the factual similarities between its case and
Chambers or Green. The only mention it made of Chambers’
facts was in a parenthetical; it did not observe that Chambers
also dealt with the application of the hearsay rules of evidence
to exclude testimony very similar to that in this case. See
Cudjo, 863 P.2d at 652. Though the state court’s awareness
or explanation of Supreme Court authority is irrelevant to
determining the correctness of the state court result, Early v.
Packer, 537 U.S. 3, 8 (2002) (per curiam), unawareness may
explain the lack of discussion of these factually similar cases.
In an attempt to synthesize the United States Supreme
Court precedent, the California Supreme Court explained that
[t]he United States Supreme Court has held that the
constitutional right to present and confront material
11890 CUDJO v. AYERS
witnesses may be infringed by general rules of evi-
dence or procedure which preclude material testi-
mony or pertinent cross-examination for arbitrary
reasons, such as unwarranted and overbroad assump-
tions of untrustworthiness. However, the high court
has never suggested that a trial court commits consti-
tutional error whenever it individually assesses and
rejects a material defense witness as incredible.
Cudjo, 863 P.2d at 651 (emphasis added). The court then
cited eight United States Supreme Court cases in support of
this proposition. Id. at 651-52.
It is not entirely clear what the California Supreme Court
meant when it referred to “general rules of evidence.” Id. at
561 (alteration omitted). To the extent that the California
Supreme Court was describing these precedents as upholding
only facial challenges to general rules of evidence, this is
clearly incorrect. Both Chambers and Green challenged the
application of the rules of evidence in a given factual sce-
nario, but the Court did not strike down the rule as invalid in
either case. See Chambers, 410 U.S. at 300, 302 (“While th[e]
rationale [for the limitation on the declaration-against-interest
hearsay exception] has been the subject of considerable schol-
arly criticism, we need not decide in this case whether, under
other circumstances, it might serve some valid state purpose
by excluding untrustworthy testimony. . . . [T]he hearsay rule
may not be applied mechanistically to defeat the ends of jus-
tice” (emphasis added)); Green, 442 U.S. at 97 (same). Thus,
the dissent is inaccurate when it asserts that these cases only
dealt with the application of a “impermissible rule.” Dissent-
ing Op. 11901.
It is true that many Supreme Court cases in this area of the
law deal with challenges to well-established rules of evidence.
However, this merely reflects the fact that these types of rules
often embody the important government interest necessary to
overcome a defendant’s right to present a defense. See
CUDJO v. AYERS 11891
Holmes v. South Carolina, 547 U.S. 319, 327 (2006)
(“[W]ell-established rules of evidence permit trial judges to
exclude evidence if its probative value is outweighed by cer-
tain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury.” (emphasis added));
Rock, 483 U.S. at 56 (“In applying its evidentiary rules a State
must evaluate whether the interests served by a rule justify the
limitation imposed on the defendant’s constitutional right
. . . .”). Clearly the government would not be able to override
a defendant’s important interest in presenting a defense
merely because the government action was based on an arbi-
trary whim, and not a rule of evidence. See United States v.
Scheffer, 523 U.S. 303, 308 (1998) (a defendant’s right to
present a defense “may thus bow to accommodate other legiti-
mate interests in the criminal trial process” when the govern-
ment action is “not arbitrary or disproportionate” (emphasis
added) (internal quotation marks omitted)). Thus, the typical
presence of a general evidentiary rule in the cases cited by the
California Supreme Court results from a requirement on the
government, rather than a requirement on the defendant. To
hold otherwise would be to turn the constitutional right to
present a defense on its head.
[8] To the extent that the California Supreme Court
believed that it would be extremely difficult to say that a state
trial court engaged in an “unreasonable application” of this
rule when faced with new factual circumstances and new
challenges to evidentiary rules, we agree. See, e.g., Moses,
555 F.3d at 758, 762 (upholding a state’s decision not to
extend the right to present a defense to a new factual chal-
lenge to the application of evidentiary rules regarding the
admissibility of expert testimony). But that does not preclude
a state decision from being “contrary to” Supreme Court pre-
cedent when the “facts . . . are materially indistinguishable”
from the present case. Williams, 529 U.S. at 405. Here, any
distinctions between this case and Chambers are distinctions
without a difference.6 Thus, the California Supreme Court’s
6
The dissent mischaracterizes our holding and then dissents from a new
conclusion we do not advocate: that the rule of Chambers should be
11892 CUDJO v. AYERS
holding was “contrary to . . . clearly established Federal law.”
