Opinion

Moses v. Payne

Court: Court of Appeals for the Ninth Circuit
Filed: Jan 30, 2009
Status: Published
Nature of suit: Prisoner
Cited by: 0 cases
Authority: More cited than 40.9%

explaining that the right to compulsory process would be meaningless if the defendant lacked the right to use the witnesses whose presence he compelled

How later courts described this case

explaining that the right to compulsory process would be meaningless if the defendant lacked the right to use the witnesses whose presence he compelled
“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)
“[Section] 2254(d)(1) renders decisions by lower courts non- dispositive for habeas appeals.”
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

Written by the judges who cited it.

The opinion

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JEFFREY DUANE MOSES,  No. 07-35468

Petitioner-Appellant, D.C. No.

 CV-06-01105-MJP

ALICE PAYNE, ORDER AND

Respondent-Appellee. AMENDED

 OPINION

Appeal from the United States District Court

for the Western District of Washington

Marsha J. Pechman, District Judge, Presiding

Argued and Submitted

February 4, 2008—Seattle, Washington

Filed September 15, 2008

Amended January 30, 2009

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

Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;

Dissent by Judge Gould

1077

MOSES v. PAYNE 1081

COUNSEL

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

appellant.

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

ington, for the respondent-appellee.

ORDER

The opinion and dissent filed September 15, 2008 are

hereby amended. A majority of the panel has voted to deny

the petition for rehearing; Judge Gould votes to grant the peti-

tion for rehearing. The petition for rehearing en banc is still

pending, pursuant to General Order 5.4(b). The parties may

file new petitions for rehearing and rehearing en banc as to

1082 MOSES v. PAYNE

this amended opinion, in accordance with the Federal Rules

of Appellate Procedure.

OPINION

IKUTA, Circuit Judge:

A Washington state jury convicted Jeffrey Moses of second

degree murder for the shooting death of his wife, Jennifer

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

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

corpus. Moses contends that his federal constitutional rights

were violated by several evidentiary decisions made by the

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

experts from testifying. Moses maintains that he is entitled to

habeas relief because the Washington appellate court’s deci-

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

unreasonable application of, clearly established Federal law,

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

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

court’s decision passes muster under the “highly deferential

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

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

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

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

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

appellate court’s decision1:

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

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

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

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

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

MOSES v. PAYNE 1083

In the early morning of September 27, 2002,

Moses’ mother, who lived in California, called the

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

Moses was dead. The police found Moses on the

street outside his house, drinking beer, and carrying

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

asleep in the house. According to Moses, Jennifer

shot herself and committed suicide. When the offi-

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

unnecessary because he had cleaned everything up.

Police found Jennifer wrapped in a rug in the garage,

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

nifer had a gunshot wound to her head, blunt force

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

gauge derringer used in Jennifer’s death was found

in the master bedroom. The derringer had been

recently cleaned and was loaded with two unspent

shells. When questioned, Moses told police Jennifer

had been depressed and that she came downstairs

that evening with the derringer, knelt down and shot

herself in the head while Moses tried to get the gun

away from her. Moses said he moved Jennifer’s

body to the garage to prevent their sons from seeing

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

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

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

said he abandoned the attempt to move Jennifer’s

body.

Following this incident, the state charged Moses with first

degree murder and unlawful possession of a firearm. The

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

ally shot Jennifer Moses during a domestic dispute. In support

of this theory, the prosecution introduced testimony from sev-

eral witnesses.

Among these witnesses was Dr. Richard Harruff, a medical

examiner, who testified that Jennifer Moses had died from a

1084 MOSES v. PAYNE

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

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

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

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

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

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

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

also stated that a toxicology screen performed during Jennifer

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

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

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

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

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

standard, signifying the “likelihood of another person’s

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

ruff, the principal reason a medical examiner would certify a

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

icate. Dr. Harruff testified:

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

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

ence and my professional responsibility, indicates

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

potential of criminal activity. That’s my responsibil-

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

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

clusion as to whether this represents a murder or not.

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

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

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

sonable doubt.

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

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

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

MOSES v. PAYNE 1085

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

ments in Jennifer Moses’s diary.

During cross-examination, the defense elicited testimony

from Dr. Harruff that “individuals who have difficulty with

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

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

intoxication and access to firearms are both risk factors for

suicide.

The government also called Evan Thompson, a ballistics

examiner for the Washington State Patrol Crime Laboratory.

