Calvin Jackson v. Robert Legrand

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

CALVIN O’NEIL JACKSON, 

Petitioner-Appellant, No. 09-17239

v. D.C. No.

STATE OF NEVADA; BRIAN  3:03-cv-00257-

SANDOVAL; ROBERT LEGRAND, RLH-RAM

Warden, OPINION

Respondents-Appellees.



Appeal from the United States District Court

for the District of Nevada

Roger L. Hunt, Senior District Judge, Presiding

Argued and Submitted

April 19, 2012—San Francisco, California

Filed August 6, 2012

Before: Alfred T. Goodwin, Stephen Reinhardt, and

Mary H. Murguia, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Goodwin

8657

8660 JACKSON v. STATE OF NEVADA

COUNSEL

Rene L. Valladares, Federal Public Defender, and Lori C. Tei-

cher (argued), First Assistant Public Defender, Las Vegas,

Nevada, for the appellant.

Catherine Conrtez Masto, Attorney General and Jaime J.

Resch (argued), Senior Deputy Attorney General, Las Vegas,

Nevada, for the appellee.

JACKSON v. STATE OF NEVADA 8661

OPINION

REINHARDT, Circuit Judge:

In January 1999, Calvin Jackson was charged with six

counts related to the sexual assault of his on-again, off-again

girlfriend of ten years, Annette Heathmon. He was found

guilty of forcing his way into her apartment, threatening her

with a screwdriver, and forcing her to perform oral sex and

have vaginal sexual intercourse. Jackson denied that an

assault occurred and claimed that he and Heathmon had con-

sensual sex. At trial, the court prevented Jackson from pre-

senting testimony from police witnesses to support his

defense that Heathmon made false claims against him in the

past alleging physical or sexual assault, and that this was

another instance of her false accusations. It also prevented

Jackson from cross-examining Heathmon about prior acts of

prostitution. Jackson was convicted, and contends that the

trial court’s rulings denied him his constitutional right to pre-

sent a complete defense and to confront the complaining wit-

ness under the Sixth and Fourteenth Amendments. We agree

as to his claim that his right to present a defense was unconsti-

tutionally abridged, and hold that the state court’s conclusion

to the contrary was an unreasonable application of clearly

established federal law. We therefore reverse and remand to

the district court for the conditional issuance of the writ.

BACKGROUND

Calvin Jackson and Annette Heathmon were involved in a

turbulent, on-again, off-again relationship for about ten years.

In 1998, Heathmon broke up with Jackson and moved into an

apartment complex. Although Jackson visited Heathmon at

the complex in an apartment she shared with a friend, when

she moved out of that apartment and into her own unit she did

not inform Jackson where she had moved.

On October 21, 1998, the same night that Annette Heath-

mon moved into her new apartment, a mutual friend named

8662 JACKSON v. STATE OF NEVADA

Willie Williams knocked on Heathmon’s door accompanied

by Jackson, who was not initially visible to Heathmon.

According to Heathmon, Jackson forced his way into her

apartment, threatened to stab her with a screwdriver if she did

not agree to have sex with him, raped her and beat her. While

Jackson was in her apartment, Heathmon testified, he cut the

clothes hanging in her closet with a knife that she kept with

her on her bed, ripped the phone from the wall, and stole a

ring from her dresser and some food from the freezer. Jackson

left the apartment dragging Heathmon with him, demanding

that she walk with him to his car. As Heathmon was being led

away from the apartment by Jackson, the pair encountered

Fred Webb, a security guard at the complex whom Heathmon

had been seeing romantically. When Webb came towards

them, Jackson let go of Heathmon and left the scene. She told

Webb that Jackson had cut up her clothes, and demanded that

Webb pursue him. Although Webb caught up with Jackson,

he did not detain him at the scene and Jackson left. Jackson

was ultimately arrested and charged with burglary, battery

with the intent to commit a crime, first degree kidnapping

with the use of a deadly weapon, and two counts of sexual

assault with the use of a deadly weapon and robbery with the

use of a deadly weapon.