28 U.S.C. § 2254(d)(1).
B. Harmless Error
[9] Because we conclude that constitutional error occurred
in this case, we must determine whether the error was harm-
less. In federal habeas proceedings, harmless error analysis
requires federal courts to determine “whether the error had
substantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993) (internal quotation marks omitted). Under this analy-
sis, when “the record is so evenly balanced that a conscien-
tious judge is in grave doubt as to the harmlessness of an error
. . . the petitioner must win.” O’Neal v. McAninch, 513 U.S.
432, 437 (1995). This standard is more deferential to the state
court than the Chapman, analysis required for direct review.
386 U.S. 18. Chapman analysis asks whether the error has
been proven harmless beyond a reasonable doubt. See Fry v.
Pliler, 551 U.S. 112, 119-120 (2007).
Thus, if the California Supreme Court had appropriately
applied the Chapman analysis in analyzing this Constitutional
error, this court would be required to defer to that analysis
under AEDPA unless it was unreasonable. Id. However, if
“the state court’s harmless error holding is contrary to
extended to a new factual situation. We may agree that were the facts of
this case distinguishable from Chambers, it would be difficult to say that
the California Supreme Court had engaged in an unreasonable application
of that rule, but the dissent is not able to point to any constitutionally sig-
nificant differences between the cases. For instance, the dissent ignores the
fact that a “general rule of evidence” at issue in both cases was the trial
court’s application of the hearsay rule. The dissent also argues that Culver
was less reliable than the witnesses in Chambers. Even if this were true,
the fact that the Supreme Court requires credibility questions be left to the
jury makes this a distinction without a difference. See Bailey, 444 U.S. at
414; Washington v. Texas, 388 U.S. at 19.
CUDJO v. AYERS 11893
Supreme Court precedent or objectively unreasonable, then no
deference is owed. We revert to the independent harmless
error analysis that we would apply had there been no state
court holding.” Inthavong v. Lamarque, 420 F.3d 1055, 1059
(9th Cir. 2005). “The state court’s harmless error holding is
‘contrary’ to precedent if it fails to apply the correct control-
ling authority . . . .” Id. at 1061 (internal quotation mark omit-
ted).
Here, the California Supreme Court did not apply the
Chapman harmless error analysis required for constitutional
violations, because the court determined that no “constitu-
tional violation” had occurred. Cudjo, 863 P.2d at 651. Thus,
the California Supreme Court determined that only a “state
law error” had occurred, and the harmless error analysis that
the court applied was only a less demanding state law test.
This test said there was no prejudice if it did “not appear rea-
sonably probable” that the verdict was affected. Id. (citing
People v. Watson, 299 P.2d 243 (Cal. 1956)). This legal rule
was contrary to the rule in Chapman that the government
must prove the error was harmless beyond a reasonable doubt,
386 U.S. at 24, and thus we owe no deference to this harmless
error analysis. Lamarque, 420 F.3d at 1059. Rather, we apply
our “independent harmless error analysis” under Brecht. Id.Many of the facts highlighted in dissenting Justice Ken-
nard’s Chapman analysis are also relevant to our harmless
error analysis under Brecht. We therefore summarize those
facts here. Justice Kennard noted that “[t]he success of th[e
defendant’s] defense depended in large measure on providing
the jury with sufficient reasons to credit defendant’s explana-
tion,” and the trial court’s ruling “eviscerated this defense.”