Like Dr. Harruff, Thompson testified about the ballistics

implications of Jennifer Moses’s wound. Basing his analysis

on the same objective factors considered by Dr. Harruff,

Thompson concluded that Jennifer Moses’s death was more

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

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

fer Moses. Like Dr. Harruff, Thompson concluded that

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

The trial court also allowed testimony concerning a prior

incident of domestic violence between Moses and Jennifer

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

months before Jennifer Moses died. This incident resulted in

Jennifer Moses going to the hospital along with her children,

and several witnesses affiliated with the hospital testified to

the events that followed.

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

fied that he interviewed and examined Jennifer Moses in a

medical exam room shortly after the November 2001 incident

in order to provide treatment, and observed that Jennifer

Moses displayed physical signs of fear and anxiety during the

examination. In order to assess and understand her level of

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

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

that Moses assaulted her and broke her jaw.

1086 MOSES v. PAYNE

The hospital social worker, Tamara Muller, testified that

she interviewed Jennifer Moses’s children while Jennifer

Moses was under sedation, and then interviewed Jennifer

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

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

Child Protective Services (CPS). Muller subsequently inter-

viewed Jennifer Moses, who identified Moses as the assailant

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

ler told Jennifer Moses that she had contacted CPS.

Muller also gave more general testimony based on her

experiences as a domestic violence counselor. Specifically,

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

violence to leave their abusive situation immediately. The rea-

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

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

the prosecution’s theory that Jennifer Moses was attempting

to leave Moses on or around the night she died.

Finally, the court allowed the government to introduce evi-

dence drawn from Jennifer Moses’s journals. Jennifer Moses

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

posted online. The government principally relied on the

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

lish the abusive relationship between Jennifer Moses and

Moses. When the government sought to introduce evidence

from the online journal, the defense countered that the trial

court should also admit the handwritten journal, which

included several statements indicating that Jennifer Moses

was suffering from depression and had thoughts of suicide.

The trial court decided to include entries from both journals

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

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

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

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

exclude some handwritten journal entries for days on which

MOSES v. PAYNE 1087

Jennifer Moses had also posted an online journal entry. The

trial court explained its decision as follows:

The electronic journal, which covers a time,

although it overlaps with the written journal, closer

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

tion in each entry which describes her state of mind

that day or mood and some description of how she

was feeling. I did find that it was relevant regarding

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

sarily have such statements as to her state of mind.

And I believe the entire journal is cumbersome and

that we do not need the entire journal admitted into

evidence.

Moses objected to this decision, arguing that the court was

excluding important evidence regarding Jennifer Moses’s

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

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

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

committed suicide. In support of this theory, the defense

introduced evidence from several witnesses to show that Jen-

nifer Moses suffered from depression and had thoughts of sui-

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

The jury heard testimony from four of Jennifer Moses’s

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

defense called Dr. William Dickinson, a doctor associated

with the Valley General Hospital where Jennifer Moses had

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

son testified that Jennifer Moses suffered from major depres-

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

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

dependency professional who also worked for Valley General

Hospital. Perry testified to Jennifer Moses’s depression,

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

defense called Barbara Alexander, a mental health counselor

1088 MOSES v. PAYNE

who treated Jennifer Moses from January 2002 through

March 2002 at the Hall Health Center of the University of

Washington. Alexander testified that she diagnosed Jennifer

Moses with major depression. Alexander also testified that

major depression can be a life-threatening illness and that

people who suffer from major depression tend not to improve

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

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

ginia Mason Medical Center. Jennifer Moses received treat-

ment at the Virginia Mason center from April 2002 to August

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

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

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

mony indicated that Jennifer Moses continued to suffer from

depression and abuse alcohol and cocaine during the spring

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

indicated that Jennifer Moses had experienced suicidal

thoughts.

The defense then sought to introduce testimony from Dr.

Lawrence Wilson, an expert on depression. In a preliminary

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

explained that he was prepared to testify regarding the nature

of Jennifer Moses’s depression and substance abuse, the

unlikelihood that Jennifer Moses’s depression would have

resolved itself before the date Jennifer Moses died, and the

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

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

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

Jennifer Moses was not visibly depressed in the final months

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

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

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

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

fully understand the implications of major depression and the

connection between these various risk factors and suicide. Dr.

