Moses v. Payne

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY DUANE MOSES,  No. 07-35468

Petitioner-Appellant,

v.  D.C. No.

CV-06-01105-MJP

ALICE PAYNE,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

February 4, 2008—Seattle, Washington

Filed September 15, 2008

Before: Raymond C. Fisher, Ronald M. Gould, and

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Dissent by Judge Gould

12777

MOSES v. PAYNE 12781

COUNSEL

John Henry Browne, Seattle, Washington, for the petitioner-

appellant.

Alex A. Kostin, Assistant Attorney General, Olympia, Wash-

ington, for the respondent-appellee.

OPINION

IKUTA, Circuit Judge:

A Washington state jury convicted Jeffrey Moses of second

degree murder for the shooting death of his wife, Jennifer

Moses. In this appeal, we consider whether the district court

erred in denying Jeffrey Moses’s petition for a writ of habeas

corpus. Moses contends that his federal constitutional rights

12782 MOSES v. PAYNE

were violated by several evidentiary decisions made by the

trial court, including the decision to preclude one of Moses’s

experts from testifying. Moses maintains that he is entitled to

habeas relief because the Washington appellate court’s deci-

sion to affirm his conviction was “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). We disagree. The Washington appellate

court’s decision passes muster under the “highly deferential

standard for evaluating state-court rulings” in the habeas con-

text. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per

curiam) (internal quotation marks omitted). We have jurisdic-

tion under 28 U.S.C. §§ 1291, 2253, and we affirm.

I

For a summary of the preliminary facts, we rely on the state

appellate court’s decision:1

In the early morning of September 27, 2002,

Moses’ mother, who lived in California, called the

police to report that her daughter-in-law, Jennifer

Moses was dead. The police found Moses on the

street outside his house, drinking beer, and carrying

his younger son on his back. Moses’ other son was

asleep in the house. According to Moses, Jennifer

shot herself and committed suicide. When the offi-

cers attempted to enter the house, he told them it was

unnecessary because he had cleaned everything up.

Police found Jennifer wrapped in a rug in the garage,

along with a pile of bloody towels and sponges. Jen-

nifer had a gunshot wound to her head, blunt force

1

Because this initial statement of facts is drawn from the state appellate

court’s decision, it is afforded a presumption of correctness that may be

rebutted only by clear and convincing evidence. See 28 U.S.C.

§ 2254(e)(1); Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir.

2002). Moses does not allege that these preliminary facts are erroneous.

MOSES v. PAYNE 12783

trauma to her lips and a cracked tooth. The .410

gauge derringer used in Jennifer’s death was found

in the master bedroom. The derringer had been

recently cleaned and was loaded with two unspent

shells. When questioned, Moses told police Jennifer

had been depressed and that she came downstairs

that evening with the derringer, knelt down and shot

herself in the head while Moses tried to get the gun

away from her. Moses said he moved Jennifer’s

body to the garage to prevent their sons from seeing

her. He then backed his truck up to the garage to

load her body into it and bury her in the woods, as

she had requested. When the truck hit a post, Moses

said he abandoned the attempt to move Jennifer’s

body.

Following this incident, the state charged Moses with first

degree murder and unlawful possession of a firearm. The

state’s theory of the murder charge was that Moses intention-

ally shot Jennifer Moses during a domestic dispute. In support

of this theory, the prosecution introduced testimony from sev-

eral witnesses.

Among these witnesses was Dr. Richard Harruff, a medical

examiner, who testified that Jennifer Moses had died from a

gunshot wound inflicted to the right side of her upper neck,

behind the ear. Dr. Harruff explained that Jennifer Moses’s

wound was a contact wound, that is, a wound indicating that

the gun had been in contact with Jennifer Moses’s skin when

it was fired. Dr. Harruff further testified that the gun was

pointed upwards, “at about an 11 o’clock position,” when it

was fired in the base of Jennifer Moses’s head. Dr. Harruff

also stated that a toxicology screen performed during Jennifer

Moses’s autopsy revealed a blood alcohol level of 0.15.

Over defense objections, the court also permitted Dr. Har-

ruff to testify that in his opinion Jennifer Moses’s death was

a “homicide.” When prompted, Dr. Harruff explained that his

12784 MOSES v. PAYNE

use of the word “homicide” was a mixed “medical/legal”

standard, signifying the “likelihood of another person’s

responsibility leading to [the] death.” According to Dr. Har-

ruff, the principal reason a medical examiner would certify a

death as a homicide would be for purposes of the death certif-

icate. Dr. Harruff testified:

For example, I would classify something [as] homi-

cide if the evidence that I see, based on my experi-

ence and my professional responsibility, indicates

that this is a death that needs to be looked at for [the]

potential of criminal activity. That’s my responsibil-

ity, and I certify death based on that. I’m of course

not in a position, as the jury is, to render a final con-

clusion as to whether this represents a murder or not.

Dr. Harruff further clarified that his opinion did not bear on

the issue of legal intent, and that his conclusion under the

“likelihood” standard was not a determination beyond a rea-

sonable doubt.

Dr. Harruff testified that he tried to limit himself to only

“objective” and “unambiguous” factors in his cause-of-death

analysis, such as the nature and location of the wound. How-

ever, Dr. Harruff acknowledged that he also considered state-

ments in Jennifer Moses’s diary.

During cross-examination, the defense elicited testimony

from Dr. Harruff that “individuals who have difficulty with

drugs and alcohol are probably at a higher risk of suicide than

those who are not.” Additionally, Dr. Harruff testified that

intoxication and access to firearms are both risk factors for

suicide.

The government also called Evan Thompson, a ballistics

examiner for the Washington State Patrol Crime Laboratory.

Like Dr. Harruff, Thompson testified about the ballistics

implications of Jennifer Moses’s wound. Basing his analysis

MOSES v. PAYNE 12785

on the same objective factors considered by Dr. Harruff,

Thompson concluded that Jennifer Moses’s death was more

likely a homicide than either a suicide or an accidental shoot-

ing during a struggle over the gun between Moses and Jenni-

fer Moses. Like Dr. Harruff, Thompson concluded that

Jennifer Moses’s death was likely the result of homicide.

The trial court also allowed testimony concerning a prior

incident of domestic violence between Moses and Jennifer

Moses that occurred on November 1, 2001, a little over ten

months before Jennifer Moses died. This incident resulted in

Jennifer Moses going to the hospital along with her children,

and several witnesses affiliated with the hospital testified to

the events that followed.

Dr. Warren Appleton, the emergency room physician, testi-

fied that he interviewed and examined Jennifer Moses in a

medical exam room shortly after the November 2001 incident

in order to provide treatment, and observed that Jennifer

Moses displayed physical signs of fear and anxiety during the

examination. In order to assess and understand her level of

fear, Dr. Appleton asked Jennifer Moses what had happened.

According to Dr. Appleton’s testimony, Jennifer Moses stated

that Moses assaulted her and broke her jaw.

The hospital social worker, Tamara Muller, testified that

she interviewed Jennifer Moses’s children while Jennifer

Moses was under sedation, and then interviewed Jennifer

Moses. One of the children said that he saw Moses kick Jenni-

fer Moses. As a result of this statement, Muller contacted

Child Protective Services (CPS). Muller subsequently inter-

viewed Jennifer Moses, who identified Moses as the assailant

who broke her jaw. At some point during the interview, Mul-

ler told Jennifer Moses that she had contacted CPS.

Muller also gave more general testimony based on her

experiences as a domestic violence counselor. Specifically,

she testified that she “very seldom” tells victims of domestic

12786 MOSES v. PAYNE

violence to leave their abusive situation immediately. The rea-

son, according to Muller, was that “a victim is most likely to

be killed . . . when they leave.” This testimony pertained to

the prosecution’s theory that Jennifer Moses was attempting

to leave Moses on or around the night she died.

Finally, the court allowed the government to introduce evi-

dence drawn from Jennifer Moses’s journals. Jennifer Moses

used two journals, one that was handwritten and one that was

posted online. The government principally relied on the

online journal (rather than the handwritten journal) to estab-

lish the abusive relationship between Jennifer Moses and

Moses. When the government sought to introduce evidence

from the online journal, the defense countered that the trial

court should also admit the handwritten journal, which

included several statements indicating that Jennifer Moses

was suffering from depression and had thoughts of suicide.

The trial court decided to include entries from both journals

for the four months prior to Jennifer Moses’s death. However,

the court did not admit all of the journal entries written during

this four-month period. Concluding that there was an “over-

lap” between the two journals, the trial court decided to

exclude some handwritten journal entries for days on which

Jennifer Moses had also posted an online journal entry. The

trial court explained its decision as follows:

The electronic journal, which covers a time,

although it overlaps with the written journal, closer

to the time of her death, at the beginning has a sec-

tion in each entry which describes her state of mind

that day or mood and some description of how she

was feeling. I did find that it was relevant regarding

her state of mind. The written journal didn’t neces-

sarily have such statements as to her state of mind.

And I believe the entire journal is cumbersome and

that we do not need the entire journal admitted into

evidence.

MOSES v. PAYNE 12787

Moses objected to this decision, arguing that the court was

excluding important evidence regarding Jennifer Moses’s

state of mind and the nature of his relationship with his wife.

After the prosecution rested, the defense put on its case.

The defense’s theory of the case was that Jennifer Moses had

committed suicide. In support of this theory, the defense

introduced evidence from several witnesses to show that Jen-

nifer Moses suffered from depression and had thoughts of sui-

cide in the months leading up to September 27, 2002.

The jury heard testimony from four of Jennifer Moses’s

medical providers on the issue of her mental health. First, the

defense called Dr. William Dickinson, a doctor associated

with the Valley General Hospital where Jennifer Moses had

been treated for substance abuse and depression. Dr. Dickin-

son testified that Jennifer Moses suffered from major depres-

sion, albeit without suicidal thoughts, as of March 2002.