Although Heathmon submitted a letter recanting her accu-

sations against Jackson, she ultimately recanted that recanta-

tion and testified to the assault at trial. In her testimony,

Heathmon discussed other instances in which Jackson had

allegedly physically or sexually assaulted her but had not

been charged with any crime. In response, Jackson sought to

introduce testimony from officers who had responded to or

investigated Heathmon’s previous claims of assault and found

that her claims were not substantiated by the physical evi-

dence at the scene or expressed disbelief as to her version of

the events. The district court precluded this testimony, as well

as counsel’s attempt to cross-examine Heathmon regarding

any prior acts of prostitution. Jackson was convicted of bur-

glary, battery with the intent to commit a crime, first degree

JACKSON v. STATE OF NEVADA 8663

kidnapping with the use of a deadly weapon, and two counts

of sexual assault with the use of a deadly weapon.

After the jury returned a guilty verdict, Jackson challenged

his conviction on direct appeal, alleging that the district

court’s rulings denied him his right to present a defense and

to confront the witness against him. On appeal, the Nevada

Supreme Court rejected Jackson’s contention that the district

court’s evidentiary rulings violated his due process right to

present a defense.1 In rejecting Jackson’s appeal, the Nevada

Supreme Court implicitly concluded that the excluded evi-

dence was neither relevant nor material to his defense. In

holding that the trial court acted appropriately, it additionally

relied on the state rule of evidence barring the introduction of

extrinsic evidence to challenge the credibility of a witness and

held that the exception to that rule, set forth in Miller v.

Nevada, 779 P.2d 87 (Nev. 1989), did not apply. Under Mil-

ler, if a criminal defendant accused of a sexual assault seeks

to introduce evidence that the claimant has made prior false

claims of sexual assault, the defendant must provide written

notice to the trial court of his intent, and the court must con-

duct a hearing to determine its admissibility. Id. at 89-90. On

review of Jackson’s appeal, the Nevada Supreme Court held

that the record did not reveal that Jackson had complied with

the Miller procedure, and thus that the trial court appropri-

ately excluded the evidence due to Jackson’s noncompliance

with the state evidentiary rule.

After exhausting his habeas appeals in the state court, Jack-

son filed a petition in the district court, again asserting that the

trial court’s ruling had denied him his right to present a

defense and to confront the witness against him. The district

court denied relief, and Jackson was granted a certificate of

appeal on these two issues.2

1

The Nevada court also held, in a footnote and without discussion, that

all of his remaining claims were without merit.

2

We conclude that the confrontation claim has no merit and dispose of

it summarily at the end of this opinion. Jackson raised additional claims

8664 JACKSON v. STATE OF NEVADA

DISCUSSION

I.

A.

Jackson’s petition was filed after April 24, 1996, the effec-

tive date of the Anti-Terrorism and Effective Death Penalty

Act of 1996 (“AEDPA”), thus AEDPA governs this habeas

petition. Under AEDPA, a federal court may not grant habeas

to an individual in state custody with respect to any claim

which was adjudicated on the merits in state court proceed-

ings unless the adjudication of the claim:

(1) 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 (2) resulted

in a decision that was based on an unreasonable

determination of the facts in light of the evidence

presented in the State court proceeding.

28 U.S.C. § 2254(d). In determining whether a state court

decision was “contrary to” or involved “an unreasonable

application of” Supreme Court precedent, the Court has

explained that:

A state-court decision is contrary to this Court’s

clearly established precedents if it applies a rule that

contradicts the governing law set forth in our cases,

or if it confronts a set of facts that is materially indis-

tinguishable from a decision of this Court but

reaches a different result. A state-court decision

in the district court, but was denied relief. A certificate of appeal was not

granted as to any of Jackson’s other claims; thus they are not relevant to

this appeal.

JACKSON v. STATE OF NEVADA 8665

involves an unreasonable application of this Court’s

clearly established precedents if the state court

applies this Court’s precedents to the facts in an

objectively unreasonable manner.

Brown v. Payton, 544 U.S. 133, 141 (2005) (internal citations

omitted).