Wilson explained to the court that he based his opinions on

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

MOSES v. PAYNE 1089

and interviews with Moses and one of Jennifer Moses’s

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

Jennifer Moses committed suicide, he was prepared to testify

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

extreme number of severe and significant risk factors for sui-

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

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

After hearing argument from both sides, the trial court

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

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

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

drugs and alcohol, and have access to firearms experience a

relatively higher risk of suicide was already within common

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

testimony was cumulative in light of the other evidence intro-

duced by the defense establishing that Jennifer Moses was

undergoing treatment for substance abuse, suffered from

depression, experienced suicidal thoughts, and had a gun in

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

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

nosed with major depression will take their own life at some

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

weigh its prejudicial effects and potential to confuse the jury.

Finally, the defense sought to introduce a photograph of

Jennifer Moses’s unclothed and emaciated body taken prior to

her autopsy in order to show that Jennifer Moses experienced

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

the photo inadmissible, concluding that the probative value of

the photograph was outweighed by its prejudicial effect on the

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

loss, including testimony and photos, had been provided to

the jury.

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

Moses was also convicted on the unlawful possession of a firearm

charge following a bench trial.

1090 MOSES v. PAYNE

trial court then sentenced Moses to 420 months of incarcera-

tion. Moses appealed his conviction and sentence to the

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

appellate court affirmed Moses’s conviction in a reasoned

opinion, but vacated his sentence and remanded for re-

sentencing. Moses then appealed his conviction to the

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

Supreme Court of Washington summarily denied Moses’s

petition for review.

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

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

trate judge recommended denying Moses’s petition, and on

April 10, 2007, the district court adopted the magistrate

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

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

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

of appealability on all issues.

On appeal, Moses contends that the district court erred in

denying his habeas petition. Moses maintains that the state

court’s evidentiary decisions deprived him of rights secured

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

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

sonable application of, clearly established Federal law, as

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

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

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

and Tamara Muller violated Moses’s Sixth Amendment right

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

the autopsy photograph of Jennifer Moses’s unclothed body,

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

nal denied Moses his constitutional right to present his

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

Harruff, Evan Thompson, and Tamara Muller improperly

intruded upon the jury’s constitutionally mandated role,

thereby depriving Moses of a fair trial.

MOSES v. PAYNE 1091

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

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

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

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

governed by the Antiterrorism and Effective Death Penalty

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

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

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

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

adjudicated on the merits in a state court proceeding unless

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

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

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

unreasonable determination of the facts in light of the evi-

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

§ 2254(d)(1), (2).

The “contrary to” and “unreasonable application of”

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

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

state court decision is ‘contrary to’ clearly established

Supreme Court precedent if the state court applies a rule that

contradicts the governing law set forth in Supreme Court

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

indistinguishable from those at issue in a decision of the

Supreme Court and, nevertheless, arrives at a result different

from its precedent.” Lambert, 393 F.3d at 974. “[U]nder the

‘unreasonable application’ clause, a federal habeas court may

grant the writ if the state court identifies the correct governing

legal principle from [the Supreme] Court’s decisions but

unreasonably applies that principle to the facts of the prison-

er’s case.” Andrade, 538 U.S. at 75 (internal quotation marks

and alterations omitted). “The ‘unreasonable application’

clause requires the state court decision to be more than incor-

rect or erroneous. The state court’s application of clearly

1092 MOSES v. PAYNE

established law must be objectively unreasonable.” Id. (cita-

tions omitted).

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

governing legal principle or principles set forth by the

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

sion.” Id. at 71-72 (internal quotation marks omitted). In a

series of recent cases, the Supreme Court has provided addi-

tional guidance regarding when its precedent constitutes the

“correct governing legal principle,” Andrade, 538 U.S. at 75,

for the case before the state court, and thus is “clearly estab-

lished federal law” for purposes of § 2254(d)(1).

In Panetti v. Quarterman, the Supreme Court determined

that a previously established legal principle extended to the

facts before the state court, even though the facts were not

identical to those of the underlying Supreme Court decision.

See 127 S.Ct. 2842, 2858 (2007). The Court considered the

habeas petition of a death row inmate who challenged his exe-

cution on the ground that he was mentally incompetent. Id.

The petitioner requested a competency hearing that would

meet the requirements of Ford v. Wainwright, 477 U.S. 399

(1986), but the state court rejected his request. The federal

district court denied the petitioner’s habeas petition, and the

Fifth Circuit affirmed the decision of the district court. The

Supreme Court held that Justice Powell’s concurring opinion

in Ford “constitute[d] clearly established law for purposes of

§ 2254,” Panetti, 127 S.Ct. at 2856 (internal quotation marks

omitted), and that it established the following legal principle:

“Once a prisoner seeking a stay of execution has made ‘a sub-

stantial threshold showing of insanity,’ the protection afforded

by procedural due process includes a ‘fair hearing’ in accord

with fundamental fairness.” Id. Although Justice Powell did

not specify the procedures required by the Constitution, they

included certain “basic requirements” of due process. Id.

