Calvin Jackson v. Robert Legrand , 688 F.3d 1091 ( 2012 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CALVIN O’NEIL JACKSON, 
Petitioner-Appellant, No. 09-17239
v. D.C. No.
STATE OF NEVADA; BRIAN  3:03-cv-00257-
SANDOVAL; ROBERT LEGRAND, RLH-RAM
Warden, OPINION
Respondents-Appellees.

Appeal from the United States District Court
for the District of Nevada
Roger L. Hunt, Senior District Judge, Presiding
Argued and Submitted
April 19, 2012—San Francisco, California
Filed August 6, 2012
Before: Alfred T. Goodwin, Stephen Reinhardt, and
Mary H. Murguia, Circuit Judges.
Opinion by Judge Reinhardt;
Dissent by Judge Goodwin
8657
8660 JACKSON v. STATE OF NEVADA
COUNSEL
Rene L. Valladares, Federal Public Defender, and Lori C. Tei-
cher (argued), First Assistant Public Defender, Las Vegas,
Nevada, for the appellant.
Catherine Conrtez Masto, Attorney General and Jaime J.
Resch (argued), Senior Deputy Attorney General, Las Vegas,
Nevada, for the appellee.
JACKSON v. STATE OF NEVADA 8661
OPINION
REINHARDT, Circuit Judge:
In January 1999, Calvin Jackson was charged with six
counts related to the sexual assault of his on-again, off-again
girlfriend of ten years, Annette Heathmon. He was found
guilty of forcing his way into her apartment, threatening her
with a screwdriver, and forcing her to perform oral sex and
have vaginal sexual intercourse. Jackson denied that an
assault occurred and claimed that he and Heathmon had con-
sensual sex. At trial, the court prevented Jackson from pre-
senting testimony from police witnesses to support his
defense that Heathmon made false claims against him in the
past alleging physical or sexual assault, and that this was
another instance of her false accusations. It also prevented
Jackson from cross-examining Heathmon about prior acts of
prostitution. Jackson was convicted, and contends that the
trial court’s rulings denied him his constitutional right to pre-
sent a complete defense and to confront the complaining wit-
ness under the Sixth and Fourteenth Amendments. We agree
as to his claim that his right to present a defense was unconsti-
tutionally abridged, and hold that the state court’s conclusion
to the contrary was an unreasonable application of clearly
established federal law. We therefore reverse and remand to
the district court for the conditional issuance of the writ.
BACKGROUND
Calvin Jackson and Annette Heathmon were involved in a
turbulent, on-again, off-again relationship for about ten years.
In 1998, Heathmon broke up with Jackson and moved into an
apartment complex. Although Jackson visited Heathmon at
the complex in an apartment she shared with a friend, when
she moved out of that apartment and into her own unit she did
not inform Jackson where she had moved.
On October 21, 1998, the same night that Annette Heath-
mon moved into her new apartment, a mutual friend named
8662 JACKSON v. STATE OF NEVADA
Willie Williams knocked on Heathmon’s door accompanied
by Jackson, who was not initially visible to Heathmon.
According to Heathmon, Jackson forced his way into her
apartment, threatened to stab her with a screwdriver if she did
not agree to have sex with him, raped her and beat her. While
Jackson was in her apartment, Heathmon testified, he cut the
clothes hanging in her closet with a knife that she kept with
her on her bed, ripped the phone from the wall, and stole a
ring from her dresser and some food from the freezer. Jackson
left the apartment dragging Heathmon with him, demanding
that she walk with him to his car. As Heathmon was being led
away from the apartment by Jackson, the pair encountered
Fred Webb, a security guard at the complex whom Heathmon
had been seeing romantically. When Webb came towards
them, Jackson let go of Heathmon and left the scene. She told
Webb that Jackson had cut up her clothes, and demanded that
Webb pursue him. Although Webb caught up with Jackson,
he did not detain him at the scene and Jackson left. Jackson
was ultimately arrested and charged with burglary, battery
with the intent to commit a crime, first degree kidnapping
with the use of a deadly weapon, and two counts of sexual
assault with the use of a deadly weapon and robbery with the
use of a deadly weapon.
Although Heathmon submitted a letter recanting her accu-
sations against Jackson, she ultimately recanted that recanta-
tion and testified to the assault at trial. In her testimony,
Heathmon discussed other instances in which Jackson had
allegedly physically or sexually assaulted her but had not
been charged with any crime. In response, Jackson sought to
introduce testimony from officers who had responded to or
investigated Heathmon’s previous claims of assault and found
that her claims were not substantiated by the physical evi-
dence at the scene or expressed disbelief as to her version of
the events. The district court precluded this testimony, as well
as counsel’s attempt to cross-examine Heathmon regarding
any prior acts of prostitution. Jackson was convicted of bur-
glary, battery with the intent to commit a crime, first degree
JACKSON v. STATE OF NEVADA 8663
kidnapping with the use of a deadly weapon, and two counts
of sexual assault with the use of a deadly weapon.
After the jury returned a guilty verdict, Jackson challenged
his conviction on direct appeal, alleging that the district
court’s rulings denied him his right to present a defense and
to confront the witness against him. On appeal, the Nevada
Supreme Court rejected Jackson’s contention that the district
court’s evidentiary rulings violated his due process right to
present a defense.1 In rejecting Jackson’s appeal, the Nevada
Supreme Court implicitly concluded that the excluded evi-
dence was neither relevant nor material to his defense. In
holding that the trial court acted appropriately, it additionally
relied on the state rule of evidence barring the introduction of
extrinsic evidence to challenge the credibility of a witness and
held that the exception to that rule, set forth in Miller v.