Second, the jury heard from Douglas S. Perry, a chemical-

dependency professional who also worked for Valley General

Hospital. Perry testified to Jennifer Moses’s depression,

cocaine and alcohol abuse, and suicidal thoughts. Third, the

defense called Barbara Alexander, a mental health counselor

who treated Jennifer Moses from January 2002 through

March 2002 at the Hall Health Center of the University of

Washington. Alexander testified that she diagnosed Jennifer

Moses with major depression. Alexander also testified that

major depression can be a life-threatening illness and that

people who suffer from major depression tend not to improve

if they continue to abuse drugs and alcohol. Finally, the

defense called Jacquie Griffin, a record custodian for the Vir-

ginia Mason Medical Center. Jennifer Moses received treat-

ment at the Virginia Mason center from April 2002 to August

2002. Because Jennifer Moses’s treatment provider at Vir-

ginia Mason had died by the time of trial, Griffin was called

to testify about the treatment provider’s notes. Griffin’s testi-

mony indicated that Jennifer Moses continued to suffer from

depression and abuse alcohol and cocaine during the spring

12788 MOSES v. PAYNE

and summer of 2002. The treatment provider’s notes also

indicated that Jennifer Moses had experienced suicidal

thoughts.

The defense then sought to introduce testimony from Dr.

Lawrence Wilson, an expert on depression. In a preliminary

evidentiary hearing outside the jury’s presence, Dr. Wilson

explained that he was prepared to testify regarding the nature

of Jennifer Moses’s depression and substance abuse, the

unlikelihood that Jennifer Moses’s depression would have

resolved itself before the date Jennifer Moses died, and the

ability of a person who was severely depressed to appear nor-

mal to friends and co-workers. (This latter opinion was rele-

vant insofar as it rebutted the government’s lay testimony that

Jennifer Moses was not visibly depressed in the final months

of her life.) Dr. Wilson was also prepared to testify that sev-

eral risk factors, such as depression, substance abuse, and

access to firearms, heighten the risk of suicide. Additionally,

Dr. Wilson was prepared to testify that lay persons do not

fully understand the implications of major depression and the

connection between these various risk factors and suicide. Dr.

Wilson explained to the court that he based his opinions on

Jennifer Moses’s mental health records, diary, autopsy report,

and interviews with Moses and one of Jennifer Moses’s

friends. Although Dr. Wilson was not willing to opine that

Jennifer Moses committed suicide, he was prepared to testify

that Jennifer Moses fell “into a group of people with an

extreme number of severe and significant risk factors for sui-

cide” and that “she continued to suffer [from] major depres-

sion . . . that continued to the time of her death.”

After hearing argument from both sides, the trial court

decided to exclude Dr. Wilson’s testimony. The court gave

several reasons for its conclusion. First, it stated that Dr. Wil-

son’s opinion that persons who suffer from depression, abuse

drugs and alcohol, and have access to firearms experience a

relatively higher risk of suicide was already within common

knowledge of the jury. Second, it concluded that Dr. Wilson’s

MOSES v. PAYNE 12789

testimony was cumulative in light of the other evidence intro-

duced by the defense establishing that Jennifer Moses was

undergoing treatment for substance abuse, suffered from

depression, experienced suicidal thoughts, and had a gun in

the house. Third, the court concluded that Dr. Wilson’s

remaining testimony—namely, “that 15 percent of those diag-

nosed with major depression will take their own life at some

point in their life”—was not sufficiently probative to out-

weigh its prejudicial effects and potential to confuse the jury.

Finally, the defense sought to introduce a photograph of

Jennifer Moses’s unclothed and emaciated body taken prior to

her autopsy in order to show that Jennifer Moses experienced

weight loss as a result of an eating disorder. The court ruled

the photo inadmissible, concluding that the probative value of

the photograph was outweighed by its prejudicial effect on the

jury. Moreover, other evidence of Jennifer Moses’s weight

loss, including testimony and photos, had been provided to

the jury.

The jury convicted Moses of second-degree murder.2 The

trial court then sentenced Moses to 420 months of incarcera-

tion. Moses appealed his conviction and sentence to the

Washington Court of Appeals. On September 19, 2005, the

appellate court affirmed Moses’s conviction in a reasoned

opinion, but vacated his sentence and remanded for re-

sentencing. Moses then appealed his conviction to the

Supreme Court of Washington. On May 31, 2006, the

Supreme Court of Washington summarily denied Moses’s

petition for review.

Moses filed his petition for a writ of habeas corpus in fed-

eral court on August 11, 2006. On January 9, 2007, the magis-

trate judge recommended denying Moses’s petition, and on

April 10, 2007, the district court adopted the magistrate

2

Moses was also convicted on the unlawful possession of a firearm

charge following a bench trial.

12790 MOSES v. PAYNE

judge’s recommendation and denied Moses’s habeas petition.

Moses timely filed a notice of appeal on May 10, 2007, and

on June 8, 2007, the district court granted Moses a certificate

of appealability on all issues.

On appeal, Moses contends that the district court erred in

denying his habeas petition. Moses maintains that the state

court’s evidentiary decisions deprived him of rights secured

by the Constitution, and that the state appellate court’s adjudi-

cation of his appeal “was contrary to, or involved an unrea-

sonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28

U.S.C. § 2254(d)(1). Specifically, Moses claims that: (1) the

admission of out-of-court statements made to Dr. Appleton

and Tamara Muller violated Moses’s Sixth Amendment right

to confrontation; (2) the exclusion of Dr. Wilson’s testimony,

the autopsy photograph of Jennifer Moses’s unclothed body,

and the select portions of Jennifer Moses’s handwritten jour-

nal denied Moses his constitutional right to present his

defense; and (3) the admission of opinion testimony from Dr.

Harruff, Evan Thompson, and Tamara Muller improperly

intruded upon the jury’s constitutionally mandated role,

thereby depriving Moses of a fair trial.

II

“[W]e review de novo the district court’s decision to grant

or deny a petition for a writ of habeas corpus.” Lambert v.

Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). Because Moses

filed his habeas petition after April 24, 1996, his petition is

governed by the Antiterrorism and Effective Death Penalty

Act of 1996 (“AEDPA”). See id. at 965. AEDPA establishes

a “highly deferential standard for evaluating state-court rul-

ings.” Visciotti, 537 U.S. at 24 (internal quotation marks omit-

ted). We must deny habeas relief with respect to any claim

adjudicated on the merits in a state court proceeding unless

the proceeding “resulted in a decision that was contrary to, or

involved an unreasonable application of, clearly established

MOSES v. PAYNE 12791

Federal law, as determined by the Supreme Court of the

United States” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evi-

dence presented in the State court proceeding.” 28 U.S.C.

§ 2254(d)(1), (2).

The “contrary to” and “unreasonable application of”

clauses in § 2254(d)(1) are distinct and have separate mean-

ings. See Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003). “A

state court decision is ‘contrary to’ clearly established

Supreme Court precedent if the state court applies a rule that

contradicts the governing law set forth in Supreme Court

cases or if the state court confronts a set of facts materially

indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different

from its precedent.” Lambert, 393 F.3d at 974. On the other

hand, “under the ‘unreasonable application’ clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from [the Supreme] Court’s

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Andrade, 538 U.S. at 75 (internal quo-

tation marks and alterations omitted). “The ‘unreasonable

application’ clause requires the state court decision to be more

than incorrect or erroneous. The state court’s application of

clearly established law must be objectively unreasonable.” Id.

(citations omitted).

“[C]learly established Federal law under § 2254(d)(1) is the

governing legal principle or principles set forth by the

Supreme Court at the time the state court renders its deci-

sion.” Andrade, 538 U.S. at 71-72 (internal quotation marks

omitted). Where no decision of the Supreme Court “squarely

addresses” an issue, Wright v. Van Patten, 128 S. Ct. 743, 746

(2008), a state court’s adjudication of that issue cannot result

in a decision contrary to, or an unreasonable application of,

Supreme Court precedent, see Crater v. Galaza, 491 F.3d

1119, 1123, 1126 (9th Cir. 2007) (citing Carey v. Musladin,

549 U.S. 70, 127 S. Ct. 649, 654 (2006)), and therefore cannot

12792 MOSES v. PAYNE

be a basis for habeas relief. Said otherwise, a state court’s

decision cannot be contrary to a Supreme Court decision that

provides “no categorical answer” to the question before the

state court. Van Patten, 128 S. Ct. at 746; accord Musladin,

127 S. Ct. at 654 (holding that a state court’s decision that a

defendant was not prejudiced by spectators’ conduct at his

trial was not contrary to, or an unreasonable application of,

the Supreme Court’s test for determining when a defendant

may be prejudiced by state conduct at trial because the Court

had “never applied that test to spectators’ conduct”).

“The relevant state court determination for purposes of

AEDPA review is the last reasoned state court decision.” Del-

gadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). Here,

the September 19, 2005 decision of the Washington Court of

Appeals is the last reasoned state court decision to address the

merits of Moses’s constitutional claims. Therefore, this appeal

requires us to evaluate whether the state appellate court’s dis-

position of Moses’s constitutional claims was contrary to or

an unreasonable application of Supreme Court precedent. We

address Moses’s claims in turn.

III

Moses first contends that the admission of out-of-court

statements made by Jennifer Moses and her son regarding the

November 2001 incident of domestic violence violated his

Sixth Amendment right to confrontation. The government

introduced these out-of-court statements through the trial tes-

timony of Dr. Appleton and Tamara Muller.

[1] The Sixth Amendment’s Confrontation Clause provides

that, “[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him.”