The Court held that the legal principle established by Ford

was applicable to the situation in Panetti even though the

facts in that case were not identical to those in Ford:

MOSES v. PAYNE 1093

AEDPA does not require state and federal courts to

wait for some nearly identical factual pattern before

a legal rule must be applied. Nor does AEDPA pro-

hibit a federal court from finding an application of a

principle unreasonable when it involves a set of facts

different from those of the case in which the princi-

ple was announced. The statute recognizes, to the

contrary, that even a general standard may be

applied in an unreasonable manner.

Id. at 2858 (internal quotation marks and citations omitted).

The Court concluded that under a reasonable application of

the Ford standard, the petitioner in Panetti was entitled to the

procedural protections enunciated in Ford. The Court further

concluded that the state court had adopted procedures that did

not meet this standard. Due to the state court’s unreasonable

application of Ford, the Court held that AEDPA deference

was not applicable. Id. at 2859.

In Panetti, the legal principle established by Ford was

directly applicable to the habeas petitioner’s case, and there-

fore the state court was bound to apply it, regardless of the

difference in factual patterns between Ford and Panetti. How-

ever, in other cases, the Court has instructed that a legal prin-

ciple established by a Supreme Court decision is not the

“correct governing legal principle,” Andrade, 538 U.S. at 75,

for the case before the state court, and thus not clearly estab-

lished precedent for purposes of § 2254(d)(1), if a court must

modify that principle in order to apply it to a case. See Wright

v. Van Patten, 128 S.Ct. 743, 746-47 (2008); see also Carey

v. Musladin, 549 U.S. 70, 76-77 (2006). In Musladin, a

habeas petitioner argued that the conduct of the murder vic-

tim’s family, who wore buttons with a photo of the victim

during the defendant’s trial, deprived him of his Sixth

Amendment right to a fair trial. The state court rejected this

argument. On appeal to this court, we held that the state court

unreasonably applied clearly established Supreme Court pre-

cedent. Musladin v. Lamarque, 427 F.3d 653, 659-60 (9th Cir.

1094 MOSES v. PAYNE

2005), rev’d by Carey v. Musladin, 549 U.S. 70 (2006). In

reaching this determination, we relied on Estelle v. Williams,

425 U.S. 501, 512 (1976), which held that “the State cannot,

consistently with the Fourteenth Amendment, compel an

accused to stand trial before a jury while dressed in identifi-

able prison clothes,” and Holbrook v. Flynn, 475 U.S. 560,

571 (1986), which held that the presence of four uniformed

state troopers sitting behind the defendants at trial “was not so

inherently prejudicial that it denied the defendant a fair trial.”

We held that these cases clearly established the legal principle

that “certain practices attendant to the conduct of a trial can

create such an unacceptable risk of impermissible factors

coming into play, as to be inherently prejudicial to a criminal

defendant,” and held that the family members’ buttons had

created such inherent prejudice. Musladin, 427 F.3d at 656

(internal quotation marks omitted).

The Supreme Court rejected our reasoning because “[b]oth

Williams and Flynn dealt with government-sponsored prac-

tices,” and “the effect on a defendant’s fair-trial rights of the

spectator conduct to which Musladin objects is an open ques-

tion in our jurisprudence.” Musladin, 549 U.S. at 76. As the

Court later explained, the “inherent prejudice test [from Wil-

liams and Flynn], which we thus far have applied only in

cases involving government-sponsored conduct, did not

clearly extend to the conduct of independently acting court-

room spectators.” Van Patten, 128 S.Ct. at 745 (explaining

Musladin) (internal citations, alterations, and quotation marks

omitted). Accordingly, the Court concluded that the state

court’s rejection of Musladin’s claim “was not contrary to or

an unreasonable application of clearly established federal

law.” Musladin, 549 U.S. at 77.

Van Patten, the most recent Supreme Court case on this

issue, followed the reasoning in Musladin. In Van Patten, a

defendant claimed a violation of his Sixth Amendment right

to effective assistance of counsel because his counsel had par-

ticipated in a plea hearing by conference call, rather than in

MOSES v. PAYNE 1095

person. The state court rejected this argument because the

attorney’s performance had been neither deficient nor prejudi-

cial under Strickland v. Washington, 466 U.S. 668 (1984).

