Moses v. Payne ( 2009 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    JEFFREY DUANE MOSES,                      No. 07-35468
    Petitioner-Appellant,           D.C. No.
    v.
       CV-06-01105-MJP
    ALICE PAYNE,                              ORDER AND
    Respondent-Appellee.          AMENDED
          OPINION
    Appeal from the United States District Court
    for the Western District of Washington
    Marsha J. Pechman, District Judge, Presiding
    Argued and Submitted
    February 4, 2008—Seattle, Washington
    Filed September 15, 2008
    Amended January 30, 2009
    Before: Raymond C. Fisher, Ronald M. Gould, and
    Sandra S. Ikuta, Circuit Judges.
    Opinion by Judge Ikuta;
    Dissent by Judge Gould
    1077
    MOSES v. PAYNE                     1081
    COUNSEL
    John Henry Browne, Seattle, Washington, for the petitioner-
    appellant.
    Alex A. Kostin, Assistant Attorney General, Olympia, Wash-
    ington, for the respondent-appellee.
    ORDER
    The opinion and dissent filed September 15, 2008 are
    hereby amended. A majority of the panel has voted to deny
    the petition for rehearing; Judge Gould votes to grant the peti-
    tion for rehearing. The petition for rehearing en banc is still
    pending, pursuant to General Order 5.4(b). The parties may
    file new petitions for rehearing and rehearing en banc as to
    1082                        MOSES v. PAYNE
    this amended opinion, in accordance with the Federal Rules
    of Appellate Procedure.
    OPINION
    IKUTA, Circuit Judge:
    A Washington state jury convicted Jeffrey Moses of second
    degree murder for the shooting death of his wife, Jennifer
    Moses. In this appeal, we consider whether the district court
    erred in denying Jeffrey Moses’s petition for a writ of habeas
    corpus. Moses contends that his federal constitutional rights
    were violated by several evidentiary decisions made by the
    trial court, including the decision to preclude one of Moses’s
    experts from testifying. Moses maintains that he is entitled to
    habeas relief because the Washington appellate court’s deci-
    sion to affirm his conviction was “contrary to, or involved an
    unreasonable application of, clearly established Federal law,
    as determined by the Supreme Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1). We disagree. The Washington appellate
    court’s decision passes muster under the “highly deferential
    standard for evaluating state-court rulings” in the habeas con-
    text. Woodford v. Visciotti, 
    537 U.S. 19
    , 24 (2002) (per
    curiam) (internal quotation marks omitted). We have jurisdic-
    tion under 
    28 U.S.C. §§ 1291
    , 2253, and we affirm.
    I
    For a summary of the preliminary facts, we rely on the state
    appellate court’s decision1:
    1
    Because this initial statement of facts is drawn from the state appellate
    court’s decision, it is 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). Moses does not allege that these preliminary facts are erroneous.
    MOSES v. PAYNE                        1083
    In the early morning of September 27, 2002,
    Moses’ mother, who lived in California, called the
    police to report that her daughter-in-law, Jennifer
    Moses was dead. The police found Moses on the
    street outside his house, drinking beer, and carrying
    his younger son on his back. Moses’ other son was
    asleep in the house. According to Moses, Jennifer
    shot herself and committed suicide. When the offi-
    cers attempted to enter the house, he told them it was
    unnecessary because he had cleaned everything up.
    Police found Jennifer wrapped in a rug in the garage,
    along with a pile of bloody towels and sponges. Jen-
    nifer had a gunshot wound to her head, blunt force
    trauma to her lips and a cracked tooth. The .410
    gauge derringer used in Jennifer’s death was found
    in the master bedroom. The derringer had been
    recently cleaned and was loaded with two unspent
    shells. When questioned, Moses told police Jennifer
    had been depressed and that she came downstairs
    that evening with the derringer, knelt down and shot
    herself in the head while Moses tried to get the gun
    away from her. Moses said he moved Jennifer’s
    body to the garage to prevent their sons from seeing
    her. He then backed his truck up to the garage to
    load her body into it and bury her in the woods, as
    she had requested. When the truck hit a post, Moses
    said he abandoned the attempt to move Jennifer’s
    body.
    Following this incident, the state charged Moses with first
    degree murder and unlawful possession of a firearm. The
    state’s theory of the murder charge was that Moses intention-
    ally shot Jennifer Moses during a domestic dispute. In support
    of this theory, the prosecution introduced testimony from sev-
    eral witnesses.
    Among these witnesses was Dr. Richard Harruff, a medical
    examiner, who testified that Jennifer Moses had died from a
    1084                    MOSES v. PAYNE
    gunshot wound inflicted to the right side of her upper neck,
    behind the ear. Dr. Harruff explained that Jennifer Moses’s
    wound was a contact wound, that is, a wound indicating that
    the gun had been in contact with Jennifer Moses’s skin when
    it was fired. Dr. Harruff further testified that the gun was
    pointed upwards, “at about an 11 o’clock position,” when it
    was fired in the base of Jennifer Moses’s head. Dr. Harruff
    also stated that a toxicology screen performed during Jennifer
    Moses’s autopsy revealed a blood alcohol level of 0.15.
    Over defense objections, the court also permitted Dr. Har-
    ruff to testify that in his opinion Jennifer Moses’s death was
    a “homicide.” When prompted, Dr. Harruff explained that his
    use of the word “homicide” was a mixed “medical/legal”
    standard, signifying the “likelihood of another person’s
    responsibility leading to [the] death.” According to Dr. Har-
    ruff, the principal reason a medical examiner would certify a
    death as a homicide would be for purposes of the death certif-
    icate. Dr. Harruff testified:
    For example, I would classify something [as] homi-
    cide if the evidence that I see, based on my experi-
    ence and my professional responsibility, indicates
    that this is a death that needs to be looked at for [the]
    potential of criminal activity. That’s my responsibil-
    ity, and I certify death based on that. I’m of course
    not in a position, as the jury is, to render a final con-
    clusion as to whether this represents a murder or not.
    Dr. Harruff further clarified that his opinion did not bear on
    the issue of legal intent, and that his conclusion under the
    “likelihood” standard was not a determination beyond a rea-
    sonable doubt.
    Dr. Harruff testified that he tried to limit himself to only
    “objective” and “unambiguous” factors in his cause-of-death
    analysis, such as the nature and location of the wound. How-
    MOSES v. PAYNE                     1085
    ever, Dr. Harruff acknowledged that he also considered state-
    ments in Jennifer Moses’s diary.
    During cross-examination, the defense elicited testimony
    from Dr. Harruff that “individuals who have difficulty with
    drugs and alcohol are probably at a higher risk of suicide than
    those who are not.” Additionally, Dr. Harruff testified that
    intoxication and access to firearms are both risk factors for
    suicide.
    The government also called Evan Thompson, a ballistics
    examiner for the Washington State Patrol Crime Laboratory.
    Like Dr. Harruff, Thompson testified about the ballistics
    implications of Jennifer Moses’s wound. Basing his analysis
    on the same objective factors considered by Dr. Harruff,
    Thompson concluded that Jennifer Moses’s death was more
    likely a homicide than either a suicide or an accidental shoot-
    ing during a struggle over the gun between Moses and Jenni-
    fer Moses. Like Dr. Harruff, Thompson concluded that
    Jennifer Moses’s death was likely the result of homicide.
    The trial court also allowed testimony concerning a prior
    incident of domestic violence between Moses and Jennifer
    Moses that occurred on November 1, 2001, a little over ten
    months before Jennifer Moses died. This incident resulted in
    Jennifer Moses going to the hospital along with her children,
    and several witnesses affiliated with the hospital testified to
    the events that followed.
    Dr. Warren Appleton, the emergency room physician, testi-
    fied that he interviewed and examined Jennifer Moses in a
    medical exam room shortly after the November 2001 incident
    in order to provide treatment, and observed that Jennifer
    Moses displayed physical signs of fear and anxiety during the
    examination. In order to assess and understand her level of
    fear, Dr. Appleton asked Jennifer Moses what had happened.
    According to Dr. Appleton’s testimony, Jennifer Moses stated
    that Moses assaulted her and broke her jaw.
    1086                    MOSES v. PAYNE
    The hospital social worker, Tamara Muller, testified that
    she interviewed Jennifer Moses’s children while Jennifer
    Moses was under sedation, and then interviewed Jennifer
    Moses. One of the children said that he saw Moses kick Jenni-
    fer Moses. As a result of this statement, Muller contacted
    Child Protective Services (CPS). Muller subsequently inter-
    viewed Jennifer Moses, who identified Moses as the assailant
    who broke her jaw. At some point during the interview, Mul-
    ler told Jennifer Moses that she had contacted CPS.
    Muller also gave more general testimony based on her
    experiences as a domestic violence counselor. Specifically,
    she testified that she “very seldom” tells victims of domestic
    violence to leave their abusive situation immediately. The rea-
    son, according to Muller, was that “a victim is most likely to
    be killed . . . when they leave.” This testimony pertained to
    the prosecution’s theory that Jennifer Moses was attempting
    to leave Moses on or around the night she died.
    Finally, the court allowed the government to introduce evi-
    dence drawn from Jennifer Moses’s journals. Jennifer Moses
    used two journals, one that was handwritten and one that was
    posted online. The government principally relied on the
    online journal (rather than the handwritten journal) to estab-
    lish the abusive relationship between Jennifer Moses and
    Moses. When the government sought to introduce evidence
    from the online journal, the defense countered that the trial
    court should also admit the handwritten journal, which
    included several statements indicating that Jennifer Moses
    was suffering from depression and had thoughts of suicide.
    The trial court decided to include entries from both journals
    for the four months prior to Jennifer Moses’s death. However,
    the court did not admit all of the journal entries written during
    this four-month period. Concluding that there was an “over-
    lap” between the two journals, the trial court decided to
    exclude some handwritten journal entries for days on which
    MOSES v. PAYNE                        1087
    Jennifer Moses had also posted an online journal entry. The
    trial court explained its decision as follows:
    The electronic journal, which covers a time,
    although it overlaps with the written journal, closer
    to the time of her death, at the beginning has a sec-
    tion in each entry which describes her state of mind
    that day or mood and some description of how she
    was feeling. I did find that it was relevant regarding
    her state of mind. The written journal didn’t neces-
    sarily have such statements as to her state of mind.
    And I believe the entire journal is cumbersome and
    that we do not need the entire journal admitted into
    evidence.
    Moses objected to this decision, arguing that the court was
    excluding important evidence regarding Jennifer Moses’s
    state of mind and the nature of his relationship with his wife.
    After the prosecution rested, the defense put on its case.
    The defense’s theory of the case was that Jennifer Moses had
    committed suicide. In support of this theory, the defense
    introduced evidence from several witnesses to show that Jen-
    nifer Moses suffered from depression and had thoughts of sui-
    cide in the months leading up to September 27, 2002.
    The jury heard testimony from four of Jennifer Moses’s
    medical providers on the issue of her mental health. First, the
    defense called Dr. William Dickinson, a doctor associated
    with the Valley General Hospital where Jennifer Moses had
    been treated for substance abuse and depression. Dr. Dickin-
    son testified that Jennifer Moses suffered from major depres-
    sion, albeit without suicidal thoughts, as of March 2002.
    Second, the jury heard from Douglas S. Perry, a chemical-
    dependency professional who also worked for Valley General
    Hospital. Perry testified to Jennifer Moses’s depression,
    cocaine and alcohol abuse, and suicidal thoughts. Third, the
    defense called Barbara Alexander, a mental health counselor
    1088                    MOSES v. PAYNE
    who treated Jennifer Moses from January 2002 through
    March 2002 at the Hall Health Center of the University of
    Washington. Alexander testified that she diagnosed Jennifer
    Moses with major depression. Alexander also testified that
    major depression can be a life-threatening illness and that
    people who suffer from major depression tend not to improve
    if they continue to abuse drugs and alcohol. Finally, the
    defense called Jacquie Griffin, a record custodian for the Vir-
    ginia Mason Medical Center. Jennifer Moses received treat-
    ment at the Virginia Mason center from April 2002 to August
    2002. Because Jennifer Moses’s treatment provider at Vir-
    ginia Mason had died by the time of trial, Griffin was called
    to testify about the treatment provider’s notes. Griffin’s testi-
    mony indicated that Jennifer Moses continued to suffer from
    depression and abuse alcohol and cocaine during the spring
    and summer of 2002. The treatment provider’s notes also
    indicated that Jennifer Moses had experienced suicidal
    thoughts.
    The defense then sought to introduce testimony from Dr.
    Lawrence Wilson, an expert on depression. In a preliminary
    evidentiary hearing outside the jury’s presence, Dr. Wilson
    explained that he was prepared to testify regarding the nature
    of Jennifer Moses’s depression and substance abuse, the
    unlikelihood that Jennifer Moses’s depression would have
    resolved itself before the date Jennifer Moses died, and the
    ability of a person who was severely depressed to appear nor-
    mal to friends and co-workers. (This latter opinion was rele-
    vant insofar as it rebutted the government’s lay testimony that
    Jennifer Moses was not visibly depressed in the final months
    of her life.) Dr. Wilson was also prepared to testify that sev-
    eral risk factors, such as depression, substance abuse, and
    access to firearms, heighten the risk of suicide. Additionally,
    Dr. Wilson was prepared to testify that lay persons do not
    fully understand the implications of major depression and the
    connection between these various risk factors and suicide. Dr.
    Wilson explained to the court that he based his opinions on
    Jennifer Moses’s mental health records, diary, autopsy report,
    MOSES v. PAYNE                       1089
    and interviews with Moses and one of Jennifer Moses’s
    friends. Although Dr. Wilson was not willing to opine that
    Jennifer Moses committed suicide, he was prepared to testify
    that Jennifer Moses fell “into a group of people with an
    extreme number of severe and significant risk factors for sui-
    cide” and that “she continued to suffer [from] major depres-
    sion . . . that continued to the time of her death.”
    After hearing argument from both sides, the trial court
    decided to exclude Dr. Wilson’s testimony. The court gave
    several reasons for its conclusion. First, it stated that Dr. Wil-
    son’s opinion that persons who suffer from depression, abuse
    drugs and alcohol, and have access to firearms experience a
    relatively higher risk of suicide was already within common
    knowledge of the jury. Second, it concluded that Dr. Wilson’s
    testimony was cumulative in light of the other evidence intro-
    duced by the defense establishing that Jennifer Moses was
    undergoing treatment for substance abuse, suffered from
    depression, experienced suicidal thoughts, and had a gun in
    the house. Third, the court concluded that Dr. Wilson’s
    remaining testimony—namely, “that 15 percent of those diag-
    nosed with major depression will take their own life at some
    point in their life”—was not sufficiently probative to out-
    weigh its prejudicial effects and potential to confuse the jury.
    Finally, the defense sought to introduce a photograph of
    Jennifer Moses’s unclothed and emaciated body taken prior to
    her autopsy in order to show that Jennifer Moses experienced
    weight loss as a result of an eating disorder. The court ruled
    the photo inadmissible, concluding that the probative value of
    the photograph was outweighed by its prejudicial effect on the
    jury. Moreover, other evidence of Jennifer Moses’s weight
    loss, including testimony and photos, had been provided to
    the jury.
    The jury convicted Moses of second-degree murder.2 The
    2
    Moses was also convicted on the unlawful possession of a firearm
    charge following a bench trial.
    1090                    MOSES v. PAYNE
    trial court then sentenced Moses to 420 months of incarcera-
    tion. Moses appealed his conviction and sentence to the
    Washington Court of Appeals. On September 19, 2005, the
    appellate court affirmed Moses’s conviction in a reasoned
    opinion, but vacated his sentence and remanded for re-
    sentencing. Moses then appealed his conviction to the
    Supreme Court of Washington. On May 31, 2006, the
    Supreme Court of Washington summarily denied Moses’s
    petition for review.
    Moses filed his petition for a writ of habeas corpus in fed-
    eral court on August 11, 2006. On January 9, 2007, the magis-
    trate judge recommended denying Moses’s petition, and on
    April 10, 2007, the district court adopted the magistrate
    judge’s recommendation and denied Moses’s habeas petition.
    Moses timely filed a notice of appeal on May 10, 2007, and
    on June 8, 2007, the district court granted Moses a certificate
    of appealability on all issues.
    On appeal, Moses contends that the district court erred in
    denying his habeas petition. Moses maintains that the state
    court’s evidentiary decisions deprived him of rights secured
    by the Constitution, and that the state appellate court’s adjudi-
    cation of his appeal “was contrary to, or involved an unrea-
    sonable application of, clearly established Federal law, as
    determined by the Supreme Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1). Specifically, Moses claims that: (1) the
    admission of out-of-court statements made to Dr. Appleton
    and Tamara Muller violated Moses’s Sixth Amendment right
    to confrontation; (2) the exclusion of Dr. Wilson’s testimony,
    the autopsy photograph of Jennifer Moses’s unclothed body,
    and the select portions of Jennifer Moses’s handwritten jour-
    nal denied Moses his constitutional right to present his
    defense; and (3) the admission of opinion testimony from Dr.
    Harruff, Evan Thompson, and Tamara Muller improperly
    intruded upon the jury’s constitutionally mandated role,
    thereby depriving Moses of a fair trial.
    MOSES v. PAYNE                      1091
    II
    “[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 Moses
    filed his habeas petition after April 24, 1996, his petition is
    governed by the Antiterrorism and Effective Death Penalty
    Act of 1996 (“AEDPA”). See 
    id. at 965
    . AEDPA establishes
    a “highly deferential standard for evaluating state-court rul-
    ings.” Visciotti, 
    537 U.S. at 24
     (internal quotation marks omit-
    ted). We must deny habeas relief with respect to any claim
    adjudicated on the merits in a state court proceeding unless
    the proceeding “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 “resulted in a decision that was based on an
    unreasonable determination of the facts in light of the evi-
    dence presented in the State court proceeding.” 
    28 U.S.C. § 2254
    (d)(1), (2).
    The “contrary to” and “unreasonable application of”
    clauses in § 2254(d)(1) are distinct and have separate mean-
    ings. See Lockyer v. Andrade, 
    538 U.S. 63
    , 73-75 (2003). “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 confronts 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.” Lambert, 
    393 F.3d at 974
    . “[U]nder the
    ‘unreasonable application’ clause, a federal habeas court may
    grant the writ if the state court identifies the correct governing
    legal principle from [the Supreme] Court’s decisions but
    unreasonably applies that principle to the facts of the prison-
    er’s case.” Andrade, 
    538 U.S. at 75
     (internal quotation marks
    and alterations omitted). “The ‘unreasonable application’
    clause requires the state court decision to be more than incor-
    rect or erroneous. The state court’s application of clearly
    1092                    MOSES v. PAYNE
    established law must be objectively unreasonable.” 
    Id.
     (cita-
    tions omitted).
    “[C]learly established Federal law under § 2254(d)(1) is the
    governing legal principle or principles set forth by the
    Supreme Court at the time the state court renders its deci-
    sion.” Id. at 71-72 (internal quotation marks omitted). In a
    series of recent cases, the Supreme Court has provided addi-
    tional guidance regarding when its precedent constitutes the
    “correct governing legal principle,” Andrade, 
    538 U.S. at 75
    ,
    for the case before the state court, and thus is “clearly estab-
    lished federal law” for purposes of § 2254(d)(1).
    In Panetti v. Quarterman, the Supreme Court determined
    that a previously established legal principle extended to the
    facts before the state court, even though the facts were not
    identical to those of the underlying Supreme Court decision.
    See 
    127 S.Ct. 2842
    , 2858 (2007). The Court considered the
    habeas petition of a death row inmate who challenged his exe-
    cution on the ground that he was mentally incompetent. 
    Id.
    The petitioner requested a competency hearing that would
    meet the requirements of Ford v. Wainwright, 
    477 U.S. 399
    (1986), but the state court rejected his request. The federal
    district court denied the petitioner’s habeas petition, and the
    Fifth Circuit affirmed the decision of the district court. The
    Supreme Court held that Justice Powell’s concurring opinion
    in Ford “constitute[d] clearly established law for purposes of
    § 2254,” Panetti, 
    127 S.Ct. at 2856
     (internal quotation marks
    omitted), and that it established the following legal principle:
    “Once a prisoner seeking a stay of execution has made ‘a sub-
    stantial threshold showing of insanity,’ the protection afforded
    by procedural due process includes a ‘fair hearing’ in accord
    with fundamental fairness.” 
    Id.
     Although Justice Powell did
    not specify the procedures required by the Constitution, they
    included certain “basic requirements” of due process. 
    Id.
    The Court held that the legal principle established by Ford
    was applicable to the situation in Panetti even though the
    facts in that case were not identical to those in Ford:
    MOSES v. PAYNE                       1093
    AEDPA does not require state and federal courts to
    wait for some nearly identical factual pattern before
    a legal rule must be applied. Nor does AEDPA pro-
    hibit a federal court from finding an application of a
    principle unreasonable when it involves a set of facts
    different from those of the case in which the princi-
    ple was announced. The statute recognizes, to the
    contrary, that even a general standard may be
    applied in an unreasonable manner.
    