In Crawford v. Washington, the Supreme Court held that the

Confrontation Clause gives criminal defendants the right to

confront witnesses who make testimonial statements at trial,

unless the witness was unavailable to testify and the defen-

MOSES v. PAYNE 12793

dant had a prior opportunity for cross examination. 541 U.S.

36, 53-54 (2004). In contrast, non-testimonial statements do

not implicate the Confrontation Clause. See Whorton v. Bock-

ting, 127 S. Ct. 1173, 1183 (2007) (explaining Crawford).

Although Crawford did not offer a precise definition of tes-

timonial evidence, the Court offered various formulations of

the core class of testimonial statements, and noted that

“[w]hatever else the term covers, it applies at a minimum to

prior testimony at a preliminary hearing, before a grand jury,

or a former trial; and to police interrogations.” 541 U.S. at 51-

52, 68; see also Davis v. Washington, 547 U.S. 813, 822

(2006) (refining Crawford’s analysis of when statements

made during a police interrogation are testimonial for pur-

poses of the Sixth Amendment). Crawford’s holding regard-

ing the difference between testimonial and non-testimonial

out-of-court statements constitutes “clearly established Fed-

eral law” under 28 U.S.C. § 2254(d)(1) for purposes of our

AEDPA review of the state appellate court’s decision. See

Andrade, 538 U.S. at 71-72.

[2] The state appellate court analyzed Moses’s Confronta-

tion Clause claim under the Crawford framework. In consid-

ering Dr. Appleton’s testimony regarding Jennifer Moses’s

out-of-court statements, the state appellate court correctly

noted that Crawford did not articulate a comprehensive defi-

nition of testimonial statements and thus did not address the

question whether statements made to doctors and social work-

ers for purposes of medical diagnosis and treatment are testi-

monial under the Confrontation Clause. Applying state-law

precedents interpreting Crawford, the state appellate court

concluded that Jennifer Moses’s statements to Dr. Appleton

were non-testimonial because they were made for purposes of

diagnosis and treatment, rather than to inculpate Moses.

[3] Because the state court identified and applied the cor-

rect legal rule, and because the court did not arrive at a result

different from the result reached by the Supreme Court in an

12794 MOSES v. PAYNE

indistinguishable case, we conclude that the state appellate

court’s decision was not “contrary to” clearly established

Supreme Court precedent under 28 U.S.C. § 2254(d)(1). See

Andrade, 538 U.S. at 73. Nor did the state appellate court’s

adjudication of Moses’s Confrontation Clause claim involve

an “unreasonable application of” Crawford.3 28 U.S.C.

§ 2254(d)(1). Because no decision of the Supreme Court

“squarely addresses” this issue, the state court did not unrea-

sonably apply Supreme Court precedent in concluding that

Jennifer Moses’s statements to Dr. Appleton were non-

testimonial. See Van Patten, 128 S. Ct. at 746-47; see also

Musladin, 127 S. Ct. at 653-54.

The state appellate court next determined that Jennifer

Moses’s statements to Tamara Muller for purposes of treat-

ment were not testimonial under Crawford until Muller

informed Jennifer Moses that she had contacted the CPS. The

court concluded that because Muller’s statement notified Jen-

nifer Moses of possible legal consequences to her discussion

of the domestic violence incident, Jennifer Moses’s subse-

quent remarks were testimonial and the trial court erred in

admitting them. Nonetheless, the state appellate court con-

cluded that this error was harmless beyond a reasonable doubt

under Chapman v. California, 386 U.S. 18 (1967), because of

other, untainted evidence identifying Moses as the assailant in

the November 2001 assault.

[4] Assuming (without deciding) that the state appellate

court was correct in concluding that the trial court committed

constitutional error in admitting Jennifer Moses’s statements

after Muller informed her that CPS had been contacted, we

must consider whether such constitutional error had a “sub-

stantial and injurious effect or influence in determining the

3

The government maintains that we should decide this question by hold-

ing that Moses forfeited his Confrontation Clause rights by killing Jennifer

Moses and thus making her unavailable to testify at trial. We need not

reach this argument, as we deny the petition on other grounds.

MOSES v. PAYNE 12795

jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

(1993) (internal quotation marks omitted); see also Fry v.

Pliler, 127 S. Ct. 2321, 2328 (2007). We conclude that there

was no such substantial and injurious effect. There was over-

whelming evidence that Moses caused Jennifer Moses’s inju-

ries during the November 2001 incident, including the

testimony of Dr. Appleton and the testimony of Brian Green,

Jennifer Moses’s stepfather, who read into evidence a state-

ment handwritten by Moses admitting to the assault. There-

fore, because any constitutional error involved in admitting

Muller’s testimony lacked the requisite “prejudicial impact,”

habeas relief is unavailable to Moses for this claim. Fry, 127

S. Ct. at 2327.

[5] Finally, the state appellate court considered the admis-

sion of Jennifer Moses’s son’s out-of-court statements to Mul-

ler. These statements were introduced at trial when the

prosecutor asked Muller why she had contacted CPS. Muller

explained that because Jennifer Moses’s son had told her that

his father had kicked his mother, Muller had a mandatory

duty under state law to notify CPS. The state appellate court

concluded that the government did not introduce this testi-

mony to prove the truth of the matter asserted (whether Moses

kicked Jennifer Moses), but rather to explain a separate rele-

vant issue: why Muller contacted the CPS. In Crawford, the

Court noted that the Confrontation Clause “does not bar the

use of testimonial statements for purposes other than estab-

lishing the truth of the matter asserted.” 541 U.S. at 59 n.9

(citing Tennessee v. Street, 471 U.S. 409, 414 (1985). There-

fore, the state appellate court’s analysis is consistent with

Crawford and does not meet the criteria for habeas relief

under 28 U.S.C. § 2254(d)(1).

IV

Moses next maintains that he is entitled to habeas relief

because the trial court denied him the opportunity to present

evidence on his own behalf. In particular, Moses points to the

12796 MOSES v. PAYNE

trial court’s decisions to exclude: (1) Dr. Wilson’s testimony;

(2) portions of Jennifer Moses’s handwritten journal; and (3)

Jennifer Moses’s autopsy photograph.4

A

[6] The state appellate court upheld the trial court’s deci-

sion to exclude Dr. Wilson’s testimony because it was cumu-

lative and because the non-cumulative portion of his proposed

testimony was not sufficiently probative to outweigh its likely

prejudicial and confusing effects on the jury. This analysis

was undertaken under the governing Washington evidentiary

rule, Rule 702, which admits expert testimony “if it will assist

the trier of fact to understand the evidence or a fact in issue.”

State v. Farr-Lenzini, 970 P.2d 313, 318 (Wash. Ct. App.

1999) (internal quotation marks omitted) (explaining that

Rule 702 requires that (1) the witness be qualified as an

expert and (2) the testimony be helpful to the trier of fact).5

4

Moses also contends that the trial court’s evidentiary rulings, when

analyzed cumulatively, favored the government because they excluded

more defense evidence than prosecution evidence. He argues these rulings

deprived him of his due process right to rebut arguments presented by the

state and therefore deprived him of his right to a fair trial. Even if Moses

had exhausted this issue, he has not explained how the state appellate

court’s rejection of these constitutional claims would be “contrary to, or

involved an unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). Most of the cases Moses cites in support of his argument are

inapposite because they pertain to the unique context of capital sentencing

proceedings. See Simmons v. South Carolina, 512 U.S. 154 (1994); Skip-

per v. South Carolina, 476 U.S. 1 (1986); Gardner v. Florida, 430 U.S.

349 (1977). The remaining case, Ake v. Oklahoma, 470 U.S. 68 (1985),

is not applicable because it concerns a question not raised in this case,

“whether the Constitution requires that an indigent defendant have access

to the psychiatric examination and assistance necessary to prepare an

effective defense based on his mental condition, when his sanity at the

time of the offense is seriously in question.” Id. at 70.

5

Rule 702 of the Washington Rules of Evidence states: “If scientific,

technical, or other specialized knowledge will assist the trier of fact to

understand the evidence or to determine a fact in issue, a witness qualified

as an expert by knowledge, skill, experience, training, or education, may

testify thereto in the form of an opinion or otherwise.”

MOSES v. PAYNE 12797

Under Rule 702, expert testimony is helpful to the jury if it

concerns matters beyond the common knowledge of the aver-

age layperson and is not misleading. See id. at 319.

Moses asserts that the state appellate court’s decision is

contrary to the Supreme Court’s precedents holding that

defendants have a constitutional right to present relevant evi-

dence in their own defense. See Crane v. Kentucky, 476 U.S.

683, 690 (1986) (“[T]he Constitution guarantees criminal

defendants a meaningful opportunity to present a complete

defense.” (internal quotation marks omitted)). The Supreme

Court has indicated that a defendant’s right to present a

defense stems both from the right to due process provided by

the Fourteenth Amendment, see Chambers v. Mississippi, 410

U.S. 284, 294 (1973), and from the right “to have compulsory

process for obtaining witnesses in his favor” provided by the

Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23

(1967) (explaining that the right to compulsory process would

be meaningless if the defendant lacked the right to use the

witnesses whose presence he compelled).

[7] However, “[a] defendant’s right to present relevant evi-

dence is not unlimited, but rather is subject to reasonable

restrictions,” such as evidentiary and procedural rules. United

States v. Scheffer, 523 U.S. 303, 308 (1998). In fact, “state

and federal rulemakers have broad latitude under the Consti-

tution to establish rules excluding evidence from criminal tri-

als,” id., and the Supreme Court has indicated its approval of

“well-established rules of evidence [that] permit trial judges

to exclude evidence if its probative value is outweighed by

certain other factors such as unfair prejudice, confusion of the

issues, or potential to mislead the jury,” Holmes v. South Car-

olina, 547 U.S. 319, 326 (2006). Evidentiary rules do not vio-

late a defendant’s constitutional rights unless they “infring[e]

upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve.”