The Seventh Circuit, however, held that the state court erred

in applying Strickland, and that it should have instead applied

United States v. Cronic, 466 U.S. 648 (1984), which estab-

lished the rule that “a presumption of prejudice is appropriate

without inquiry into the actual conduct of the trial” in circum-

stances where there was only a small “likelihood that any law-

yer, even a fully competent one, could provide effective

assistance.” Van Patten, 128 S.Ct. at 746 (internal quotation

marks omitted). Because the Seventh Circuit concluded that

Cronic was applicable instead of Strickland, the state court’s

failure to apply Cronic was contrary to clearly established

federal law. But the Supreme Court reversed, explaining: “No

decision of this Court . . . squarely addresses the issue in this

case . . . or clearly establishes that Cronic should replace Str-

ickland in this novel factual context. Our precedents do not

clearly hold that counsel’s participation by speaker phone

should be treated as a complete denial of counsel, on par with

total absence.” Id. at 746 (internal quotation marks omitted).

The Court concluded that “[b]ecause our cases give no clear

answer to the question presented, let alone one in Van Pat-

ten’s favor, it cannot be said that the state court ‘unreasonably

applied clearly established Federal law.’ ” Id. at 747 (quoting

Musladin, 549 U.S. at 77) (alterations omitted).

This series of cases tells us that in order to determine

whether a state court failed to apply “clearly established Fed-

eral law, as determined by the Supreme Court” for purposes

of § 2254(d)(1), we must distinguish between situations

where a legal principle established by a Supreme Court deci-

sion clearly extends to a new factual context (as in Panetti)

and where it does not (as in Musladin and Van Patten). When

engaging in this line-drawing exercise, we have noted that a

state court must apply legal principles established by a

Supreme Court decision when the case “falls squarely within”

those principles, but not in cases where there is a “structural

1096 MOSES v. PAYNE

difference” between the prior precedent and the case at issue,

or when the prior precedent requires “tailoring or modifica-

tion” to apply to the new situation. Smith v. Patrick, 508 F.3d

1256, 1259-60 (9th Cir. 2007). We have acknowledged that

this series of Supreme Court cases “underscores that

§ 2254(d)(1) tightly circumscribes the granting of habeas

relief.” Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir.

2007).

In light of Musladin, Panetti, and Van Patten, we conclude

that when a Supreme Court decision does not “squarely

address[ ] the issue in th[e] case” or establish a legal principle

that “clearly extend[s]” to a new context to the extent required

by the Supreme Court in these recent decisions, Van Patten,

128 S.Ct. at 746, 745, it cannot be said, under AEDPA, there

is “clearly established” Supreme Court precedent addressing

the issue before us, and so we must defer to the state court’s

decision. If the Court’s decisions do provide a “controlling

legal standard,” Panetti, 127 S.Ct. at 2858, that is applicable

to the claims raised by a habeas petitioner without “tailoring

or modification” of the standard, Patrick, 508 F.3d at 1260,

the question is then whether the application of that standard

was objectively unreasonable, even if the facts of the case at

issue are not identical to the Supreme Court precedent. See

Panetti, 127 S.Ct. at 2858. It is from this starting point that

we address Moses’s petition for habeas relief.

III

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

statements made by Jennifer Moses and her son to Dr. Apple-

ton and Tamara Muller regarding the November 2001 incident

of domestic violence violated his Sixth Amendment right to

confront the witnesses against him. The state court rejected

this claim, holding that the statements made to Dr. Appleton

and Tamara Muller were not testimonial under Crawford v.

Washington, 541 U.S. 36 (2004), and therefore did not impli-

cate the Confrontation Clause.

MOSES v. PAYNE 1097

[1] The Sixth Amendment’s Confrontation Clause provides

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

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

In Crawford, the Supreme Court held that the Confrontation

Clause gives criminal defendants the right to confront wit-

nesses who make testimonial statements at trial, unless the

witness was unavailable to testify and the defendant had a

prior opportunity for cross examination. 541 U.S. at 53-54. In

contrast, non-testimonial statements do not implicate the Con-

frontation Clause. See Whorton v. Bockting, 127 S.Ct. 1173,

1183 (2007) (explaining Crawford).