    Id. at 2858
     (internal quotation marks and citations omitted).
    The Court concluded that under a reasonable application of
    the Ford standard, the petitioner in Panetti was entitled to the
    procedural protections enunciated in Ford. The Court further
    concluded that the state court had adopted procedures that did
    not meet this standard. Due to the state court’s unreasonable
    application of Ford, the Court held that AEDPA deference
    was not applicable. 
    Id. at 2859
    .
    In Panetti, the legal principle established by Ford was
    directly applicable to the habeas petitioner’s case, and there-
    fore the state court was bound to apply it, regardless of the
    difference in factual patterns between Ford and Panetti. How-
    ever, in other cases, the Court has instructed that a legal prin-
    ciple established by a Supreme Court decision is not the
    “correct governing legal principle,” Andrade, 
    538 U.S. at 75
    ,
    for the case before the state court, and thus not clearly estab-
    lished precedent for purposes of § 2254(d)(1), if a court must
    modify that principle in order to apply it to a case. See Wright
    v. Van Patten, 
    128 S.Ct. 743
    , 746-47 (2008); see also Carey
    v. Musladin, 
    549 U.S. 70
    , 76-77 (2006). In Musladin, a
    habeas petitioner argued that the conduct of the murder vic-
    tim’s family, who wore buttons with a photo of the victim
    during the defendant’s trial, deprived him of his Sixth
    Amendment right to a fair trial. The state court rejected this
    argument. On appeal to this court, we held that the state court
    unreasonably applied clearly established Supreme Court pre-
    cedent. Musladin v. Lamarque, 
    427 F.3d 653
    , 659-60 (9th Cir.
    1094                     MOSES v. PAYNE
    2005), rev’d by Carey v. Musladin, 
    549 U.S. 70
     (2006). In
    reaching this determination, we relied on Estelle v. Williams,
    