Nevada, 779 P.2d 87 (Nev. 1989), did not apply. Under Mil-
ler, if a criminal defendant accused of a sexual assault seeks
to introduce evidence that the claimant has made prior false
claims of sexual assault, the defendant must provide written
notice to the trial court of his intent, and the court must con-
duct a hearing to determine its admissibility. Id. at 89-90. On
review of Jackson’s appeal, the Nevada Supreme Court held
that the record did not reveal that Jackson had complied with
the Miller procedure, and thus that the trial court appropri-
ately excluded the evidence due to Jackson’s noncompliance
with the state evidentiary rule.
After exhausting his habeas appeals in the state court, Jack-
son filed a petition in the district court, again asserting that the
trial court’s ruling had denied him his right to present a
defense and to confront the witness against him. The district
court denied relief, and Jackson was granted a certificate of
appeal on these two issues.2
1
The Nevada court also held, in a footnote and without discussion, that
all of his remaining claims were without merit.
2
We conclude that the confrontation claim has no merit and dispose of
it summarily at the end of this opinion. Jackson raised additional claims
8664 JACKSON v. STATE OF NEVADA
DISCUSSION
I.
A.
Jackson’s petition was filed after April 24, 1996, the effec-
tive date of the Anti-Terrorism and Effective Death Penalty
Act of 1996 (“AEDPA”), thus AEDPA governs this habeas
petition. Under AEDPA, a federal court may not grant habeas
to an individual in state custody with respect to any claim
which was adjudicated on the merits in state court proceed-
ings unless the adjudication of the 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). In determining whether a state court
decision was “contrary to” or involved “an unreasonable
application of” Supreme Court precedent, the Court has
explained that:
A state-court decision is contrary to this Court’s
clearly established precedents if it applies a rule that
contradicts the governing law set forth in our cases,
or if it confronts a set of facts that is materially indis-
tinguishable from a decision of this Court but
reaches a different result. A state-court decision
in the district court, but was denied relief. A certificate of appeal was not
granted as to any of Jackson’s other claims; thus they are not relevant to
this appeal.
JACKSON v. STATE OF NEVADA 8665
involves an unreasonable application of this Court’s
clearly established precedents if the state court
applies this Court’s precedents to the facts in an
objectively unreasonable manner.
Brown v. Payton, 544 U.S. 133, 141 (2005) (internal citations
omitted).
[1] A criminal defendant has a well-recognized constitu-
tional right to present a complete defense. Crane v. Kentucky,
476 U.S. 683, 690 (1986) (“Whether rooted directly in the
Due Process Clause of the Fourteenth Amendment, or in the
Compulsory Process or Confrontation clauses of the Sixth
Amendment, the Constitution guarantees criminal defendants
a ‘meaningful opportunity to present a complete defense.’ ”).
Necessary to the realization of this right is the ability to pre-
sent evidence, including the testimony of witnesses. Washing-
ton v. Texas, 388 U.S. 14, 19 (1967) (“The right to offer the
testimony of witnesses, and to compel their attendance, if nec-
essary, is in plain terms the right to present a defense, the
right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the truth
lies. Just as an accused has the right to confront the prosecu-
tion’s witnesses for the purpose of challenging their testi-
mony, he has the right to present his own witnesses to
establish a defense.”). This right is not unlimited, however,
and a defendant does not have an absolute right to present evi-
dence, no matter how minimal its significance or doubtful its
source. United States v. Scheffer, 523 U.S. 303, 309-11
(1998). Rather, the right itself is only implicated when the
evidence the defendant seeks to admit is “relevant and mate-
rial, and . . . vital to the defense.” Washington, 388 U.S. at 16.
Additionally, a violation of the right to present a defense does
not occur any time such evidence is excluded, but rather only
when its exclusion is “arbitrary or disproportionate to the pur-
poses [the exclusionary rule is] designed to serve.” Holmes v.
South Carolina, 547 U.S. 319, 324 (2006) (internal citation
and quotation marks omitted); Michigan v. Lucas, 500 U.S.
8666 JACKSON v. STATE OF NEVADA
145, 151 (1991). This is true even if the rule under which it
is excluded is “respected [,] . . . frequently applied,” and oth-
erwise constitutional. Chambers v. Mississippi, 410 U.S. 284,
302 (1973). If the “mechanical” application of such a rule
would “defeat the ends of justice,” then the rule must yield to
those ends. Id. Thus, in each instance where a criminal defen-
dant asserts that the exclusion of evidence at trial violated his
right to present a defense, we must consider the value of the
evidence in relation to the purposes purportedly served by its
exclusion to determine whether a constitutional violation has
occurred.
In performing this analysis regarding a petitioner whose
appeal is controlled by AEDPA, we must determine whether
the state court’s decision resolving those issues was either
contrary to, or an unreasonable application of, Supreme Court
precedent relating to this constitutional right. In this case, the
Nevada Supreme Court correctly recognized that Jackson’s
claim regarding the exclusion of the witness testimony was
grounded in his right “to present witnesses to establish a
defense.”3 It observed that this right was qualified, and that
the proffered evidence must be “relevant and material to the
defense,” citing Washington v. Texas, 388 U.S. 14 (1967), and
implicitly concluded that the evidence Jackson sought to
adduce did not satisfy this criterion. It additionally relied on
the state’s general proscription against the admission of
extrinsic evidence going to a witness’s credibility and Jack-
son’s failure to comply with the Miller rule in concluding that
the exclusion of the evidence was justified. The state court
correctly recognized that for the exclusion of evidence to
amount to a constitutional violation, the evidence must be rel-
evant and material. Because it concluded that the evidence
3
On review, we consider the last reasoned decision of the state court.
Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). For Jackson’s
claim that the evidentiary ruling denied him his right to present a defense,
the relevant decision is the Nevada Supreme Court decision on direct
appeal.
JACKSON v. STATE OF NEVADA 8667
was immaterial, it did not consider whether the total exclusion
of the witness testimony was disproportionate to the purposes
served by the evidentiary rules cited. The Nevada Supreme
Court recognized and applied the correct legal principle, and
there is no Supreme Court case that presents a materially
indistinguishable set of facts, thus its holding was not contrary
to established law. Habeas relief is warranted, however, if,
under the facts present in this case, the determination by the
Nevada Court that the exclusion of the evidence did not effec-
tively preclude Jackson from presenting a complete defense
was objectively unreasonable.
B.
[2] Jackson’s defense was that the assault never took place
and that he and Heathmon engaged in consensual sex. He
contended that Heathmon used the police as a means of exer-
cising control over him whenever they argued, and that her
allegations against him were fabricated in this instance, just
as they had been in prior instances when the police were cal-
led to respond to her claims. The evidence that he sought to
introduce in furtherance of this defense was testimony from
officers who responded to Heathmon’s prior allegations of
abuse. Prior to trial, Jackson submitted copies of police
reports from these prior instances along with his motion to
reconsider his earlier motion to dismiss. Included in the report
were statements by the responding or investigating officers, in
which they expressed doubt about Heathmon’s claims or
noted inconsistencies between her statements and the physical
evidence they observed. Such testimony was clearly relevant
to Jackson’s defense that Heathmon lied regarding her prior
complaints and made false statements to the police alleging
that he had abused her.4
4
In addition to undermining Heathmon’s credibility and supporting his
theory that she had an improper motive for her allegations, Jackson also
sought to use this evidence to present an alternative explanation for Heath-
mon’s initial refusal to testify: while the prosecution elicited testimony
8668 JACKSON v. STATE OF NEVADA
One incident included within these reports occurred in
March, 1995, when Officer Stiles responded to an alleged bat-
tery, and encountered Heathmon, who asserted that “for unex-
plained reasons [Jackson] reportedly became enraged at
[Heathmon] and began to beat her up by striking her with his
fists and when she fell down, he reportedly kicked her and
stomped on her chest.” Stiles, however, reported that he
observed no physical injuries to Heathmon, nor did he “ob-
serve her to be dirty from rolling on the floor nor were her
clothing in a disar[r]ay, as you might expect in a situation
such as this.” The officer declined to arrest Jackson.
Another incident documented in the police reports pre-
sented by the defense occurred on May 7, 1995. This incident
was discussed extensively by Heathmon in her trial testimony.
According to Heathmon, she was riding in a car driven by a
friend when the car stopped in front of Jackson’s home. She
testified that he pulled her out of the car, dragged her across
the lawn, where a number of his friends were gathered, and
into the house where he beat and raped her. Officer Mars-
check responded to the scene and reported that he “could find
no signs of a sexual assault,” and that the witness, Jackson’s
grandmother who was living in the house at the time, related
that she heard Jackson and Heathmon arguing but did not see
Jackson physically or sexually assault Heathmon. Mars-
check’s report additionally noted that “[d]uring [his] investi-
gation with [Heathmon] [he] noted no sense of fear, injury or
anything other than anger to get Jackson in jail.” The investi-
gating officer assigned to the case, Officer Risenhoover, ulti-
mately closed the case, and, after several failed attempts to
contact Heathmon, concluded that “upon reviewing the case,
[he] found it questionable the event occurred as reported.”
that she was discouraged out of fear, Jackson attempted to show that she
never intended her false claims to be pursued to this extent and was disin-
clined to testify because of the falsity of her claims. This defense was sup-
ported by Heathmon’s admission in her cross-examination that the case
had gone on further than she really wanted it to.
JACKSON v. STATE OF NEVADA 8669
[3] Evidence that Heathmon had, on prior occasions, made
claims of assault that were contradicted or uncorroborated by
the evidence observed by the responding or investigating offi-
cers would be relevant to Jackson’s defense that the allega-
tions by Heathmon were false in this instance as well. When
presented with a trial court’s exclusion of evidence similar to
the excluded evidence in Jackson’s case, we have recognized
that such testimony was highly relevant to the defense and
that its total exclusion was disproportionate to whatever
underlying interests the exclusion was intended to serve.5
In Fowler v. Sacramento Co. Sheriff’s Dept., 421 F.3d 1027(9th Cir. 2005), this court reversed the district court’s denial
of habeas to a petitioner who had been convicted of annoying
or molesting a minor. In Fowler, the defendant was accused
of touching his girlfriend’s fourteen-year-old daughter in a
sexual manner. At trial, the district court prevented the
defense from presenting evidence that the complainant had
previously accused one of her mother’s former boyfriends of
touching her inappropriately and that the local police con-
cluded this allegation was “unfounded.” Id. at 1032-33. The
defense sought to introduce evidence of this prior allegation
by cross-examining the complainant and by introducing
extrinsic evidence in the form of police reports and testimony
from the accused and the officers who investigated the inci-
dent. Id. at 1040 & n.9. The defense argued that this evidence
illustrated the complainant’s tendency to “[mis]perceive[ ],
exaggerate[ ] or overreact,” in relation to her interactions with
adult men, and revealed a disposition towards untruthfulness.