Although Crawford did not offer a precise definition of tes-

timonial evidence, the Court offered various formulations of

the core class of testimonial statements, noting that

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

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

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

51-52, 68; see also Davis v. Washington, 547 U.S. 813, 822

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

made during a police interrogation are testimonial for pur-

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

ing the difference between testimonial and non-testimonial

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

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

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

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

[2] The state court applied Crawford, the correct legal rule.

Because the court did not arrive at a result different from the

result reached by the Supreme Court in an indistinguishable

case, we conclude that the state appellate court’s decision was

not “contrary to” clearly established Supreme Court precedent

under 28 U.S.C. § 2254(d)(1). See Andrade, 538 U.S. at 73.

Nor did the state appellate court’s adjudication of Moses’s

Confrontation Clause claim involve an “unreasonable applica-

tion of” Crawford.3 28 U.S.C. § 2254(d)(1). In considering

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

ing that Moses forfeited his Confrontation Clause rights by killing Jennifer

1098 MOSES v. PAYNE

Dr. Appleton’s testimony regarding Jennifer Moses’s out-of-

court statements, the state appellate court correctly noted that

although Crawford did not provide a “precise articulation” or

comprehensive definition of testimony, it did provide the

appropriate legal framework for analyzing whether statements

were testimonial. Applying state-law precedents interpreting

Crawford, the state appellate court concluded that Jennifer

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

because they were made for purposes of diagnosis and treat-

ment, rather than to inculpate Moses. We conclude this is not

an unreasonable application of the legal principle established

by Crawford.

The state appellate court next determined that Jennifer

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

ment were not testimonial under Crawford until Muller

informed Jennifer Moses that she had contacted the CPS. The

court concluded that because Muller’s statement notified Jen-

nifer Moses of possible legal consequences to her discussion

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

quent remarks were testimonial and the trial court erred in

admitting them. Nonetheless, the state appellate court con-

cluded that this error was harmless beyond a reasonable doubt

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

other, untainted evidence identifying Moses as the assailant in

the November 2001 assault.

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

court was correct in concluding that the trial court committed

constitutional error in admitting Jennifer Moses’s statements

after Muller informed her that CPS had been contacted, we

must consider whether such constitutional error had a “sub-

stantial and injurious effect or influence in determining the

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

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

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

MOSES v. PAYNE 1099

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

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

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

whelming evidence that Moses caused Jennifer Moses’s inju-

ries during the November 2001 incident, including the

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

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

ment handwritten by Moses admitting to the assault. There-

fore, because any constitutional error involved in admitting

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

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

S.Ct. at 2327.

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

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

ler. These statements were introduced at trial when the

prosecutor asked Muller why she had contacted CPS. Muller

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

his father had kicked his mother, Muller had a mandatory

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

concluded that the government did not introduce this testi-

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

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

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

Court noted that the Confrontation Clause “does not bar the

use of testimonial statements for purposes other than estab-

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

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

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

Crawford and does not meet the criteria for habeas relief

under 28 U.S.C. § 2254(d)(1).

Moses next maintains that he is entitled to habeas relief

because the trial court denied him the opportunity to present

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

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

1100 MOSES v. PAYNE

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

Jennifer Moses’s autopsy photograph.4

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

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

lative and because the non-cumulative portion of his proposed

testimony was not sufficiently probative to outweigh its likely

prejudicial and confusing effects on the jury. This analysis

was undertaken under the governing Washington evidentiary

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

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

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

1999) (internal quotation marks omitted) (explaining that

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

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

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.

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

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

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

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

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

MOSES v. PAYNE 1101

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

concerns matters beyond the common knowledge of the aver-

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

Moses asserts that the state appellate court’s decision is

contrary to the Supreme Court’s precedents holding that

defendants have a constitutional right to present relevant evi-

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

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

defendants a meaningful opportunity to present a complete

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

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

defense stems both from the right to due process provided by

the Fourteenth Amendment, see Chambers v. Mississippi, 410

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

process for obtaining witnesses in his favor” provided by the

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

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

be meaningless if the defendant lacked the right to use the

witnesses whose presence he compelled).

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

dence is not unlimited, but rather is subject to reasonable

restrictions,” such as evidentiary and procedural rules. United

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

and federal rulemakers have broad latitude under the Consti-

tution to establish rules excluding evidence from criminal tri-

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

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

to exclude evidence if its probative value is outweighed by

certain other factors such as unfair prejudice, confusion of the

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

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

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

upon a weighty interest of the accused and are arbitrary or

disproportionate to the purposes they are designed to serve.”