    425 U.S. 501
    , 512 (1976), which held that “the State cannot,
    consistently with the Fourteenth Amendment, compel an
    accused to stand trial before a jury while dressed in identifi-
    able prison clothes,” and Holbrook v. Flynn, 
    475 U.S. 560
    ,
    571 (1986), which held that the presence of four uniformed
    state troopers sitting behind the defendants at trial “was not so
    inherently prejudicial that it denied the defendant a fair trial.”
    We held that these cases clearly established the legal principle
    that “certain practices attendant to the conduct of a trial can
    create such an unacceptable risk of impermissible factors
    coming into play, as to be inherently prejudicial to a criminal
    defendant,” and held that the family members’ buttons had
    created such inherent prejudice. Musladin, 
    427 F.3d at 656
    (internal quotation marks omitted).
    The Supreme Court rejected our reasoning because “[b]oth
    Williams and Flynn dealt with government-sponsored prac-
    tices,” and “the effect on a defendant’s fair-trial rights of the
    spectator conduct to which Musladin objects is an open ques-
    tion in our jurisprudence.” Musladin, 
    549 U.S. at 76
    . As the
    Court later explained, the “inherent prejudice test [from Wil-
    liams and Flynn], which we thus far have applied only in
    cases involving government-sponsored conduct, did not
    clearly extend to the conduct of independently acting court-
    room spectators.” Van Patten, 
    128 S.Ct. at 745
     (explaining
    Musladin) (internal citations, alterations, and quotation marks
    omitted). Accordingly, the Court concluded that the state
    court’s rejection of Musladin’s claim “was not contrary to or
    an unreasonable application of clearly established federal
    law.” Musladin, 
    549 U.S. at 77
    .
    Van Patten, the most recent Supreme Court case on this
    issue, followed the reasoning in Musladin. In Van Patten, a
    defendant claimed a violation of his Sixth Amendment right
    to effective assistance of counsel because his counsel had par-
    ticipated in a plea hearing by conference call, rather than in
    MOSES v. PAYNE                      1095
    person. The state court rejected this argument because the
    attorney’s performance had been neither deficient nor prejudi-
    cial under Strickland v. Washington, 
    466 U.S. 668
     (1984).
    The Seventh Circuit, however, held that the state court erred
    in applying Strickland, and that it should have instead applied
    United States v. Cronic, 
    466 U.S. 648
     (1984), which estab-
    lished the rule that “a presumption of prejudice is appropriate
    without inquiry into the actual conduct of the trial” in circum-
    stances where there was only a small “likelihood that any law-
    yer, even a fully competent one, could provide effective
    assistance.” Van Patten, 
    128 S.Ct. at 746
     (internal quotation
    marks omitted). Because the Seventh Circuit concluded that
    Cronic was applicable instead of Strickland, the state court’s
    failure to apply Cronic was contrary to clearly established
    federal law. But the Supreme Court reversed, explaining: “No
    decision of this Court . . . squarely addresses the issue in this
    case . . . or clearly establishes that Cronic should replace Str-
    ickland in this novel factual context. Our precedents do not
    clearly hold that counsel’s participation by speaker phone
    should be treated as a complete denial of counsel, on par with
    total absence.” 
    Id. at 746
     (internal quotation marks omitted).
    The Court concluded that “[b]ecause our cases give no clear
    answer to the question presented, let alone one in Van Pat-
    ten’s favor, it cannot be said that the state court ‘unreasonably
    applied clearly established Federal law.’ ” 
    Id. at 747
     (quoting
    Musladin, 
    549 U.S. at 77
    ) (alterations omitted).
    This series of cases tells us that in order to determine
    whether a state court failed to apply “clearly established Fed-
    eral law, as determined by the Supreme Court” for purposes
    of § 2254(d)(1), we must distinguish between situations
    where a legal principle established by a Supreme Court deci-
    sion clearly extends to a new factual context (as in Panetti)
    and where it does not (as in Musladin and Van Patten). When
    engaging in this line-drawing exercise, we have noted that a
    state court must apply legal principles established by a
    Supreme Court decision when the case “falls squarely within”
    those principles, but not in cases where there is a “structural
    1096                     MOSES v. PAYNE
    difference” between the prior precedent and the case at issue,
    or when the prior precedent requires “tailoring or modifica-
    tion” to apply to the new situation. Smith v. Patrick, 
    508 F.3d 1256
    , 1259-60 (9th Cir. 2007). We have acknowledged that
    this series of Supreme Court cases “underscores that
    § 2254(d)(1) tightly circumscribes the granting of habeas
    relief.” Crater v. Galaza, 
    491 F.3d 1119
    , 1123 (9th Cir.
    2007).
    In light of Musladin, Panetti, and Van Patten, we conclude
    that when a Supreme Court decision does not “squarely
    address[ ] the issue in th[e] case” or establish a legal principle
    that “clearly extend[s]” to a new context to the extent required
    by the Supreme Court in these recent decisions, Van Patten,
    
    128 S.Ct. at 746, 745
    , it cannot be said, under AEDPA, there
    is “clearly established” Supreme Court precedent addressing
    the issue before us, and so we must defer to the state court’s
    decision. If the Court’s decisions do provide a “controlling
    legal standard,” Panetti, 
    127 S.Ct. at 2858
    , that is applicable
    to the claims raised by a habeas petitioner without “tailoring
    or modification” of the standard, Patrick, 
    508 F.3d at 1260
    ,
    the question is then whether the application of that standard
    was objectively unreasonable, even if the facts of the case at
    issue are not identical to the Supreme Court precedent. See
    Panetti, 
    127 S.Ct. at 2858
    . It is from this starting point that
    we address Moses’s petition for habeas relief.
    III
    Moses first contends that the admission of out-of-court
    statements made by Jennifer Moses and her son to Dr. Apple-
    ton and Tamara Muller regarding the November 2001 incident
    of domestic violence violated his Sixth Amendment right to
    confront the witnesses against him. The state court rejected
    this claim, holding that the statements made to Dr. Appleton
    and Tamara Muller were not testimonial under Crawford v.
    Washington, 
    541 U.S. 36
     (2004), and therefore did not impli-
    cate the Confrontation Clause.
    MOSES v. PAYNE                            1097
    [1] The Sixth Amendment’s Confrontation Clause provides
    that, “[i]n all criminal prosecutions, the accused shall enjoy
    the right . . . to be confronted with the witnesses against him.”
    In Crawford, the Supreme Court held that the Confrontation
    Clause gives criminal defendants the right to confront wit-
    nesses who make testimonial statements at trial, unless the
    witness was unavailable to testify and the defendant had a
    prior opportunity for cross examination. 
    541 U.S. at 53-54
    . In
    contrast, non-testimonial statements do not implicate the Con-
    frontation Clause. See Whorton v. Bockting, 
    127 S.Ct. 1173
    ,
    1183 (2007) (explaining Crawford).
    Although Crawford did not offer a precise definition of tes-
    timonial evidence, the Court offered various formulations of
    the core class of testimonial statements, noting that
    “[w]hatever else the term covers, it applies at a minimum to
    prior testimony at a preliminary hearing, before a grand jury,
    or a former trial; and to police interrogations.” 
    541 U.S. at 51-52, 68
    ; see also Davis v. Washington, 
    547 U.S. 813
    , 822
    (2006) (refining Crawford’s analysis of when statements
    made during a police interrogation are testimonial for pur-
    poses of the Sixth Amendment). Crawford’s holding regard-
    ing the difference between testimonial and non-testimonial
    out-of-court statements constitutes “clearly established Fed-
    eral law” under 
    28 U.S.C. § 2254
    (d)(1) for purposes of our
    AEDPA review of the state appellate court’s decision. See
    Andrade, 
    538 U.S. at 71-72
    .
    [2] The state court applied Crawford, the correct legal rule.
    Because the court did not arrive at a result different from the
    result reached by the Supreme Court in an indistinguishable
    case, we conclude that the state appellate court’s decision was
    not “contrary to” clearly established Supreme Court precedent
    under 
    28 U.S.C. § 2254
    (d)(1). See Andrade, 
    538 U.S. at 73
    .
    Nor did the state appellate court’s adjudication of Moses’s
    Confrontation Clause claim involve an “unreasonable applica-
    tion of” Crawford.3 
    28 U.S.C. § 2254
    (d)(1). In considering
    3
    The government maintains that we should decide this question by hold-
    ing that Moses forfeited his Confrontation Clause rights by killing Jennifer
    1098                      MOSES v. PAYNE
    Dr. Appleton’s testimony regarding Jennifer Moses’s out-of-
    court statements, the state appellate court correctly noted that
    although Crawford did not provide a “precise articulation” or
    comprehensive definition of testimony, it did provide the
    appropriate legal framework for analyzing whether statements
    were testimonial. Applying state-law precedents interpreting
    Crawford, the state appellate court concluded that Jennifer
    Moses’s statements to Dr. Appleton were non-testimonial
    because they were made for purposes of diagnosis and treat-
    ment, rather than to inculpate Moses. We conclude this is not
    an unreasonable application of the legal principle established
    by Crawford.
    The state appellate court next determined that Jennifer
    Moses’s statements to Tamara Muller for purposes of treat-
    ment were not testimonial under Crawford until Muller
    informed Jennifer Moses that she had contacted the CPS. The
    court concluded that because Muller’s statement notified Jen-
    nifer Moses of possible legal consequences to her discussion
    of the domestic violence incident, Jennifer Moses’s subse-
    quent remarks were testimonial and the trial court erred in
    admitting them. Nonetheless, the state appellate court con-
    cluded that this error was harmless beyond a reasonable doubt
    under Chapman v. California, 
    386 U.S. 18
     (1967), because of
    other, untainted evidence identifying Moses as the assailant in
    the November 2001 assault.
    [3] Assuming (without deciding) that the state appellate
    court was correct in concluding that the trial court committed
    constitutional error in admitting Jennifer Moses’s statements
    after Muller informed her that CPS had been contacted, we
    must consider whether such constitutional error had a “sub-
    stantial and injurious effect or influence in determining the
    jury’s verdict.” Brecht v. Abrahamson, 
    507 U.S. 619
    , 637
    Moses and thus making her unavailable to testify at trial. We need not
    reach this argument, as we deny the petition on other grounds.
    MOSES v. PAYNE                     1099
    (1993) (internal quotation marks omitted); see also Fry v.
    Pliler, 
    127 S.Ct. 2321
    , 2328 (2007). We conclude that there
    was no such substantial and injurious effect. There was over-
    whelming evidence that Moses caused Jennifer Moses’s inju-
    ries during the November 2001 incident, including the
    testimony of Dr. Appleton and the testimony of Brian Green,
    Jennifer Moses’s stepfather, who read into evidence a state-
    ment handwritten by Moses admitting to the assault. There-
    fore, because any constitutional error involved in admitting
    Muller’s testimony lacked the requisite “prejudicial impact,”
    habeas relief is unavailable to Moses for this claim. Fry, 127
    S.Ct. at 2327.
    [4] Finally, the state appellate court considered the admis-
    sion of Jennifer Moses’s son’s out-of-court statements to Mul-
    ler. These statements were introduced at trial when the
    prosecutor asked Muller why she had contacted CPS. Muller
    explained that because Jennifer Moses’s son had told her that
    his father had kicked his mother, Muller had a mandatory
    duty under state law to notify CPS. The state appellate court
    concluded that the government did not introduce this testi-
    mony to prove the truth of the matter asserted (whether Moses
    kicked Jennifer Moses), but rather to explain a separate rele-
    vant issue: why Muller contacted the CPS. In Crawford, the
    Court noted that the Confrontation Clause “does not bar the
    use of testimonial statements for purposes other than estab-
    lishing the truth of the matter asserted.” 
    541 U.S. at
    59 n.9
    (citing Tennessee v. Street, 
    471 U.S. 409
    , 414 (1985)). There-
    fore, the state appellate court’s analysis is consistent with
    Crawford and does not meet the criteria for habeas relief
    under 
    28 U.S.C. § 2254
    (d)(1).
    IV
    Moses next maintains that he is entitled to habeas relief
    because the trial court denied him the opportunity to present
    evidence on his own behalf. In particular, Moses points to the
    trial court’s decisions to exclude: (1) Dr. Wilson’s testimony;
    1100                        MOSES v. PAYNE
    (2) portions of Jennifer Moses’s handwritten journal; and (3)
    Jennifer Moses’s autopsy photograph.4
    A
    [5] The state appellate court upheld the trial court’s deci-
    sion to exclude Dr. Wilson’s testimony because it was cumu-
    lative and because the non-cumulative portion of his proposed
    testimony was not sufficiently probative to outweigh its likely
    prejudicial and confusing effects on the jury. This analysis
    was undertaken under the governing Washington evidentiary
    rule, Rule 702, which admits expert testimony “if it will assist
    the trier of fact to understand the evidence or a fact in issue.”
    State v. Farr-Lenzini, 
    970 P.2d 313
    , 318 (Wash. Ct. App.
    1999) (internal quotation marks omitted) (explaining that
    Rule 702 requires that (1) the witness be qualified as an
    expert and (2) the testimony be helpful to the trier of fact).5
    4
    Moses also contends that the trial court’s evidentiary rulings, when
    analyzed cumulatively, favored the government because they excluded
    more defense evidence than prosecution evidence. He argues these rulings
    deprived him of his due process right to rebut arguments presented by the
    state and therefore deprived him of his right to a fair trial. Even if Moses
    had exhausted this issue, he has not explained how the state appellate
    court’s rejection of these constitutional claims would be “contrary to, or
    involved an unreasonable application of, clearly established Federal law,
    as determined by the Supreme Court of the United States.” 
    28 U.S.C. § 2254
    (d)(1). Most of the cases Moses cites in support of his argument are
    inapposite because they pertain to the unique context of capital sentencing
    proceedings. See Simmons v. South Carolina, 
    512 U.S. 154
     (1994); Skip-
    per v. South Carolina, 
    476 U.S. 1
     (1986); Gardner v. Florida, 
    430 U.S. 349
     (1977). The remaining case, Ake v. Oklahoma, 
    470 U.S. 68
     (1985),
    is not applicable because it concerns a question not raised in this case,
    “whether the Constitution requires that an indigent defendant have access
    to the psychiatric examination and assistance necessary to prepare an
    effective defense based on his mental condition, when his sanity at the
    time of the offense is seriously in question.” 
    Id. at 70
    .
    5
    Rule 702 of the Washington Rules of Evidence states: “If scientific,
    technical, or other specialized knowledge will assist the trier of fact to
    understand the evidence or to determine a fact in issue, a witness qualified
    as an expert by knowledge, skill, experience, training, or education, may
    testify thereto in the form of an opinion or otherwise.”
    MOSES v. PAYNE                     1101
    Under Rule 702, expert testimony is helpful to the jury if it
    concerns matters beyond the common knowledge of the aver-
    age layperson and is not misleading. See id. at 319.
    Moses asserts that the state appellate court’s decision is
    contrary to the Supreme Court’s precedents holding that
    defendants have a constitutional right to present relevant evi-
    dence in their own defense. See Crane v. Kentucky, 
    476 U.S. 683
    , 690 (1986) (“[T]he Constitution guarantees criminal
    defendants a meaningful opportunity to present a complete
    defense.”) (internal quotation marks omitted). The Supreme
    Court has indicated that a defendant’s right to present a
    defense stems both from the right to due process provided by
    the Fourteenth Amendment, see Chambers v. Mississippi, 
    410 U.S. 284
    , 294 (1973), and from the right “to have compulsory
    process for obtaining witnesses in his favor” provided by the
    Sixth Amendment, see Washington v. Texas, 
    388 U.S. 14
    , 23
    (1967) (explaining that the right to compulsory process would
    be meaningless if the defendant lacked the right to use the
    witnesses whose presence he compelled).
    [6] However, “[a] defendant’s right to present relevant evi-
    dence is not unlimited, but rather is subject to reasonable
    restrictions,” such as evidentiary and procedural rules. United
    States v. Scheffer, 
    523 U.S. 303
    , 308 (1998). In fact, “state
    and federal rulemakers have broad latitude under the Consti-
    tution to establish rules excluding evidence from criminal tri-
    als,” 
    id.,
     and the Supreme Court has indicated its approval of
    “well-established rules of evidence [that] permit trial judges
    to exclude evidence if its probative value is outweighed by
    certain other factors such as unfair prejudice, confusion of the
    issues, or potential to mislead the jury,” Holmes v. South Car-
    olina, 
    547 U.S. 319
    , 326 (2006). Evidentiary rules do not vio-
    late a defendant’s constitutional rights unless they “infring[e]
    upon a weighty interest of the accused and are arbitrary or
    disproportionate to the purposes they are designed to serve.”
    