Id. at 324 (alteration in original) (internal quotation marks

omitted); see also Scheffer, 523 U.S. at 315 (explaining that

12798 MOSES v. PAYNE

the exclusion of evidence pursuant to a state evidentiary rule

is unconstitutional only where it “significantly undermined

fundamental elements of the accused’s defense”). In general,

it has taken “unusually compelling circumstances . . . to out-

weigh the strong state interest in administration of its trials.”

Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir. 1983).

The Supreme Court has explained these principles in cases

where defendants have argued that state evidentiary rules, by

their own terms, impinge upon their constitutional right to

present a complete defense. Thus, in Holmes, the Court con-

cluded that a defendant’s constitutional rights were violated

by an evidentiary rule that prevented the defendant from pre-

senting evidence that a third party had committed the crime

if the judge determined that the prosecutor’s case was strong.

547 U.S. at 328-31. The Court determined that this evidenti-

ary rule did not “rationally serve” the goal of “excluding evi-

dence that has only a very weak logical connection to the

central issues.” Id. at 330. In Rock v. Arkansas, 483 U.S. 44,

61 (1987), the Court reached the same conclusion about an

evidentiary rule that limited the defendant’s testimony to mat-

ters she remembered before her memory had been hypnoti-

cally refreshed because it was “an arbitrary restriction on the

right to testify in the absence of clear evidence by the State

repudiating the validity of all posthypnosis recollections.”

Finally, in Washington v. Texas, the Court rejected an eviden-

tiary rule that precluded an alleged accomplice of the defen-

dant from testifying on the defendant’s behalf (though he

could testify for the government) because it could not “even

be defended on the ground that it rationally sets apart a group

of persons who are particularly likely to commit perjury.” 388

U.S. at 22; see also Crane, 476 U.S. at 690-92 (identifying a

constitutional violation where a state evidentiary rule pre-

cluded a defendant from introducing any evidence relating to

the unreliability of his own confession); Chambers, 410 U.S.

at 302 (concluding that a defendant’s fair trial rights were vio-

lated when the combined effect of two state rules of evidence

precluded him from effectively impeaching a witness whom

MOSES v. PAYNE 12799

he alleged was the actual culprit). On the other hand, the

Supreme Court has upheld an evidentiary rule that excluded

polygraph evidence in military trials because it did not “impli-

cate any significant interest of the accused” and because it

“serve[d] several legitimate interests in the criminal trial pro-

cess.” Scheffer, 523 U.S. at 309, 316-17.

[8] The Supreme Court has not squarely addressed the

question whether Rule 702, the rule of evidence relied upon

by the state appellate court in this case, or an analogous rule,

“infring[es] upon a weighty interest of the accused” and is

“arbitrary or disproportionate to the purposes [it is] designed

to serve.” Scheffer, 523 U.S. at 308 (internal quotation marks

omitted). Rather, as a “well-established rule[ ] of evidence”

that permits a court to exercise its discretion in admitting

expert testimony when relevant, Rule 702 is more analogous

to those evidentiary rules described with approval in Holmes.

See 547 U.S. at 326 (“While the Constitution . . . prohibits the

exclusion of defense evidence under rules that serve no legiti-

mate purpose or that are disproportionate to the ends that they

are asserted to promote, well-established rules of evidence

permit trial judges to exclude evidence if its probative value

is outweighed by certain other factors such as unfair preju-

dice, confusion of the issues, or potential to mislead the

jury.”).

[9] Indeed, Rule 702 is different in kind from the rules in

Washington, Crane, Chambers, Rock, and Holmes. The evi-

dentiary rules in those cases, by their terms, required the trial

court to exclude crucial evidence that had a critical effect on

the trial, with little or no rational justification. In general, the

rules precluded a defendant from testifying, excluded testi-

mony from key percipient witnesses, or excluded the intro-

duction of all evidence relating to a crucial defense. In

contrast, Rule 702 does not require a trial court to exclude

evidence. Rather, it authorizes a court to admit expert testi-

mony “if it will assist the trier of fact to understand the evi-

dence or a fact in issue.” Farr-Lenzi, 970 P.2d at 318 (internal

12800 MOSES v. PAYNE

quotation marks omitted). Accordingly, a decision that Rule

702 itself is constitutional would be consistent with Supreme

Court precedent.

[10] Because Moses could not successfully argue that Rule

702 by its terms infringed his constitutional right to present

a complete defense, Moses’s argument is best interpreted as

challenging the trial court’s exercise of discretion in this case

to exclude expert testimony. Moses has not identified, and we

have not found, a Supreme Court case holding that such an

exercise of discretion to exclude expert testimony violated a

criminal defendant’s constitutional right to present relevant

evidence. As noted above, the Supreme Court’s cases have

focused only on whether an evidentiary rule, by its own terms,

violated a defendant’s right to present evidence. Because the

Supreme Court has not directly considered this issue, the state

appellate court’s determination that the trial court’s exercise

of discretion to exclude expert testimony under Rule 702 did

not violate Moses’s constitutional rights cannot be contrary to

or an unreasonable application of clearly established Supreme

Court precedent. See Van Patten, 128 S. Ct. at 746-47; Mus-

ladin, 127 S. Ct. at 653-54.

[11] Although the Supreme Court has not addressed this

issue, several of our prior decisions considered whether a trial

court’s discretionary determination to exclude evidence vio-

lated a defendant’s constitutional rights. In Perry v. Rushen,

713 F.2d 1447, 1450 (9th Cir. 1983), we derived a balancing

test to determine when a trial court’s exercise of discretion to

exclude evidence under an otherwise valid evidentiary rule

might violate a defendant’s rights. We refined this test in Mil-

ler v. Stagner, 757 F.2d 988 (9th Cir. 1985), amended on

other grounds, 768 F.2d 1090 (9th Cir. 1985), and held that,

In a habeas proceeding, determining whether the

exclusion of evidence in the trial court violated peti-

tioner’s due process rights involves a balancing test.

In weighing the importance of evidence offered by

MOSES v. PAYNE 12801

a defendant against the state’s interest in exclusion,

the court should consider [1] the probative value of

the evidence on the central issue; [2] its reliability;

[3] whether it is capable of evaluation by the trier of

fact; [4] whether it is the sole evidence on the issue

or merely cumulative; and [5] whether it constitutes

a major part of the attempted defense.

Id. at 994; accord Chia v. Cambra, 360 F.3d 997, 1003-04

(9th Cir. 2004); Alcala v. Woodford, 334 F.3d 862, 877 (9th

Cir. 2003).

[12] The dissent relies on this balancing test as part of its

AEDPA analysis of the state appellate court’s decision to

affirm the exclusion of Dr. Wilson’s testimony. See dis. op.

at 12816-17. For purposes of AEDPA analysis, however,

[T]he only definitive source of clearly established

federal law under AEDPA is the holdings (as

opposed to the dicta) of the Supreme Court as of the

time of the state court decision. While circuit law

may be “persuasive authority” for purposes of deter-

mining whether a state court decision is an unreason-

able application of Supreme Court law, only the

Supreme Court’s holdings are binding on the state

courts and only those holdings need be reasonably

applied.

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) (inter-

nal citations omitted); see also Crater, 491 F.3d at 1126

(“[Section] 2254(d)(1) renders decisions by lower courts non-

dispositive for habeas appeals.”); Brewer v. Hall, 378 F.3d

952, 957 (9th Cir. 2004). Nor can we conclude that Miller

merely “illuminates the application of clearly established fed-

eral law as determined by the United States Supreme Court.”

Crater, 491 F.3d at 1126 n.8. Unlike Washington and its prog-

eny, Miller is not concerned with the question whether a

given rule of evidence, by its own terms, impinges on defen-

12802 MOSES v. PAYNE

dants’ constitutional rights; rather, the Miller balancing test

evaluates whether the trial court used its discretion to uncon-

stitutionally apply an otherwise valid rule. Thus, because the

Miller balancing test is a creation of circuit law, rather than

a Supreme Court holding, we cannot fault the state appellate

court for not employing it, so long as the state’s ultimate dis-

position of Moses’s appeal is not contrary to or an unreason-

able application of the Supreme Court precedent that Miller

interpreted. See Casey v. Moore, 386 F.3d 896, 907 (9th Cir.

2004).

The dissent concludes otherwise, noting that we have

applied the Miller balancing test in the context of AEDPA

review. See Chia, 360 F.3d at 1003-04. However, we did so

before the Supreme Court provided further clarification of the

bounds of an appellate court’s AEDPA analysis in Musladin

and Van Patten. As discussed above, these cases clarified that

in the absence of a Supreme Court decision that “squarely

addresses” an issue or gives a “clear answer to the question

presented,” we cannot conclude that a state court’s adjudica-

tion of that issue resulted in a decision contrary to, or an

unreasonable application of, Supreme Court precedent. Van

Patten, 128 S. Ct. at 746-47. By necessity, Van Patten and

Musladin impose limits on the relevance of circuit precedent;

they are “clearly irreconcilable,” Miller v. Gammie, 335 F.3d

889, 893 (9th Cir. 2003), with the conclusion that circuit law

may be used to fill “open question[s]” in the Supreme Court’s

holdings for purposes of AEDPA analysis. Musladin, 127

S. Ct. at 653; See also Crater, 491 F.3d at 1126 & n.8

(explaining that, in Musladin, the Supreme Court “discussed

and accepted” the principle that § 2254(d)(1) imposes “limits

on the relevance of circuit precedent”).