Id. at 1033 (alterations in original) (internal quotation marks
omitted). Although the prior incident was not identical, did
not involve the same alleged perpetrator, and it had not been
5
Although the prior decisions in this circuit are not sufficient to estab-
lish “clearly established” precedent, “[o]ur cases may be persuasive
authority for purposes of determining whether a particular state court deci-
sion is an ‘unreasonable application’ of Supreme Court law.” Duhaime v.
Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).
8670 JACKSON v. STATE OF NEVADA
conclusively established that the complainant’s earlier accusa-
tion was false, this court recognized the clear relevance of the
excluded evidence. In concluding that the petitioner’s consti-
tutional right had been violated, we held that where the evi-
dence “might reasonably have influenced the jury’s
assessment of [the complainant’s] reliability or credibility,
absent sufficient countervailing interests, ‘the jurors were
entitled to have the benefit of the defense theory before them
so that they could make an informed judgment as to the
weight to place on [the complainant’s] testimony which pro-
vided a crucial link in the proof.’ ” Id. at 1040 (quoting Davis
v. Alaska, 415 U.S. 308, 317 (1974)). Under these facts, we
held that the state court’s determination that the exclusion of
this highly relevant evidence was “not unreasonable, arbitrary
or disproportionate given its concerns was itself objectively
unreasonable.” Id. at 1041.
In Holley v. Yarborough, 568 F.3d 1091, 1099 (9th Cir.
2009), we again considered whether the trial court’s exclusion
of evidence bearing on the claimant’s credibility violated the
defendant’s due process rights. Again we concluded that the
trial court’s ruling that prohibited the habeas petitioner from
presenting evidence at trial that bore on the complainant’s
credibility resulted in a constitutional violation, and we
remanded for issuance of the writ. In Holley, the habeas peti-
tioner was convicted of child molestation for sexually touch-
ing the eleven-year-old daughter of an acquaintance. At trial,
Holley sought to introduce evidence that the complainant had
previously made comments to her friends regarding a prior
sexual encounter and had claimed that other boys had
expressed a desire to engage in sexual acts with her. This evi-
dence was intended to challenge the prosecution’s portrayal of
her as a little girl who “would not fabricate things of a sexual
nature.” Id. at 1099. Although there was no evidence as to the
falsity of the complainant’s prior statements, this court agreed
with the defendant that this evidence displayed her “active
sexual imagination.” Id. at 1100. We recognized that with the
knowledge of these prior statements, a jury may reasonably
JACKSON v. STATE OF NEVADA 8671
have challenged the credibility and reliability of her claims.
We therefore held that the state court was objectively unrea-
sonable in its conclusion that these statements were properly
excluded as irrelevant, unduly prejudicial, and insufficiently
probative to justify the amount of time needed for their intro-
duction. In so holding, we noted that the evidence that would
have been elicited through the cross-examination of the com-
plainant and the introduction of witness testimony, was
“clearly relevant to impeach [the complainant], and thus [to]
allow the jury to evaluate the credibility of her allegations.”
Id. at 1099. We determined that the total exclusion of this evi-
dence was both “unreasonable and disproportionate” to the
purposes served by the evidentiary rules invoked by the state
court, id., and that had the jury known of the sexual comments
made by the complaint to others it “might reasonably have
questioned her [accusations].” Id. at 1100.
[4] Our conclusions in Fowler and Holley apply even more
strongly to the evidence in Jackson’s case.6 Heathmon’s credi-
bility was crucial to Jackson’s prosecution, because there was
minimal physical evidence suggesting that she had been phys-
ically or sexually assaulted, and the weapon, a screwdriver,
was never found, nor was it observed by the witness that saw
Jackson and Heathmon together immediately following the
assault. The jury therefore had to rely on Heathmon’s recita-
6
Both Fowler and Holley involved a trial court’s limitation on the scope
of cross-examination as well as its rulings that prevented the introduction
of extrinsic evidence to challenge the complainant’s credibility. While our
discussion of those cases were grounded in the confrontation clause of the
Sixth Amendment, the Supreme Court has held that the analysis is the
same whether the exclusion is framed as a limitation on the right to con-
front or the right to present a defense; in either case, a constitutional viola-
tion occurs only when the exclusion is arbitrary or disproportionate to the
purposes of the rule under which it is excluded. Michigan v. Lucas, 500
U.S. 145, 151 (1991) (“Restrictions on a criminal defendant’s rights to
confront adverse witnesses and to present evidence ‘may not be arbitrary
or disproportionate to the purposes they are designed to serve.’ ” (internal
citation omitted)).
8672 JACKSON v. STATE OF NEVADA
tion of the facts — as presented in her own testimony at trial
and as related through the testimony of other witnesses based
on statements she made around the time of the assault — to
conclude that Jackson had indeed assaulted her, and that he
was wielding a weapon at the time. Evidence that would have
undermined her credibility was central to Jackson’s theory
that this was just another instance in which Heathmon made
false or exaggerated claims against him to the police. It is rea-
sonable to conclude that witness testimony that Heathmon
made uncorroborated claims against Jackson in the past,
claims that were believed by impartial officers to be inaccu-
rate and inconsistent with the physical evidence, would have
influenced the jury’s assessment of Heathmon’s credibility.
There are instances in which this court has determined that
the preclusion of collateral evidence regarding false accusa-
tions did not implicate the defendant’s constitutional right and
that its exclusion was a proper exercise of the discretion of the
trial court. In these cases, however, the excluded evidence
was of marginal relevance to the defense. In Hughes v.
