Michael Ray Bredemier v. Theresa Cisneros

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK)

Petitioner, ORDER ACCEPTING REPORT

V. AND RECOMMENDATION TO

BRYAN PHILLIPS, Warden, DENY HABEAS PETITTON

Respondent.

Pursuant to 28 U.S.C. § 636, the Court has reviewed the filed

(Corrected) Report and Recommendation to deny Petitioner’s Habeas

Petition and any relevant records as needed. Because the time for objections

has passed with none filed, the Court need not review de novo the findings

and conclusions in the Report and Recommendation. See Thomas v. Arn,

474 U.S. 140, 154 (1985); United States v. Reyna-Tapia, 328 F.3d 1114,

1121 (9th Cir. 2003) (en banc).

THEREFORE, the Court accepts the Report and Recommendation and

orders that the petition under 28 U.S.C. § 2254 be denied. Judgment will

accordingly be entered dismissing this action with prejudice.

IT IS SO ORDERED.

I “BE

DATED: __ 6/16/25

HERNAN D. VERA

United States District Judge

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA

MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK)

Petitioner, REPORT AND

v. RECOMMENDATION TO DENY

HABEAS PETITION

BRYAN PHILLIPS, Warden,

Respondent.

Petitioner is a California inmate serving 90 years to life in prison after

a jury convicted him of child sex offenses against two victims. On appeal, he

claimed that the trial court incorrectly admitted evidence of uncharged bad

acts including prior child sex crimes, as well as unnecessary and unreliable

expert testimony, in violation of state evidence law and federal due process.

He also claimed that one of the victim’s testimony was insufficient to support

three of his seven convictions involving that victim. The California Court of

Appeal rejected these claims on the merits in the last reasoned state court

decision. Through retained counsel, petitioner now seeks federal collateral

review under 28 U.S.C. § 2254, raising the same claims the court of appeal

denied on the merits.

As amended by the Antiterrorism and Death Penalty Act of 1996

(AEDPA), however, § 2254 precludes relitigation of these claims unless (as

pertinent here) petitioner proves that the court of appeal’s decision

contradicted or unreasonably applied clearly established federal law as

determined by the U.S. Supreme Court. See 28 U.S.C. § 2254(d)(1).

Petitioner has not carried that burden. Indeed, he has not even framed his

habeas claims in correct AEDPA terms. In any case, petitioner has neither

shown that the court of appeal’s rejection of his evidentiary claims was

contrary to or an unreasonable application of controlling Supreme Court

precedent, nor established that the court of appeal unreasonably applied the

clearly established federal law governing his insufficiency of evidence claims.

As a result, the petition should be denied and this action dismissed.

I.

BACKGROUND

In 2018, police received a complaint that Jane Z.R., then 15 years old,

had been sexually abused by petitioner over many years starting when she

was nine or 10 years old. (1 RT 99–103). Z.R. met petitioner while living

with her adoptive parents who were close family friends of his, and so she

viewed him as surrogate grandfather (petitioner was in his mid to late-50s at

the time). (1 RT 110–12, 115–17, 125, 145). Z.R. reported at least two

instances of sexual penetration in late 2012 or early 2013 while in theaters

watching movies with petitioner, as well as “repeated” incidents of lewd acts

afterward at petitioner’s home during consecutive summers from 2013 to

2016. (1 RT 116–23, 126–27, 132–33).1 Police connected Z.R.’s complaint

to another they had received around 2007 from Jane M.D, who was a friend

of petitioner’s daughter in elementary school. (1 RT 53–64). M.D. reported

that petitioner had committed lewd acts when she was around 11 years old

during a sleepover with his daughter in 2000. (1 RT 62–66, 76–77). Like

Z.R., M.D. kept that alleged abuse a secret until years later when she

graduated from high school.

1 According to a police witness, Z.R. also reported to social services that petitioner

committed a sexual penetration or lewd act at a church her adoptive family attended with

A. Trial Testimonies

After investigating the victims’ allegations, the State of California

charged petitioner with two counts of sexual penetration with a child 10

years of age or younger (Z.R.); five counts of lewd acts with a child under 14

years of age (Z.R.); an additional sixth lewd acts count (M.D.); and one count

of molesting a minor under the age of 18 years (Z.R.). (CT 143–47, 156–

70). Both victims testified at trial along with several percipient witnesses,

including witnesses contradicting the victims’ accounts. (1 RT 53–64, 92–

185). One of the state’s witnesses was Z.R.’s biological grandmother who

uncovered her abuse upon discovering Instagram messages and comments

between her and petitioner. (1 RT 144–46). In the messages, exchanged

after Z.R. had moved out of her adoptive family’s home in 2017, petitioner

professed his continuing love for Z.R. and his desire to be her boyfriend. (1

RT 99–103, 150–52, 161). He also commented on Instagram pictures Z.R.

posted, describing her as “cutie” and “hottie.” (1 RT 144–46, 161, 166).2

For his part, petitioner didn’t testify at trial, but his attorney called

witnesses including members of Z.R.’s adoptive family and petitioner’s

daughter. One younger adoptive brother remembered (when he was in third

grade) going to two movies with petitioner and Z.R., where she sat between

them in the theaters. (2 RT 290–94). He saw nothing unusual during either

movie and said that Z.R. acted normal after the movies finished. (2 RT 293–

94). Z.R.’s adoptive mother testified that she only remembered Z.R. being

alone with petitioner perhaps twice during birthday parties. (2 RT 306–07).

She said that Z.R. never appeared upset after those visits and that all her

2 When the grandmother disclosed these posts to Z.R.’s adoptive parents, the mother was

“concerned” and “scared,” and the father thought they were “inappropriate.” (2 RT 335–

36, 342–43). The father confronted petitioner about them, but he neither denied nor

confirmed sending the messages to Z.R. (2 RT 342–43). Such comments were not

unusual according to Z.R., who recounted one birthday party of hers when petitioner said

children, including Z.R., liked petitioner and often wanted to sit next to him

in theaters. (2 RT 309–10). Finally, petitioner’s daughter testified about the

sleepovers with M.D. (2 RT 320–25). She recalled one when M.D. woke up

and said that her father had “done something” to her. (2 RT 324). But she

couldn’t remember how she responded and thought they both just eventually

went back to sleep. (Id.). According to the daughter, petitioner weighed

more than 400 pounds at the time and couldn’t walk well unassisted.3 (2 RT

325–26). She added that M.D. came over to their home again at least once

for another sleepover. (2 RT 325).

B. Challenged Evidence

In addition to victim and witness testimonies, the state introduced (1)

incriminating data found on petitioner’s cellphone, (2) evidence of prior

uncharged child sex abuse, and (3) expert testimony about “Child Sexual

Abuse Accommodation Syndrome” (CSAAS). The cellphone evidence

included links to videos titled “Father F*cks Schoolgirl Daughter” and

“Father and Daughter Live on Cute Baby Cam,” as well as Internet search

history for terms like “father f*cking daughter” and “young girls.” (1 RT

243–47, 265). The prior uncharged crimes involved petitioner’s younger

cousin by nine years, who testified that in the late 1970s (when she was

between seven and 10 years old) petitioner sexually molested and abused

her. (1 RT 24–35).4 And the CSAAS expert testified about the “pattern of

3 Other witnesses too, including Z.R., testified that petitioner had been a large man who

often used a cane to walk during the relevant years. (1 RT 172–73; 2 RT 291, 310).

4 According to the cousin (J.P.), petitioner would masturbate in front of her when they

were alone. (1 RT 24–28). One time, petitioner sat on top of her, causing pain but with

no sexual penetration. (1 RT 27). She described another time when petitioner woke her

while asleep at his house and performed oral sex. (1 RT 31–32). He tried again another

night while babysitting at her house, but she screamed until he left her alone. (1 RT 32–

33). Many years later, petitioner reportedly approached her and said that she has the

“sweetest p*ssy” he has ever “tasted.” (1 RT 41). The cousin never reported these

behaviors many children exhibit when they’ve been sexually abused,”

including delayed disclosure of abuse and contradictory or accommodating

behavior with abusers. (1 RT 191, 197–98, 200). The expert added,

however, that she had neither interviewed the victims nor reviewed any

police reports, so her testimony was not intended to offer opinions about

petitioner’s specific case. (1 RT 220–22).

Petitioner’s counsel objected before trial to the use of all this evidence.

(CT 98–108; 1 RT 3–9, 200–15). He argued that petitioner’s uncharged bad

acts—found in the cellphone and as alleged by his cousin—amounted to

criminal propensity evidence that should be excluded for unfair prejudice

and juror confusion. He also opposed the expert testimony, arguing that the

science around CSAAS was unreliable and that such testimony was unhelpful

in this case. Applying the relevant California rules of evidence, the trial

court overruled the defense objections. (1 RT 4–7, 10–11). It found that the

challenged evidence was offered for permissible purposes relevant to the

charged crimes and that none of the evidence would unduly prejudice,

confuse, or mislead the jury. When weighing the probative value of that

evidence against the risks of misleading, confusing, or prejudicing the jury,

the trial court added that any such risks would be further mitigated with

limiting instructions (which the court later issued for all three challenged

items of evidence) and defense counsel’s cross-examination of the witnesses

(through whom the challenged evidence was later introduced). (1 RT 9–11).

C. Petitioner’s Defense

Petitioner does not claim that his attorney performed inadequately in

mounting his defense at trial.5 Nor would the record support an ineffective

5 On appeal, he raised only contingent claims of ineffective trial assistance to avoid

procedural default in case the court of appeal were to find that he had forfeited his

evidentiary claims for lack of objection at trial. (LD 3). But the court of appeal found no

assistance claim anyway. Most importantly, counsel worked to impeach the

credibility of the victims (including petitioner’s cousin) and the reliability of

their memories so many years after the alleged abuses. (1 RT 165–85; 2 RT

397, 399, 402–03). For instance, defense counsel successfully elicited Z.R.’s

denial that any lewd act happened in a church, as the state claimed she had

reported to social services. (1 RT 179). Counsel also established that police

hadn’t ruled out whether others had “access” to petitioner’s cellphone or

even if he had personally “downloaded” and “viewed” child pornography on

the phone. (1 RT 246, 247, 404). As well, counsel elicited from the CSAAS

expert that she couldn’t attest if the victims had that syndrome, that

teenagers often make up stories to deflect unrelated adolescent problems,

and that CSAAS cannot enhance a victim’s credibility or prove that alleged

abuse happened just because it isn’t revealed until years later. (1 RT 220–

22). Counsel established, moreover, that petitioner’s weight and restricted

mobility at the time of the victims’ alleged abuses would have made it too

difficult for him to commit the alleged sexual acts in the ways the victims had

described. (2 RT 397–98, 401).

Defense counsel also homed in on Z.R.’s testimony around her most

serious allegations of sexual penetration and the number of alleged lewd

acts. (1 RT 165–179). As pertinent here, when asked if petitioner’s fingers

entered her vagina during the first movie, Z.R. replied, “I don’t know if it was

that time it did . . . because I was young, but I believe so.” (1 RT 120). Asked

the same question about the second movie, Z.R. said that petitioner put his

hands in her pants again but she couldn’t remember if his fingers entered

her vagina. (1 RT 122–24). When asked to recount what happened in the

summers, Z.R. said that petitioner touched her vagina in his outdoor hot tub

“frequently.” (1 RT 127–33). Asked for a number, she said it happened

“more than two” times but couldn’t “remember” or “count” if it was “more

than three.” (1 RT 127–28). Even though she later testified that the lewd

acts happened “not just . . . one time each summer” but “repeatedly each

summer” from 2013 to 2016 (1 RT 179), defense counsel zeroed in on these

perceived equivocations or generalities in Z.R.’s testimony to argue that

there was insufficient evidence to convict petitioner of any sexual

penetration charges or lewd acts involving Z.R. (2 RT 397, 399–400).