Because the Supreme Court has not squarely addressed the

question before us, AEDPA does not permit us to rely on our

balancing test to conclude that a state trial court’s exclusion

of evidence under Rule 702 violated clearly established

MOSES v. PAYNE 12803

Supreme Court precedent. Therefore, we cannot agree with

the dissent’s argument that Miller is applicable here.

B

[13] Moses next contends that he is entitled to habeas relief

because the trial court excluded some portions of Jennifer

Moses’s handwritten diary. The trial court admitted medical

provider testimony and documentary evidence establishing

that Jennifer Moses suffered from depression and experienced

suicidal thoughts before her death. The trial court also admit-

ted multiple journal entries indicating that Jennifer Moses was

depressed and contemplated suicide. The state appellate court

concluded that the trial court abused its discretion in exclud-

ing certain handwritten journal entries, but that any error

involved was harmless. In light of the evidence admitted by

the trial court, even assuming that the trial court’s exclusion

of evidence was a constitutional error, we agree that it did not

have “substantial and injurious effect or influence in deter-

mining the jury’s verdict.” Brecht, 507 U.S. at 623 (internal

quotation marks omitted).

C

[14] Moses also maintains that the state appellate court’s

affirmance of the trial court’s decision to exclude Jennifer

Moses’s autopsy photograph was contrary to Supreme Court

precedent. We disagree. The state appellate court noted that

the autopsy photograph was cumulative because the trial court

had already admitted other photographs showing Jennifer

Moses’s emaciated body and because multiple witnesses had

testified that Jennifer Moses had lost weight in the months

prior to her death. The state appellate court concluded that the

photograph was properly excluded because it was cumulative

and because its probative value was outweighed by its likely

prejudicial effects on the jury. This decision was not contrary

to, or an unreasonable application of, controlling Supreme

Court precedent, see Scheffer, 523 U.S. at 308, and it there-

12804 MOSES v. PAYNE

fore does not provide the basis for granting Moses’ habeas

petition under our deferential AEDPA standard of review.

V

Finally, Moses urges this court to grant the writ because the

trial court’s decision to admit the opinion testimony of Dr.

Harruff, Evan Thompson, and Tamara Muller violated

Moses’s constitutional rights.6 In support of this claim, Moses

relies on Supreme Court decisions establishing that it is the

sole province of the jury to determine questions of credibility

and to weigh the evidence adduced at trial. See Goldman v.

United States, 245 U.S. 474, 477 (1918); see also United

States v. Young, 470 U.S. 1, 18-19 (1985) (prosecutor erred

by expressing a personal view that the defendant was guilty).

[15] These cases do not support Moses’s contention that the

opinion testimony of Dr. Harruff, Evan Thompson, and

Tamara Muller improperly intruded upon the province of the

jury and thereby deprived Moses of a fair trial. Neither of

these cases, nor any other that we have found, supports the

general proposition that the Constitution is violated by the

admission of expert testimony concerning an ultimate issue to

be resolved by the trier of fact. Accordingly, under AEDPA,

we must reject Moses’s claims to the contrary. See 28 U.S.C.

§ 2254(d); Van Patten, 128 S. Ct. at 746-47; Musladin, 127

S. Ct. at 653-54.

[16] That the Supreme Court has not announced such a

holding is not surprising, since it is “well-established . . . that

expert testimony concerning an ultimate issue is not per se

improper.” Hangarter v. Provident Life & Accident Ins. Co.,

6

We disagree with the state’s contention that this issue was not properly

exhausted. The district court correctly concluded that Moses argued this

issue to the state appellate court in a manner sufficient to satisfy the

requirements of AEDPA’s exhaustion doctrine. See Davis v. Silva, 511

F.3d 1005, 1008-09 (9th Cir. 2008).

MOSES v. PAYNE 12805

373 F.3d 998, 1016 (9th Cir. 2004) (internal quotation marks

omitted) (alterations in original). Although “[a] witness is not

permitted to give a direct opinion about the defendant’s guilt

or innocence . . . . an expert may otherwise testify regarding

even an ultimate issue to be resolved by the trier of fact.”

United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990);

see also Fed. R. Evid. 704(a).

Here, Dr. Harruff testified to his opinion as a medical

examiner that Jennifer Moses died as a result of a homicide.

Dr. Harruff did not testify that Moses murdered Jennifer

Moses. Similarly, Thompson did not testify on the ultimate

issue; rather, he testified that he classified the death as a

homicide based on his expertise as a ballistics expert and his

assessment of Jennifer Moses’s wound. Finally, Muller testi-

fied that, in her experience, victims of domestic violence are

most likely to be killed when they attempt to leave their

domestic situation. Like Dr. Harruff and Thompson, Muller

did not express an opinion as to whether Moses murdered Jen-

nifer Moses. Thus, circuit precedent ratifies the state court’s

decision to admit the testimony of Dr. Harruff, Thompson,

and Muller. See Lockett, 919 F.2d at 590.

[17] Ultimately, however, for purposes of our AEDPA

review, it suffices to determine that no Supreme Court case

has “squarely addresse[d]” the claim that Moses advances.

Van Patten, 128 S. Ct. at 746. We conclude that the state

appellate court’s decision to affirm the trial court’s decision

to admit the opinion testimony of Dr. Harruff, Thompson, and

Muller was not contrary to or an unreasonable application of

Supreme Court precedent.

VI

In sum, AEDPA’s “highly deferential standard for evaluat-

ing state-court rulings” directs the conclusion that Moses’s

habeas petition must be denied. Visciotti, 537 U.S. at 24

(internal quotation marks omitted). The Supreme Court has

12806 MOSES v. PAYNE

not “squarely addresse[d]” any of the three issues Moses iden-

tifies in support of his petition for the writ. Van Patten, 128

S. Ct. at 746. AEDPA tethers our habeas review to Supreme

Court holdings alone. See 28 U.S.C. § 2254(d); see also Cra-

ter, 491 F.3d at 1126 & n.8. Because the state appellate

court’s disposition of Moses’s appeal was not contrary to or

an unreasonable application of apposite Supreme Court prece-

dent, we cannot grant the writ.

Where the state appellate court itself identified constitu-

tional error, we conclude that the identified error did not have

a “substantial and injurious effect or influence in determining

the jury’s verdict.” Brecht, 507 U.S. at 623 (internal quotation

marks omitted); see also Fry, 127 S. Ct. at 2328.

PETITION DENIED.

GOULD, Circuit Judge, dissenting:

On September 27, 2002, Jeffrey Moses’s wife, Jennifer,

tragically died of a gunshot wound to her head. When police

responded to a 911 call from Moses’s mother, Moses claimed

that Jennifer had committed suicide. Moses said that Jennifer

had been depressed and had come downstairs with a gun,

knelt down, and shot herself in the head while Moses tried to

take the gun away from her. Moses was tried by jury for pre-

meditated, first degree murder of his wife, and for unlawful

possession of a firearm. At Moses’s trial the prosecution

argued that Moses had intentionally shot his wife in the back

of the head, while Moses countered that Jennifer had commit-

ted suicide because of severe depression and drug and alcohol

abuse, and that his attempt that night to stop her had failed.

Among the prosecution’s evidence was testimony from a

medical examiner and a ballistics expert who each concluded,

after an examination of forensic factors, that Jennifer’s

wounds were likely not self-inflicted, though the evidence

MOSES v. PAYNE 12807

permitted the conclusion that suicide had occurred. The prose-

cution also presented evidence of a prior incident of domestic

violence between Moses and his wife. Moses, by contrast,

highlighted evidence of Jennifer’s history of major depres-

sion, including suicidal ideation, problems with eating disor-

ders and substance abuse. Moses also presented testimony by

a friend of Jennifer’s stating that Jennifer and the friend had

talked on the very night of Jennifer’s death and that the dis-

cussion encompassed the subject of death.

Thus the case presents in high contrast the question

whether Jennifer’s death was the consequence of her own sui-

cidal actions, or the result of murderous conduct by Moses. In

our system of justice, when a fair trial is held the decision of

the jury on such an issue is conclusive. If the defendant had

been able to present his defense case fairly, I would have no

issue with the jury’s decision. But if by evidentiary rulings the

deck was stacked against the defendant, we should be con-

cerned and insist on a new trial.

I conclude that a key evidentiary ruling rendered the trial

unfair. Moses had sought to introduce testimony from Dr.

Lawrence Wilson, an expert on depression who the defense

wanted to discuss with the jury Jennifer’s recent diagnoses

with major depression by three different health care profes-

sionals, the general nature of major depression, and the

unlikelihood that the depression would have resolved itself

before the date Jennifer died. Dr. Wilson additionally would

have testified about the increased likelihood that someone suf-

fering from major depression would commit suicide and about

his perception that lay persons do not fully understand the

implications of major depression.

The trial court excluded Dr. Wilson’s testimony, stating

that Dr. Wilson would have offered information of “very little

weight,” namely, that depressed people are more likely to kill

themselves than people not depressed, that access to guns for

depressed people is bad, and that drugs, alcohol, financial

12808 MOSES v. PAYNE

stress, and marital strife make the problem worse—all of

which, the court reasoned, fell within a juror’s common

knowledge. The trial judge dismissed Wilson’s remaining tes-

timonial offerings as being, in sum, that there was a roughly

0.25% higher chance that Jennifer, as an individual diagnosed

with major depression, would commit suicide within the six

month period between her diagnosis and her death than that

a non-depressed person would. The trial judge determined

that this information was of minimal probative value, out-

weighed by its prejudicial effects and potential for jury confu-

sion.