Raines, 641 F.2d 790 (9th Cir. 1981), for instance, the peti-
tioner, convicted of attempted rape, argued that the trial court
improperly excluded evidence that the complainant had previ-
ously accused a man of attempted rape. We held that the evi-
dence was irrelevant to the complainant’s accusation against
the petitioner due to the vastly differing circumstances under
which the two incidents were said to have occurred. Id. at
793. We held that the petitioner’s constitutional rights were
not implicated in the introduction of evidence that did not “es-
tablish bias against the defendant or for the prosecution [but
was] merely . . . to attack the general credibility of the witness
on the basis of an unrelated prior incident.” Id. We contrasted
the excluded testimony in Hughes with that recognized by the
Supreme Court as implicating a defendant’s due process
rights, such as evidence “directed toward revealing possible
biases, prejudices, or ulterior motives of the witness as they
may relate directly to issues or personalities in the case at
hand.” Id. (emphasis added) (quoting Davis, 415 U.S. at 316).
JACKSON v. STATE OF NEVADA 8673
The excluded evidence in Jackson’s trial involved prior accu-
sations against the same defendant by the same complainant
and, Jackson alleged, was part of a pattern of false accusations
of physical and sexual abuse by Heathmon made throughout
the course of their relationship. Such evidence clearly “re-
late[s] directly to issues or personalities in the case at hand,”
id.,and falls well within the category of testimony whose
exclusion may implicate a defendant’s constitutional rights.
We also affirmed the district court’s denial of habeas in
Fenenbock v. Dir. of Corr. for California, 681 F.3d 968 (9th
Cir. 2012), in which the petitioner argued that the trial court’s
exclusion of evidence related to a witness’s false accusation
against a third party resulted in a constitutional violation. In
Fenenbock, the witness was a juvenile who had observed the
crime for which the petitioner was charged. The defense
sought to admit witness testimony that he made an unrelated
and allegedly false report that his foster father had threatened
his foster mother with a firearm. Id. at 972. We recognized
that there is no absolute right “to impeachment via extrinsic
evidence relating to the truth of a collateral out-of-court state-
ment,” and that no existing Supreme Court precedent required
the admission of evidence regarding such a purely collateral
matter. Id. at 977. In doing so, however, we distinguished
Fenenbock’s case from those in which the Supreme Court has
held that the defendant’s due process rights are implicated
because the excluded evidence regarding a witness’s credibil-
ity went to his bias or motive to lie. Id. at 977 & n.11. This
is precisely the nature of the evidence excluded in Jackson’s
case: evidence that Heathmon previously made false accusa-
tions against him as part of their relationship provided a
motive for her allegedly false testimony in this instance, and
was thus both relevant and constitutionally-protected under
recognized Supreme Court precedent.7
7
The trial court also explicitly recognized that the officers’ testimony
went to the question of whether Heathmon had “some motive of bad
intent,” but found that the state rules precluded the introduction of addi-
tional witnesses on this matter.
8674 JACKSON v. STATE OF NEVADA
Our holding in Fenenbock also does not support a conclu-
sion that a constitutional violation did not occur in this case
because the excluded evidence in Jackson’s trial was neither
collateral — because it related to the core of his defense that
Heathmon had a history of making false accusations against
him —and it was not intended to impeach an out of court
statement. To the contrary, the officers’ testimony would have
directly rebutted Heathmon’s own in-court statements that
Jackson had previously assaulted her on several occasions,
including the May 7, 1995 incident, to which she had already
testified at length. Thus, even an appropriate limitation on the
introduction of impeachment testimony on collateral or out of
court statements could not justify the total exclusion of Jack-
son’s evidence in this instance.
C.
Had the court concluded that the evidence Jackson sought
to admit was relevant and material, it would then have had to
consider whether its exclusion under the applicable evidenti-
ary rules was reasonable, or if it was disproportionate to the
interests served by those rules. The proportionality between
the excluded evidence and the interests served by the eviden-
tiary rule is the relevant constitutional question regardless
whether the basis for exclusion is a blanket prohibition on a
certain type of evidence or the defendant’s failure to strictly
comply with a notice provision of an otherwise valid evidenti-
ary rule. Holmes, 547 U.S. at 324; Lucas, 500 U.S. at 1747;
LaJoie v. Thompson, 217 F.3d 663, 670 & n.8 (9th Cir. 2000).
[5] Although the Nevada Supreme Court explicitly consid-
ered only whether the evidence was excludable under Miller,
the state always has a recognized interest in excluding evi-
dence that “poses an undue risk of harassment, prejudice, [or]
confusion of the issues.” Crane, 476 U.S. at 689-90 (alter-
ations in original) (internal citations and quotation marks
omitted). In this case, however, a consideration of the state’s
interests does not support the total exclusion of the officers’
JACKSON v. STATE OF NEVADA 8675
testimony in light of its substantial relevance to Jackson’s
defense.8
As in Holley and Fowler, the complete exclusion of the rel-
evant testimony was disproportionate to the limited interests
that could have been served by the exclusion of such evi-
dence. As discussed above, the evidence, if credited, likely
would have had a significant effect on the jurors’ perceptions
of Heathmon’s credibility. “Any prejudice the jury might
have developed as a result [of this evidence] would have been
to discredit her claims.” Holley, 568 F.3d at 1100. This poten-
tial effect on the jury’s assessment of Heathmon is precisely
what renders the evidence relevant in the first instance and is
necessary to the defendant’s ability to defend against the pros-
ecution’s charges. The officers’ testimony would have been
the only evidence presented by the defendant to suggest that
Heathmon had a pattern of making false accusations against
him and thus would not have been cumulative of any other
evidence that had been introduced.