    Id. at 324
     (alteration in original) (internal quotation marks
    omitted); see also Scheffer, 
    523 U.S. at 315
     (explaining that
    1102                    MOSES v. PAYNE
    the exclusion of evidence pursuant to a state evidentiary rule
    is unconstitutional only where it “significantly undermined
    fundamental elements of the accused’s defense”). In general,
    it has taken “unusually compelling circumstances . . . to out-
    weigh the strong state interest in administration of its trials.”
    Perry v. Rushen, 
    713 F.2d 1447
    , 1452 (9th Cir. 1983).
    The Supreme Court has explained these principles in cases
    where defendants have argued that state evidentiary rules, by
    their own terms, impinge upon their constitutional right to
    present a complete defense. Thus, in Holmes, the Court con-
    cluded that a defendant’s constitutional rights were violated
    by an evidentiary rule that prevented the defendant from pre-
    senting evidence that a third party had committed the crime
    if the judge determined that the prosecutor’s case was strong.
    547 U.S. at 328-31. The Court determined that this evidenti-
    ary rule did not “rationally serve” the goal of “excluding evi-
    dence that has only a very weak logical connection to the
    central issues.” Id. at 330. In Rock v. Arkansas, 
    483 U.S. 44
    ,
    61 (1987), the Court reached the same conclusion about an
    evidentiary rule that limited the defendant’s testimony to mat-
    ters she remembered before her memory had been hypnoti-
    cally refreshed because it was “an arbitrary restriction on the
    right to testify in the absence of clear evidence by the State
    repudiating the validity of all posthypnosis recollections.”
    Finally, in Washington v. Texas, the Court rejected an eviden-
    tiary rule that precluded an alleged accomplice of the defen-
    dant from testifying on the defendant’s behalf (though he
    could testify for the government) because it could not “even
    be defended on the ground that it rationally sets apart a group
    of persons who are particularly likely to commit perjury.” 
    388 U.S. at 22
    ; see also Crane, 
    476 U.S. at 690-92
     (identifying a
    constitutional violation where a state evidentiary rule pre-
    cluded a defendant from introducing any evidence relating to
    the unreliability of his own confession); Chambers, 
    410 U.S. at 302
     (concluding that a defendant’s fair trial rights were vio-
    lated when the combined effect of two state rules of evidence
    precluded him from effectively impeaching a witness whom
    MOSES v. PAYNE                        1103
    he alleged was the actual culprit). On the other hand, the
    Supreme Court has upheld an evidentiary rule that excluded
    polygraph evidence in military trials because it did not “impli-
    cate any significant interest of the accused” and because it
    “serve[d] several legitimate interests in the criminal trial pro-
    cess.” Scheffer, 
    523 U.S. at 309, 316-17
    .
    [7] The Supreme Court has not squarely addressed the
    question whether Rule 702, the rule of evidence relied upon
    by the state appellate court in this case, or an analogous evi-
    dentiary rule requiring a trial court to balance factors and
    exercise its discretion, “infring[es] upon a weighty interest of
    the accused” and is “arbitrary or disproportionate to the pur-
    poses [it is] designed to serve.” Scheffer, 
    523 U.S. at 308
    (internal quotation marks omitted). Rather, as a “well-
    established rule[ ] of evidence” that permits a court to exer-
    cise its discretion in admitting expert testimony when rele-
    vant, Rule 702 is more analogous to those evidentiary rules
    described with approval in Holmes. See 547 U.S. at 326
    (“While 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, well-established rules of evidence permit trial
    judges to exclude evidence if its probative value is out-
    weighed by certain other factors such as unfair prejudice, con-
    fusion of the issues, or potential to mislead the jury.”).
    [8] Indeed, Rule 702 is different in kind from the rules in
    Washington, Crane, Chambers, Rock, and Holmes. The evi-
    dentiary rules in those cases, by their terms, required the trial
    court to exclude crucial evidence that had a critical effect on
    the trial, with little or no rational justification. In general, the
    rules precluded a defendant from testifying, excluded testi-
    mony from key percipient witnesses, or excluded the intro-
    duction of all evidence relating to a crucial defense. In
    contrast, Rule 702 does not require a trial court to exclude
    evidence. Rather, it authorizes a court to admit expert testi-
    mony “if it will assist the trier of fact to understand the evi-
    1104                    MOSES v. PAYNE
    dence or a fact in issue.” Farr-Lenzi, 
    970 P.2d at 318
     (internal
    quotation marks omitted). Accordingly, a decision that Rule
    702 itself is constitutional would be consistent with Supreme
    Court precedent.
    [9] Because Moses could not successfully argue that Rule
    702 by its terms infringed his constitutional right to present
    a complete defense, Moses’s argument is best interpreted as
    challenging the trial court’s exercise of discretion in this case
    to exclude expert testimony. As noted above, the Supreme
    Court’s cases have focused only on whether an evidentiary
    rule, by its own terms, violated a defendant’s right to present
    evidence. These cases do not squarely address whether a
    court’s exercise of discretion to exclude expert testimony vio-
    lates a criminal defendant’s constitutional right to present rel-
    evant evidence. See Van Patten, 
    128 S.Ct. at 746
    . Nor do they
    clearly establish “a controlling legal standard” for evaluating
    discretionary decisions to exclude the kind of evidence at
    issue here. See Panetti, 
    127 S.Ct. at 2858
    . Therefore, the state
    appellate court’s determination that the trial court’s exercise
    of discretion to exclude expert testimony under Rule 702 did
    not violate Moses’s constitutional rights cannot be contrary to
    or an unreasonable application of clearly established Supreme
    Court precedent. See Van Patten, 
    128 S.Ct. at 746-47
    ; Panetti,
    
    127 S.Ct. at 2858
    ; Musladin, 
    549 U.S. at 76
    ; cf. Patrick, 
    508 F.3d at 1260
    .
    [10] Although the Supreme Court has not addressed this
    issue, several of our prior decisions considered whether a trial
    court’s discretionary determination to exclude evidence vio-
    lated a defendant’s constitutional rights. In Perry v. Rushen,
    