The jury found Moses guilty of second-degree murder and

first-degree unlawful possession of a firearm. The Washing-

ton Court of Appeals sustained Moses’s conviction, and the

Washington State Supreme Court denied Moses’s petition for

review without comment. Having made no progress in the

state courts, Moses filed his petition for a writ of habeas cor-

pus in federal court in August of 2006. The district court

denied Moses’s petition. The district court rejected Moses’s

argument that the exclusion of Dr. Wilson’s testimony had

violated his Sixth and Fourteenth Amendment rights, reason-

ing that the testimony would have been cumulative and of

such limited probative value that its exclusion did not deprive

Moses of any constitutional rights. On appeal Moses argues

that the trial judge’s exclusion of Dr. Wilson’s testimony

denied Moses his clearly established constitutional right to

present a defense. Although the majority affirms the district

court’s view, I rather think that the total exclusion of testi-

mony of this important defense expert witness was a grave

error that should shake our confidence that the jury reached

its verdict after a fair trial. Hence I respectfully dissent

because I would grant habeas relief and require the state to

retry Moses in light of the state trial court’s exclusion of Dr.

Wilson’s testimony.1

1

Reaching this conclusion, I need not, and do not, address any of

Moses’s remaining arguments. However, if the exclusion of Wilson’s tes-

MOSES v. PAYNE 12809

Moses argues that the trial court’s decision to exclude Dr.

Wilson’s testimony violated his constitutional rights under

Washington v. Texas, 388 U.S. 14 (1967), and its progeny.

Moses is up against a difficult standard. To succeed in his

claim, the state court’s decision must have been “contrary to,

or involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court.” 28 U.S.C.

§ 2254(d)(1). But the Supreme Court has long guaranteed the

defendant’s right to present his case, and so the extraordinary

exclusion in total, as contrasted with a mere limiting of testi-

mony, of a key defense expert witness, in a murder trial where

specialized expertise was pertinent, gets Moses inside the

door where we should be giving the very closest of attention

to his claim. For if he is right, possibly a jury convicted an

innocent man of murder. Though we must accept that risk

without much pause in a case where a defendant like Moses

fully and fairly presented his evidence, we should be much

more reluctant to accept the conclusion in a case where the

state court kept from the jury all testimony of an important

defense expert.

A state court decision is “contrary to” clearly established

Supreme Court precedent if the state court “applies a rule that

contradicts the governing law set forth” in Supreme Court

decisions or “confronts a set of facts that are materially indis-

tinguishable from a [Supreme Court] decision . . . and never-

theless arrives at a result different from [Supreme Court]

precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).

I conclude that exclusion of Dr. Wilson’s testimony was not

“contrary to” clearly established Supreme Court law, because

the state appellate court recognized the general principle

timony does not in itself require habeas relief, then I believe that a very

close look would be required at the question whether the cumulative force

of trial court rulings, generally denying much of the helpful evidence prof-

fered by Moses and admitting almost whatever the prosecution tendered,

offended due process by depriving Moses of a fair trial. The majority

never addresses this question.

12810 MOSES v. PAYNE

required in Washington that a defendant has the right to pre-

sent a defense. It cannot be said that the state court of appeals

applied the wrong law contrary to the dictates of Supreme

Court precedent. Nor were the facts of Moses’s case materi-

ally indistinguishable from those of the Supreme Court cases

that he invokes. In Washington, the trial court had prevented

a percipient witness from testifying because of a state statute,

which the United States Supreme Court held violated the

defendant’s Sixth Amendment right to have compulsory pro-

cess for obtaining witnesses, applicable to the states through

the Fourteenth Amendment. Washington, 388 U.S. at 23. In

Chambers v. Mississippi, 410 U.S. 284 (1973), state evidenti-

ary rules—specifically, a “voucher” rule preventing a defen-

dant from cross-examining his own witness and general rules

against hearsay—prevented a defendant from presenting one

witness who had repudiated a prior confession to the same

crime and other witnesses who would have discredited that

repudiation. Id. at 294. The United States Supreme Court held

that exclusion of this critical evidence that directly affected

the ascertainment of guilt denied the defendant a fair trial. Id.

at 302-03. See also Holmes v. South Carolina, 547 U.S. 319

(2006) (state evidentiary rule excluding evidence of third-

party guilt if prosecution’s case was strong violated defen-

dant’s right to present a complete defense); Rock v. Arkansas,

483 U.S. 44 (1987) (state evidentiary rule excluding post-

hypnosis testimony unconstitutionally burdened defendant’s

right to testify at trial in the absence of clear state evidence

that post-hypnosis recollections are invalid).

None of these Supreme Court cases specifically addresses

a state court’s exclusion of a critical defense expert based on

state evidentiary rules concerning the admissibility of expert

testimony and a trial court’s determination of whether the

expert testimony in its view would be helpful to the trier of

fact. Accordingly, I conclude that the state court decision was

not “contrary to” clearly established Supreme Court prece-

dent.

MOSES v. PAYNE 12811

Our attention must focus on whether the state court deci-

sion was an “unreasonable application” of clearly established

Supreme Court precedent. A state court decision constitutes

an “unreasonable application” if it “correctly identifies the

governing legal rule but applies it [objectively] unreasonably

to the facts” of the case. Id. at 407-08, 410-11. Thus “section

2254(d)(1) permits a federal court to grant habeas relief based

on the application of a governing legal principle to a set of

facts different from those of the case in which the principle

was announced.” Lockyer v. Andrade, 538 U.S. 63 (2003); see

also Wilcox v. McGee, 241 F.3d 1242, 1244 (9th Cir. 2001)

(“The Supreme Court need not have addressed a factually

identical case; § 2254(d) only requires that the Supreme Court

clearly determine the law.” (internal quotations, citation, and

alteration omitted)). Our independent review of the legal

question must leave us with a “firm conviction” that the state

court committed a clear, objectively unreasonable error. Id.;

see also Andrade, 538 U.S. at 74-75.2

The Washington line of cases from the United States

Supreme Court firmly establishes the general proposition that

a defendant has a constitutional right to present a defense at

trial. The crux here concerns how that principle is to be

applied in the context of the state court’s decision excluding

any testimony from Moses’s defense expert whose testimony

was proffered on a critical issue in Moses’s trial for murder

of his wife.

In Washington itself, the Court stated: “The right to offer

the testimony of witnesses, and to compel their attendance, if

necessary, is in plain terms the right to present a defense, the

2

Although section 2254(d) mandates that only Supreme Court preceden-

tial holdings clearly establish a right, circuit law may be “persuasive

authority” on the question of whether a state court’s determination was an

unreasonable application of the Supreme Court’s precedent. Clark v. Mur-

phy, 331 F.3d 1062, 1069 (9th Cir. 2003); Duhaime v. Ducharme, 200

F.3d 597, 600-01 (9th Cir. 1999).

12812 MOSES v. PAYNE

right to present the defendant’s version of the facts as well as

the prosecution’s to the jury so it may decide where the truth

lies. . . . [A]n accused has the right to . . . present his own wit-

nesses to establish a defense. This right is a fundamental ele-

ment of due process of law.” Washington, 388 U.S. at 19.

Since Washington, the United States Supreme Court has

continually reaffirmed this fundamental right to present a

defense. In Chambers, the Court proclaimed: “Few rights are

more fundamental than that of an accused to present witnesses

in his own defense[,]” and stated that it was not establishing

any new principles of constitutional law but merely applying

established ones to hold that the trial court’s rulings deprived

the defendant of a fair trial. Chambers, 410 U.S. at 302-03.

The Court reemphasized the right’s centrality to due process

of law in Taylor v. Illinois, 484 U.S. 400, 409 (1988). More

recently in Holmes, the Court stated: “[S]tate and federal rule-

makers have broad latitude under the Constitution to establish

rules excluding evidence from criminal trials. This latitude,

however, has limits. . . . [T]he Constitution guarantees crimi-

nal defendants a meaningful opportunity to present a complete

defense. This right is abridged by evidence rules that

infring[e] upon a weighty interest of the accused and are

‘arbitrary’ or ‘disproportionate to the purposes they are

designed to serve.’ ” Holmes, 547 U.S. at 324-325 (citations

and quotations omitted, second alteration in original). See also

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (holding that

“an essential component of procedural fairness is an opportu-

nity to be heard”).

The central theme running through each of these cases is

the clearly established right that the Constitution guarantees

to a criminal defendant to present relevant and material wit-

nesses in his defense. These cases circumscribe the state’s

ability to infringe that right: a state may limit the defendant’s

evidence only when that limitation has a nonarbitrary pur-

pose(s) that is (are) proportionate to the corresponding

infringement upon the defendant. See, e.g., Chambers, 410

MOSES v. PAYNE 12813

U.S. at 295 (“the right to confront and to cross-examine is not

absolute . . . . But its denial or significant diminution calls

into question the ultimate ‘integrity of the fact-finding pro-

cess’ and requires that the competing interest be closely

examined.” (citations omitted)).3

Here, as the Washington Court of Appeals noted, Dr. Wil-

son’s testimony was excluded under a Washington evidenti-

ary rule governing admissibility of expert testimony, which

requires that 1) the witness is qualified as an expert, and 2)

the testimony would be helpful to the trier of fact. The state

appellate court determined that the trial court did not abuse its

discretion in determining that Dr. Wilson’s proffer failed the

3

The government’s citation to Carey v. Musladin, 127 S. Ct. 649 (2006),

to support its argument that the Washington state court’s adjudication was

not contrary to or an unreasonable application of clearly established fed-

eral law, does not avail it. In Musladin, the Supreme Court held that the

effect on a defendant’s fair-trial rights of courtroom spectator conduct was

an open question in its jurisprudence. Id. at 653. The Court reasoned that

it had clearly established the law in this general area only as to

government-sponsored practices, not as to spectator conduct. Id. By con-

trast, in the present case, the Supreme Court has clearly established the

applicable law, as outlined above.