The officers’ testimony that they did not credit Heathmon’s
past allegations of abuse was no more likely to confuse the
issues than the extensive discussion of these prior incidents
that the trial court allowed into evidence. At trial there was
substantial evidence admitted that referred to these past
alleged assaults including Heathmon’s testimony regarding
past instances in which she claimed to have been assaulted by
Jackson and an officer’s testimony regarding the existence of
the other reports of domestic violence made by Heathmon
8
The state court did not discuss the perceived interests served by the
exclusion of Jackson’s evidence under any rule, nor did it consider these
interests in relation to his ability to present a complete defense in the
absence of that evidence to determine whether its exclusion was dispro-
portionate to those interests. The petitioner argues only that this was an
unreasonable application of federal law, and we therefore need not con-
sider whether the state court’s opinion, by failing to conduct the necessary
analysis, resulted in a decision that was “contrary to” federal law under 28
U.S.C. § 2254(d)(1).
8676 JACKSON v. STATE OF NEVADA
against Jackson. The jury was required to consider this evi-
dence, not for its truth, but to assess Heathmon’s credibility
and state of mind. The evidence Jackson sought to introduce
was neither confusing nor prejudicial in its own right, and it
was far less so on both counts than the evidence admitted by
the trial court. Additionally, while the harassment of the vic-
tim may be a consideration when excluding evidence of past
allegations, the officers’ testimony would not have resulted in
the harassment of any party, particularly not Heathmon, who
had already recounted her version of these past assaults for
the jury. If the trial court had concerns regarding the time
spent on the officers’ testimony, or the possibility of confu-
sion, it could have placed reasonable limits on that testimony,
rather than excluding it in full. None of the concerns generally
considered in the exclusion of otherwise probative evidence
integral to a defendant’s ability to present a complete defense
therefore justify the total exclusion of the testimonial evi-
dence sought to be introduced.
Although the Nevada Supreme Court did not expressly con-
sider the general concerns underlying the exclusion of any
item of relevant information, it did explicitly hold that the evi-
dence was properly excluded for failure to comply with the
procedures of Miller. Miller applies specifically to the admis-
sion of prior accusations of sexual assault. 779 P.2d at 90. Not
all of the incidents regarding which Jackson sought to intro-
duce testimony, nor all of the incidents testified to by Heath-
mon, involved claims of sexual assault. Neither Miller, nor
the legitimate considerations upon which it is based, would
therefore apply to all of the testimony excluded by the trial
court. In particular, a failure to comply with Miller could not
have been the basis for excluding testimony regarding the
March, 1995 incident in which Officer Stiles reported that
Heathmon’s allegations of a physical assault by Jackson were
inconsistent with his observations at the scene. With regard to
evidence related to prior claims of sexual assault, to which the
Miller procedure would apply, the Nevada Supreme Court
was still required to consider whether the application of the
JACKSON v. STATE OF NEVADA 8677
rule resulted in the arbitrary or disproportionate exclusion of
material evidence.
In Lucas, the Supreme Court reversed a decision by the
Michigan Supreme Court that held that any notice and hearing
rule that could be applied to preclude the admission of rele-
vant evidence violated the defendant’s due process rights. 500
U.S. at 148. The Supreme Court recognized that some notice
and hearing requirements may indeed be applied in a manner
that violates the defendant’s constitutional rights, but it held
that Michigan’s per se rule that held that any such require-
ment was unconstitutional was incorrect. Id. at 151. Instead,
it held that the relevant question is whether the restriction was
arbitrary or was disproportionate to the purposes that it was
designed to serve, and the Court remanded for the state court
to make that determination in the first instance. Id. at 151,
153.
We applied the Court’s rule from Lucas in LaJoie, in which
the habeas petitioner failed to comply with Oregon’s notice
rule when he sought to introduce relevant evidence related to
the victim’s prior sexual assault. 217 F.3d at 670. Petitioner
filed a notice of intent seven days before trial, rather than fif-
teen days, as required under Oregon law. Id. at 665. We con-
sidered the materiality of the excluded evidence against the
purposes served by the fifteen-day notice rule in that case and
held that the total exclusion of the evidence was dispropor-
tionate to those purposes, and that the mechanical application
of the rule resulted in a constitutional violation. Id. at 673.
[6] In Jackson’s case, as in LaJoie, the state court failed to
do the individual balancing required by Lucas to determine
whether the exclusion, even if properly authorized under the
rule, was disproportionate to the interests served in light of
the facts of the defendant’s case. Id. at 670. (“Because the
[state court] did not balance the interests in [the defendant’s]
particular case, as required by Lucas, the district court erred
in concluding that the state court decision was not an unrea-
8678 JACKSON v. STATE OF NEVADA
sonable application of clearly established federal law, as
determined by the United States Supreme Court.”). Neither
the Miller opinion nor the opinion in Jackson’s direct appeal
discussed the purposes of the notice provision, but we may
assume that it, like the provision in LaJoie, was intended to
“prevent surprise to the prosecution and the alleged victim,
avoid undue trial delay, and protect the alleged victim from
needless anxiety concerning the scope of the evidence to be
produced at trial.” LaJoie, 217 F.3d at 670. These concerns
must be balanced against the recognized relevance of a vic-
tim’s prior false allegations of sexual assault in the particular
case. See Miller, 779 P.2d at 89 (“[I]t is important to recog-
nize in a sexual assault case that the complaining witness’
credibility is critical and thus an alleged victim’s prior fabri-
cated accusations of sexual abuse or sexual assault are highly
probative of a complaining witness’ credibility concerning
current sexual assault charges.”).