Cudjo, 863 P.2d at 672 (Kennard, J., dissenting). The prose-
cution’s case was “far from compelling.” Id. “The murder vic-
tim’s young son, Kevin, could not identify defendant, nor did
he recognize the survival knife or the cut-off jeans found in
the Cudjo camper.” Id. “Defendant’s fingerprints were not
found at the victim’s home, and no bloodstains were detected
11894 CUDJO v. AYERS
on any of defendant’s clothing, on any articles seized from the
Cudjo camper, or on the shoes seized from defendant’s moth-
er’s automobile.” Id. “No articles taken from the victim’s resi-
dence were found in defendant’s possession, nor did any
witness testify to such possession.” Id.Indeed, Justice Kennard noted that law enforcement ini-
tially “focused equally on defendant and Gregory.” Id. “Both
Gregory and defendant were present in the camper to which
the shoe tracks led, and both Gregory and defendant owned
shoes that could have made the tracks. The cut-off jeans and
the knife found in the camper were equally accessible to
defendant and to Gregory.” Id. Further, Justice Kennard
observed that “[s]ome of the evidence pointed more strongly
to Gregory as the intruder that Kevin described,” such as
Gregory’s lack of tattoos or facial hair. Id.Although the victim’s body contained semen that could
have come from the defendant and not from Gregory, Justice
Kennard noted that “the victim’s body bore no signs of trau-
matic sexual assault, Kevin’s testimony did not mention a
sexual assault, and the physical evidence was consistent with
defendant’s account of consensual sexual relations with the
victim.” Id. at 672-73.
[10] The strongest evidence against the defendant, accord-
ing to Justice Kennard, came from “Gregory’s previous state-
ments to sheriff’s investigators . . . .” Id. at 673. Yet “this
evidence too was equally, if not more, consistent with Grego-
ry’s guilt,” because it illustrated how knowledgeable Gregory
was about the crime and the victim’s home. Id. But since
Gregory “did not testify at trial, the jury was never given an
opportunity to judge his credibility.” Thus, Culver’s testi-
mony “would have filled a major gap in the defense case, and
would have greatly increased the likelihood of the jury’s
entertaining a reasonable doubt of defendant’s guilt.” Id.[11] The prosecutor’s reference to Petitioner’s race during
closing argument also weighs heavily on our prejudice analy-
CUDJO v. AYERS 11895
sis. The California Supreme Court indicated that the prosecu-
tor committed misconduct when he said in his closing
argument that it was implausible that “this woman is going to
have intercourse with a strange man—frankly any man—a
black man, on her living room couch with her five year old
in the house.” Id. at 661 (majority opinion) (emphasis added).
The court correctly noted that a prosecutorial statement, that
includes racial references likely to incite racial prejudice, vio-
lates the Fourteenth Amendment. Id. (citing McCleskey v.
Kemp, 481 U.S. 279, 309 n.30 (1987) (“The Constitution pro-
hibits racially biased prosecutorial arguments.”); United
States v. Doe, 903 F.2d 16, 24-25 (D.C. Cir. 1990); McFar-
land v. Smith, 611 F.2d 414, 416-417 (2d Cir. 1979); Miller
v. North Carolina, 583 F.2d 701, 707 (4th Cir. 1978); United
States ex rel. Haynes v. McKendrick, 481 F.2d 152, 159 (2d
Cir. 1973); United States v. Grey, 422 F.2d 1043, 1045-1046
(6th Cir. 1970)). The court also noted that there was no “com-
pelling justification for the prosecutor’s racial reference in
this case . . . .” Id.However, the California Supreme Court concluded that the
statement was not prejudicial, because the prosecutor’s
remark was “brief and isolated,” was one of many factors
listed to undermine the credibility of the defendant’s testi-
mony, and it added little to the force of the argument. Id. In
addition, there was “no continued effort by the prosecutor to
call attention to defendant’s race or to prejudice the jury
against him on account of his race.” Id.We do not determine whether the California Supreme
Court’s prejudice analysis for this racial comment in isolation
was unreasonable. Rather, we consider the prejudicial effect
of this comment in context of the trial court’s exclusion of
Culver’s exculpatory testimony.
[12] In the present case, the trial court’s exclusion of Cul-
ver’s testimony meant that the only testimony Petitioner had
to support his theory of the case was his own. Petitioner’s
11896 CUDJO v. AYERS
argument hinged on the jury believing that the victim would
be willing to have consensual sex with Petitioner. The prose-
cutor’s inappropriate racial statements struck at the core of
this defense, by using racial bias to discredit Petitioner’s testi-
mony. See Grey, 422 F.2d at 1045 (“At worst, the gratuitous
reference to the race of the [woman] may be read as a deliber-
ate attempt to employ racial prejudice to strengthen the hand
of the [prosecution].”). Thus, because Petitioner’s testimony
was discredited by an inflammatory racial comment, the
exclusion of Culver’s testimony became even more prejudi-
cial, dramatically increasing the likelihood that its exclusion
“had [a] substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht, 507 U.S. at 637. Therefore,
because we have “grave doubt[s] as to the harmlessness of
[this] error,” we must rule for the Petitioner. O’Neal, 513 U.S.
at 437.