Similarly, the majority’s reliance on Wright v. Van Patten, 128 S. Ct.

743 (2008), is unavailing. In Van Patten, the Supreme Court held that its

jurisprudence does not clearly hold that counsel’s participation in a plea

hearing “by speaker phone should be treated as a ‘complete denial of

counsel’ on par with total absence.” Id. at 746. The Court noted that it had

clearly established law regarding the finding of a Sixth Amendment viola-

tion without inquiring into counsel’s actual performance when “counsel is

either totally absent, or prevented from assisting the accused during a criti-

cal stage of the proceeding,” but not where counsel participates by speaker

phone.” Id. at 746.

Neither of these precedents sufficiently undermines our Circuit law so

as to allow the majority to disregard it in light of the standards set in Mil-

ler v. Gammie, 335 F.3d 889 (9th Cir. 2003). (“Issues decided by [the

Supreme Court] need not be identical in order to be controlling [in the

Ninth Circuit]. Rather, [the Supreme Court] ‘must have undercut the the-

ory or reasoning underlying the prior circuit precedent in such a way that

the cases are clearly irreconcilable.’ ”) Id. at 900.

12814 MOSES v. PAYNE

second prong. The court of appeals concluded that Dr. Wil-

son’s testimony added only that Jennifer had a minimally

greater chance of committing suicide than a person who had

not been diagnosed with major depression during the time

period in question, dismissing his remaining proffer as infor-

mation either that would already be introduced by other wit-

nesses or that was within the average juror’s common

knowledge.

The state evidentiary rule at issue is of the type that United

States Supreme Court precedent has contemplated to be a

valid exception to a defendant’s general right to present a

defense. See, e.g., Holmes, 547 U.S. at 326-27 (“. . . [W]ell-

established rules of evidence permit trial judges to exclude

evidence if its probative value is outweighed by certain other

factors such as unfair prejudice, confusion of the issues, or

potential to mislead the jury. Plainly referring to rules of this

type, we have stated that the Constitution permits judges ‘to

exclude evidence that is repetitive . . . , only marginally rele-

vant or poses an undue risk of harassment, prejudice, [or] con-

fusion of the issues.’ ” (citations and quotations omitted,

ellipsis and second brackets in original)). However, the fact

that the exclusion of evidence is grounded in familiar eviden-

tiary rules alone does not determine that such exclusion is

constitutionally permissible. It is one thing to limit the scope

of testimony, via evidentiary rulings, but it is another thing,

and of drastic consequence for Moses, for the state court to

have entirely excluded his important defense expert.

In Chambers, as discussed above, the Supreme Court con-

sidered and invalidated the state’s application of its hearsay

rules. The Court preliminarily noted, “The hearsay rule,

which has long been recognized and respected by virtually

every State, is based on experience and grounded in the

notion that untrustworthy evidence should not be presented to

the triers of fact.” Chambers, 410 U.S. at 298. Nonetheless,

the Court held that its application in that case was unconstitu-

tional: the Court admonished, “where constitutional rights

MOSES v. PAYNE 12815

directly affecting the ascertainment of guilt are implicated, the

hearsay rule may not be applied mechanistically to defeat the

ends of justice.” Id. at 302. The Court overturned the state’s

application of the hearsay rule in those circumstances, despite

the rule’s status as perhaps the most “respected [and most]

frequently applied [rule of evidence] in jury trials.” Id.

Despite the values served by the hearsay rule, it could not be

applied in a way that unreasonably denied the defendant his

right to present a defense.

To consider whether the rule permitting Moses to present

his defense was unreasonably applied requires placing the

exclusion of the defense expert testimony in context. First, it

should be recognized that as a general matter the presentation

of defense witnesses lies at the heart of the defendant’s right

to mount a defense. Washington, 388 U.S. at 19. Second, in

the context of Moses’s trial, whether his wife committed sui-

cide was critical. There was no question that she was shot in

the head. There was no question that Moses’s prints were on

the gun. There was no question that Jennifer suffered from

major depression and at times had had a suicidal ideation. The

issue was whether the jury should believe or reject Moses’s

story that his suicidal wife was attempting to kill herself when

he unsuccessfully intervened trying to stop her from making

the fatal shot. In a sense, we can never know for certain what

happened: Did Moses shoot her in cold blood and try to place

the blame on her previously expressed suicidal tendencies? Or

did she take her own life, ensnaring Moses in culpability

because he was there and tried to stop her? In our system of

justice, appellate judges must recognize that they can never

know for certain what were the underlying facts. Determina-

tion of those facts is in the province of the jury. But what we

must do is to ensure that the process by which the jury

receives the question is a fair one, so that we can have confi-

dence in its determination of criminal guilt beyond a reason-

able doubt.

12816 MOSES v. PAYNE

In my view, under the circumstances of Moses’s case,

application of Washington’s expert evidentiary rule unconsti-

tutionally denied Moses his right to present a defense to the

jury. To put the key issue a different way, did the state’s inter-

est in preventing what the trial judge perceived to be inadmis-

sible testimony under Washington evidentiary rules

constitutionally have to make way to Moses’s right to have

the jury hear Dr. Wilson’s testimony? To make such a deter-

mination in habeas cases, “we employ a balancing test for

determining whether the exclusion of testimony violates due

process.” Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir.

2003) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.

1985)).4 We must “weigh the probative value of the evidence,

its reliability, whether the trier of fact can evaluate the evi-

dence, whether the evidence is cumulative, and whether the

evidence proves integral to the defense theory” against the

state’s interest in excluding the evidence in order to evaluate

whether it was constitutionally excluded. Id. (citing Miller,

757 F.2d at 994).

Under this test, I conclude that the trial judge improperly

excluded the defense expert’s testimony. First, there is no

indication that the evidence was not reliable. To the contrary,

the trial court excluded the testimony based in part on its

assumption that the bulk of Dr. Wilson’s testimony was

within the average juror’s “common knowledge,” suggesting

that the evidence was in fact not only reliable but plausible.

Second, and for similar reasons, Dr. Wilson’s proposed testi-

mony was readily within the jury’s ability to evaluate. Dr.

Wilson would have presented no complicated or technical

issues for the jury to navigate but rather a straightforward,

expert assessment of, among other things, major depression

and suicide generally, the implications of a diagnosis with

major depression, and potential inconsistencies between the

4

Although Miller itself preceded enactment of AEDPA, we have applied

its test after AEDPA to determine what Supreme Court precedent requires.

See, e.g., Chia v. Cambra, 360 F.3d 997, 1003-04 (9th Cir. 2004).

MOSES v. PAYNE 12817

external appearances and the internal state of a depressed and/

or suicidal individual.

As for whether the testimony would have been cumulative,

as the Washington appellate court noted, the jury ultimately

heard much of the evidence concerning Jennifer’s recent treat-

ment history from either the different medical examiners

themselves or from an individual from the examiner’s records

office who read the contents of the medical file to the jury.

However, the jury did not hear the testimony Moses hoped to

offer through Dr. Wilson concerning: the unlikelihood that

Jennifer would have recovered from her major depression by

the time of her death; the higher likelihood that individuals

diagnosed with major depression, particularly with Jennifer’s

individual risk factors, have of committing suicide than indi-

viduals not so diagnosed; the possibility that a significantly

depressed person might successfully mask that depression to

his or her acquaintances; and the unlikelihood that those who

are not experts fully understand the ramifications and nature

of major depression. The jury also did not hear Dr. Wilson’s

analysis of other evidence of Jennifer’s emotional state, such

as her journal entries. Thus the jury did hear some of the

information that Dr. Wilson’s testimony would have encom-

passed, but it never heard substantial portions; the evidence

was only partially cumulative.

A defendant in a murder case has an interest in presenting

his defense points and themes through witnesses whose views

support the defense theory of the case and whose testimony

may be ordered in a way aimed at persuading the jury to a

conclusion of doubt. Here, if the state trial court had let the

defense expert testify, but had imposed some reasonable limit

on scope of his testimony, with the aim of managing trial time

and avoiding cumulative testimony, no significant constitu-

tional issue could be presented. But in my view what makes

the decision of the state trial court an unreasonable applica-

tion of Supreme Court precedent is the total exclusion of testi-

mony by a key defense expert witness in a murder case on a

12818 MOSES v. PAYNE

critical issue that could likely affect the verdict of the jury. Cf.

Boykins v. Wainwright, 737 F.2d 1539, 1544-45 (11th Cir.

1984) (noting that fundamental fairness is violated when the

evidence excluded is material as being crucial, critical, and a

highly significant factor in the defense, and concluding that

exclusion of defense witness’s testimony concerning defen-

dant’s mental health history violated fundamental fairness

when defendant’s sole defense at trial was insanity).

Although I understand the majority’s line of reasoning in

analysis, I am left with the conclusion that the expert Dr. Wil-

son’s testimony was critical to Moses’s case in the full con-

text presented. Moses had admitted not only to his presence

when Jennifer died, but that he was either reaching for the gun

or actually had his hand on it when it fired. Moses’s trial

boiled down to a determination of whether Moses killed Jen-

nifer with the requisite intent or whether Jennifer had commit-

ted suicide as Moses tried to stop her. Given this defense

theory, Dr. Wilson’s testimony was central to the defense’s

case. It was imperative that the jury fully understand not only

Jennifer’s history of major depression but also the nature,

attending implications, and occasionally-misleading external

appearance of major depression and suicidal tendencies gen-

erally. Moreover, Moses had an interest in presenting his

points of defense through Dr. Wilson who, in a coordinated

way, could put together the disparate pieces of the puzzle that

Jennifer’s mental health treatment providers, from whom the

jury heard portions of Jennifer’s medical records, had pre-

sented, and give an overview that would be helpful to the

jury’s understanding.