Here, Jackson provided the court and opposing counsel
with written copies of the officers’ statements and explicitly
stated his desire to introduce the officers’ testimony if evi-
dence regarding Heathmon’s allegations of past abuse was
admitted. Although Jackson did not comply with the require-
ments of Miller, he nonetheless gave clear advance notice of
his desire to present the officers’ testimony, and reasserted
this desire prior to a hearing on the admissibility of Heath-
mon’s allegations of past abuse by Jackson. While this notice
was not sufficient under Miller, it nonetheless negated some
of the concerns that the Miller rule was created to address,
such as preventing unfair surprise to the prosecution and vic-
tim and avoiding unnecessary delay. Moreover, Heathmon
was already prepared to testify — and did testify — as to her
version of these prior assaults by Jackson. Thus any possible
embarrassment or apprehension by the victim due to uncer-
tainty about the scope of the examination would not have
applied under the facts of this case.
[7] Although a state court undoubtedly has the authority to
enforce procedural rules intended to serve its legitimate inter-
JACKSON v. STATE OF NEVADA 8679
ests in ensuring the orderly administration of justice, it must
always do so in light of the constitutional requirement that the
exclusion of evidence may not be disproportionate to the
interests served by the rule under which it is excluded. See,
e.g. Chambers, 410 U.S. at 302-03 (holding that otherwise
valid state evidentiary rules “as applied in this case” served to
“deprive [the defendant] of a fair trial”). Because of the criti-
cal importance of the excluded evidence to Jackson’s defense,
and because under the facts of this case all parties were aware
that Heathmon’s prior allegations were likely to be introduced
at trial and that Jackson sought to counter her testimony with
evidence from police officers, the total exclusion of this evi-
dence was disproportionate to the state’s interest in its exclu-
sion on account of Jackson’s failure to comply with Miller.
[8] As in LaJoie, we conclude that with respect to the trial
court’s exclusion of evidence regarding the victim’s past alle-
gations of sexual abuse, “the sanction of preclusion of this
evidence in this case was ‘ . . . disproportionate’ to the pur-
poses of the . . . notice requirement. Therefore, even under a
proper application of the Lucas test, the decision of the [state
court] to preclude the evidence would still amount to ‘an
unreasonable application of . . . clearly established Federal
law, as determined by the Supreme Court of the United
States.’ ” 217 F.3d at 673 (quoting 28 U.S.C. § 2254(d)(1)).
D.
[9] Although the exclusion of the police officer testimony
violated Jackson’s right to present a defense, habeas relief is
the appropriate remedy only if the constitutional violation
resulted in error that was not harmless. “[I]n a § 2254 pro-
ceeding[ ] [a] court must assess the prejudicial impact of con-
stitutional error in a state-court criminal trial under the
‘substantial and injurious effect’ standard set forth in [Brecht
v. Abrahamson, 507 U.S. 619 (1993)], whether or not the state
appellate court recognized the error and reviewed it for harm-
lessness under the ‘harmless beyond a reasonable doubt’ stan-
8680 JACKSON v. STATE OF NEVADA
dard set forth in Chapman [v. California, 386 U.S. 18(1967)].” Fry v. Pliler, 551 U.S. 112, 121-22. (2007). To con-
sider whether the standard under Brecht has been met, we
consider the factors prescribed by the Court in Delaware v.
Van Arsdall, 475 U.S. 673 (1986), namely: “(1) the impor-
tance of the witness’ testimony in the prosecution’s case; (2)
whether the testimony was cumulative; (3) the presence or
absence of evidence corroborating or contradicting the testi-
mony of the witness on material points; (4) the extent of
cross-examination otherwise permitted; and (5) the overall
strength of the prosecution’s case.” Merolillo v. Yates, 663
F.3d 444, 455 (9th Cir. 2011) (citing Van Arsdall, 475 U.S.
at 684). In this case, after considering the relevant factors, we
conclude that the exclusion of the witness testimony was
likely to have had a substantial and injurious effect on the ver-
dict in Jackson’s case.
The defense’s theory was that there was no assault, and that
this was another instance in which Heathmon made false
claims to the police against Jackson. Although Heathmon
recounted her complaints to various people, there was no
physical evidence that an assault had occurred and extremely
limited corroboration for Heathmon’s claims. Webb, for
instance, testified that he did not see any signs of physical
injury at the time that he encountered Heathmon and Jackson
leaving the building, that he did not see Jackson with a screw-
driver, and when he examined Heathmon’s closet could not
find any clothes that had been cut. The nurse who examined
Heathmon after the assault found no signs of bruising and no
signs of sexual assault, and the responding officer did not
observe any readily visible marks or bruises.
[10] The primary evidence against Jackson was therefore
Heathmon’s own testimony and the testimony of those who
related statements that she made around the time of the
assault. The only evidence of the presence of the deadly
weapon, which accounted for the imposition of three consecu-
tive life sentences against Jackson, was Heathmon’s own tes-
JACKSON v. STATE OF NEVADA 8681
timony that Jackson was “holding [the screwdriver] against
her neck [and] threatening to put it into her temple.”9 Heath-
mon initially recanted her claim of assault in a notarized letter
produced prior to trial. After she was arrested and detained
under a warrant for failing to appear in court, and threatened
with a perjury charge, Heathmon agreed to testify. At trial she
testified to the original version of the events and stated that
she recanted her testimony because she was scared. Evidence
from uninterested third parties that “bore persuasive assur-
ances of trustworthiness,” Chambers, 410 U.S. at 302, that
Heathmon had previously made what appeared to be false or
exaggerated claims of either physical or sexual abuse would
have substantially bolstered Jackson’s claim that the sexual
assault never occurred. It would also have supported his the-
ory that Heathmon’s earlier refusal to testify was based on the
falsity of her own claims, not fear of Jackson. There was no
other evidence that Jackson produced that could have had the
same effect. The excluded evidence was relevant to a critical
issue at trial, namely whether the assault occurred, the evi-
dence was crucial to Jackson’s defense, and the “excluded
evidence, unlike the evidence [from petitioner’s family and
friends] was not subject to attack on the grounds of bias or
self-interest. It was the only unbiased source of corroboration
for [petitioner’s theory of the defense].” DePetris v. Kuyken-
dall, 239 F.3d 1057, 1063-64 (9th Cir. 2001) (first alteration
in original) (internal quotation marks and citation omitted).