IV. CONCLUSION
[13] For the foregoing reasons, we grant a certificate of
appealability for this issue and REVERSE the district court’s
denial of Petitioner’s habeas petition. We REMAND with
instructions to the district court to issue the writ of habeas
corpus, unless California elects, within 90 days of the issu-
ance of the mandate, to retry Petitioner. Any such retrial shall
commence within a reasonable time thereafter to be set by the
district court.
REVERSED and REMANDED.
O’SCANNLAIN, Circuit Judge dissenting:
In the forty years since it was written, Chambers v. Missis-
sippi, 410 U.S. 284 (1973), “has been used by the Supreme
Court only a handful of times to overturn convictions; and the
Supreme Court’s standards are quite vague.” Fortini v. Mur-
CUDJO v. AYERS 11897
phy, 257 F.3d 39, 48 (1st Cir. 2001). Yet today we hold that
Chambers “clearly establishe[s] that the exclusion of trust-
worthy and necessary exculpatory testimony at trial violates
a defendant’s due process right to present a defense.” Maj.
Op. at 11869. Because “the holding of Chambers—if one can
be discerned from such a fact-intensive case—is certainly not
that a defendant is denied ‘a fair opportunity to defend against
the State’s accusations whenever critical evidence’ favorable
to him is excluded,” Montana v. Egelhoff, 518 U.S. 37, 53
(1996), I respectfully dissent.
I
A
All evidence in this case points to the conclusion that either
Armenia Cudjo or his brother Gregory brutally murdered
Amelia Prokuda after engaging in (apparently) consensual
sexual intercourse. After the murder, evidence against Arme-
nia quickly mounted. Gregory told officers that he had con-
fessed to the crime in some detail, and he was shortly
thereafter linked to the semen found on her bound, gagged,
beaten, and nearly naked body. People v. Cudjo, 863 P.2d
635, 643-64 (Cal. 1993).
Unable to deny that he had been at the house—and thus
would likely have left the single set of footprints found in the
rain-washed ground outside her home, id. at 644—Armenia
tried to convince officers that Mrs. Prokuda had traded sexual
favors for $50 worth of cocaine. Id. at 645. He then claimed
to have gone on a long, slow jog while someone else commit-
ted the crime (apparently without leaving any shoe prints).
This story had several gaping holes. Among the most blatant
were that there was no cocaine found in the Prokuda home
and that Mrs. Prokuda’s “blood tested negative for alcohol
and an array of illegal drugs, including cocaine.” Id. at 642.
But, Armenia protested, it could not have been him. He had
a goatee and several tattoos, but the only eye witness—
11898 CUDJO v. AYERS
Prokuda’s five-year-old son Kevin—said that the man who
attacked his mother was clean shaven and had no tattoos. Id.Though Kevin could not pick the assailant out of a lineup or
identify several other pieces of evidence from the scene,
Armenia asserts that he must have been talking about his
brother Gregory. Id. at 645.
Armenia sought to make his story sound more plausible by
calling John Lee Culver to the stand. According to Culver,
Gregory confessed to the crime while the two shared a cell in
the local jail. Id. at 647. Culver, however, was far from an
ideal witness. He was both a criminal and a decades-long
friend of Armenia, and his account of Gregory’s confession
did not match the physical evidence of the crime. Id. at 649.
More importantly, Culver admitted that he filled in any gaps
in Gregory’s confession with his own speculation, see id.(stating initially that Gregory had confessed to implicating
Armenia before admitting “that he merely inferred that Greg-
ory had blamed defendant”), or through conference with
Armenia’s family and defense team, id. at 647 (no mention of
a confession at all until contacted by defense team and none
of a little boy until speaking with Gregory shortly before testi-
fying).