    713 F.2d 1447
    , 1450 (9th Cir. 1983), we derived a balancing
    test to determine when a trial court’s exercise of discretion to
    exclude evidence under an otherwise valid evidentiary rule
    might violate a defendant’s rights. We refined this test in Mil-
    ler v. Stagner, 
    757 F.2d 988
     (9th Cir. 1985), amended on
    other grounds, 
    768 F.2d 1090
     (9th Cir. 1985), and held that,
    MOSES v. PAYNE                         1105
    In a habeas proceeding, determining whether the
    exclusion of evidence in the trial court violated peti-
    tioner’s due process rights involves a balancing test.
    In weighing the importance of evidence offered by
    a defendant against the state’s interest in exclusion,
    the court should consider [1] the probative value of
    the evidence on the central issue; [2] its reliability;
    [3] whether it is capable of evaluation by the trier of
    fact; [4] whether it is the sole evidence on the issue
    or merely cumulative; and [5] whether it constitutes
    a major part of the attempted defense.
    Id. at 994; accord Chia v. Cambra, 
    360 F.3d 997
    , 1003-04
    (9th Cir. 2004); Alcala v. Woodford, 
    334 F.3d 862
    , 877 (9th
    Cir. 2003).
    The dissent relies on this balancing test as part of its
    AEDPA analysis of the state appellate court’s decision to
    affirm the exclusion of Dr. Wilson’s testimony. See dis. op.
    at 1120-21. For purposes of AEDPA analysis, however,
    [T]he only definitive source of clearly established
    federal law under AEDPA is the holdings (as
    opposed to the dicta) of the Supreme Court as of the
    time of the state court decision. While circuit law
    may be “persuasive authority” for purposes of deter-
    mining whether a state court decision is an unreason-
    able application of Supreme Court law, only the
    Supreme Court’s holdings are binding on the state
    courts and only those holdings need be reasonably
    applied.
    Clark v. Murphy, 
    331 F.3d 1062
    , 1069 (9th Cir. 2003) (inter-
    nal citations omitted); see also Crater, 
    491 F.3d at 1126
    (“[Section] 2254(d)(1) renders decisions by lower courts non-
    dispositive for habeas appeals.”); Brewer v. Hall, 
    378 F.3d 952
    , 957 (9th Cir. 2004). Nor can we conclude that Miller
    merely “illuminates the application of clearly established fed-
    1106                     MOSES v. PAYNE
    eral law as determined by the United States Supreme Court.”
    Crater, 
    491 F.3d at
    1126 n.8. Unlike Washington and its prog-
    eny, Miller is not concerned with the question whether a
    given rule of evidence, by its own terms, impinges on defen-
    dants’ constitutional rights; rather, the Miller balancing test
    evaluates whether the trial court used its discretion to uncon-
    stitutionally apply an otherwise valid rule. Thus, because the
    Miller balancing test is a creation of circuit law, rather than
    a Supreme Court holding, we cannot fault the state appellate
    court for not employing it, so long as the state’s ultimate dis-
    position of Moses’s appeal is not contrary to or an unreason-
    able application of the Supreme Court precedent that Miller
    interpreted. See Casey v. Moore, 
    386 F.3d 896
    , 907 (9th Cir.
    2004).
    The dissent concludes otherwise, noting that we have
    applied the Miller balancing test in the context of AEDPA
    review. See Chia, 
    360 F.3d at 1003-04
    . We did so, however,
    before the Supreme Court provided further clarification of the
    bounds of an appellate court’s AEDPA analysis in Musladin,
    Panetti and Van Patten. As discussed above, these precedents
    clarified that in the absence of a Supreme Court decision that
    “squarely addresses the issue” in the case before the state
    court, Van Patten, 
    128 S.Ct. at 746
    , or establishes an applica-
    ble general principle that “clearly extends” to the case before
    us to the extent required by the Supreme Court in its recent
    decisions, Van Patten, 
    128 S.Ct. at 745
    ; see also Panetti, 
    127 S.Ct. at 2858
    ; Musladin, 
    549 U.S. at 76
    , we cannot conclude
    that a state court’s adjudication of that issue resulted in a deci-
    sion contrary to, or an unreasonable application of, clearly
    established Supreme Court precedent. Van Patten, 
    128 S.Ct. at 747
    . By necessity, Van Patten and Musladin impose limits
    on the relevance of circuit precedent; they are “clearly irrec-
    oncilable,” Miller v. Gammie, 
    335 F.3d 889
    , 893 (9th Cir.
    2003), with the conclusion that circuit law may be used to fill
    “open question[s]” in the Supreme Court’s holdings for pur-
    poses of AEDPA analysis. Musladin, 
    549 U.S. at 76
    ; see also
    Crater, 
    491 F.3d at
    1126 & n.8 (explaining that, in Musladin,
    MOSES v. PAYNE                     1107
    the Supreme Court “discussed and accepted” the principle that
    § 2254(d)(1) imposes “limits on the relevance of circuit pre-
    cedent”).
    [11] Because the Supreme Court’s precedents do not estab-
    lish a principle for evaluating discretionary decisions to
    exclude the kind of evidence at issue here, AEDPA does not
    permit us to rely on our balancing test to conclude that a state
    trial court’s exclusion of evidence under Rule 702 violated
    clearly established Supreme Court precedent. Therefore, we
    cannot agree with the dissent’s argument that Miller is appli-
    cable here.
    B
    [12] Moses next contends that he is entitled to habeas relief
    because the trial court excluded some portions of Jennifer
    Moses’s handwritten diary. The trial court admitted medical
    provider testimony and documentary evidence establishing
    that Jennifer Moses suffered from depression and experienced
    suicidal thoughts before her death. The trial court also admit-
    ted multiple journal entries indicating that Jennifer Moses was
    depressed and contemplated suicide. The state appellate court
    concluded that the trial court abused its discretion in exclud-
    ing certain handwritten journal entries, but that any error
    involved was harmless. In light of the evidence admitted by
    the trial court, even assuming that the trial court’s exclusion
    of evidence was a constitutional error, we agree that it did not
    have “substantial and injurious effect or influence in deter-
    mining the jury’s verdict.” Brecht, 
    507 U.S. at 623
     (internal
    quotation marks omitted).
    C
    [13] Moses also maintains that the state appellate court’s
    affirmance of the trial court’s decision to exclude Jennifer
    Moses’s autopsy photograph was contrary to Supreme Court
    precedent. We disagree. The state appellate court noted that
    1108                        MOSES v. PAYNE
    the autopsy photograph was cumulative because the trial court
    had already admitted other photographs showing Jennifer
    Moses’s emaciated body and because multiple witnesses had
    testified that Jennifer Moses had lost weight in the months
    prior to her death. The state appellate court concluded that the
    photograph was properly excluded because it was cumulative
    and because its probative value was outweighed by its likely
    prejudicial effects on the jury. This decision was not contrary
    to, or an unreasonable application of, controlling Supreme
    Court precedent, see Scheffer, 
    523 U.S. at 308
    , and it there-
    fore does not provide the basis for granting Moses’ habeas
    petition under our deferential AEDPA standard of review.
    V
    Finally, Moses urges this court to grant the writ because the
    trial court’s decision to admit the opinion testimony of Dr.
    Harruff, Evan Thompson, and Tamara Muller violated
    Moses’s constitutional rights.6 In support of this claim, Moses
    relies on Supreme Court decisions establishing that it is the
    sole province of the jury to determine questions of credibility
    and to weigh the evidence adduced at trial. See Goldman v.
    United States, 
    245 U.S. 474
    , 477 (1918); see also United
    States v. Young, 
    470 U.S. 1
    , 18-19 (1985) (prosecutor erred
    by expressing a personal view that the defendant was guilty).
    [14] These cases do not support Moses’s contention that the
    opinion testimony of Dr. Harruff, Evan Thompson, and
    Tamara Muller improperly intruded upon the province of the
    jury and thereby deprived Moses of a fair trial. Neither of
    these cases, nor any other that we have found, supports the
    general proposition that the Constitution is violated by the
    6
    We disagree with the state’s contention that this issue was not properly
    exhausted. The district court correctly concluded that Moses argued this
    issue to the state appellate court in a manner sufficient to satisfy the
    requirements of AEDPA’s exhaustion doctrine. See Davis v. Silva, 
    511 F.3d 1005
    , 1008-09 (9th Cir. 2008).
    MOSES v. PAYNE                       1109
    admission of expert testimony concerning an ultimate issue to
    be resolved by the trier of fact. Accordingly, under AEDPA,
    we must reject Moses’s claims to the contrary. See 
    28 U.S.C. § 2254
    (d); Van Patten, 
    128 S.Ct. at 746-47
    ; Panetti, 
    127 S.Ct. at 2858
    ; Musladin, 
    549 U.S. at 76
    .
    [15] That the Supreme Court has not announced such a
    holding is not surprising, since it is “well-established . . . that
    expert testimony concerning an ultimate issue is not per se
    improper.” Hangarter v. Provident Life & Accident Ins. Co.,
    
    373 F.3d 998
    , 1016 (9th Cir. 2004) (internal quotation marks
    omitted) (alterations in original). Although “[a] witness is not
    permitted to give a direct opinion about the defendant’s guilt
    or innocence . . . . an expert may otherwise testify regarding
    even an ultimate issue to be resolved by the trier of fact.”
    United States v. Lockett, 
    919 F.2d 585
    , 590 (9th Cir. 1990);
    see also Fed. R. Evid. 704(a).
    Here, Dr. Harruff testified to his opinion as a medical
    examiner that Jennifer Moses died as a result of a homicide.
    Dr. Harruff did not testify that Moses murdered Jennifer
    Moses. Similarly, Thompson did not testify on the ultimate
    issue; rather, he testified that he classified the death as a
    homicide based on his expertise as a ballistics expert and his
    assessment of Jennifer Moses’s wound. Finally, Muller testi-
    fied that, in her experience, victims of domestic violence are
    most likely to be killed when they attempt to leave their
    domestic situation. Like Dr. Harruff and Thompson, Muller
    did not express an opinion as to whether Moses murdered Jen-
    nifer Moses. Thus, our own precedent ratifies the state court’s
    decision to admit the testimony of Dr. Harruff, Thompson,
    and Muller. See Lockett, 
    919 F.2d at 590
    .
    [16] Ultimately, however, for purposes of our AEDPA
    review, it suffices to determine that the constitutionality of
    such testimony is “an open question in [the Supreme Court’s]
    jurisprudence.” Musladin, 
    549 U.S. at 76
    . We conclude that
    the state appellate court’s decision to affirm the trial court’s
    1110                    MOSES v. PAYNE
    decision to admit the opinion testimony of Dr. Harruff,
    Thompson, and Muller was not contrary to or an unreasonable
    application of Supreme Court precedent.
    VI
    In sum, AEDPA’s “highly deferential standard for evaluat-
    ing state-court rulings” directs the conclusion that Moses’s
    habeas petition must be denied. Visciotti, 
    537 U.S. at 24
    (internal quotation marks omitted). The Supreme Court’s
    cases do not squarely address any of the three issues Moses
    identifies in support of his petition for the writ, nor do any of
    the legal principles established in the cases identified by
    Moses “clearly extend” to the facts of this case. Van Patten,
    