Following seven days of trial, the jury was convinced by at least some

of petitioner’s defenses and returned partially split verdicts after a day and a

half of deliberations. (2 RT 416–21). For Z.R., the jury found petitioner

guilty of only one count of sexual penetration related to the first movie

incident, but acquitted him of the other count stemming from the second

incident. It otherwise convicted him of all remaining counts—five lewd acts

involving Z.R., one lewd act involving M.D., and one molestation involving

Z.R. Afterward, at sentencing, the trial court ordered petitioner to serve a

total indeterminate term of 90 years to life in state prison. (CT 250–51).

D. Direct Appeal

On appeal of his convictions, petitioner challenged the introduction of

his uncharged bad acts as revealed in the cellphone evidence and his cousin’s

allegations of sexual abuse, as well as the CSAAS testimony. He claimed that

the challenged evidence shouldn’t have been admitted under the pertinent

California Evidence Code sections and that the admission of the evidence

violated federal due process. (LD 3 at 24–49).6 He argued, too, that Z.R.’s

testimony was too equivocal to support the sexual penetration conviction

and too generic to establish any more than the three lewd acts she had

managed to identify by number. (Id. at 19–23). The California Court of

Appeal rejected each of these claims in a fully reasoned opinion. (LD 5).

6 Relatedly, petitioner added a cumulative error claim arguing that the combined effect of

First, the court of appeal ruled that the cell phone evidence had been

appropriately admitted under Evidence Code § 1101(b), which creates an

exception to the general ban found in § 1101(a) on character or other bad

acts evidence offered only to show criminal predisposition to commit the

charged crimes. Cal. Evid. Code § 1101. The court agreed with the trial

court that the evidence was relevant to prove at least petitioner’s “intent,”

which “was put at issue when he pleaded not guilty to the crimes charged.”

(LD 5 at 26–30). The court then found that the trial court had reasonably

exercised its discretion under Evidence Code § 352, which confers

“discretion” to “exclude evidence if its probative value is substantially

outweighed by the probability that its admission will (a) necessitate undue

consumption of time or (b) create substantial danger of undue prejudice, of

confusing the issues, or of misleading the jury.” Cal. Evid. Code § 352. It

held that the evidence “was not unduly prejudicial” because (among other

reasons) the cellphone evidence was “far less inflammatory than the

testimony from the victims regarding how defendant sexually abused them.”

(Id. at 30). It also recognized that the trial court had instructed jurors that

the cellphone evidence could be considered only “for the limited purposes of

deciding whether” defendant “acted with the intent to arouse, appeal to or

gratify the lust, passions, or sexual desires of himself or a child,” or in

deciding whether the “defendant’s alleged actions were not the result of

mistake or accident.” (CT 202). They were told not to consider the evidence

for “any other purpose”—including to find that defendant “has a bad

character or is disposed to commit crime”—and that it was “not sufficient by

itself to prove that the defendant is guilty of the crimes charged.” (Id.).

Second, the court of appeal rejected the claim that the evidence of prior

uncharged crimes should have been excluded under Evidence Code § 352 as

propensity evidence that was unduly prejudicial, misleading, and confusing.

(LD 5 at 22–26). This evidence was admitted under Evidence Code § 1108,

which exempts a “defendant’s commission of another sexual offense or

offenses” from the general ban on propensity evidence when those prior

crimes are similar to the charged crimes—so long as its probative value is not

substantially outweighed by risks of undue prejudice, juror confusion, or

other exclusionary factors listed in § 352. Cal. Evid. Code § 1108(a). Noting

that the uncharged crimes involving petitioner’s cousin counted as sexual

propensity evidence under § 1108, the court of appeal agreed with the trial

court that the uncharged acts were similar enough to the charged crimes.

Contrary to what petitioner had argued, the court found that the relevant

point of comparison was not differences in his age at the time of the crimes

but the common nature of the abuse which targeted children as young as

eight or nine years old. (LD 5 at 25). It also found that the trial court was

within its discretion to find that the prior crimes were not “unduly remote in

time” given that other courts had allowed dated incidents 20 to 30 years

before the charged crimes to be admitted under § 1108. (Id.).7 Moreover,

the court of appeal underscored that the jury presumptively followed the

trial court’s limiting instructions, which cautioned that if jurors were to find

petitioner committed the uncharged crimes, that “conclusion [was] only one

factor to consider along with all the other evidence” and “not sufficient by

itself to prove defendant [was] guilty” of the charged crimes. (Id. at 25–26;

CT 207). Indeed, the court observed, if the jury had been unable or

unwilling to follow those instructions because of some impulse to “punish”

petitioner for his prior crimes, it wouldn’t have acquitted him of the second

7 Though not introduced at trial, the prosecution proffered the fact of petitioner’s 1984

conviction for indecent exposure when seeking to admit the prior crimes under § 1108.

Both state courts credited that proffered fact to reinforce their shared finding that the

prior crimes evidence was not too old to introduce just because it was from the late 1970s,

sexual penetration charge. (LD 5 at 26).

Third, the court of appeal found no merit to petitioner’s arguments

over the admissibility of the CSAAS evidence under California’s expert

evidence rules. See, e.g., Cal. Evid. Code § 801(a) (permitting expert to

testify about topics “sufficiently beyond common experience that the opinion

of an expert would assist the trier of fact”). Recognizing the continued

acceptance of CSAAS testimony in prosecutions for child sex crimes, the

court rejected petitioner’s “suggestion that jurors no longer harbor confusion

or misconceptions about how children react to sexual abuse.” (LD 5 at 16–

17). Besides, as the court of appeal noted, it was bound by the California

Supreme Court’s decision reaffirming that CSAAS evidence remains

admissible “where, as here, the credibility of each victim is placed in issue

due to counterintuitive behavior.” (Id. at 17) (citing People v. McAlpin, 812

P.2d 563, 568–570 (Cal. 1991)). The court also dismissed petitioner’s

“claim that CSAAS is no longer accepted within the scientific community”

and so should have been excluded as unreliable. (Id. at 17–18). It pointed

to “more than three decades” of state caselaw endorsing the use of CSAAS

testimony when, as here, “it is not offered as proof that a molestation

occurred but to rehabilitate the child victim’s credibility when the defense

suggests the victim’s postabuse [sic] conduct is inconsistent with having

been abused.” (Id. at 19).

Alternatively, the court of appeal found that even if the CSAAS

testimony should have been excluded, there was “no reasonable probability

of a more favorable result had the evidence been excluded.” (Id. at 20). The

court highlighted the substantial evidence of petitioner’s guilt—including

from the victims’ direct testimonies and petitioner’s own Instagram

messages to Z.R. (Id. at 21). It also explained that “any risk” of juror misuse

“was eliminated by [the expert’s] clear statements that she did not review

police reports, meet with the victims, interview witnesses, or review witness

statements” in petitioner’s case. (Id.). It added that the expert admitted on

cross-examination that her CSAAS testimony was “not evidence that

[petitioner] committed any of the charges.” (Id.). And last, it stressed that

the jury presumptively followed the trial court’s limiting instructions, which

cautioned that CSAAS testimony “is not evidence that the defendant

committed any of the crimes charged” and that jurors “may consider this

evidence only in deciding whether or not [the victims’] conduct was not

inconsistent with the conduct of someone who has been molested, and in

evaluating the believability of their testimony.” (CT 208).8

As for petitioner’s federal due process arguments, the court of appeal

recognized that trial evidence “will not offend due process” unless its

admission “is so prejudicial as to render the defendant’s trial fundamentally

unfair.” (LD 5 at 30). Applying that general standard, the court first found

no due process violation in the use of the cellphone evidence because “the

trial court properly conducted the required analysis under Evidence Code

section 352 and acted within its discretion in admitting” that evidence for

permissible purposes like establishing petitioner’s intent. The court of

appeal then rejected petitioner’s due process objection to the use of the

uncharged sex crimes because it was bound by the California Supreme

Court’s decision that use of sexual propensity evidence under § 1108 is

constitutional since trial courts retain discretion to exclude such evidence

under § 352. (Id. at 24) (citing People v. Falsetta, 986 P.2d 182, 187–191

(Cal. 1999)). And finally, the court rejected petitioner’s due process

challenge to the CSAAS testimony because not only had the U.S. Supreme

8 Thus, having “assumed” only one possible—but harmless—evidentiary error at most

with the admission of the CSAAS testimony, the court of appeal rejected petitioner’s

cumulative error claim since there were no multiple trial errors to accumulate. (LD 5 at

Court permitted use of similar evidence (battered child syndrome) over due

process concerns, but also because many California state courts had likewise

found nothing unconstitutionally unfair in the use of CSAAS testimony for

child sex crime cases. (Id. at 19–20).

Finally, beyond the evidentiary challenges, the court of appeal rejected

petitioner’s insufficiency of evidence claims based on the alleged

equivocalness or genericness of Z.R.’s testimony. To start, the court

recognized that it had to view the record in the light most favorable to the

judgment, presume that the jury resolved evidentiary conflicts in favor of the

prosecution, and avoid reevaluating the credibility of witnesses. (LD 5 at 9).

Under those standards, the court of appeal found that the jury was entitled

to credit Z.R.’s belief that petitioner penetrated her during at least one of the

two movie incidents. (Id. at 10). Any equivocation, the court explained,

concerned possibly which theater the penetration happened in, “not whether

defendant actually did it.” (Id.). Likewise, viewing the evidence with all

inferences in support of the lewd act verdicts, the court found that Z.R.’s

testimony was sufficient to show five lewd acts had been committed because

she recalled at least three by number and otherwise testified that she was

“repeatedly” and “frequently” touched more than once each summer for four

straight years. (Id. at 13).9 Under California law, such descriptions—like

“twice a month” or “every time we went camping” during “the summer

before my fourth grade”—are considered legally adequate to prove the

“number of acts” and “the general time period” in which those acts occurred.

(Id.) (quoting People v. Jones, 792 P.2d 643, 655–56 (Cal. 1990)).

9 The court of appeal also mentioned that the jury could have credited the alleged lewd act

in church described by police (1 RT 257–58), even though Z.R. couldn’t remember that

incident or reporting it to social services as police had testified. (LD 5 at 13). As she later

conceded on redirect examination, however, Z.R. said that her memory would have been

better a year earlier (when she had first talked to social services) before she began

After these unsuccessful efforts to overturn his convictions in the court

of appeal, petitioner sought discretionary review in the California Supreme

Court. But the state’s highest court summarily denied petitioner’s request

with no comment. (LD 7). This counseled § 2254 petition then followed.

II.

DISCUSSION

Petitioner reasserts in his habeas petition the same claims rejected on

their merits by the California Court of Appeal in the last reasoned state court

decision. (ECF 1–2, Memorandum in Support of Petition (“Pet.”) at 11–31).

The court of appeal’s opinion is thus the pertinent decision subject to habeas

review under AEDPA. See Wilson v. Sellers, 584 U.S. 122, 125 (2018);

Cannedy v. Adams, 706 F.3d 1148, 1156–59 (9th Cir. 2013). AEDPA

precludes de novo review of petitioner’s claims, however, unless he first

proves that court of appeal’s decision “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).10 A

state court decision cannot be “contrary to” clearly established federal law

under § 2254(d)(1) unless it applied a rule directly contradicting one

announced by the Supreme Court or decided the case differently than a

Supreme Court case with indistinguishable facts. See Williams v. Taylor,

529 U.S. 362, 405–06 (2000). And “an unreasonable application of federal

10 While de novo review is also possible if the decision “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding,” 28 U.S.C. § 2254(d)(2), the first (and only) time petitioner mentions

§ 2254(d)(2) is in his traverse, but even then, only for his insufficiency of evidence claim.