The prosecutor argued that this testimony should be
excluded as “inherently incredible.” Id. at 648. The trial court
agreed, applying a state evidentiary provision allowing it to
exclude evidence whose probative value is substantially out-
weighed by the danger of undue prejudice or misleading the
jury. Id. at 648 (Cal. Evid. Code § 352). (The district court
also decided that the evidence was insufficiently reliable to
warrant admission under the hearsay exception for statements
against penal interest. Id. (Cal. Evid. Code § 1230).)
B
The California Supreme Court concluded that this was an
error of state law. It clarified that ordinarily only the reliabil-
CUDJO v. AYERS 11899
ity of the declarant is relevant to the admissibility of hearsay
testimony pursuant to section 1230. Id. at 649. It recognized
that in certain “rare instances,” the trial court could exclude
hearsay statements based on “doubts about the credibility of
the in-court witness.” Id. at 650. In this case, however, the
California Supreme Court concluded that because there was
insufficient proof that Culver falsely recounted what Gregory
said, such questions should have “be[en] left for the jury’s
resolution.” Id. Similarly, the court concluded the concerns
about Culver’s reliability should not have played a role in the
prejudice calculus under section 352. Id.It determined nonetheless that there was no constitutional
error. Having reviewed the Chambers line of cases, the court
concluded that “mere erroneous exercise of discretion under
. . . normal rules” of evidence “does not implicate the federal
Constitution.” Id. at 652. Chambers and its progeny, the court
decided, were implicated only when “the constitutional right
to present and confront material witnesses [is] infringed by
general rules of evidence or procedure which preclude mate-
rial testimony or pertinent cross-examination for arbitrary rea-
sons, such as unwarranted and overbroad assumptions of
untrustworthiness.” Id. Because this case did not involve such
an overbroad assumption, the court reviewed whether Arme-
nia was prejudiced under the standard rule for erroneous evi-
dentiary decisions. Id. Finding no such prejudice, the
California Supreme Court affirmed the conviction.
II
The panel majority concludes that this was an unreasonable
interpretation of Chambers. I disagree.
In Chambers, the defendant was accused of shooting a
police officer. No one saw Chambers shoot the officer, and
there was no evidence that Chambers owned a firearm. 410
U.S. at 289. By contrast, a third party named Gable McDon-
ald was identified as the shooter, owned a gun, and confessed
11900 CUDJO v. AYERS
to the crime three times (once in a sworn affidavit). Id. at 292.
Chambers was prevented from offering much of this evi-
dence. He was allowed to call MacDonald, but on cross-
examination the government established that McDonald had
repudiated at least one of his confessions. Chambers was not
allowed on re-direct to give the jury reasons to credit his con-
fession over his repudiation because Mississippi continued to
adhere to the “voucher” rule, which binds a party to the asser-
tions of his or her witness. Id. at 298. He was not even
allowed to offer the testimony of the people to whom Mac-
Donald confessed because—unlike most other states—
Mississippi had not recognized an exception to the bar against
hearsay for statements against penal interest. Id. at 293-94.
Deeming both of these rules to be outdated and arbitrary, the
Court concluded that under the specific circumstances of that
case, Chambers was denied due process of law. Id. at 302-03.
This case does not present the same circumstances. In
Chambers, there was no question about the reliability of those
individuals who were recounting MacDonald’s confessions.
MacDonald also testified himself, offering the prosecution the
opportunity to test the veracity of his confession. Id. at 301.
Here, by contrast, the only evidence that Gregory Cudjo
admitted to the crime was the word of a witness of dubious
veracity. Cudjo, 863 P.2d at 651 (agreeing that the trial
court’s “doubts about Culver’s credibility [were] reasonable
and legitimate”).
Moreover, the trial court’s error was materially different
from that found to be a due process violation in Chambers.