[11] The prosecution introduced minimal evidence that
was not dependent on the veracity of Heathmon’s own asser-
tions of fact. If the jury discounted Heathmon’s testimony and
9
This testimony was inconsistent however, as Heathmon testified at trial
that Jackson was holding the screwdriver in his hand and threatened to
poke her, while at the preliminary hearing, she testified that the screw-
driver was in his pocket, and he did not say how or where he was going
to use it. In its cross-examination, the defense asked Heathmon to explain
her conflicting testimony, but the State objected, arguing that there was no
“inconsistency.” The court sustained the objection and informed Heath-
mon that she need not answer the question.
8682 JACKSON v. STATE OF NEVADA
relied solely on the remaining evidence presented, it may rea-
sonably have found that Jackson was not guilty of some or all
of the charges. The state’s evidence of guilt was therefore not
so overwhelming that we can say there is not a “grave doubt
about whether a constitutional error substantially influenced
the verdict.” Slovik v. Yates, 556 F.3d 747, 755 (9th Cir.
2009) (quoting Parle v. Runnels, 387 F.3d 1030, 1044 (9th
Cir. 2004)).
[12] The exclusion of critical evidence that would have
served to rebut the testimony of the principal prosecution wit-
ness and to directly undermine her credibility constituted a
clear violation of Jackson’s right to present an adequate
defense and we must conclude that this unconstitutional
exclusion caused a substantial and injurious influence on the
jury’s verdict. The state court’s decision to the contrary was
an unreasonable application of clearly established Supreme
Court law.
II.
Jackson additionally argues that the trial court violated his
right to confront the witnesses against him by preventing him
from questioning Heathmon about a prior arrest for prostitu-
tion. At trial, Jackson’s counsel asked Heathmon if she was
“hooking” on two different nights. After the prosecution’s
objection, the jury was told to disregard the question, and no
further inquiries were made as to any possible prostitution
acts or arrests. Jackson lodged an objection that the court pre-
vented him from questioning the witness regarding prior pros-
titution arrests. The court upheld its ruling, noting that the
nature of the questioning was about acts of prostitution, not
arrests for prostitution, and that the precluded line of ques-
tioning was improper.
The Supreme Court has recognized that a defendant’s con-
stitutional right to confront the prosecution’s witnesses
includes the right to impeach the witness through the “intro-
JACKSON v. STATE OF NEVADA 8683
duc[tion] of evidence of a prior criminal conviction of that
witness.” Davis, 415 U.S. at 316. Although Jackson now con-
tends that he was prevented from questioning Heathmon
regarding prior arrests for prostitution, the record does not
reveal that to be the case.10 Moreover, even if Heathmon
engaged in prior acts of prostitution, this behavior would have
no bearing on Jackson’s theory of the defense, nor would it
suggest that her testimony was motivated by any improper
motive or bias. The trial court therefore acted within its dis-
cretion to exclude the prostitution questions as irrelevant, and
this limitation on Jackson’s right of confrontation did not
amount to a constitutional violation. See Hughes, 641 F.2d at
793 (recognizing that the trial court’s exclusion of a general-
ized attack on the witnesses’ credibility, particularly her sex-
ual exploits, did not rise to the level of a constitutional
violation due to its minimal relevance).
CONCLUSION
[13] The district court erred in concluding that the state
court determination that the exclusion of the police witness
testimony did not constitute a violation of Jackson’s well
established right to present a complete defense. The excluded
evidence was relevant and vital to his defense, and the total
exclusion of this testimony was arbitrary and disproportionate
to the purposes the evidentiary rules were intended to serve.
The Nevada Supreme Court decision holding otherwise was
an unreasonable application of clearly established United
States Supreme Court precedent. We therefore reverse the dis-
trict court’s judgment and remand with directions to issue a
conditional writ of habeas corpus, releasing Jackson from
10
The district court adopted the trial court’s interpretation of Jackson’s
questioning of Heathmon, and also concluded that “the trial court did not
allow petitioner to question the victim about prior acts of prostitution,” not
merely arrests. (emphasis in original). We review the district court’s find-
ing of fact for clear error, and on this record, we cannot say that the dis-
trict court’s conclusion that the defense only attempted to inquire as to
prior acts of prostitution was incorrect.
8684 JACKSON v. STATE OF NEVADA
detention unless the state retries him within a reasonable
period of time.
REVERSED and REMANDED.
GOODWIN, Circuit Judge, dissenting:
I respectfully dissent. The appellant did not present in his
appeal to this court a competency-of-counsel question, and I
believe that his failure timely to request a Miller hearing to
support his effort to impeach the complaining witness was a
default by the defense. Rejection of the proffered evidence,
therefore, was not a constitutional error by the state trial court.
The United States District Court for the District of Nevada
complied with the requirements of AEDPA. I would affirm
the judgment.