[1] A criminal defendant has a well-recognized constitu-

tional right to present a complete defense. Crane v. Kentucky,

476 U.S. 683, 690 (1986) (“Whether rooted directly in the

Due Process Clause of the Fourteenth Amendment, or in the

Compulsory Process or Confrontation clauses of the Sixth

Amendment, the Constitution guarantees criminal defendants

a ‘meaningful opportunity to present a complete defense.’ ”).

Necessary to the realization of this right is the ability to pre-

sent evidence, including the testimony of witnesses. Washing-

ton v. Texas, 388 U.S. 14, 19 (1967) (“The right to offer the

testimony of witnesses, and to compel their attendance, if nec-

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

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

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

lies. Just as an accused has the right to confront the prosecu-

tion’s witnesses for the purpose of challenging their testi-

mony, he has the right to present his own witnesses to

establish a defense.”). This right is not unlimited, however,

and a defendant does not have an absolute right to present evi-

dence, no matter how minimal its significance or doubtful its

source. United States v. Scheffer, 523 U.S. 303, 309-11

(1998). Rather, the right itself is only implicated when the

evidence the defendant seeks to admit is “relevant and mate-

rial, and . . . vital to the defense.” Washington, 388 U.S. at 16.

Additionally, a violation of the right to present a defense does

not occur any time such evidence is excluded, but rather only

when its exclusion is “arbitrary or disproportionate to the pur-

poses [the exclusionary rule is] designed to serve.” Holmes v.

South Carolina, 547 U.S. 319, 324 (2006) (internal citation

and quotation marks omitted); Michigan v. Lucas, 500 U.S.

8666 JACKSON v. STATE OF NEVADA

145, 151 (1991). This is true even if the rule under which it

is excluded is “respected [,] . . . frequently applied,” and oth-

erwise constitutional. Chambers v. Mississippi, 410 U.S. 284,

302 (1973). If the “mechanical” application of such a rule

would “defeat the ends of justice,” then the rule must yield to

those ends. Id. Thus, in each instance where a criminal defen-

dant asserts that the exclusion of evidence at trial violated his

right to present a defense, we must consider the value of the

evidence in relation to the purposes purportedly served by its

exclusion to determine whether a constitutional violation has

occurred.

In performing this analysis regarding a petitioner whose

appeal is controlled by AEDPA, we must determine whether

the state court’s decision resolving those issues was either

contrary to, or an unreasonable application of, Supreme Court

precedent relating to this constitutional right. In this case, the

Nevada Supreme Court correctly recognized that Jackson’s

claim regarding the exclusion of the witness testimony was

grounded in his right “to present witnesses to establish a

defense.”3 It observed that this right was qualified, and that

the proffered evidence must be “relevant and material to the

defense,” citing Washington v. Texas, 388 U.S. 14 (1967), and

implicitly concluded that the evidence Jackson sought to

adduce did not satisfy this criterion. It additionally relied on

the state’s general proscription against the admission of

extrinsic evidence going to a witness’s credibility and Jack-

son’s failure to comply with the Miller rule in concluding that

the exclusion of the evidence was justified. The state court

correctly recognized that for the exclusion of evidence to

amount to a constitutional violation, the evidence must be rel-

evant and material. Because it concluded that the evidence

3

On review, we consider the last reasoned decision of the state court.

Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). For Jackson’s

claim that the evidentiary ruling denied him his right to present a defense,

the relevant decision is the Nevada Supreme Court decision on direct

appeal.

JACKSON v. STATE OF NEVADA 8667

was immaterial, it did not consider whether the total exclusion

of the witness testimony was disproportionate to the purposes

served by the evidentiary rules cited. The Nevada Supreme

Court recognized and applied the correct legal principle, and

there is no Supreme Court case that presents a materially

indistinguishable set of facts, thus its holding was not contrary

to established law. Habeas relief is warranted, however, if,

under the facts present in this case, the determination by the

Nevada Court that the exclusion of the evidence did not effec-

tively preclude Jackson from presenting a complete defense

was objectively unreasonable.

B.

