Gina Celaya v. Charles Ryan , 497 F. App'x 744 ( 2012 )

FILED
UNITED STATES COURT OF APPEALS NOV 14 2012
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S. COURT OF APPEALS
GINA GAIL CELAYA, No. 10-15935
Petitioner - Appellant, D.C. No. 4:01-cv-00622-DCB
District of Arizona,
v. Tucson
CHARLES L. RYAN; et al.,
ORDER
Respondents - Appellees.
GINA GAIL CELAYA, No. 10-15964
Petitioner - Appellee, D.C. No. 4:01-cv-00622-DCB
District of Arizona,
v. Tucson
CHARLES L. RYAN; et al.,
Respondents - Appellants.
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
The memorandum disposition filed on June 12, 2012, is withdrawn and
replaced with the accompanying memorandum disposition.
The panel has voted to deny the petition for panel rehearing and the petition
for rehearing en banc.
The full court has been advised of the petition for rehearing and rehearing en
banc and no judge has requested a vote on whether to rehear the matter en banc.
Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing en banc are
DENIED. No further petitions for en banc or panel rehearing shall be permitted.
FILED
NOT FOR PUBLICATION NOV 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
GINA GAIL CELAYA, No. 10-15935
Petitioner - Appellant, D.C. No. 4:01-cv-00622-DCB
v.
MEMORANDUM*
CHARLES L. RYAN; et al.,
Respondents - Appellees.
GINA GAIL CELAYA, No. 10-15964
Petitioner - Appellee, D.C. No. 4:01-cv-00622-DCB
v.
CHARLES L. RYAN; et al.,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted May 16, 2012
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Charles Ryan, et al., (collectively, Respondents-Appellants/Cross-Appellees)
appeal the district court’s conclusion that Gina Gail Celaya’s habeas petition was
timely under 28 U.S.C. § 2244(d). Respondents also appeal the district court’s
determination that the Arizona Court of Appeals’s decision affirming Celaya’s
conviction was contrary to clearly established federal law, entitling Celaya to
habeas relief. Celaya cross-appeals the district court’s holding that she
procedurally defaulted on her ineffective assistance of counsel claims. We have
jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm. Because the parties
are familiar with the factual and procedural history of this case, we need not
recount it here.
I
The Antiterrorism and Effective Death Penalty Act (“AEDPA”) provides,
“[t]he time during which a properly filed application for State post-conviction . . .
review . . . is pending shall not be counted toward any period of limitation.” 28
U.S.C. § 2244(d)(2). The pendency of such an application is determined by state
law. See Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001) (applying
Washington law). Under Arizona law, Celaya’s post-conviction review (“PCR”)
petition was “pending” until the Arizona Court of Appeals issued the mandate
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concluding its review of that petition on November 30, 2000. See Carey v. Saffold,
536 U.S. 214, 219-20 (2002); see also Hemmerle v. Schriro, 495 F.3d 1069, 1077
(9th Cir. 2007); Borrow v. El Dorado Lodge, Inc., 254 P.2d 1027, 1028-29 (Ariz.
1953). Accordingly, Celaya’s habeas petition, filed on November 28, 2001, was
timely.
II
Under AEDPA, we may grant Celaya’s petition only if we determine that the
Arizona Court of Appeals’s decision affirming her 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).
“As a habeas court, we do not review the propriety of the state court’s application
of its own evidentiary rules; rather, we consider whether it was unreasonable for it
to conclude, in light of Chambers, that the exclusion did not violate [Celaya’s] due
process right to present a defense and receive a fair trial.” Lunbery v. Hornbeak,
605 F.3d 754, 761 n.1 (9th Cir. 2010). It does not matter that the court of appeals
did not cite to Supreme Court precedent on this issue. See Early v. Packer, 537
U.S. 3, 8 (2002) (explaining that avoiding the “pitfalls [of AEDPA] does not even
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require awareness of our cases, so long as neither the reasoning nor the result of
the state-court decision contradicts them”).1
“The Supreme Court has made clear that the erroneous exclusion of critical,
corroborative defense evidence may violate both the Fifth Amendment due process
right to a fair trial and the Sixth Amendment right to present a defense.” DePetris
v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v.
Mississippi, 410 U.S. 284, 294 (U.S. 1973)). Here, the three witnesses that the trial
court excluded would have corroborated Celaya’s testimony; indeed, they were
vital to Celaya’s defense. The trial court erred when it excluded that evidence,
rendering the trial fundamentally unfair. See Crane v. Kentucky, 476 U.S. 683, 690
(1986); Chambers, 410 U.S. at 302 (“Few rights are more fundamental than that of
an accused to present witnesses in his own defense.”).
This error “had substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The Arizona Court of
1
We recognize that the magistrate judge’s report and recommendation,
which the district court adopted, was mistaken in stating that Celaya’s
constitutional claim should be reviewed de novo. Because the Arizona Court of
Appeals’s decision was on the merits, we review it under AEDPA’s deferential
standard. See Harrington v. Richter, 131 S.Ct. 770, 784 (2011).
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Appeals’s denial of relief for this constitutional violation was contrary to clearly
established federal law under 28 U.S.C. § 2254.
We need not reach any other issue raised on appeal.
AFFIRMED.
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