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

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

1102 MOSES v. PAYNE

the exclusion of evidence pursuant to a state evidentiary rule

is unconstitutional only where it “significantly undermined

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

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

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

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

The Supreme Court has explained these principles in cases

where defendants have argued that state evidentiary rules, by

their own terms, impinge upon their constitutional right to

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

cluded that a defendant’s constitutional rights were violated

by an evidentiary rule that prevented the defendant from pre-

senting evidence that a third party had committed the crime

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

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

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

dence that has only a very weak logical connection to the

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

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

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

ters she remembered before her memory had been hypnoti-

cally refreshed because it was “an arbitrary restriction on the

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

repudiating the validity of all posthypnosis recollections.”

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

tiary rule that precluded an alleged accomplice of the defen-

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

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

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

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

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

constitutional violation where a state evidentiary rule pre-

cluded a defendant from introducing any evidence relating to

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

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

lated when the combined effect of two state rules of evidence

precluded him from effectively impeaching a witness whom

MOSES v. PAYNE 1103

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

Supreme Court has upheld an evidentiary rule that excluded

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

cate any significant interest of the accused” and because it

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

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

[7] The Supreme Court has not squarely addressed the

question whether Rule 702, the rule of evidence relied upon

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

dentiary rule requiring a trial court to balance factors and

exercise its discretion, “infring[es] upon a weighty interest of

the accused” and is “arbitrary or disproportionate to the pur-

poses [it is] designed to serve.” Scheffer, 523 U.S. at 308

(internal quotation marks omitted). Rather, as a “well-

established rule[ ] of evidence” that permits a court to exer-

cise its discretion in admitting expert testimony when rele-

vant, Rule 702 is more analogous to those evidentiary rules

described with approval in Holmes. See 547 U.S. at 326

(“While the Constitution . . . prohibits the exclusion of

defense evidence under rules that serve no legitimate purpose

or that are disproportionate to the ends that they are asserted

to promote, well-established rules of evidence permit trial

judges to exclude evidence if its probative value is out-

weighed by certain other factors such as unfair prejudice, con-

fusion of the issues, or potential to mislead the jury.”).

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

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

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

court to exclude crucial evidence that had a critical effect on

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

rules precluded a defendant from testifying, excluded testi-

mony from key percipient witnesses, or excluded the intro-

duction of all evidence relating to a crucial defense. In

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

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

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

1104 MOSES v. PAYNE

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

quotation marks omitted). Accordingly, a decision that Rule

702 itself is constitutional would be consistent with Supreme

Court precedent.

[9] Because Moses could not successfully argue that Rule

702 by its terms infringed his constitutional right to present

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

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

to exclude expert testimony. As noted above, the Supreme

Court’s cases have focused only on whether an evidentiary

rule, by its own terms, violated a defendant’s right to present

evidence. These cases do not squarely address whether a

court’s exercise of discretion to exclude expert testimony vio-

lates a criminal defendant’s constitutional right to present rel-

evant evidence. See Van Patten, 128 S.Ct. at 746. Nor do they

clearly establish “a controlling legal standard” for evaluating

discretionary decisions to exclude the kind of evidence at

issue here. See Panetti, 127 S.Ct. at 2858. Therefore, the state

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

of discretion to exclude expert testimony under Rule 702 did

not violate Moses’s constitutional rights cannot be contrary to

or an unreasonable application of clearly established Supreme

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

127 S.Ct. at 2858; Musladin, 549 U.S. at 76; cf. Patrick, 508

F.3d at 1260.

[10] Although the Supreme Court has not addressed this

issue, several of our prior decisions considered whether a trial

court’s discretionary determination to exclude evidence vio-

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

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

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

exclude evidence under an otherwise valid evidentiary rule

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

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

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

MOSES v. PAYNE 1105

In a habeas proceeding, determining whether the

exclusion of evidence in the trial court violated peti-

tioner’s due process rights involves a balancing test.

In weighing the importance of evidence offered by

a defendant against the state’s interest in exclusion,

the court should consider [1] the probative value of

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

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

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

or merely cumulative; and [5] whether it constitutes

a major part of the attempted defense.

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

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

Cir. 2003).

The dissent relies on this balancing test as part of its

AEDPA analysis of the state appellate court’s decision to

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

at 1120-21. For purposes of AEDPA analysis, however,

[T]he only definitive source of clearly established

federal law under AEDPA is the holdings (as

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

time of the state court decision. While circuit law

may be “persuasive authority” for purposes of deter-

mining whether a state court decision is an unreason-

able application of Supreme Court law, only the

Supreme Court’s holdings are binding on the state

courts and only those holdings need be reasonably

applied.