(ECF 10 at 3). Never mind that claims raised that way are generally waived. See

Robinson v. Kramer, 588 F.3d 1212, 1217 (9th Cir. 2009); Cacoperdo v. Demosthenes,

37 F.3d 504, 507 (9th Cir. 1994). Challenges to sufficiency of evidence are reviewed

under § 2254(d)(1)—not § 2254(d)(2). See Maquiz v. Hedgpeth, 907 F.3d 1212, 1217

law is different from an incorrect application of federal law.” Id. at 410. “To

meet that standard, a prisoner must show far more than that the state court’s

decision was ‘merely wrong’ or ‘even clear error’” according to controlling

Supreme Court precedent. Shinn v. Kayer, 592 U.S. 111, 118 (2020)

(quoting Virginia v. LeBlanc, 582 U.S. 91, 94 (2017) (per curiam)). He

“must show that the state court’s decision is so obviously wrong that its error

lies ‘beyond any possibility for fairminded disagreement.’” Id. (quoting

Harrington v. Richter, 562 U.S. 86, 103 (2011)). In other words, “even a

strong case for relief does not mean the state court’s contrary conclusion was

unreasonable.” Balbuena v. Sullivan, 980 F.3d 619, 633 (9th Cir. 2020).

A. The Failure to Allege that the Court of Appeal’s Decision Was

Unreasonable under AEDPA Bars Relief on the Face of the Petition

As a threshold matter, the petition—on its face—fails to allege

petitioner’s habeas claims in proper AEDPA terms, as evidenced by the fact

that the petition is substantively identical to his opening brief on appeal.

(Compare LD 3 at 21–22, 24, 37–43, 44–50, with Pet. at 12–13, 14, 15–20,

22–26, 27–31). Merits aside, that reveals a critical misunderstanding of

collateral review under § 2254. See Davis v. Ayala, 576 U.S. 257, 267

(2015). Federal habeas review is not just a different name for another

chance at direct appellate review. See Greene v. Fisher, 565 U.S. 34, 40

(2011); Hibbler v. Benedetti, 693 F.3d 1140, 1146 (9th Cir. 2012). Quite the

opposite: federal habeas relief is “different in kind from providing relief on

direct appeal” because, if nothing else, “undoing a final state-court judgment

is an extraordinary remedy.” Brown v. Davenport, 596 U.S. 118, 133

(2022) (cleaned up). That is why, for instance, “clearly established federal

law” under § 2254(d)(1) only “refers to the holdings”—not dicta—of the

Supreme Court “as of the time of the relevant state-court decision.”

Williams, 529 U.S. at 412; see Atwood v. Ryan, 870 F.3d 1033, 1046 (9th

Cir. 2017). It is also why satisfying § 2254(d) on its own terms is a strict

“precondition” to federal habeas relief, not a potential “entitlement” to it.

Fry v. Pliler, 551 U.S. 112, 119 (2007). All the while, “petitioner carries the

burden of proof” under § 2254(d). Cullen v. Pinholster, 563 U.S. 170, 181

(2011); see Ochoa v. Davis, 16 F.4th 1314, 1325 (9th Cir. 2021). So to have

even a chance at de novo review of his habeas claims, petitioner must prove

that the court of appeal “managed to blunder so badly that every fairminded

jurist would disagree” with its decision affirming his convictions. Mays v.

Hines, 592 U.S. 385, 392 (2021) (per curiam); see Davenport, 596 U.S. at

136 (“AEDPA asks whether every fair-minded jurist would agree” that a

state court decision is wrong).

If these standards seem “difficult to meet,” it is because they were

“meant to be.” Harrington, 562 U.S. at 102. By congressional design,

AEDPA imposes a “highly deferential standard for evaluating state-court

rulings.” Lindh v. Murphy, 521 U.S. 320, 333 n.7 (1997). It “demands that

state-court decisions be given the benefit of the doubt” if more than one

outcome is debatable, Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam), and thereby “prevents defendants—and federal courts—from using

federal habeas corpus review as a vehicle to second-guess the reasonable

decisions of state courts,” Renico v. Lett, 559 U.S. 766, 779 (2010).

“Because rational people can sometimes disagree, the inevitable

consequence of this settled law is that judges will sometimes encounter

convictions that they believe to be mistaken, but that they must nonetheless

uphold.” Cavazos v. Smith, 565 U.S. 1, 2 (2011) (per curiam).

While this case is not one of those close calls, the consequences of

AEDPA deference underscore how far petitioner’s claims fall short of the

required showings under § 2254(d). To make those showings, petitioner

cannot merely register his disagreement with the court of appeal’s reasons

for its decision and recycle the same arguments—practically verbatim—

raised and rejected on direct review.11 Rather, he must demonstrate that the

court of appeal’s decision was objectively unreasonable. But since

petitioner’s habeas claims are not framed in proper AEDPA terms, much less

convincingly argued in those terms, this oversight is reason enough to deny

the petition on its face. See Davenport, 596 U.S. at 127; see also Shinn v.

Ramirez, 596 U.S. 366, 385 (2022) (“Where Congress has erected a

constitutionally valid barrier to habeas relief, a court cannot decline to give it

effect.”); Rule 4 of Rules Governing Section 2254 Cases (“If it plainly appears

from the petition . . . that the petitioner is not entitled to relief in the district

court, the judge must dismiss the petition.”).

B. The Due Process Clause Provides an Essential—But Limited and

Narrow—Right to Exclude Unduly Prejudicial Evidence When Its

Admission Renders a Criminal Trial Fundamentally Unfair

Even if generously construed in correct AEDPA terms, the petition still

rests on many flawed assumptions and premises when casting petitioner’s

evidentiary challenges as federal due process violations. The “Due Process

Clause guarantees the fundamental elements of fairness in a criminal trial.”

Spencer v. State of Tex., 385 U.S. 554, 563–64 (1967). But as the Supreme

Court has said “on more than one occasion, the Constitution entitles a

criminal defendant to a fair trial, not a perfect one.” Delaware v. Van

Arsdall, 475 U.S. 673, 681 (1986). Indeed, “given the myriad safeguards

11 For instance, because it is a near carbon copy of his appellate briefs, the petition

repeatedly mentions ineffective assistance of counsel as an ostensible basis for habeas

relief. (Pet. at 15, 20, 23, 26–27, 31). But those were only “conditional claim[s] of

ineffective assistance” raised on appeal in case any of the other underlying claims were

found procedurally defaulted because of untimely defense objection at trial. Moore v.

Johnson, 2022 WL 16952262, at *1 n.2 (C.D. Cal. Sept. 30, 2022). Since the court of

appeal found no such procedural default, though, and instead addressed the claims on the

merits, “there is no justiciable ineffective assistance claim” to consider here. Id.; see

Garcia v. Dir., TDCJ-CID, 73 F. Supp. 3d 693, 765 (E.D. Tex. 2014) (If state court found

provided to assure a fair trial, and taking into account the reality of the

human fallibility of the participants, there can be no such thing as an error-

free, perfect trial.” United States v. Hasting, 461 U.S. 499, 508–509 (1983).

One of those safeguards is, of course, the Due Process Clause. But federal

due process “draws a boundary beyond which state rules cannot stray; it

does not displace the law of evidence with a constitutional balancing test.”

Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983). Thus, as far a

criminal defendant’s constitutional right to exclude evidence is concerned,

the Supreme Court has “clearly established” only that “the Due Process

Clause forbids the introduction of evidence so unduly prejudicial as to

render a criminal trial fundamentally unfair.” Andrew v. White, 145 S. Ct.

75, 83 (2025) (reiterating that rule from Payne v. Tennessee, 501 U.S. 808,

825 (1991)).12

In so doing, the Supreme Court has “defined the category of infractions

that [can] violate ‘fundamental fairness’ very narrowly.” Dowling v. United

States, 493 U.S. 342, 352 (1990). So a rule of evidence, on its face or as

applied, cannot exceed the bounds of due process unless it offends

“fundamental conceptions of justice which lie at the base of our civil and

political institutions, and which define the community’s sense of fair play

and decency.” Id. at 353 (internal citations omitted). That means routine

12 Before Andrew recently clarified that the Payne due process principle is not so

“general” as to be incapable of serving as “clearly established federal law” for AEDPA

purposes, 145 S. Ct. at 82, the Ninth Circuit (and nearly every other circuit) maintained

that the Supreme Court had “not yet made a clear ruling that admission of irrelevant or

overtly prejudicial evidence constitutes a due process violation sufficient to warrant

issuance of the writ.” Holley v. Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009). Those

pre-Andrew cases are thus likely abrogated now. See, e.g., Garza v. Yates, 472 F. App’x

690, 692 (9th Cir. 2012) (Reinhardt, J., concurring) (explaining that Holley is “wrong,

and should be reconsidered in an appropriate case” because while the Supreme Court

may have “expressly left open the question of whether the introduction of propensity

evidence would violate due process because it was propensity evidence,” it has not “left

open the question of whether the admission of unduly prejudicial evidence could violate

admission of evidence will rarely infect a trial with fundamental unfairness

unless it presents a “threat to the truth-seeking function of the trial process,”

Hein v. Sullivan, 601 F.3d 897, 915 n.12 (9th Cir. 2010), or impedes “the

truth-finding function of the court and jury,” Phillips v. Ornoski, 673 F.3d

1168, 1182 (9th Cir. 2012). Enlarging the scope of due process beyond

those elements “would be a wholly unjustifiable encroachment . . . upon the

constitutional power of States to promulgate their own rules of evidence to

try their own state-created crimes in their own state courts.” Spencer, 385

U.S. at 568–69. In short, the Due Process Clause (properly understood) sets

only the metes and bounds of a fair trial; it doesn’t impose per se

“constitutional constraints on ordinary evidentiary rulings by state trial

courts,” especially since they are “called upon to make dozens, sometimes

hundreds, of decisions concerning the admissibility of evidence.” Crane v.

Kentucky, 476 U.S. 683, 689 (1986); see McCray v. State of Ill., 386 U.S.

300, 309 (1967); Spencer, 385 U.S. at 562.

Several legal principles pertinent to the petition here emerge from this

recognition that the Due Process Clause provides an essential—but still

limited and narrow—constitutional right to exclude unduly prejudicial

evidence in criminal trials. First, contrary to petitioner’s assumption, a mere

violation of rules of evidence—whether found in contemporary codified

procedures of state and federal courts or in traditional English common

law—cannot for that reason alone violate the dictates of constitutional due

process. The “Fourteenth Amendment does not confine the states to the

common-law rules of evidence, however well established.” Great N. Ry. Co.

v. State of Wash., 300 U.S. 154, 172 (1937). Nor does the Due Process

Clause “encompass all traditional legal rules and customs, no matter how

longstanding and widespread such practices may be.” United States v.

LeMay, 260 F.3d 1018, 1024 (9th Cir. 2001). As a result, the “Supreme

Court has cautioned against the wholesale importation of common law and

evidentiary rules into the Due Process Clause of [the] Constitution.” Id. at

1024–25. Even the Federal Rules of Evidence, which only became

(nonconstitutional) federal law around 1975, altered or abrogated many

common law rules of evidence even as they incorporated much of them. See

generally Funk v. United States, 290 U.S. 371, 379 (1933); United States v.

Allery, 526 F.2d 1362, 1364 (8th Cir. 1975).