There, the only question before the Court was whether the
state could “mechanistically apply” two different rules that
most jurisdictions had abandoned to the “facts and circum-
stances of [that] case.” Chambers, 410 U.S. at 302. The Court
did not examine the issue here: whether a single erroneous
ruling regarding state evidentiary law could render a convic-
tion a violation of due process. The same is true of the entire
line of cases on which Armenia relies. See Green v. Georgia,
CUDJO v. AYERS 11901
442 U.S. 95 (1978) (holding that due process required a state-
ment against penal interest exception to hearsay in the penalty
phase of a capital case); Rock v. Arkansas, 483 U.S. 44, 58
(1987) (rule against hypnotically-refreshed testimony may not
prevent a defendant from testifying in her own defense); see
also Crane v. Kentucky, 476 U.S. 683, 686 (1968); Washing-
ton v. Texas, 388 U.S. 14 (1967); Holmes v. South Carolina,
547 U.S. 319, 326 (2006) (synthesizing this line of cases as
holding that “the Constitution . . . prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose
or that are disproportionate to the ends that they are asserted
to promote” but not under “well-established rules of evidence
[which] permit trial judges to exclude evidence if its probative
value is outweighed by certain other factors such as unfair
prejudice . . . or potential to mislead the jury”).
The majority has not cited a single Supreme Court decision
extending Chambers beyond situations where the state cor-
rectly but mechanistically applied an impermissible rule to
those where it made a mistake in applying a perfectly permis-
sible rule.1 We therefore cannot say that the California
Supreme Court’s decision to uphold a verdict involving only
the latter error “was contrary to or an unreasonable applica-
tion of [Supreme Court] precedent.” Penry v. Johnson, 532
U.S. 782, 794 (2001). As we have recognized, a “state court’s
decision [is] not contrary to clearly established federal law . . .
[if it] would have required an extension of [a] specialty doc-
trine.” Benitez v. Garcia, 495 F.3d 640, 644 (9th Cir. 2007).
Even if we think such an extension is the logical result of
1
Indeed, we have already recognized that the “Supreme Court has not
addressed [the] issue . . . [of] whether a trial court’s discretionary determi-
nation to exclude evidence violated a defendant’s constitutional rights.”
Moses v. Payne, 543 F.3d 1090, 1103 (9th Cir. 2008). The majority’s
attempt to fill this gap with Lunbery v. Hornbeak, 605 F.3d 754 (9th Cir.
2010) is unavailing. Lunbery is hardly persuasive when it resurrected—
without citation—an interpretation of Chambers that we had already
rejected, Moses, 543 F.3d at 1103, and that the Court had repudiated,
Egelhoff, 518 U.S. at 53.
11902 CUDJO v. AYERS
existing precedent, we may grant a writ of habeas corpus only
“if the refusal to extend [the Court’s previous holdings] was
objectively unreasonable.” Id.; see also Hawkins v. Ala., 318
F.3d 1302, 1306 n.3 (11th Cir. 2003).
The California Supreme Court did not act unreasonably
when it declined to extend Chambers to cover a simple error
in balancing the prejudicial effect against the probative value
of a piece of evidence. The rule the majority now endorses
“invites federal constitutional scrutiny each and every time,
on the basis of particular circumstances, [a district court
decides] to exclude a defense witness as unworthy of credit.”
Cudjo, 863 P.3d at 652. The Chambers line of cases did not
suggest—let alone clearly establish—that the due process
clause mandates such intrusive review of a state court’s evi-
dentiary rulings. Cf. Fortini, 257 F.3d at 47 (“[N]ot every ad
hoc mistake in applying state evidence rules, even in a murder
case, should be called a violation of due process; otherwise
every significant state court error in excluding evidence
offered by the defendant would be a basis for undoing the
conviction.”).
III
Without that extension, all that is left of this case is an error
of state law, albeit a significant one. Because we lack author-
ity to issue habeas relief based upon such an error, see, e.g.,
Swarthout v. Cooke, 131 S. Ct. 859 (2011); Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991); Lewis v. Jeffers, 497
U.S. 764, 780 (1990), I respectfully dissent.2
2
The majority’s assertion that the prosecutor’s isolated reference to the
defendant’s race in his closing statement similarly violated Armenia’s due
process rights is similarly flawed. The California Supreme Court properly
noted that this was misconduct, but correctly applied controlling Supreme
Court case law. See, e.g., Donnelly v. DeChristoforo, 416 U.S. 637,
646-47 (1973) (finding no constitutionally reversible error in improper but
isolated comments during closing arguments); see also Parker v. Mat-
thews, 567 U.S. __, 132 S. Ct. 2148, 2153 (2012) (reaffirming Donnelly).