Dr. Wilson’s testimony in my view was of significant pro-

bative value. Dr. Wilson’s testimony was aimed at providing

framework and context to help the jury make sense of the

medical and psychological diagnoses that it heard from other

witnesses, to assess the plausibility that Jennifer had commit-

ted suicide. The trial judge based his dismissal of Dr. Wil-

son’s testimony in large part on his assessment that

MOSES v. PAYNE 12819

“depressed people are more likely to kill themselves than peo-

ple who are not depressed. I think the jury understands that,”

and a series of corresponding, reductive assessments that “ac-

cess to guns for people who are depressed is a bad thing . . . .

Drug and alcohol use makes the problem worse[,]” and so on.

Although the trial court thus reduced much of Dr. Wilson’s

testimony to being common knowledge, and though the spe-

cific statements that the trial judge made are indeed arguably

common knowledge, or at least common sense, an analysis of

Dr. Wilson’s proffered testimony reveals that those simplistic

propositions are an unfair characterization of the essence of

his testimony. The state trial court would have judged in a

more fair procedure if it had let the jury hear the defense’s

expert evidence and then make its own decision.

First, it is not without significance that one of the most cen-

tral points of Dr. Wilson’s testimony—as a renowned, indis-

putable expert in the field of psychiatry generally and

depression specifically—would have been to elaborate on

implications of major depression, including the extent to

which the reality of major depression in fact diverges from the

layperson’s impression. Elaboration on implications of a key

illness, and particularly a mental illness, is not in common

knowledge of all jurors.

Second, the trial court improperly discarded Dr. Wilson’s

proffered testimony about studies, concerning the increased

likelihood that a depressed person will commit suicide, that

are not within the jury members’ common knowledge. In his

offer of proof, Dr. Wilson had discussed, among other things,

empirical studies indicating that if one follows a group of peo-

ple who have major depression over their lifetime, about 15%

will kill themselves. Both the trial court and the Washington

Court of Appeals diminished this testimony to, in essence, an

indication that Jennifer had a 0.25% increased chance of com-

mitting suicide during the six-month period preceding her

death.

12820 MOSES v. PAYNE

There are flaws with this reasoning. First, this statement

and the trial judge’s comment, stated above, about depressed

people being more likely than non-depressed people to com-

mit suicide, both misunderstand the import of Dr. Wilson’s

testimony: his statement concerns the probability that a

depressed person will commit suicide over his/her lifetime,

not the extent to which a depressed person is more likely than

a non-depressed person to commit suicide. Second, the calcu-

lation falsely assumes a linear trajectory that is an inappropri-

ate inference from the statistics Dr. Wilson cites; that the

overall percent is 15% does not mean that one can mechanisti-

cally divide a depressed person’s life expectancy by a particu-

lar time frame to determine in any meaningful way the

chances of suicide during that time frame. The state trial court

missed the broader message: that people with major depres-

sion have a significant likelihood of committing suicide at

some point in their lives, and correspondingly, that the lives

of 15% of individuals with major depression end in suicide

(i.e., the statistic derives its import from a focus on the

depressed person’s death, not the life or its duration). Again,

the state trial court would have been on sounder ground to let

the jury assess the significance of the expert’s testimony,

rather than just suggesting it was obvious as well as de

minimis and excluding it. The issue was not whether a person

with major depression is more likely than other individuals to

commit suicide but rather the likelihood that a person with

major depression is going to commit suicide at all. To assess

that likelihood the jury would have benefitted from hearing

Dr. Wilson.

The trial court also excluded Dr. Wilson’s testimony on the

basis that he could not state, on a more probable than not

basis, that Jennifer committed suicide. However, no one who

was not a percipient witness could have done so definitively.

The case presented very little objective evidence of Jennifer’s

mental state in the weeks and days immediately preceding her

death. Yet this does not render Dr. Wilson’s testimony any

less essential to the jury’s complete picture of Moses’s case.

MOSES v. PAYNE 12821

Given the dearth of psychological evidence one way or

another, Dr. Wilson’s testimony about the implications of

major depression and the unlikelihood of Jennifer’s recovery

was pivotal to Moses’s case and all the more constitutionally

protected.

Moses’s only defense was that Jennifer had committed sui-

cide. It was essential that the jury understand major depres-

sion in conjunction with Jennifer’s history. Exclusion of Dr.

Wilson’s testimony handicapped Moses’s ability to impart

such an understanding. Stated another way, the defense did

not get a fair shot to present its defense theory through expert

testimony.

By contrast, the state’s interest in wholly excluding Dr.

Wilson’s testimony in this instance was minimal. The trial

judge noted that the jury would already know that there were

firearms in the Moses home and would hear evidence of Jen-

nifer’s various recent medical and psychological treatments.

The trial court summarized the state’s interest, in effect, as

follows: “the expert witness testimony . . . would be a waste

of time. It poses a risk of confusion for the jury and brings us

far too far afield of the issues relevant in this case.” However,

Moses offered Dr. Wilson’s testimony so that the depression

expert could testify on issues at the very heart of Moses’s

trial: the likelihood or plausibility that Jennifer had committed

suicide and the likelihood that other individuals—Jennifer’s

acquaintances and the jury alike—would misunderstand the

appearance and ramifications of a “major depression” diagno-

sis without the insight his testimony would provide. Dr. Wil-

son’s testimony cannot fairly be characterized either as a

waste of time or as “too far afield.” Dr. Wilson was indisputa-

bly competent to give his views on depression, and it strains

imagination to suggest that his views would have been a time

waste and not a help to a jury charged with determining the

fate of Moses.

Further, contrary to the trial court’s suggestion, the subject

matter posed no likelihood of confusing the jury. Indeed, the

12822 MOSES v. PAYNE

trial court’s statement on the one hand that Dr. Wilson’s testi-

mony was, in essence, “common knowledge” is at odds with

its subsequent statement, on the other hand, that the testimony

poses a risk of jury confusion. And any minimal, potential

risk for confusion could have been contained by simple, clari-

fying cross examination. As for the potential for some aspects

of Dr. Wilson’s testimony to be cumulative of points estab-

lished by testimony from other witnesses, or from documen-

tary sources, a reasonable solution, in light of the fact that Dr.

Wilson’s testimony added some additional perspectives about

the nature of depression and possibilities of recovering from

it, would have been to permit Dr. Wilson’s testimony, but to

draw reasonable lines or limits on its scope.

The state’s interest in excluding Dr. Wilson’s testimony

was minimal when weighed against Moses’s substantial inter-

est in having the jury hear it, given its centrality to his sole

theory of defense. Exclusion of the testimony not only inhib-

ited the jury’s ability to have a clearer picture of the case

before it, but it denied Moses his clearly established constitu-

tional right to present a defense to the jury. Just as the

Supreme Court in Chambers held that existing constitutional

principles determined that the evidence exclusion deprived

the defendant of his right to present a defense, here it was an

objectively unreasonable application of Washington for the

trial court to exclude Dr. Wilson’s testimony and for the court

of appeals to affirm.

Finally, I cannot say that the exclusion of Dr. Wilson’s tes-

timony did not have a “substantial and injurious effect” on the

jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623

(1993). Dr. Wilson’s testimony was important to the jury’s

ability fully to assess the ramifications not only of major

depression generally but of Jennifer’s specific past, including

her various diagnoses. Given the centrality of this testimony

to Moses’s sole theory of defense, I am in “grave doubt” as

to the error’s effect, and thus cannot deem the error harmless.

See O’Neal v. McAninch, 513 U.S. 432, 436-37 (1995). The

MOSES v. PAYNE 12823

error significantly hampered Moses’s ability to present a com-

plete and accurate picture of Jennifer’s mental state at the

time of death and its implications for her likely cause of

death, and I cannot say that it was not likely to have a sub-

stantial and injurious effect on the jury verdict.

Even if the majority were right that we should not apply the

balancing test of Miller v. Stagner, I would not view this case

in an “open area” where habeas relief is unwarranted. Even

without applying a balancing test, I reach the same conclusion

simply by recourse to what the Supreme Court said in Wash-

ington and its related cases. Our Miller case merely shows a

rational way to assess considerations that are pertinent under

the Supreme Court’s precedent. This balancing test does not

impose a new standard of circuit-made law upon the states.

Here, the presentation of a key defense witness was excluded,

and Moses did not get the opportunity to fairly present his

defense theory.

I reluctantly conclude that Moses was unduly constricted in

presenting his defense and thereby did not receive a fair trial.

The Supreme Court’s Washington decision and related cases

are ample precedent to give relief. The case presents a ques-

tion of high concern because if Moses’s wife committed sui-

cide, then an innocent man is in prison. As noted earlier in

such a case we can never be absolutely certain of what truly

occurred, and in our system of criminal justice we must rest

on the jury’s decision when it has been fully and fairly

advised of the defense’s position. Doubtless, the trial court

could have limited and circumscribed the scope of testimony

from Moses’s expert, but to totally preclude that expert wit-

ness from testifying is for me a step drastically too far in a

murder case where possible suicide was the critical issue and

the deceased had a history of severe depression.

The way the majority reads Musladin and Van Patten

would go pretty far in depriving anyone habeas relief who

does not have a case identical to one the Supreme Court has

12824 MOSES v. PAYNE

already decided. To take that approach reflects an incorrect

judgment that may limit the efficacy of habeas relief, an

approach particularly ironic in light of the Supreme Court’s

recent tribute to habeas jurisdiction in Boumediene v. Bush,

128 S.Ct. 2229 (2008).

I would therefore reverse the district court’s order denying

Moses’s petition for a writ of habeas corpus, and remand the

case with instructions to grant the writ and to order the pris-

oner released absent retrial within a specified period. Thus, I

respectfully dissent.