Second, even on de novo review, federal habeas courts have no warrant

to independently review state court determinations about the admissibility

(or inadmissibility) of evidence under state law. In fact, “a state court’s

interpretation of state law, including one announced on direct appeal of the

challenged conviction, binds a federal court sitting in habeas corpus.”

Bradshaw v. Richey, 546 U.S. 74, 76 (2005). So in the collateral posture

that § 2254 petitions come to federal court, a state court’s relevant decision

finding the presence—or absence—of trial error under applicable state law is

beyond question and must be taken as given. See DePetris v. Kuykendall,

239 F.3d 1057, 1061–62 (9th Cir. 2001); Jammal v. Van de Kamp, 926 F.2d

918, 919 (9th Cir. 1991); cf. Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir.

2016) (“We accept the [California Court of Appeal’s] interpretation of

California law and take as established that prosecutorial error occurred.”).

Otherwise, “every erroneous decision by a state court on state law would

come here as a federal constitutional question,” Little v. Crawford, 449 F.3d

1075, 1083 n.6 (9th Cir. 2006)—erasing the jurisdictional line set by

§ 2254(a). See Estelle v. McGuire, 502 U.S. 62, 68 (1991) (“In conducting

habeas review, a federal court is limited to deciding whether a conviction

violated the Constitution, laws, or treaties of the United States.”).

Yet beyond his overarching (and, as discussed next, mistaken) claim

that criminal propensity evidence is categorically proscribed by the Due

Process Clause, the balance of petitioner’s professed “due process”

arguments depend on or presuppose predicate evidentiary errors under state

law—including claimed mistakes in how the state courts assessed the

relative probative value of the uncharged bad acts with their potential for

undue prejudice under California Evidence Code § 352. (Pet. at 16–17, 25,

29–30). But not only do courts have “no authority to review [such] alleged

violations of a state’s evidentiary rules in a federal habeas proceeding,”

Windham v. Merkle, 163 F.3d 1092, 1103 (9th Cir. 1998), the court of

appeal’s finding that the uncharged bad acts were appropriately weighed

under § 352 before their use at trial is a binding and unreviewable state-law

determination.13 See Bradshaw, 546 U.S. at 76; Estelle, 502 U.S. at 67–68;

see also DePetris, 239 F.3d at 1061–62 (state court’s admissibility

determination under state law is binding on federal habeas court).

Third, just like similarly evaluated trial errors also often entwined with

state law (e.g., jury instructional mistakes or prosecutorial misstatements in

closing), whether errors in admission of evidence rise to a federal due

process violation depends on “examination of the entire proceedings.”

Romano v. Oklahoma, 512 U.S. 1, 12 (1994) (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)); cf. Cupp v. Naughten, 414 U.S.

141, 147 (1973) (same for erroneous jury instructions); Darden v.

Wainwright, 477 U.S. 168, 178–81 (1986) (same for prosecutorial

misconduct in argument). After all, the common due process question is not

just whether there is a trial error, but whether that claimed error “so infected

the trial with unfairness as to make the resulting conviction a denial of due

13 To this extent, then, petitioner’s evidentiary claims—including his challenge to the

CSAAS evidence—could be summarily dismissed as disguised, unreviewable state law

claims. See Poland v. Stewart, 169 F.3d 573, 584 (9th Cir. 1999); Gray v. Netherland,

518 U.S. 152, 163 (1996); Groen v. Busby, 886 F. Supp. 2d 1150, 1159–61 (C.D. Cal.

process.” Darden, 477 U.S. at 181; see Hein, 601 F.3d at 914. So “the effect

on the trial as a whole needs to be evaluated in context.” Floyd v. Filson, 949

F.3d 1128, 1149–50 (9th Cir. 2020). And when assessing that effect

holistically, the Supreme Court has emphasized that the protection against

unfairly prejudicial evidence is primarily afforded not by an exclusionary

rule enforced through the procedural guarantees of the Due Process Clause,

but by the substantive protections of enumerated rights in provisions like the

Fourth, Fifth, and Sixth Amendments. See, e.g., Perry v. New Hampshire,

565 U.S. 228, 237 (2012).

Perhaps foremost among those “safeguards available to defendants to

counter the State’s evidence” are “the Sixth Amendment rights to counsel,”

to “compulsory process,” and to “confrontation plus cross-examination of

witnesses.” Id. The record here (as summarized above) reveals that

petitioner received the benefits of all these Sixth Amendment safeguards.

Relatedly, when defense counsel has been “fully apprised, well prior to trial,

that [objectionable] evidence would be introduced” and “had a full and fair

opportunity to challenge this evidence,” if not also to “present rebuttal

evidence,” a fair trial can be had even with eventual admission of unwanted

damaging evidence. Bey v. Bagley, 500 F.3d 514, 522 (6th Cir. 2007).

Petitioner had the benefit of this protection, too, before trial. Finally,

because jurors are presumed to follow instructions, see Richardson v.

Marsh, 481 U.S. 200, 210–211 (1987), defendants can rely on the use of

limiting instructions to cabin evidentiary errors within the bounds of a fair

trial. See Perry, 565 U.S. at 246. These guardrails were also protectively

used in petitioner’s trial. So “apart from trials conducted in violation of

express constitutional mandates, a constitutionally unfair trial takes place

only where the[se] barriers and safeguards are so relaxed or forgotten . . .

that the proceeding is more a spectacle . . . or trial by ordeal . . . than a

disciplined contest.” United States v. Augenblick, 393 U.S. 348, 356 (1969).

Nothing in the record here, though, suggests that petitioner was tried in such

patently unfair ways or disorderly circumstances.

Fourth, the constitutional measure of whether challenged evidence is

so extremely prejudicial as to render a trial fundamentally unfair is not to be

confused with the factual gauge of whether a given piece of evidence should

be excluded under the discretionary rules providing for exclusion of relevant

evidence when its probative value is substantially outweighed by the risk of

undue prejudice. See, e.g., Cal. Evid. Code § 352; compare Fed. R. Evid. 403

(“The court may exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the following: unfair

prejudice, confusing the issues, misleading the jury, undue delay, wasting

time, or needlessly presenting cumulative evidence.”). For one thing, the

concerns behind these balancing rules are broader than and distinct from

federal due process concerns: they primarily guard against inflaming

emotional biases, confusing or misleading jurors, and wasting time. See

Spencer, 385 U.S. at 562; see also Adv. Comm. Notes to Fed. R. Evid. 403

(“‘Unfair prejudice’ within this context means an undue tendency to suggest

a decision on an improper basis, commonly . . . an emotional one.”). For

another thing, while the rules of evidence are generally “designed in the

interest of fair trials,” unfairness in the application of those rules “is no sure

measure of unconstitutionality.” Augenblick, 393 U.S. at 352.

So, on the one hand, a trial court may abuse its discretion by

permitting irrelevant, confusing, cumulative, or inflammatory evidence to be

introduced. Cf. Andrew, 145 S. Ct. at 78–79, 81–83 (taking as undisputed

that, in woman’s trial for husband’s murder, pervasive use of pernicious sex

stereotypes was both irrelevant and highly inflammatory); McKinney v.

Rees, 993 F.2d 1378, 1385 (9th Cir. 1993) (finding no relevance or

permissible non-propensity purpose, in young man’s trial for mother’s

murder, of nearly 60 pages of transcript testimony describing defendant’s

apparent “fascination with knives and with a commando lifestyle”). But that

mistake in the balancing of probative value against prejudicial effect doesn’t

necessarily mean the admitted evidence “so infected the trial with unfairness

as to render the resulting conviction or sentence a denial of due process.”

Andrew, 145 S. Ct. at 83 (cleaned up). Proving that prejudicial evidence

should have been excluded in a trial court’s discretion may thus almost

always be necessary to show a due process violation, but on its own will often

be insufficient.14 See Schell v. Witek, 218 F.3d 1017, 1025 (9th Cir. 2000)

(en banc) (“A particular abuse of discretion by a state court may amount also

to a violation of the Constitution, but not every state court abuse of

discretion has the same effect.”); Williams v. Borg, 139 F.3d 737, 740 (9th

Cir. 1998) (Federal habeas relief is available “only for constitutional

violation, not for abuse of discretion.”).

On the other hand, since “it is certainly possible to have a fair trial even

when state standards are violated,” the “adherence to state evidentiary rules”

will strongly suggest (if not prove on collateral review) that “the trial was

conducted in a procedurally fair manner.” Jammal, 926 F.2d. at 919. Thus,

if evidence is found—or, as here, presumed—to have been admitted under

14 This is not to imply that an “item of evidence” is to be “viewed as an island, with

estimates of its own probative value and unfairly prejudicial risk the sole reference points

in deciding whether the danger substantially outweighs the value.” Old Chief v. United

States, 519 U.S. 172, 182 (1997). The trial court may “take account of the full evidentiary

context of the case as the court understands it when the ruling must be made.” Id. But

because the trial court has “considerable leeway” when arriving at that ruling, it is

reviewed on appeal only for manifest abuse of discretion. United States v. Sullivan, ---

F.4th---, 2025 WL 796111, at *7 (9th Cir. Mar. 13, 2025) (direct review of district court’s

evidentiary ruling under Federal Rule 403); compare People v. Dworak, 490 P.3d 330,

343–344 (Cal. 2021) (same for direct review of state trial court’s evidentiary ruling under

Evidence Code § 352). And so it always remains “important that a reviewing court

evaluate the trial court’s decision from its perspective when it had to rule and not indulge

state law based on a reasonable discretionary weighing of the evidence’s

potential prejudicial effect against its offsetting probative value, it is hard to

conceive a case when the use of such properly admitted evidence could ever

deprive a defendant of a fair trial. See, e.g., LeMay, 260 F.3d at 1027 (“If the

prior acts of molestation were properly admitted under Rule 403, there can

have been no as-applied constitutional violation.”); cf. Perry, 713 F.2d at

1453 (“[A] separate consideration of due process will rarely be needed in

day-to-day application of the rules of evidence.”). “All evidence introduced

against a criminal defendant might be said to be prejudicial if it tends to

prove the prosecution’s case.” LeMay, 260 F.3d at 1026. But just because

evidence might be “highly prejudicial” doesn’t make it “necessarily unfairly

prejudicial.” United States v. Thornhill, 940 F.3d 1114, 1123 (9th Cir. 2019)

(original emphasis). So the “admission of even highly prejudicial evidence”

will not “necessarily trespass on a defendant’s constitutional rights.” LeMay,

260 F.3d at 1027.

On their own, these overarching due process principles explain why

petitioner “bears a heavy burden in showing a due process violation based on

an evidentiary decision.” Boyde v. Brown, 404 F.3d 1159, 1172 (9th Cir.

2005); see Andrew, 145 S. Ct. at 83 (Alito J., concurring) (due process

violation depends on “properly admitted evidence” being “overwhelmed by a

flood of irrelevant and highly prejudicial evidence that renders the trial

fundamentally unfair”). So even on de novo review, the chances of federal

habeas relief on petitioner’s evidentiary claims are exceedingly low. When

AEDPA deference applies, however, those chances become vanishingly slim

because petitioner’s burden becomes doubly heavy. See Andrew, 145 S. Ct.

at 83 (The “ultimate question is whether a fairminded jurist could disagree”

that prejudicial evidence so infected a trial with fundamental unfairness as

to deny due process.); Garza, 472 F. App’x at 692 (Reinhardt, J., concurring)

(Because the Payne “‘fundamental conceptions of justice’ standard is a broad

one,” most “state court applications of it are therefore likely to be

reasonable.”) (citing Harrington, 562 U.S. at 101).