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

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

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

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

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

merely “illuminates the application of clearly established fed-

1106 MOSES v. PAYNE

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

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

eny, Miller is not concerned with the question whether a

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

dants’ constitutional rights; rather, the Miller balancing test

evaluates whether the trial court used its discretion to uncon-

stitutionally apply an otherwise valid rule. Thus, because the

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

a Supreme Court holding, we cannot fault the state appellate

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

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

able application of the Supreme Court precedent that Miller

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

2004).

The dissent concludes otherwise, noting that we have

applied the Miller balancing test in the context of AEDPA

review. See Chia, 360 F.3d at 1003-04. We did so, however,

before the Supreme Court provided further clarification of the

bounds of an appellate court’s AEDPA analysis in Musladin,

Panetti and Van Patten. As discussed above, these precedents

clarified that in the absence of a Supreme Court decision that

“squarely addresses the issue” in the case before the state

court, Van Patten, 128 S.Ct. at 746, or establishes an applica-

ble general principle that “clearly extends” to the case before

us to the extent required by the Supreme Court in its recent

decisions, Van Patten, 128 S.Ct. at 745; see also Panetti, 127

S.Ct. at 2858; Musladin, 549 U.S. at 76, we cannot conclude

that a state court’s adjudication of that issue resulted in a deci-

sion contrary to, or an unreasonable application of, clearly

established Supreme Court precedent. Van Patten, 128 S.Ct.

at 747. By necessity, Van Patten and Musladin impose limits

on the relevance of circuit precedent; they are “clearly irrec-

oncilable,” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.

2003), with the conclusion that circuit law may be used to fill

“open question[s]” in the Supreme Court’s holdings for pur-

poses of AEDPA analysis. Musladin, 549 U.S. at 76; see also

Crater, 491 F.3d at 1126 & n.8 (explaining that, in Musladin,

MOSES v. PAYNE 1107

the Supreme Court “discussed and accepted” the principle that

§ 2254(d)(1) imposes “limits on the relevance of circuit pre-

cedent”).

[11] Because the Supreme Court’s precedents do not estab-

lish a principle for evaluating discretionary decisions to

exclude the kind of evidence at issue here, AEDPA does not

permit us to rely on our balancing test to conclude that a state

trial court’s exclusion of evidence under Rule 702 violated

clearly established Supreme Court precedent. Therefore, we

cannot agree with the dissent’s argument that Miller is appli-

cable here.

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

because the trial court excluded some portions of Jennifer

Moses’s handwritten diary. The trial court admitted medical

provider testimony and documentary evidence establishing

that Jennifer Moses suffered from depression and experienced

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

ted multiple journal entries indicating that Jennifer Moses was

depressed and contemplated suicide. The state appellate court

concluded that the trial court abused its discretion in exclud-

ing certain handwritten journal entries, but that any error

involved was harmless. In light of the evidence admitted by

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

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

have “substantial and injurious effect or influence in deter-

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

quotation marks omitted).

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

affirmance of the trial court’s decision to exclude Jennifer

Moses’s autopsy photograph was contrary to Supreme Court

precedent. We disagree. The state appellate court noted that

1108 MOSES v. PAYNE

the autopsy photograph was cumulative because the trial court

had already admitted other photographs showing Jennifer

Moses’s emaciated body and because multiple witnesses had

testified that Jennifer Moses had lost weight in the months

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

photograph was properly excluded because it was cumulative

and because its probative value was outweighed by its likely

prejudicial effects on the jury. This decision was not contrary

to, or an unreasonable application of, controlling Supreme

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

fore does not provide the basis for granting Moses’ habeas

petition under our deferential AEDPA standard of review.

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

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

Harruff, Evan Thompson, and Tamara Muller violated

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

relies on Supreme Court decisions establishing that it is the

sole province of the jury to determine questions of credibility

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

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

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

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

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

opinion testimony of Dr. Harruff, Evan Thompson, and

Tamara Muller improperly intruded upon the province of the

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

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

general proposition that the Constitution is violated by the

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

exhausted. The district court correctly concluded that Moses argued this

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

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

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

MOSES v. PAYNE 1109

admission of expert testimony concerning an ultimate issue to

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

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

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

at 2858; Musladin, 549 U.S. at 76.

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

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

expert testimony concerning an ultimate issue is not per se

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

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

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

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

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

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

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