    128 S.Ct. at 745
    . AEDPA tethers our habeas review to
    Supreme Court holdings alone. See 
    28 U.S.C. § 2254
    (d); see
    also Crater, 
    491 F.3d at
    1126 & n.8. Because the state appel-
    late court’s disposition of Moses’s appeal was not contrary to
    or an unreasonable application of apposite Supreme Court
    precedent, we cannot grant the writ.
    Where the state appellate court itself identified constitu-
    tional error, we conclude that the identified error did not have
    a “substantial and injurious effect or influence in determining
    the jury’s verdict.” Brecht, 
    507 U.S. at 623
     (internal quotation
    marks omitted); see also Fry, 
    127 S.Ct. at 2328
    .
    PETITION DENIED.
    GOULD, Circuit Judge, dissenting:
    On September 27, 2002, Jeffrey Moses’s wife, Jennifer,
    tragically died of a gunshot wound to her head. When police
    responded to a 911 call from Moses’s mother, Moses claimed
    that Jennifer had committed suicide. Moses said that Jennifer
    had been depressed and had come downstairs with a gun,
    MOSES v. PAYNE                      1111
    knelt down, and shot herself in the head while Moses tried to
    take the gun away from her. Moses was tried by jury for pre-
    meditated, first degree murder of his wife, and for unlawful
    possession of a firearm. At Moses’s trial the prosecution
    argued that Moses had intentionally shot his wife in the back
    of the head, while Moses countered that Jennifer had commit-
    ted suicide because of severe depression and drug and alcohol
    abuse, and that his attempt that night to stop her had failed.
    Among the prosecution’s evidence was testimony from a
    medical examiner and a ballistics expert who each concluded,
    after an examination of forensic factors, that Jennifer’s
    wounds were likely not self-inflicted, though the evidence
    permitted the conclusion that suicide had occurred. The prose-
    cution also presented evidence of a prior incident of domestic
    violence between Moses and his wife. Moses, by contrast,
    highlighted evidence of Jennifer’s history of major depres-
    sion, including suicidal ideation, problems with eating disor-
    ders and substance abuse. Moses also presented testimony by
    a friend of Jennifer’s stating that Jennifer and the friend had
    talked on the very night of Jennifer’s death and that the dis-
    cussion encompassed the subject of death.
    Thus the case presents in high contrast the question
    whether Jennifer’s death was the consequence of her own sui-
    cidal actions, or the result of murderous conduct by Moses. In
    our system of justice, when a fair trial is held the decision of
    the jury on such an issue is conclusive. If the defendant had
    been able to present his defense case fairly, I would have no
    issue with the jury’s decision. But if by evidentiary rulings the
    deck was stacked against the defendant, we should be con-
    cerned and insist on a new trial.
    I conclude that a key evidentiary ruling rendered the trial
    unfair. Moses had sought to introduce testimony from Dr.
    Lawrence Wilson, an expert on depression who the defense
    wanted to discuss with the jury Jennifer’s recent diagnoses
    with major depression by three different health care profes-
    sionals, the general nature of major depression, and the
    1112                    MOSES v. PAYNE
    unlikelihood that the depression would have resolved itself
    before the date Jennifer died. Dr. Wilson additionally would
    have testified about the increased likelihood that someone suf-
    fering from major depression would commit suicide and about
    his perception that lay persons do not fully understand the
    implications of major depression.
    The trial court excluded Dr. Wilson’s testimony, stating
    that Dr. Wilson would have offered information of “very little
    weight,” namely, that depressed people are more likely to kill
    themselves than people not depressed, that access to guns for
    depressed people is bad, and that drugs, alcohol, financial
    stress, and marital strife make the problem worse—all of
    which, the court reasoned, fell within a juror’s common
    knowledge. The trial judge dismissed Wilson’s remaining tes-
    timonial offerings as being, in sum, that there was a roughly
    0.25% higher chance that Jennifer, as an individual diagnosed
    with major depression, would commit suicide within the six
    month period between her diagnosis and her death than that
    a non-depressed person would. The trial judge determined
    that this information was of minimal probative value, out-
    weighed by its prejudicial effects and potential for jury confu-
    sion.
    The jury found Moses guilty of second-degree murder and
    first-degree unlawful possession of a firearm. The Washing-
    ton Court of Appeals sustained Moses’s conviction, and the
    Washington State Supreme Court denied Moses’s petition for
    review without comment. Having made no progress in the
    state courts, Moses filed his petition for a writ of habeas cor-
    pus in federal court in August of 2006. The district court
    denied Moses’s petition. The district court rejected Moses’s
    argument that the exclusion of Dr. Wilson’s testimony had
    violated his Sixth and Fourteenth Amendment rights, reason-
    ing that the testimony would have been cumulative and of
    such limited probative value that its exclusion did not deprive
    Moses of any constitutional rights. On appeal Moses argues
    that the trial judge’s exclusion of Dr. Wilson’s testimony
    MOSES v. PAYNE                            1113
    denied Moses his clearly established constitutional right to
    present a defense. Although the majority affirms the district
    court’s view, I rather think that the total exclusion of testi-
    mony of this important defense expert witness was a grave
    error that should shake our confidence that the jury reached
    its verdict after a fair trial. Hence I respectfully dissent
    because I would grant habeas relief and require the state to
    retry Moses in light of the state trial court’s exclusion of Dr.
    Wilson’s testimony.1
    Moses argues that the trial court’s decision to exclude Dr.
    Wilson’s testimony violated his constitutional rights under
    Washington v. Texas, 
    388 U.S. 14
     (1967), and its progeny.
    Moses is up against a difficult standard. To succeed in his
    claim, the state court’s decision must have been “contrary to,
    or involved an unreasonable application of, clearly established
    Federal law, as determined by the Supreme Court.” 
    28 U.S.C. § 2254
    (d)(1). But the Supreme Court has long guaranteed the
    defendant’s right to present his case, and so the extraordinary
    exclusion in total, as contrasted with a mere limiting of testi-
    mony, of a key defense expert witness, in a murder trial where
    specialized expertise was pertinent, gets Moses inside the
    door where we should be giving the very closest of attention
    to his claim. For if he is right, possibly a jury convicted an
    innocent man of murder. Though we must accept that risk
    without much pause in a case where a defendant like Moses
    fully and fairly presented his evidence, we should be much
    more reluctant to accept the conclusion in a case where the
    state court kept from the jury all testimony of an important
    defense expert.
    1
    Reaching this conclusion, I need not, and do not, address any of
    Moses’s remaining arguments. However, if the exclusion of Wilson’s tes-
    timony does not in itself require habeas relief, then I believe that a very
    close look would be required at the question whether the cumulative force
    of trial court rulings, generally denying much of the helpful evidence prof-
    fered by Moses and admitting almost whatever the prosecution tendered,
    offended due process by depriving Moses of a fair trial. The majority
    never addresses this question.
    1114                    MOSES v. PAYNE
    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
    decisions or “confronts a set of facts that are materially indis-
    tinguishable from a [Supreme Court] decision . . . and never-
    theless arrives at a result different from [Supreme Court]
    precedent.” Williams v. Taylor, 
    529 U.S. 362
    , 405-06 (2000).
    I conclude that exclusion of Dr. Wilson’s testimony was not
    “contrary to” clearly established Supreme Court law, because
    the state appellate court recognized the general principle
    required in Washington that a defendant has the right to pre-
    sent a defense. It cannot be said that the state court of appeals
    applied the wrong law contrary to the dictates of Supreme
    Court precedent. Nor were the facts of Moses’s case materi-
    ally indistinguishable from those of the Supreme Court cases
    that he invokes. In Washington, the trial court had prevented
    a percipient witness from testifying because of a state statute,
    which the United States Supreme Court held violated the
    defendant’s Sixth Amendment right to have compulsory pro-
    cess for obtaining witnesses, applicable to the states through
    the Fourteenth Amendment. Washington, 
    388 U.S. at 23
    . In
    Chambers v. Mississippi, 
    410 U.S. 284
     (1973), state evidenti-
    ary rules—specifically, a “voucher” rule preventing a defen-
    dant from cross-examining his own witness and general rules
    against hearsay—prevented a defendant from presenting one
    witness who had repudiated a prior confession to the same
    crime and other witnesses who would have discredited that
    repudiation. 
    Id. at 294
    . The United States Supreme Court held
    that exclusion of this critical evidence that directly affected
    the ascertainment of guilt denied the defendant a fair trial. 
    Id. at 302-03
    . See also Holmes v. South Carolina, 
    547 U.S. 319
    (2006) (state evidentiary rule excluding evidence of third-
    party guilt if prosecution’s case was strong violated defen-
    dant’s right to present a complete defense); Rock v. Arkansas,
    
    483 U.S. 44
     (1987) (state evidentiary rule excluding post-
    hypnosis testimony unconstitutionally burdened defendant’s
    right to testify at trial in the absence of clear state evidence
    that post-hypnosis recollections are invalid).
    MOSES v. PAYNE                          1115
    None of these Supreme Court cases specifically addresses
    a state court’s exclusion of a critical defense expert based on
    state evidentiary rules concerning the admissibility of expert
    testimony and a trial court’s determination of whether the
    expert testimony in its view would be helpful to the trier of
    fact. Accordingly, I conclude that the state court decision was
    not “contrary to” clearly established Supreme Court prece-
    dent.
    Our attention must focus on whether the state court deci-
    sion was an “unreasonable application” of clearly established
    Supreme Court precedent. A state court decision constitutes
    an “unreasonable application” if it “correctly identifies the
    governing legal rule but applies it [objectively] unreasonably
    to the facts” of the case. Williams, 
    529 U.S. at 407-08, 410-11
    . Thus “section 2254(d)(1) permits a federal court to
    grant habeas relief based on the application of a governing
    legal principle to a set of facts different from those of the case
    in which the principle was announced.” Lockyer v. Andrade,
    
    538 U.S. 63
     (2003); see also Wilcox v. McGee, 
    241 F.3d 1242
    , 1244 (9th Cir. 2001) (“The Supreme Court need not
    have addressed a factually identical case; § 2254(d) only
    requires that the Supreme Court clearly determine the law.”
    (internal quotations, citation, and alteration omitted)). The
    AEDPA does not “prohibit a federal court from finding an
    application of a principle unreasonable when it involves a set
    of facts ‘different from those of the case in which the princi-
    ple was announced.’ . . . [t]he statute recognizes, to the con-
    trary, that even a general standard may be applied in an
    unreasonable manner.” Panetti v. Quarterman, 
    127 S. Ct. 2842
    , 2858 (2007). Our independent review of the legal ques-
    tion must leave us with a “firm conviction” that the state court
    committed a clear, objectively unreasonable error. Id.; see
    also Andrade, 
    538 U.S. at 74-75
    .2
    2
    Although section 2254(d) mandates that only Supreme Court preceden-
    tial holdings clearly establish a right, circuit law may be “persuasive
    authority” on the question of whether a state court’s determination was an
    unreasonable application of the Supreme Court’s precedent. Clark v. Mur-
    phy, 
    331 F.3d 1062
    , 1069 (9th Cir. 2003); Duhaime v. Ducharme, 
    200 F.3d 597
    , 600-01 (9th Cir. 1999).
    1116                    MOSES v. PAYNE
    The Washington line of cases from the United States
    Supreme Court firmly establishes the general proposition that
    a defendant has a constitutional right to present a defense at
    trial. The crux here concerns how that principle is to be
    applied in the context of the state court’s decision excluding
    any testimony from Moses’s defense expert whose testimony
    was proffered on a critical issue in Moses’s trial for murder
    of his wife.
    In Washington itself, the Court stated: “The right to offer
    the testimony of witnesses, and to compel their attendance, if
    necessary, 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 . . . . [A]n accused has the right to . . . present his own
    witnesses to establish a defense. This right is a fundamental
    element of due process of law.” Washington, 
    388 U.S. at 19
    .
    Since Washington, the United States Supreme Court has
    continually reaffirmed this fundamental right to present a
    defense. In Chambers, the Court proclaimed: “Few rights are
    more fundamental than that of an accused to present witnesses
    in his own defense[,]” and stated that it was not establishing
    any new principles of constitutional law but merely applying
    established ones to hold that the trial court’s rulings deprived
    the defendant of a fair trial. Chambers, 
    410 U.S. at 302-03
    .
    The Court reemphasized the right’s centrality to due process
    of law in Taylor v. Illinois, 
    484 U.S. 400
    , 409 (1988). More
    recently in Holmes, the Court stated: “[S]tate and federal rule-
    makers have broad latitude under the Constitution to establish
    rules excluding evidence from criminal trials. This latitude,
    however, has limits. . . . [T]he Constitution guarantees crimi-
    nal defendants a meaningful opportunity to present a complete
    defense. This right is abridged by evidence rules that
    infring[e] upon a weighty interest of the accused and are
    ‘arbitrary’ or ‘disproportionate to the purposes they are
    designed to serve.’ ” Holmes, 
    547 U.S. at 324-325
     (citations
    and quotations omitted, second alteration in original). See also
    MOSES v. PAYNE                             1117
    Crane v. Kentucky, 
    476 U.S. 683
    , 690 (1986) (holding that
    “an essential component of procedural fairness is an opportu-
    nity to be heard”).
    The central theme running through each of these Supreme
    Court cases is the clearly established right that the Constitu-
    tion guarantees to a criminal defendant to present relevant and
    material witnesses in his defense. These cases circumscribe
    the state’s ability to infringe that right: a state may limit the
    defendant’s evidence only when that limitation has a nonarbi-
    trary purpose(s) that is (are) proportionate to the correspond-
    ing infringement upon the defendant. See, e.g., Chambers,
    