C. Petitioner Has Identified No Supreme Court Precedent Establishing

that Propensity Evidence is Prohibited by the Due Process Clause

Start with petitioner’s claim that the admission of his uncharged bad

acts—as revealed in the cellphone evidence and his cousin’s testimony of

child sex abuse—violated federal due process because the evidence was used

only to show his “predisposition to commit the alleged offenses.” (Pet. at 23,

27, 30). As required by § 2254(d)(1), petitioner must identify Supreme

Court precedent establishing the premise for his claims—that the Due

Process Clause categorically prohibits the admission of uncharged bad acts,

including prior crimes, offered solely to show criminal propensity. See

Lockyer v. Andrade, 538 U.S. 63, 70–71 (2003). Yet so far, the Supreme

Court has “express[ed] no opinion on whether a state law would violate the

Due Process Clause if it permitted the use of ‘prior crimes’ evidence to show

propensity to commit a charged crime.” Estelle, 502 U.S. at 75 n.5; accord

United States v. Porter, 121 F.4th 747, 752 (9th Cir. 2024) (No Supreme

Court case has held “that it would be improper to admit propensity evidence

in sexual assault cases” under the Due Process Clause.); Kipp v. Davis, 971

F.3d 939, 951 n.8 (9th Cir. 2020) (“[T]here is no clearly established law that

addresses whether the admission of a defendant’s criminal history or prior

bad acts would violate due process.”); Mejia v. Garcia, 534 F.3d 1036, 1047

(9th Cir. 2008) (The “United States Supreme Court has never established the

principle that introduction of evidence of uncharged offenses necessarily

must offend due process.”); Larson v. Palmateer, 515 F.3d 1057, 1066 (9th

Cir. 2008) (“The Supreme Court has expressly reserved the question of

whether using evidence of the defendant’s past crimes to show that he has a

propensity for criminal activity could ever violate due process.”).

The principal cases cited by petitioner—like Michelson v. United

States, 335 U.S. 469 (1948), and Boyd v. United States, 142 U.S. 450

(1892)—do not establish otherwise.15 To be sure (as petitioner notes), the

traditional rule precluding character evidence offered solely to prove

criminal predisposition has deep roots in English common law. (Pet. at 27–

29). And that general propensity rule has been carried forward in modern

rules of evidence. See, e.g., Cal. Evid. Code § 1101(a) (precluding “evidence

of a person’s character or a trait of his or her character”—including “evidence

of specific instances of his or her conduct”—“when offered to prove his or her

conduct on a specified occasion”); see also Fed. R. Evid. 404(a), 404(b)(1).

But as explained, even when a “common insight” like the general propensity

rule is reflected in “federal statutes as well as state and federal rules of

evidence and common law,” such a broad “consensus” is still not “inevitably

congruent with the dictates of the Constitution.” Crane, 476 U.S. at 689.

Evidently misunderstanding these first principles, petitioner reads

Michelson and Boyd incorrectly as constitutional decisions placing—in the

Due Process Clause—a categorical prohibition against any evidence that

could be offered to show criminal propensity. (Pet. at 23–25, 27–29).16 But

15 The other main case he cites, Brinegar v. United States, 338 U.S. 160 (1949), is farther

afield. In that case, which dealt with admissibility standards for evidence between

suppression hearings and the guilt phase of trials, the Court remarked (in dicta no less)

that historical “rules of evidence” are “to some extent embodied in the Constitution,”

which is undeniably true so far as it goes. Id. at 174. And the cases he adds in his

traverse dealt with limits on the exclusion of defense evidence, not on the admission of

state’s evidence. (ECF 10 at 4–5). A defendant’s right to introduce exculpatory evidence

stems from enumerated rights and implicates concerns beyond just due process that are

not coextensive with the right to exclude inculpatory evidence. See generally Colin

Miller, A Constitutional Right to Exclude Evidence, 12 Tex. A&M L. Rev. 317 (2024).

16 Separately, petitioner also apparently misapprehends “the history of evidentiary rules

regarding a criminal defendant’s sexual propensities,” which “is ambiguous at best,

those cases relied not on federal constitutional demands, but on the

Supreme Court’s inherent “supervisory power” over federal courts. Spencer,

385 U.S. at 563, 572–74 n.4–6. That supervisory power was needed at the

time to “formulate[] rules of evidence to be applied in federal criminal

prosecutions” since the Federal Rules of Evidence wouldn’t be enacted until

decades later. McNabb v. United States, 318 U.S. 332, 341 (1943). But the

rules created through such power, while “deemed desirable from the

viewpoint of sound judicial practice,” Cupp, 414 U.S. at 146, were not

necessarily “required by the Constitution,” Bank of Nova Scotia v. United

States, 487 U.S. 250, 254 (1988). Indeed, there remains much daylight

between the “narrow” demand of due process and the “broad exercise of

supervisory power”—“for not every trial error or infirmity which might call

for application of supervisory powers correspondingly constitutes a ‘failure

to observe that fundamental fairness essential to the very concept of

justice.’” Donnelly, 416 U.S. at 642 (quoting Lisenba v. California, 314 U.S.

219, 236 (1941)).

Thus, contrary to petitioner’s mistaken reading of his own cited cases,

the Supreme Court has “never held that the use of prior convictions to show

nothing more than a disposition to commit crime would violate the Due

Process Clause of the Fourteenth Amendment.” Spencer, 385 U.S. at 572–

74. Even more misplaced, then, is petitioner’s supposition that the use of

other bad acts—when offered for non-propensity purposes (as with the

cellphone evidence)—is also forbidden by the Due Process Clause. At the

same time that common-law courts established the general propensity rule,

particularly with regard to sexual abuse of children.” LeMay, 260 F.3d at 1026 (quoting

United States v. Castillo, 140 F.3d 874, 881 (10th Cir.1998)). American courts “routinely

allowed propensity evidence in sex-offense cases, even while disallowing it in other

criminal prosecutions.” Id. at 1027. “As early as 1858,” in fact, many common law courts

were relaxing the rule against propensity evidence when the charged offense involved a

they developed “broad” exceptions to that rule—“whose application [was] left

largely to the discretion of the trial judge”—permitting other bad acts

evidence when offered to prove non-propensity matters like “intent, identity,

malice, motive, and plan.” Marshall v. Lonberger, 459 U.S. 422, 438 n.6

(1983). What’s more, the common law of evidence historically “recognized

that any unfairness resulting from admitting prior [bad acts] was more often

than not balanced by its probative value and permitted the prosecution to

introduce such evidence without demanding any particularly strong

justification.” Id. The Supreme Court has thus rejected the premise “that

the common law regarded the admission of prior [bad acts] as grossly unfair

and subject to some sort of blanket prohibition.” Id.

None of this is to deny the valid concerns when propensity evidence is

offered for no purpose other than criminal predisposition. “The question,

however, is whether it is acceptable to deal with the potential for abuse

through nonconstitutional sources like the [rules of evidence], or whether

the introduction of this type of evidence is so extremely unfair that its

admission violates ‘fundamental conceptions of justice.’” Dowling, 493 U.S.

at 352. Nor is it to suggest that the Supreme Court will never hold that the

propensity rule can be underwritten by federal due process. See, e.g.,

LeMay, 260 F.3d at 1025 (outlining counterarguments why “general ban on

propensity evidence” may have “requisite historical pedigree to qualify for

constitutional status”). It’s just to say that, so far, the Supreme Court has

reserved that question—and not taken “the logical next step” in

constitutionalizing that rule through the Due Process Clause. White v.

Woodall, 572 U.S. 415, 427 (2014).

In sum, petitioner has not carried his “very high burden in proving”

that the “traditional rule precluding the use of a defendant’s prior bad acts to

prove his disposition to commit the type of crime charged is so ingrained in

Anglo–American jurisprudence as to be embodied in the due process clause

of the Constitution.” LeMay, 260 F.3d at 1024. And far from being

prohibited at common law, the longstanding use of other bad acts evidence

for non-propensity purposes is as venerable as the propensity rule itself. See

Spencer, 385 U.S. at 563. Petitioner thus cannot show that the court of

appeal’s rejection of his challenge to the uncharged bad acts—based on mere

historical acceptance of the general propensity rule—was contrary to or an

unreasonable application of clearly established federal law. See Alberni v.

McDaniel, 458 F.3d 860, 866 (9th Cir. 2006) (“We cannot conclude that the

[state court] acted in an objectively unreasonable manner in concluding that

the propensity evidence . . . did not violate due process, given that Estelle

expressly left this issue an ‘open question.’”); Mejia, 534 F.3d at 1046 (When

petitioner “can point to no Supreme Court precedent establishing that

admission of propensity evidence . . . is unconstitutional,” the state court’s

decision admitting such evidence cannot be “contrary to clearly established

Supreme Court precedent.”).

D. Fairminded Jurists Could Agree that the Admission of the Uncharged

Bad Acts Resulted in No Denial of Petitioner’s Right to a Fair Trial

Nor can petitioner prove that the court of appeal’s decision affirming

the use of his uncharged bad acts was contrary to or an unreasonable

application of clearly established federal law just because, in his view, its

probative value was substantially outweighed by its “prejudicial” effect.

Recall that the court of appeal found that the cellphone evidence was

properly admitted under state law because it was evidence of other bad acts

offered to prove not his “disposition to commit” those bad acts, but his

“intent” to commit the charged crimes. Cal. Evid. Code § 1101(b); compare

Fed. R. Evid. 404(b)(2) (permitting evidence “of any other crime, wrong, or

act” when offered “for another purpose, such as proving motive, opportunity,

intent, preparation, plan, knowledge, identity, absence of mistake, or lack of

accident”). It also found that the evidence of petitioner’s uncharged sexual

misconduct was admissible under California law, which permits that

evidence expressly for propensity purposes—to prove that he committed the

charged sex offenses. See Cal. Evid. Code § 1108(a).17 Then, for both items

of evidence, the court of appeal found that the trial court reasonably

exercised its discretion under Evidence Code § 352—by weighing the

probative value of the evidence against its risk of undue prejudice—before

admitting the evidence. And not least, the court of appeal found that the

admission of the uncharged bad acts did not violate federal due process

because it was relevant evidence offered for permissible purposes and

accompanied by reasonable findings that the probative value of the evidence

outweighed any risks of unfair prejudice, juror confusion, or other

countervailing exclusionary factors in § 352.

None of these determinations contradicted or unreasonably applied

the general due process rule prohibiting admission of evidence so unduly

prejudicial as to deny a fair trial. For starters, the court of appeal recognized

and applied, as appropriate, the same general fundamental fairness principle

recognized in Payne and Andrew (LD 5 at 30), so its decision was not

“contrary to” clearly established federal law. Early v. Packer, 537 U.S. 3, 8

17 California modeled Evidence Code § 1108 (and its companion provision in § 1109 for

domestic violence crimes) on similar federal rules approved by Congress years before.

See Fed. R. Evid. 413 and 414. These federal rules likewise exempt sexual assault and

child molestation cases from the default propensity rule in Federal Rule 404, which like

its California equivalent in § 1101(a), precludes bad character or other bad acts evidence

when offered solely to prove a defendant’s propensity to commit crimes. See Fed. R.

Evid. 404(a), 404(b)(1). As a result, federal prosecutors, too, may offer evidence of prior

uncharged sexual misconduct to prove that a defendant committed charged sex offenses

with no need to prove a non-propensity purpose under Rule 404(b)(2). Still, just as state

courts can exclude sex crimes evidence in their discretion under Evidence Code § 352,

federal courts retain discretion to do the same under Rule 403 even if that evidence is

(2002) (state court opinion is not “contrary to” clearly established federal

law “so long as neither the reasoning nor the result of the state-court

decision contradicts” controlling Supreme Court precedent). It then

reasonably applied that general due process principle when affirming the

trial court’s evidentiary rulings, including its discretionary decision to admit

the challenged evidence after performing the required § 352 weighing of

probative value against potential prejudicial effect. “Because AEDPA

authorizes federal courts to grant relief only when state courts act

unreasonably, it follows that the more general the rule at issue—and thus

the greater the potential for reasoned disagreement among fair-minded

judges—the more leeway state courts have in reaching outcomes in case-by-

case determinations.” Renico, 559 U.S. at 779 (cleaned up). “In turn, the

state courts’ greater leeway in reasonably applying a general rule translates

to a narrower range of decisions that are objectively unreasonable under

AEDPA.” Cheney v. Washington, 614 F.3d 987, 995 (9th Cir. 2010) (citing

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

So too here. The broad due process guarantee of a fair trial free of

unduly prejudicial evidence is, of course, a highly generalized legal rule. See

Andrew, 145 S. Ct. at 82. As a result, to prove that the court of appeal

unreasonably applied that general standard, petitioner bears an

exceptionally heavy burden—beyond just establishing state law evidentiary

error with even a “highly” prejudicial effect on jurors’ minds. After all, the

prosecution was not required to choose the least “prejudicially”

incriminating method of proving its case to avoid a due process violation.

See Old Chief, 519 U.S. at 186-87; United States v. Dixon, 698 F.2d 445, 446

(11th Cir. 1983); see also Sidibe v. Sutter Health, 103 F.4th 675, 702 (9th

Cir. 2024) (“It is inappropriate to exclude evidence under Rule 403 because

it casts [the opposing party] in a really bad light.”) (quoting Cuff v. Trans

States Holdings, Inc., 768 F.3d 605, 609 (7th Cir. 2014)). Instead, to meet

§ 2254(d)(1), petitioner must show that every fairminded jurist would agree

with him that the challenged evidence was so unduly prejudicial—that it

unconstitutionally infected the entire trial with so much unfairness—that it

rendered his resulting conviction a denial of fundamental due process. See

Andrew, 145 S. Ct. at 83 (citing Payne, 501 U.S. at 825, and Romano, 512

U.S. at 13). Petitioner’s claim comes nowhere close to that necessary

showing, especially since the court of appeal had the widest of berths for

reasonable application of a rule as general as the fair-trial backstop in the

Due Process Clause. See Cheney, 614 F.3d at 995.

To start, fairminded jurists could agree with the court of appeal’s

finding that the cellphone evidence—admitted as other bad acts to establish

the non-propensity issue of petitioner’s intent—was consistent with due

process. “Only if there are no permissible inferences the jury may draw from

the evidence” can the admission of “other acts” evidence ever violate due

process. Jammal, 926 F.2d at 920 (original emphasis); accord McKinney

993 F.2d at 1384 (Bad character evidence can violate due process only if

there are no non-propensity inferences that the jury may draw from the

evidence.); Windham, 163 F.3d at 1103–04 (same). Because petitioner pled

not guilty to the charged offenses, however, the prosecution had the burden

of proving every element of the crimes—including his intent—beyond a

reasonable doubt. See Estelle, 502 U.S. at 69–70. And the court of appeal’s

finding that the cellphone evidence was relevant to show such intent under

state criminal law is a binding determination. See Bradshaw, 546 U.S. at

76; DePetris, 239 F.3d at 1061–62. Thus, it was not objectively

unreasonable for the state court to find that admission of the cellphone

evidence resulted in no denial of petitioner’s right to a fair trial. See, e.g.,

McNally v. White, 164 F.3d 630 (9th Cir. 1998) (admission of racial epithets

did not taint trial because statements were admitted as evidence of motive

for murder); Groen, 886 F. Supp. 2d at 1160–61 (“Given that petitioner

denied the charged allegations and claimed he . . . was no longer sexually

attracted to young boys, it was not fundamentally unfair to introduce” media

“depicting naked or semi-naked young boys”); Smith v. Pliler, 278 F. Supp.

2d 1060, 1075–76 (N.D. Cal. 2003) (reasonable for state court to find that

prior acts of violence and stalking admitted to show intent and motive did

not render trial unfair in violation of due process).

Similarly, fairminded jurists could agree that admission of petitioner’s

uncharged sex crimes was not so unduly prejudicial as to infect the trial with

intolerable unfairness. Unlike the admission of “other acts” evidence for

non-propensity purposes under § 1101(b), prior sex crimes are admitted

under § 1108(a) precisely to show propensity to commit the charged sex

crimes. The parallel federal rules are the same. See Fed. R. Evid. 413 and

414. Still, the California Supreme Court has long held that admission of

evidence under § 1108(a) does not violate due process so long as trial courts

retain discretion—as they do—to exclude such evidence beforehand under

§ 352 if deemed too prejudicial, confusing, or wasteful (among other

exclusionary considerations). See People v. Rhoades, 453 P.3d 89, 110 (Cal.

2019); Falsetta, 986 P.2d at 189–190. And naturally bound by that state

precedent, the court of appeal affirmed the use of the prior crimes evidence

here over petitioner’s due process challenge. (LD 5 at 24).

That was not an objectively unreasonable application of clearly

established federal law. After all, faced with the same type of due process

attacks on the comparable federal rules (which both § 1108 and § 1109 were

modeled on), the Ninth Circuit itself has held—just like the California

Supreme Court—that admission of sexual propensity evidence in sex crime

prosecutions (under either Federal Rules 413 or 414) is not unfair when, as

here, the trial court maintains discretion to exclude that evidence (under

Rule 403) if its probative value is substantially outweighed by unfair

prejudice or other countervailing factors. See LeMay, 260 F.3d at 1031

(“[W]e hold that Rule 414 is constitutional and does not violate due process,

equal protection, or any other constitutional guarantee.”); Porter, 121 F.4th

at 752 (9th Cir. 2024) (“We reaffirm LeMay and join the other circuits in

holding that Rule 413 does not violate due process.”); Ray v. Kernan, 646 F.

Supp. 2d 1102, 1123 (N.D. Cal. 2009) (“The reasoning of LeMay applies

equally to this case because the California rules are analogous to the federal

rules.”). So it couldn’t have been objectively unreasonable for the court of

appeal to likewise recognize that the trial court’s discretionary authority to

exclude such evidence (under state law) when the balance between relevance

and prejudice tips too far unfairly was enough to keep the use of petitioner’s

sexual propensity evidence within federal due process boundaries. And like

its determination of the admissibility of the cellphone evidence under

California law, the court of appeal’s finding that the trial court reasonably

exercised its discretion under state law before admitting the prior crimes

evidence cannot be second-guessed on federal habeas review. See

Bradshaw, 546 U.S. at 76; DePetris, 239 F.3d at 1061–62.

Besides, past sexual misconduct is “indisputably relevant” to whether a

defendant committed current charged sex offenses. LeMay, 260 F.3d at

1026. And “introduction of relevant evidence, by itself, cannot amount to a

constitutional violation.” Id. “There is, of course, a non-probative aspect to

all evidence of prior crimes or prior criminal conduct.” United States v.

Bailleaux, 685 F.2d 1105, 1112 (9th Cir. 1982). And “evidence of a

defendant’s prior acts of molestation will always be emotionally charged and

inflammatory.” LeMay, 260 F.3d at 1030. But so, too, “is the evidence that

he committed the charged crimes.” Id. As far as due process, though, when

a “jury learns of prior crimes committed by the defendant,” the “conceded

possibility of prejudice is believed to be outweighed by the validity of the

State’s purpose in permitting introduction of the evidence.” Spencer, 385

U.S. at 561. Moreover, the defendant’s “interests are protected by limiting

instructions . . . and by the discretion residing with the trial judge to limit or

forbid the admission of particularly prejudicial evidence even though

admissible under an accepted rule of evidence.” Id. All this practical play in

the joints of the Due Process Clause means that there will invariably be a

wide range of fairminded disagreement over when use of any defendant’s

prior crimes is so extremely prejudicial as to preclude a fair trial. See

Romano, 512 U.S. at 13–14 (When it is “equally plausible” that jury drew

either damaging or helpful inference from evidence and “[e]ither conclusion

necessarily rests upon one’s intuition,” concluding that admission of that

evidence was “fundamentally unfair” would be “exercise in speculation,

rather than reasoned judgment.”). So too here for the court of appeal’s case-

specific review of the trial court’s inherently discretionary decision to admit

legislatively-authorized sex crimes evidence, under accepted state rules of

evidence, in an otherwise typical state sex crimes prosecution. See Renico,

559 U.S. at 779; Cheney, 614 F.3d at 995.

If nothing else, it was not objectively unreasonable for the court of

appeal to find no due process violation in the admission of uncharged bad

acts given the other procedural safeguards that protected petitioner’s

overarching right to a fair trial. As the court of appeal observed, the trial

court permitted defense counsel to fully cross-examine not only the police

investigator who found the cellphone evidence but also the testifying cousin

who alleged petitioner had sexually abused her as a child. Petitioner does

not claim—nor does anything in the record suggest—that his counsel

performed at all inadequately in this regard or was otherwise unable to

mount a plausible defense. Moreover, the trial court attentively gave

limiting instructions to the jury for both the cellphone evidence and the prior

crimes evidence, telling the jury what permissible inferences they could

draw—and warning them about what impermissible inferences they must

not draw. See, e.g., Sullivan, 2025 WL 796111, at *7 (recognizing that

“unfair prejudice” of evidence can be avoided with “limiting instruction” to

jury). The jury is “presumed” to have followed those instructions. Weeks v.

Angelone, 528 U.S. 225, 234 (2000); see Spencer, 385 U.S. at 561. Indeed,

the fact that the jury returned a partially split verdict in petitioner’s favor

belies any suggestion that jurors were unduly swayed by improper inferences

or incapable of carefully parsing the evidence. See Jammal, 926 F.2d at 920

(“Evidence introduced by the prosecution will often raise more than one

inference, some permissible, some not; we must rely on the jury to sort them

out in light of the court’s instructions.”). With all these safeguards in play,

there is more than ample room for fairminded jurists to agree that the

admission of the uncharged bad acts was not “fundamentally unfair,” since

as many could agree as disagree that it created no “unacceptable risk” that

petitioner was “convicted based on predisposition” alone, rather than proven

criminal “wrongdoing.” Porter, 121 F.4th at 751–52.

E. The Court of Appeal’s Decision Affirming Use of CSAAS Evidence

Neither Contradicted Nor Unreasonably Applied Clearly Established

Federal Law

Petitioner also cannot meet his burden to show that the court of

appeal’s decision affirming the admission of the expert CSAAS testimony,

which he maintained was inherently unreliable and factually unhelpful,

contradicted or unreasonably applied any clearly established federal law

pronounced by the Supreme Court. “CSAAS describes various emotional

stages, experienced by sexually abused children, that may explain their

sometimes piecemeal and contradictory manner of disclosing abuse.” Brodit

v. Cambra, 350 F.3d 985, 991 (9th Cir. 2003). “While CSAAS evidence is

not relevant to prove the alleged sexual abuse occurred, it is well established

in California law [that] CSAAS evidence is relevant for the limited purpose of

evaluating the credibility of an alleged child victim of sexual abuse.” People

v. Lapenias, 282 Cal. Rptr. 3d 79, 87 (Cal. Ct. App. 2021). So the court of

appeal’s holding that CSAAS expert testimony remains relevant, reliable, and

admissible in California child sex abuse cases (LD 5 at 16–17) is a binding

interpretation of state law that cannot be disturbed on federal habeas review.