    410 U.S. at 295
     (“the right to confront and to cross-examine
    is not absolute . . . . But its denial or significant diminution
    calls into question the ultimate ‘integrity of the fact-finding
    process’ and requires that the competing interest be closely
    examined.” (citations omitted)).3
    3
    The government’s citation to Carey v. Musladin, 
    127 S. Ct. 649
     (2006),
    to support its argument that the Washington state court’s adjudication was
    not contrary to or an unreasonable application of clearly established fed-
    eral law, does not avail it. In Musladin, the Supreme Court held that the
    effect on a defendant’s fair-trial rights of courtroom spectator conduct was
    an open question in its jurisprudence. Id. at 653. The Court reasoned that
    it had clearly established the law in this general area only as to
    government-sponsored practices, not as to spectator conduct. Id. By con-
    trast, in the present case, the Supreme Court has clearly established the
    applicable law, as outlined above.
    Similarly, the majority’s reliance on Wright v. Van Patten, 
    128 S.Ct. 743
     (2008), is unavailing. In Van Patten, the Supreme Court held that its
    jurisprudence does not clearly hold that counsel’s participation in a plea
    hearing “by speaker phone should be treated as a ‘complete denial of
    counsel’ on par with total absence.” 
    Id. at 746
    . The Court noted that it had
    clearly established law regarding the finding of a Sixth Amendment viola-
    tion without inquiring into counsel’s actual performance when “counsel is
    either totally absent, or prevented from assisting the accused during a criti-
    cal stage of the proceeding,” but not where counsel participates by speaker
    phone.” 
    Id. at 746
    .
    Neither of these precedents sufficiently undermines our Circuit law so
    as to allow the majority to disregard it in light of the standards set in Mil-
    1118                        MOSES v. PAYNE
    Here, as the Washington Court of Appeals noted, Dr. Wil-
    son’s testimony was excluded under a Washington evidenti-
    ary rule governing admissibility of expert testimony, which
    requires that 1) the witness is qualified as an expert, and 2)
    the testimony would be helpful to the trier of fact. The state
    appellate court determined that the trial court did not abuse its
    discretion in determining that Dr. Wilson’s proffer failed the
    second prong. The court of appeals concluded that Dr. Wil-
    son’s testimony added only that Jennifer had a minimally
    greater chance of committing suicide than a person who had
    not been diagnosed with major depression during the time
    period in question, dismissing his remaining proffer as infor-
    mation either that would already be introduced by other wit-
    nesses or that was within the average juror’s common
    knowledge.
    The state evidentiary rule at issue is of the type that United
    States Supreme Court precedent has contemplated to be a
    valid exception to a defendant’s general right to present a
    defense. See, e.g., Holmes, 
    547 U.S. at 326-27
     (“ . . . [W]ell-
    established rules of evidence permit trial judges to exclude
    evidence if its probative value is outweighed by certain other
    factors such as unfair prejudice, confusion of the issues, or
    potential to mislead the jury. Plainly referring to rules of this
    type, we have stated that the Constitution permits judges ‘to
    exclude evidence that is repetitive . . . , only marginally rele-
    vant or poses an undue risk of harassment, prejudice, [or] con-
    fusion of the issues.’ ” (citations and quotations omitted,
    ellipsis and second brackets in original)). However, the fact
    that the exclusion of evidence is grounded in familiar eviden-
    tiary rules alone does not determine that such exclusion is
    ler v. Gammie, 
    335 F.3d 889
     (9th Cir. 2003). (“Issues decided by [the
    Supreme Court] need not be identical in order to be controlling [in the
    Ninth Circuit]. Rather, [the Supreme Court] ‘must have undercut the the-
    ory or reasoning underlying the prior circuit precedent in such a way that
    the cases are clearly irreconcilable.’ ”) 
    Id. at 900
    .
    MOSES v. PAYNE                      1119
    constitutionally permissible. It is one thing to limit the scope
    of testimony, via evidentiary rulings, but it is another thing,
    and of drastic consequence for Moses, for the state court to
    have entirely excluded his important defense expert.
    In Chambers, as discussed above, the Supreme Court con-
    sidered and invalidated the state’s application of its hearsay
    rules. The Court preliminarily noted, “The hearsay rule,
    which has long been recognized and respected by virtually
    every State, is based on experience and grounded in the
    notion that untrustworthy evidence should not be presented to
    the triers of fact.” Chambers, 
    410 U.S. at 298
    . Nonetheless,
    the Court held that its application in that case was unconstitu-
    tional: the Court admonished, “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.” 
    Id. at 302
    . The Court overturned the state’s
    application of the hearsay rule in those circumstances, despite
    the rule’s status as perhaps the most “respected [and most]
    frequently applied [rule of evidence] in jury trials.” 
    Id.
    Despite the values served by the hearsay rule, it could not be
    applied in a way that unreasonably denied the defendant his
    right to present a defense.
    To consider whether the rule permitting Moses to present
    his defense was unreasonably applied requires placing the
    exclusion of the defense expert testimony in context. First, it
    should be recognized that as a general matter the presentation
    of defense witnesses lies at the heart of the defendant’s right
    to mount a defense. Washington, 
    388 U.S. at 19
    . Second, in
    the context of Moses’s trial, whether his wife committed sui-
    cide was critical. There was no question that she was shot in
    the head. There was no question that Moses’s prints were on
    the gun. There was no question that Jennifer suffered from
    major depression and at times had had a suicidal ideation. The
    issue was whether the jury should believe or reject Moses’s
    story that his suicidal wife was attempting to kill herself when
    he unsuccessfully intervened trying to stop her from making
    1120                       MOSES v. PAYNE
    the fatal shot. In a sense, we can never know for certain what
    happened: Did Moses shoot her in cold blood and try to place
    the blame on her previously expressed suicidal tendencies? Or
    did she take her own life, ensnaring Moses in culpability
    because he was there and tried to stop her? In our system of
    justice, appellate judges must recognize that they can never
    know for certain what were the underlying facts. Determina-
    tion of those facts is in the province of the jury. But what we
    must do is to ensure that the process by which the jury
    receives the question is a fair one, so that we can have confi-
    dence in its determination of criminal guilt beyond a reason-
    able doubt.
    In my view, under the circumstances of Moses’s case,
    application of Washington’s expert evidentiary rule unconsti-
    tutionally denied Moses his right to present a defense to the
    jury. To put the key issue a different way, did the state’s inter-
    est in preventing what the trial judge perceived to be inadmis-
    sible testimony under Washington evidentiary rules
    constitutionally have to make way to Moses’s right to have
    the jury hear Dr. Wilson’s testimony? To make such a deter-
    mination in habeas cases, “we employ a balancing test for
    determining whether the exclusion of testimony violates due
    process.” Alcala v. Woodford, 
    334 F.3d 862
    , 884 (9th Cir.
    2003) (citing Miller v. Stagner, 
    757 F.2d 988
    , 994 (9th Cir.
    1985)).4 We must “weigh the probative value of the evidence,
    its reliability, whether the trier of fact can evaluate the evi-
    dence, whether the evidence is cumulative, and whether the
    evidence proves integral to the defense theory” against the
    state’s interest in excluding the evidence in order to evaluate
    whether it was constitutionally excluded. 
    Id.
     (citing Miller,
    