See Bradshaw, 546 U.S. at 76.

Even so, petitioner maintains that “the history and development of

CSAAS reveals that it is not scientific, and, therefore, the admission of such

testimony against Petitioner violated his Due Process rights.” (Pet. at 15).

He contends that because “finders of fact—especially lay jurors—afford

particular weight to scientific evidence,” somehow “due process concerns are

only heightened in such context.” (Id.). In petitioner’s view, then, use of

“scientific evidence” lacking sufficient “reliability” offends “fundamental

conceptions of justice.” (Id. at 15–16). Critically missing from these

assertions, however, is any Supreme Court precedent establishing a federal

due process right to exclude scientific expert testimony claimed to be

unreliable. That omission is likely no accident since both state and federal

rules of evidence provide on their own—with no need for a redundant due

process check—robust and enforceable gatekeeping protections against

unreliable expert evidence. See Fed. R. Evid. 702; Daubert v. Merrell Dow

Pharm., Inc., 509 U.S. 579 (1993); Cal. Evid. Code §§ 801, 802; Sargon

Enters., Inc. v. Univ. of S. Cal., 288 P.3d 1237, 1252 (Cal. 2012).

Indeed, to the extent it has addressed the question, the Supreme Court

has disavowed petitioner’s expansive view of the Due Process Clause to

include a constitutional right to exclude unreliable expert evidence. The

Constitution “protects a defendant against a conviction based on evidence of

questionable reliability, not by prohibiting introduction of the evidence, but

by affording the defendant means to persuade the jury that the evidence

should be discounted as unworthy of credit.” Perry, 565 U.S. at 237. But

that protection against unreliable expert testimony is primarily afforded

through express constitutional rights—like those inherent to the Sixth

Amendment. See id. Through counsel, for instance, defendants can “focus

the jury’s attention on the fallibility of [expert] testimony during opening

and closing arguments,” and even present competing expert testimony. Id.

at 245–47; see Diaz v. United States, 602 U.S. 526, 541 (2024) (Jackson, J.,

concurring) (“[W]hen faced with flawed or faulty testimony” from experts,

“parties can utilize the traditional tools in a lawyer’s toolkit, like vigorous

cross-examination and careful refutation in closing argument.”). Counsel

can also request—and trial courts may then issue—limiting instructions to

juries that they will presumptively follow when assessing the reliability of

evidence. See Richardson, 481 U.S. at 210; Perry, 565 U.S. at 246; Diaz,

602 U.S. at 542 (Jackson, J., concurring).

None of this is to imply that the Due Process Clause places no limit on

the introduction of unreliable expert evidence. But it doesn’t do so by

gatekeeping the reliability of expert evidence case-by-case, as the rules of

evidence are intended to do. Instead, it “impedes convictions based on

dubious” evidence with the ultimate “constitutional requirement that the

government prove the defendant’s guilt beyond a reasonable doubt.” Perry,

565 U.S. at 247. And, as discussed, it ensures a constitutionally fair trial by

backstopping irrelevant evidence “so extremely unfair that its admission

violates fundamental conceptions of justice.” Id. (quoting Dowling, 493 U.S.

at 352). Otherwise, “the task of determining the reliability of the evidence

presented at trial” is left to the jury, to be guided by “state and federal

statutes and rules [that] ordinarily govern the admissibility of evidence.” Id.

And because those nonconstitutional sources can both regulate use of

scientific expert testimony and preclude admission of expert evidence found

to be intrinsically unreliable, see Diaz, 602 U.S. at 541–42 (Jackson, J.,

concurring), the Supreme Court has never expressed a need for

“enlargement of the reach of due process” as an additional “constraint on the

admission of evidence” claimed to scientifically unreliable or technically

unhelpful. Perry, 565 U.S. at 244–45. Nor has the Supreme Court ever held

(as petitioner evidently presumes) that expert testimony which might fail the

reliability standards under applicable rules of evidence can—for that reason

alone—automatically violate federal due process. See id. at 245 (The

“potential unreliability of a type of evidence does not alone render its

introduction at the defendant’s trial fundamentally unfair.”).

With no governing Supreme Court precedent to the contrary, then, the

court of appeal could not have contradicted clearly established federal law

when it affirmed the admission of the CSAAS testimony. See Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009); Wright v. Van Patten, 552 U.S. 120,

126 (2008) (per curiam). Nor could it have unreasonably applied clearly

established federal law. See Mitchell v. Esparza, 540 U.S. 12, 17 (2003) (per

curiam). If anything, the court of appeal reasonably relied on how the

Supreme Court itself has favorably treated similar expert evidence in Estelle.

There, as the court of appeal recognized, the Supreme Court found no due

process violation in the admission of “battered child syndrome” evidence.18

18 Similarly, while not expressed in constitutional terms, the Supreme Court recently

endorsed expert testimony admitted under the federal rules about “battered woman

syndrome” to address a “number of myths and misconceptions” about domestic violence

victims and to help jurors “better understand how those experiencing it respond to

502 U.S. at 68–69. Besides, the Supreme Court has rejected the idea that

admissibility of evidence whose “fallibility” has been exposed or its

“importance” questioned by current scientific research must be subjected to

a “broadly applicable due process check.” Perry, 565 U.S. at 245 (discussing

studies doubting reliability of eyewitness identification testimony). That

expansion, the Court explained, would impermissibly and needlessly

“enlarge the domain of due process” over the jury’s traditional province to

assess the “reliability of evidence.” Id.

In view of all these countervailing principles undermining petitioner’s

arguments, fairminded jurists could readily agree with the court of appeal

that the use of CSAAS expert testimony to assist the jury here posed no

federal due process concerns. See Sims v. Rowland, 414 F.3d 1148, 1151

(9th Cir. 2005); see also Parker v. Matthews, 567 U.S. 37, 44 (2012) (federal

habeas courts cannot override the jury’s role in weighing and crediting

expert testimony); Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009)

(finding no legal support for “proposition that the Constitution is violated by

the admission of expert testimony concerning an ultimate issue to be

resolved by the trier of fact”). And, again, the correctness of the trial court’s

discretionary decision to admit that evidence under the state’s evidence code

is unassailable on federal collateral review. See Estelle, 502 U.S. at 67–68.

In any case, were there any remaining doubt about the objective

reasonableness of the decision to affirm the trial court’s evidentiary ruling on

the CSAAS testimony, the Ninth Circuit eliminated it in Brodit.

There, on federal habeas review, the Ninth Circuit held that CSAAS

testimony did not violate the defendant’s due process rights based on a

combination of circumstances also present here: it was offered only to

explain the victims’ delayed disclosures or sometimes contradictory

behaviors; the expert testified without knowledge of that defendant’s

particular case; and the jury received cautionary instructions. 350 F.3d at

991. That is a near mirror image of petitioner’s prosecution: the trial court

permitted CSAAS evidence to help the jury understand the victims’ self-

impeaching conduct including delayed disclosures (1 RT 6–7); the CSAAS

expert interviewed none of the witnesses or knew any specific facts about the

case (1 RT 193, 220); and the trial court instructed the jury that the

testimony could not be used to decide that the victims had been abused,

much less that petitioner was the one who abused them (CT 208). Thus,

given that Brodit—and similar recent federal habeas cases, see, e.g., Amaya

v. Frauenheim, 823 F. App’x 503, 505–06 (9th Cir. 2020); Darbouze v.

Kibler, 2021 WL 6618675, at *15 (C.D. Cal. Nov. 17, 2021)—have rebuffed

federal due process attacks on the use of CSAAS evidence, fairminded jurists

could readily agree with the court of appeal’s decision to do the same here.19

19 As a result, there is no need to address the court’s holding—as reasonable as it was—

that even if the CSAAS testimony were erroneously admitted, it was harmless because

there was no reasonable probability of a different result. Nor is any extended discussion

needed to dispose of petitioner’s “cumulative error” claim. (Pet. at 31–32). The court of

appeal, having “assumed” (not even found) one evidentiary error at most, dispatched that

claim since by definition it requires at least two evidentiary errors to be accumulated.

(LD 5 at 37–38). See Lopez v. Allen, 47 F.4th 1040, 1053 (9th Cir. 2022) (Where state

courts found one trial error that was “reasonably deemed to be harmless,” petitioner

“failed to establish multiple errors of constitutional magnitude . . . amounting to a denial

of due process.”); McGill v. Shinn, 16 F.4th 666, 685 (9th Cir. 2021) (“If there are no

errors, there is no need to consider their cumulative effect.”); Hayes v. Ayers, 632 F.3d

500, 524 (9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude

occurred, no cumulative prejudice is possible.”). For the same reason, even if there were

clearly established federal law permitting cumulative error claims in habeas proceedings,

contra, e.g., Montana v. Egelhoff, 518 U.S. 37, 53 (1996); Sanchez v. McDowell, 648 F.

Supp. 3d 1241, 1276 (S.D. Cal. 2023), it was reasonable for the court of appeal to deny

petitioner’s claim since it reasonably found no individual evidentiary errors under the

Due Process Clause. See Brodit, 350 F.3d at 992 (Where “California Court of Appeal

reasonably concluded that the premise—that there were errors—is absent,” it was

reasonable to conclude that no cumulative error occurred.); Dancy v. Asuncion, 2016 WL

11759110, at *10 (C.D. Cal. July 8, 2016) (Where “California courts did not rule contrary

to, or unreasonably apply, clearly-established federal law in rejecting” petitioner’s

“individual claims of error,” they could not have unreasonably applied Chambers v.

Mississippi, 410 U.S. 284 (1949)). And despite petitioner’s apparent assumption,

F. The Denial of Petitioner’s Insufficiency of Evidence Claims Was Not an

Unreasonable Application of Clearly Established Federal Law

Finally, just as he had argued on appeal, petitioner contends that the

evidence was insufficient to support the sexual penetration conviction and

two of the five lewd act convictions involving victim Z.R. The Supreme

Court’s decision in Jackson v. Virginia, 443 U.S. 307 (1979), clearly

establishes the federal standard governing appellate review of insufficient

evidence claims. Under Jackson, “the relevant question is whether, after

viewing the evidence in the light most favorable to the prosecution, any

rational trier of fact could have found the essential elements of the crime

beyond a reasonable doubt.” Id. at 319. In short, the court of appeal’s only

job under Jackson was not to decide “whether the trier of fact made the

correct guilt . . . determination, but rather whether it made a rational

decision to convict.” Herrera v. Collins, 506 U.S. 390, 402 (1993); see

People v. Mumin, 534 P.3d 1, 15 (Cal. 2023) (State “appellate court

retrospectively inquires whether a rational trier of fact could have found the

defendant guilty beyond a reasonable doubt, based on all the evidence when

viewed in the light most favorable to the prosecution.”).

What’s more, insufficient evidence claims “face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference.” Coleman v. Johnson, 566 U.S. 650, 651 (2012) (per curiam).

The first is the deferential Jackson standard of review itself, 443 U.S. at 319,

which makes it “the responsibility of the jury—not the court—to decide what

conclusions should be drawn from evidence admitted at trial.” Cavazos, 565

U.S. at 2. The “additional layer of deference” comes from AEDPA. Juan H.

insufficiency of evidence cannot be a trial “error” added to create cumulative error. See

Abdul-Malik v. Evans, 2011 WL 4899917, at *16 (C.D. Cal. Aug. 5, 2011). Legal

sufficiency of a verdict must be determined even with erroneously admitted evidence

construed in favor of that verdict. See McDaniel v. Brown, 558 U.S. 120, 131 (2010) (per

v. Allen, 408 F.3d 1262, 1274 (9th Cir. 2005). That means “a federal court

may not overturn a state court decision rejecting a sufficiency of the evidence

challenge simply because the federal court disagrees with the state court.”

Cavazos, 565 U.S. at 2 (cleaned up). “The federal court instead may do so

only if the state court decision was ‘objectively unreasonable.’” Id. To make

that showing, of course, petitioner must convince a federal habeas court that

not one “fairminded jurist,” Davenport, 596 U.S. at 135, could agree with

the court of appeal’s decision that “any rational trier of fact” could have

believed the prosecution’s version of events over petitioner’s defenses.

Jackson, 443 U.S. at 319. Unsurprisingly, this “double dose of deference . . .

can rarely be surmounted.” Boyer v. Belleque, 659 F.3d 957, 964 (9th Cir.

2011). This case is no exception.

To start, the court of appeal applied the state-law equivalent of the

Jackson federal standard. (LD 5 at 9 (quoting People v. Albillar, 244 P.3d

1062, 1070–71 (Cal. 2010)). So its denial of petitioner’s claims could not

have been contrary to Jackson. See Early, 537 U.S. at 8. To obtain de novo

review of his claims, then, petitioner must prove that the court of appeal

unreasonably applied the Jackson standard. See Maquiz, 907 F.3d at 1217;

Emery, 604 F.3d at 1113–14. Yet by petitioner’s reckoning, the court of

appeal would have had to do everything prohibited by Jackson to overturn

his challenged convictions: reweigh the trial evidence, draw inferences in his

favor, second-guess the credibility of witnesses, and resolve conflicting

evidence against the prosecution. See United States v. Hubbard, 96 F.3d

1223, 1226 (9th Cir. 1996); Walters v. Maass, 45 F.3d 1355, 1358 (9th Cir.

1995). And not only that, petitioner never approaches the court of appeal’s

decision in correct AEDPA terms, which requires that a federal habeas court

defer to the state court’s finding of sufficient evidence for a conviction so

long as any fairminded jurist could find the same.20 That oversight alone is

fatal to petitioner’s claim under § 2254(d)(1), for “the unreasonableness

question” under § 2254(d) is not “a test of [the court’s] confidence in the

result it would reach under de novo review.” Shinn, 592 U.S. at 119.

In any case, none of petitioner’s arguments shows that the court of

appeal incorrectly—much less unreasonably—applied Jackson when it

rejected his insufficient evidence claims on direct review. Start with his

challenge to the sexual penetration conviction. By petitioner’s account, Z.R.

“testified that she did not know if [the alleged penetration] happened,” only

that “she believes it did.” (ECF 10 at 1). That was not enough, according to

petitioner, for the jury to find him guilty of sexual penetration. (Pet. at 11–

13). Looking at the same portion of the victim’s trial testimony (1 RT at

120–23), though, the court of appeal found that if Z.R. was equivocating at

20 For the first time in his traverse, petitioner asserts—with no analysis—that the rejection

of his insufficient evidence claims was unreasonable under § 2254(d)(2). (ECF 10 at 3).

Never mind that, as noted, such claims (if not waived) are reviewed under § 2254(d)(1).

Just “tacking on a perfunctory statement at the end of [his] analysis asserting that the

state court’s decision was unreasonable,” as petitioner does here, cannot satisfy his

burden under any part of § 2254(d). Sexton v. Beaudreaux, 585 U.S. 961, 968 (2018).

Besides, even if § 2254(d)(2) could apply to insufficient evidence claims, the “role of a

federal habeas court is . . . not to apply de novo review of factual findings and to

substitute its own opinions for the determination made” by the state court. Ayala, 576

U.S. at 276. As with decisions reviewed under § 2254(d)(1), fact determinations reviewed

under § 2254(d)(2) are not unreasonable if any fairminded jurist could agree with them.

See Andrews v. Davis, 944 F.3d 1092, 1107 (9th Cir. 2019) (en banc) (The “same

standard of unreasonableness under § 2254(d)(1) applies under § 2254(d)(2).”). So,

contrary to petitioner’s premise, a state court factual determination is not unreasonable

merely because a federal habeas court could reach a different conclusion if reviewing on a

blank slate. See Wood v. Allen, 558 U.S. 290, 301 (2010). If reasonable minds reviewing

the record might disagree about the factual finding in question, that reasonable

disagreement requires deference to the state court’s determination. See id. What’s more,

even on de novo review, underlying findings of fact in the state courts are generally

presumed correct unless petitioner rebuts that presumption by clear and convincing

evidence. See 28 U.S.C. § 2254(e)(1); Stevens v. Davis, 25 F.4th 1141, 1165–66 (9th Cir.

2022); Kirkpatrick v. Chappell, 950 F.3d 1118, 1131 (9th Cir. 2020). In short, even if it

could apply to petitioner’s insufficient evidence claims, § 2254(d)(2) opens no path to

all, the jury could have thought it was only about which movie she had

attended with petitioner, not whether the penetration had happened. (LD 5

at 10). That was hardly an unreasonable conclusion to draw given that the

jury acquitted petitioner of the second charged count of sexual penetration—

which required the jury to believe the prosecution’s theory about a second

sexual penetration occurring at a different movie theater. If nothing else, the

jury’s decision to find insufficient evidence of a second penetration suggests

that there was no reason for the court of appeal to doubt that the jurors had

carefully heard, considered, and weighed Z.R.’s testimony. See, e.g., Villery

v. Holland, 607 F. App’x 700, 701 (9th Cir. 2015) (“The jury took

dispassionate care in assessing the evidence, as its split verdict

demonstrates.”).

But even if petitioner’s interpretation of her testimony were right—Z.R.

could only say she “believe[d]” the first sexual penetration happened—the

jury was entitled to credit the victim’s belief. See, e.g., Bruce v. Terhune,

376 F.3d 950, 957 (9th Cir. 2004) (credibility contest between victim and

defendant over sexual molestation is exclusively for jury to resolve); People

of the Territory of Guam v. McGravey, 14 F.3d 1344, 1346–47 (9th Cir.

1994) (upholding conviction for sexual molestation based entirely on

uncorroborated testimony of victim). The jury could have perceived any

equivocation by Z.R. not as uncertainty about what she had experienced but

the natural reticence of a victim (still 16 years old) testifying in open court

about explicit sexual matters. (1 RT 129–30, 148, 151). See, e.g., Robertson

v. Cates, 2020 WL 8680088, at *6 (C.D. Cal. Nov. 13, 2020) (jury could have

inferred that equivocal trial and preliminary hearing testimony resulted

from victim’s fears over testifying). As far as the court of appeal was

concerned, any of these plausible credibility determinations by the jury were

“entitled to near-total deference under Jackson.” Bruce, 376 F.3d at 957;

see Schlup v. Delo, 513 U.S. 298, 330 (1995) (“[U]nder Jackson, the

assessment of the credibility of witnesses is generally beyond the scope of

review.”). When viewed with AEDPA deference on top, the court’s decision

to respect the jury’s province over witness credibility was the furthest

possible thing from wrong, let alone unreasonable. See Marshall, 459 U.S.

at 434 (Section 2254 “gives federal habeas courts no license to re-determine

credibility of witnesses whose demeanor has been observed by the state trial

court, but not by them.”); Kansas v. Ventris, 556 U.S. 586, 594 n.* (2009)

(“Our legal system, however, is built on the premise that it is the province of

the jury to weigh the credibility of competing witnesses.”); accord Aiken v.

Blodgett, 921 F.2d 214, 217 (9th Cir. 1990).

Petitioner’s attack on two of his five lewd act convictions involving Z.R.

fares no better. By his reckoning, Z.R.’s testimony was too generic to

support any more than three lewd act convictions because she couldn’t

identify any more than three—by exact number. (Pet. at 14). But as the

court of appeal recognized, and petitioner does not seriously dispute, Z.R.’s

testimony established the kinds of acts committed (petitioner touched her

near her vagina), and the general period in which most of the acts occurred

(consecutive summers from 2013 to 2016). (1 RT 126–33). And Z.R.

described the frequency of the acts with adequate specificity when she said

that petitioner committed the lewd acts “repeatedly” and “frequently” in a

hot tub at petitioner’s home during four consecutive summer trips there with

her adoptive family.21 (Id. at 129–31, 133, 254–58). Under California law,

21 And even if the jury were arbitrarily limited to finding only one lewd act for each of four

summers, there was evidence of another lewd incident that Z.R. said happened once at

church. To be sure, Z.R. denied this incident on cross-examination at trial, but there was

still corroboration of the incident by the police investigator who had heard Z.R. closer in

time to the alleged lewd act. (1 RT 182–83). Thus, fairminded jurists could debate

whether the jury could believe that the church incident was a separate (fifth) lewd act that

“nothing more is required” for a jury to reasonably determine the number of

abuse incidents with adequate specificity. People v. Matute, 127 Cal. Rptr.

2d 472, 479 (Cal. Ct. App. 2002); see Jones, 792 P.2d at 656–57. To

conclude otherwise, as petitioner maintains, would mean that the court of

appeal was compelled to find that no rational jury could have counted more

than three lewd acts based on Z.R.’s testimony. But that would not only

“unduly impinge[] on the jury’s role as factfinder,” it would require a “fine-

grained factual parsing” of her trial testimony that is inappropriate under

Jackson. Coleman, 566 U.S. at 655. Besides, “the only question under

Jackson” that matters is whether the jury’s finding of five instead of three

lewd acts was “so insupportable as to fall below the threshold of bare

rationality.” Id. at 656. It was neither incorrect nor unreasonable for the

court of appeal to find that constitutional minimum threshold met under an

objective view of Z.R.’s testimony.22

In the end, contrary to petitioner’s implication, the court of appeal was

under no “affirmative duty to rule out every hypothesis except that of guilt

beyond a reasonable doubt” when deciding petitioner’s sufficiency of

evidence claims. Jackson, 443 U.S. at 326. Perhaps some very generous

counted despite any apparent conflicts in Z.R.’s account. See Jackson, 443 U.S. at 326 (A

reviewing court “faced with a record of historical facts that supports conflicting inferences

must presume—even if it does not affirmatively appear in the record—that the trier of fact

resolved any such conflicts in favor of the prosecution.”).

22 That is assuming anyway that the jury’s finding had to be relegated to the snippets of

Z.R.’s testimony that petitioner spotlights. It doesn’t account for the highly

incriminating—and unchallenged—Instagram messages he exchanged with Z.R., which

convincingly corroborated her testimony. And if anything, the cellphone and prior crimes

evidence could only have reinforced rather than undermined the jury’s findings. It

doesn’t matter that petitioner contested the admission of that evidence—a reviewing

court assessing sufficiency of evidence under Jackson still “must consider all of the

evidence admitted by the trial court, regardless of whether that evidence was admitted

fairminded jurists could agree with his view that Z.R.’s testimony was too

equivocal or generic to support the challenged convictions. But because not

every fairminded jurist must agree with that perspective, petitioner cannot

show that the court of appeal unreasonably applied the (already deferential)

Jackson standard when rejecting his insufficient evidence claims by that

court’s own fairminded assessment. See Cavazos, 565 U.S. at 2; Davenport,

596 U.S. at 136; Mays, 592 U.S. at 392; Balbuena, 980 F.3d at 633.

III.

CONCLUSION

For all these reasons, it is recommended that the petition under 28

U.S.C. § 2254 be denied and that this action be dismissed with prejudice.

See 28 U.S.C. § 636; G.O. 05-07.

Dated: March 21, 2025 /s/ ____

STEVE KIM

United States Magistrate Judge