    757 F.2d at 994
    ).
    Under this test, I conclude that the trial judge improperly
    4
    Although Miller itself preceded enactment of AEDPA, we have applied
    its test after AEDPA to determine what Supreme Court precedent requires.
    See, e.g., Chia v. Cambra, 
    360 F.3d 997
    , 1003-04 (9th Cir. 2004).
    MOSES v. PAYNE                     1121
    excluded the defense expert’s testimony. First, there is no
    indication that the evidence was not reliable. To the contrary,
    the trial court excluded the testimony based in part on its
    assumption that the bulk of Dr. Wilson’s testimony was
    within the average juror’s “common knowledge,” suggesting
    that the evidence was in fact not only reliable but plausible.
    Second, and for similar reasons, Dr. Wilson’s proposed testi-
    mony was readily within the jury’s ability to evaluate. Dr.
    Wilson would have presented no complicated or technical
    issues for the jury to navigate but rather a straightforward,
    expert assessment of, among other things, major depression
    and suicide generally, the implications of a diagnosis with
    major depression, and potential inconsistencies between the
    external appearances and the internal state of a depressed and/
    or suicidal individual.
    As for whether the testimony would have been cumulative,
    as the Washington appellate court noted, the jury ultimately
    heard much of the evidence concerning Jennifer’s recent treat-
    ment history from either the different medical examiners
    themselves or from an individual from the examiner’s records
    office who read the contents of the medical file to the jury.
    However, the jury did not hear the testimony Moses hoped to
    offer through Dr. Wilson concerning: the unlikelihood that
    Jennifer would have recovered from her major depression by
    the time of her death; the higher likelihood that individuals
    diagnosed with major depression, particularly with Jennifer’s
    individual risk factors, have of committing suicide than indi-
    viduals not so diagnosed; the possibility that a significantly
    depressed person might successfully mask that depression to
    his or her acquaintances; and the unlikelihood that those who
    are not experts fully understand the ramifications and nature
    of major depression. The jury also did not hear Dr. Wilson’s
    analysis of other evidence of Jennifer’s emotional state, such
    as her journal entries. Thus the jury did hear some of the
    information that Dr. Wilson’s testimony would have encom-
    passed, but it never heard substantial portions; the evidence
    was only partially cumulative.
    1122                     MOSES v. PAYNE
    A defendant in a murder case has an interest in presenting
    his defense points and themes through witnesses whose views
    support the defense theory of the case and whose testimony
    may be ordered in a way aimed at persuading the jury to a
    conclusion of doubt. Here, if the state trial court had let the
    defense expert testify, but had imposed some reasonable limit
    on scope of his testimony, with the aim of managing trial time
    and avoiding cumulative testimony, no significant constitu-
    tional issue could be presented. But in my view what makes
    the decision of the state trial court an unreasonable applica-
    tion of Supreme Court precedent is the total exclusion of testi-
    mony by a key defense expert witness in a murder case on a
    critical issue that could likely affect the verdict of the jury. Cf.
    Boykins v. Wainwright, 
    737 F.2d 1539
    , 1544-45 (11th Cir.
    1984) (noting that fundamental fairness is violated when the
    evidence excluded is material as being crucial, critical, and a
    highly significant factor in the defense, and concluding that
    exclusion of defense witness’s testimony concerning defen-
    dant’s mental health history violated fundamental fairness
    when defendant’s sole defense at trial was insanity).
    Although I understand the majority’s line of reasoning in
    analysis, I am left with the conclusion that the expert Dr. Wil-
    son’s testimony was critical to Moses’s case in the full con-
    text presented. Moses had admitted not only to his presence
    when Jennifer died, but that he was either reaching for the gun
    or actually had his hand on it when it fired. Moses’s trial
    boiled down to a determination of whether Moses killed Jen-
    nifer with the requisite intent or whether Jennifer had commit-
    ted suicide as Moses tried to stop her. Given this defense
    theory, Dr. Wilson’s testimony was central to the defense’s
    case. It was imperative that the jury fully understand not only
    Jennifer’s history of major depression but also the nature,
    attending implications, and occasionally-misleading external
    appearance of major depression and suicidal tendencies gen-
    erally. Moreover, Moses had an interest in presenting his
    points of defense through Dr. Wilson who, in a coordinated
    way, could put together the disparate pieces of the puzzle that
    MOSES v. PAYNE                      1123
    Jennifer’s mental health treatment providers, from whom the
    jury heard portions of Jennifer’s medical records, had pre-
    sented, and give an overview that would be helpful to the
    jury’s understanding.
    Dr. Wilson’s testimony in my view was of significant pro-
    bative value. Dr. Wilson’s testimony was aimed at providing
    framework and context to help the jury make sense of the
    medical and psychological diagnoses that it heard from other
    witnesses, to assess the plausibility that Jennifer had commit-
    ted suicide. The trial judge based his dismissal of Dr. Wil-
    son’s testimony in large part on his assessment that
    “depressed people are more likely to kill themselves than peo-
    ple who are not depressed. I think the jury understands that,”
    and a series of corresponding, reductive assessments that “ac-
    cess to guns for people who are depressed is a bad thing . . . .
    Drug and alcohol use makes the problem worse[,]” and so on.
    Although the trial court thus reduced much of Dr. Wilson’s
    testimony to being common knowledge, and though the spe-
    cific statements that the trial judge made are indeed arguably
    common knowledge, or at least common sense, an analysis of
    Dr. Wilson’s proffered testimony reveals that those simplistic
    propositions are an unfair characterization of the essence of
    his testimony. The state trial court would have judged in a
    more fair procedure if it had let the jury hear the defense’s
    expert evidence and then make its own decision.
    First, it is not without significance that one of the most cen-
    tral points of Dr. Wilson’s testimony—as a renowned, indis-
    putable expert in the field of psychiatry generally and
    depression specifically—would have been to elaborate on
    implications of major depression, including the extent to
    which the reality of major depression in fact diverges from the
    layperson’s impression. Elaboration on implications of a key
    illness, and particularly a mental illness, is not in common
    knowledge of all jurors.
    Second, the trial court improperly discarded Dr. Wilson’s
    proffered testimony about studies, concerning the increased
    1124                    MOSES v. PAYNE
    likelihood that a depressed person will commit suicide, that
    are not within the jury members’ common knowledge. In his
    offer of proof, Dr. Wilson had discussed, among other things,
    empirical studies indicating that if one follows a group of peo-
    ple who have major depression over their lifetime, about 15%
    will kill themselves. Both the trial court and the Washington
    Court of Appeals diminished this testimony to, in essence, an
    indication that Jennifer had a 0.25% increased chance of com-
    mitting suicide during the six-month period preceding her
    death.
    There are flaws with this reasoning. First, this statement
    and the trial judge’s comment, stated above, about depressed
    people being more likely than non-depressed people to com-
    mit suicide, both misunderstand the import of Dr. Wilson’s
    testimony: his statement concerns the probability that a
    depressed person will commit suicide over his/her lifetime,
    not the extent to which a depressed person is more likely than
    a non-depressed person to commit suicide. Second, the calcu-
    lation falsely assumes a linear trajectory that is an inappropri-
    ate inference from the statistics Dr. Wilson cites; that the
    overall percent is 15% does not mean that one can mechanisti-
    cally divide a depressed person’s life expectancy by a particu-
    lar time frame to determine in any meaningful way the
    chances of suicide during that time frame. The state trial court
    missed the broader message: that people with major depres-
    sion have a significant likelihood of committing suicide at
    some point in their lives, and correspondingly, that the lives
    of 15% of individuals with major depression end in suicide
    (i.e., the statistic derives its import from a focus on the
    depressed person’s death, not the life or its duration). Again,
    the state trial court would have been on sounder ground to let
    the jury assess the significance of the expert’s testimony,
    rather than just suggesting it was obvious as well as de
    minimis and excluding it. The issue was not whether a person
    with major depression is more likely than other individuals to
    commit suicide but rather the likelihood that a person with
    major depression is going to commit suicide at all. To assess
    MOSES v. PAYNE                      1125
    that likelihood the jury would have benefitted from hearing
    Dr. Wilson.
    The trial court also excluded Dr. Wilson’s testimony on the
    basis that he could not state, on a more probable than not
    basis, that Jennifer committed suicide. However, no one who
    was not a percipient witness could have done so definitively.
    The case presented very little objective evidence of Jennifer’s
    mental state in the weeks and days immediately preceding her
    death. Yet this does not render Dr. Wilson’s testimony any
    less essential to the jury’s complete picture of Moses’s case.
    Given the dearth of psychological evidence one way or
    another, Dr. Wilson’s testimony about the implications of
    major depression and the unlikelihood of Jennifer’s recovery
    was pivotal to Moses’s case and all the more constitutionally
    protected.
    Moses’s only defense was that Jennifer had committed sui-
    cide. It was essential that the jury understand major depres-
    sion in conjunction with Jennifer’s history. Exclusion of Dr.
    Wilson’s testimony handicapped Moses’s ability to impart
    such an understanding. Stated another way, the defense did
    not get a fair shot to present its defense theory through expert
    testimony.
    By contrast, the state’s interest in wholly excluding Dr.
    Wilson’s testimony in this instance was minimal. The trial
    judge noted that the jury would already know that there were
    firearms in the Moses home and would hear evidence of Jen-
    nifer’s various recent medical and psychological treatments.
    The trial court summarized the state’s interest, in effect, as
    follows: “the expert witness testimony . . . would be a waste
    of time. It poses a risk of confusion for the jury and brings us
    far too far afield of the issues relevant in this case.” However,
    Moses offered Dr. Wilson’s testimony so that the depression
    expert could testify on issues at the very heart of Moses’s
    trial: the likelihood or plausibility that Jennifer had committed
    suicide and the likelihood that other individuals—Jennifer’s
    1126                     MOSES v. PAYNE
    acquaintances and the jury alike—would misunderstand the
    appearance and ramifications of a “major depression” diagno-
    sis without the insight his testimony would provide. Dr. Wil-
    son’s testimony cannot fairly be characterized either as a
    waste of time or as “too far afield.” Dr. Wilson was indisputa-
    bly competent to give his views on depression, and it strains
    imagination to suggest that his views would have been a time
    waste and not a help to a jury charged with determining the
    fate of Moses.
    Further, contrary to the trial court’s suggestion, the subject
    matter posed no likelihood of confusing the jury. Indeed, the
    trial court’s statement on the one hand that Dr. Wilson’s testi-
    mony was, in essence, “common knowledge” is at odds with
    its subsequent statement, on the other hand, that the testimony
    poses a risk of jury confusion. And any minimal, potential
    risk for confusion could have been contained by simple, clari-
    fying cross examination. As for the potential for some aspects
    of Dr. Wilson’s testimony to be cumulative of points estab-
    lished by testimony from other witnesses, or from documen-
    tary sources, a reasonable solution, in light of the fact that Dr.
    Wilson’s testimony added some additional perspectives about
    the nature of depression and possibilities of recovering from
    it, would have been to permit Dr. Wilson’s testimony, but to
    draw reasonable lines or limits on its scope.
    The state’s interest in excluding Dr. Wilson’s testimony
    was minimal when weighed against Moses’s substantial inter-
    est in having the jury hear it, given its centrality to his sole
    theory of defense. Exclusion of the testimony not only inhib-
    ited the jury’s ability to have a clearer picture of the case
    before it, but it denied Moses his clearly established constitu-
    tional right to present a defense to the jury. Just as the
    Supreme Court in Chambers held that existing constitutional
    principles determined that the evidence exclusion deprived
    the defendant of his right to present a defense, here it was an
    objectively unreasonable application of Washington for the
    MOSES v. PAYNE                     1127
    trial court to exclude Dr. Wilson’s testimony and for the court
    of appeals to affirm.
    Finally, I cannot say that the exclusion of Dr. Wilson’s tes-
    timony did not have a “substantial and injurious effect” on the
    jury’s verdict. See Brecht v. Abrahamson, 
    507 U.S. 619
    , 623
    (1993). Dr. Wilson’s testimony was important to the jury’s
    ability fully to assess the ramifications not only of major
    depression generally but of Jennifer’s specific past, including
    her various diagnoses. Given the centrality of this testimony
    to Moses’s sole theory of defense, I am in “grave doubt” as
    to the error’s effect, and thus cannot deem the error harmless.
    See O’Neal v. McAninch, 
    513 U.S. 432
    , 436-37 (1995). The
    error significantly hampered Moses’s ability to present a com-
    plete and accurate picture of Jennifer’s mental state at the
    time of death and its implications for her likely cause of
    death, and I cannot say that it was not likely to have a sub-
    stantial and injurious effect on the jury verdict.
    Even if the majority were right that we should not apply the
    balancing test of Miller v. Stagner, I would not view this case
    in an “open area” where habeas relief is unwarranted. Even
    without applying a balancing test, I reach the same conclusion
    simply by recourse to what the Supreme Court said in Wash-
    ington and its related cases. Our Miller case merely shows a
    rational way to assess considerations that are pertinent under
    the Supreme Court’s precedent. This balancing test does not
    impose a new standard of circuit-made law upon the states.
    Here, the presentation of a key defense witness was excluded,
    and Moses did not get the opportunity to fairly present his
    defense theory.
    I reluctantly conclude that Moses was unduly constricted in
    presenting his defense which was objectively unreasonable,
    and thereby did not receive a fair trial. The Supreme Court’s
    Washington decision and related cases are ample precedent to
    give relief. The case presents a question of high concern
    because if Moses’s wife committed suicide, then an innocent
    1128                    MOSES v. PAYNE
    man is in prison. As noted earlier in such a case we can never
    be absolutely certain of what truly occurred, and in our sys-
    tem of criminal justice we must rest on the jury’s decision
    when it has been fully and fairly advised of the defense’s
    position. Doubtless, the trial court could have limited and cir-
    cumscribed the scope of testimony from Moses’s expert, but
    to totally preclude that expert witness from testifying is for
    me a step drastically too far in a murder case where possible
    suicide was the critical issue and the deceased had a history
    of severe depression.
    The way the majority reads Musladin and Van Patten
    would go pretty far in depriving anyone habeas relief who
    does not have a case identical to one the Supreme Court has
    already decided. To take that approach reflects an incorrect
    judgment that may limit the efficacy of habeas relief, an
    approach particularly ironic in light of the Supreme Court’s
    recent tribute to habeas jurisdiction in Boumediene v. Bush,
    
    128 S.Ct. 2229
     (2008).
    I would therefore reverse the district court’s order denying
    Moses’s petition for a writ of habeas corpus, and remand the
    case with instructions to grant the writ and to order the pris-
    oner released absent retrial within a specified period. Thus, I
    respectfully dissent.
    

Document Info

Docket Number: 07-35468

Filed Date: 1/30/2009

Precedential Status: Precedential

Modified Date: 10/14/2015

Authorities (53)

Oscar Brown Boykins, Jr. v. Louie L. Wainwright , 737 F.2d 1539 ( 1984 )

Joe Hernandez, III v. Larry Small, Warden , 282 F.3d 1132 ( 2002 )

Cornelious Perry v. Ruth L. Rushen , 713 F.2d 1447 ( 1983 )

Andrew Cortez Crater v. George M. Galaza , 491 F.3d 1119 ( 2007 )

Smith v. Patrick , 508 F.3d 1256 ( 2007 )

Richard Shawn Wilcox v. Michael McGee Superintendent, ... , 241 F.3d 1242 ( 2001 )

Joan Hangarter v. Provident Life and Accident Insurance ... , 373 F.3d 998 ( 2004 )

Michael Su Chia v. Steven Cambra, Jr., Warden Attorney ... , 360 F.3d 997 ( 2004 )

Mathew Musladin v. Anthony Lamarque, Warden , 427 F.3d 653 ( 2005 )

christine-l-miller-guardian-ad-litem-tonnie-savage-guardian-ad-litem-v , 335 F.3d 889 ( 2003 )

Donald Eugene Lambert v. James Blodgett, Donald Eugene ... , 393 F.3d 943 ( 2004 )

Donald Alan Miller v. A.A. Stagner and R.L. Pulley, Leroy ... , 768 F.2d 1090 ( 1985 )

Davis v. Silva , 511 F.3d 1005 ( 2008 )

Donald Alan Miller v. A.A. Stagner and R.L. Pulley, Leroy ... , 757 F.2d 988 ( 1985 )

Goldman v. United States , 38 S. Ct. 166 ( 1918 )

Ronald James Brewer v. James Hall, Warden , 378 F.3d 952 ( 2004 )

Billy Russell Clark v. Tim Murphy , 331 F.3d 1062 ( 2003 )

rodney-j-alcala-v-jeanne-s-woodford-warden-of-the-california-state , 334 F.3d 862 ( 2003 )

United States v. Bradford L. Lockett , 919 F.2d 585 ( 1990 )

John Henry Casey v. Robert Moore , 386 F.3d 896 ( 2004 )

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