[2] Jackson’s defense was that the assault never took place

and that he and Heathmon engaged in consensual sex. He

contended that Heathmon used the police as a means of exer-

cising control over him whenever they argued, and that her

allegations against him were fabricated in this instance, just

as they had been in prior instances when the police were cal-

led to respond to her claims. The evidence that he sought to

introduce in furtherance of this defense was testimony from

officers who responded to Heathmon’s prior allegations of

abuse. Prior to trial, Jackson submitted copies of police

reports from these prior instances along with his motion to

reconsider his earlier motion to dismiss. Included in the report

were statements by the responding or investigating officers, in

which they expressed doubt about Heathmon’s claims or

noted inconsistencies between her statements and the physical

evidence they observed. Such testimony was clearly relevant

to Jackson’s defense that Heathmon lied regarding her prior

complaints and made false statements to the police alleging

that he had abused her.4

4

In addition to undermining Heathmon’s credibility and supporting his

theory that she had an improper motive for her allegations, Jackson also

sought to use this evidence to present an alternative explanation for Heath-

mon’s initial refusal to testify: while the prosecution elicited testimony

8668 JACKSON v. STATE OF NEVADA

One incident included within these reports occurred in

March, 1995, when Officer Stiles responded to an alleged bat-

tery, and encountered Heathmon, who asserted that “for unex-

plained reasons [Jackson] reportedly became enraged at

[Heathmon] and began to beat her up by striking her with his

fists and when she fell down, he reportedly kicked her and

stomped on her chest.” Stiles, however, reported that he

observed no physical injuries to Heathmon, nor did he “ob-

serve her to be dirty from rolling on the floor nor were her

clothing in a disar[r]ay, as you might expect in a situation

such as this.” The officer declined to arrest Jackson.

Another incident documented in the police reports pre-

sented by the defense occurred on May 7, 1995. This incident

was discussed extensively by Heathmon in her trial testimony.

According to Heathmon, she was riding in a car driven by a

friend when the car stopped in front of Jackson’s home. She

testified that he pulled her out of the car, dragged her across

the lawn, where a number of his friends were gathered, and

into the house where he beat and raped her. Officer Mars-

check responded to the scene and reported that he “could find

no signs of a sexual assault,” and that the witness, Jackson’s

grandmother who was living in the house at the time, related

that she heard Jackson and Heathmon arguing but did not see

Jackson physically or sexually assault Heathmon. Mars-

check’s report additionally noted that “[d]uring [his] investi-

gation with [Heathmon] [he] noted no sense of fear, injury or

anything other than anger to get Jackson in jail.” The investi-

gating officer assigned to the case, Officer Risenhoover, ulti-

mately closed the case, and, after several failed attempts to

contact Heathmon, concluded that “upon reviewing the case,

[he] found it questionable the event occurred as reported.”

that she was discouraged out of fear, Jackson attempted to show that she

never intended her false claims to be pursued to this extent and was disin-

clined to testify because of the falsity of her claims. This defense was sup-

ported by Heathmon’s admission in her cross-examination that the case

had gone on further than she really wanted it to.

JACKSON v. STATE OF NEVADA 8669

[3] Evidence that Heathmon had, on prior occasions, made

claims of assault that were contradicted or uncorroborated by

the evidence observed by the responding or investigating offi-

cers would be relevant to Jackson’s defense that the allega-

tions by Heathmon were false in this instance as well. When

presented with a trial court’s exclusion of evidence similar to

the excluded evidence in Jackson’s case, we have recognized

that such testimony was highly relevant to the defense and

that its total exclusion was disproportionate to whatever

underlying interests the exclusion was intended to serve.5

In Fowler v. Sacramento Co. Sheriff’s Dept., 421 F.3d 1027

(9th Cir. 2005), this court reversed the district court’s denial

of habeas to a petitioner who had been convicted of annoying

or molesting a minor. In Fowler, the defendant was accused

of touching his girlfriend’s fourteen-year-old daughter in a

sexual manner. At trial, the district court prevented the

defense from presenting evidence that the complainant had

previously accused one of her mother’s former boyfriends of

touching her inappropriately and that the local police con-

cluded this allegation was “unfounded.” Id. at 1032-33. The

defense sought to introduce evidence of this prior allegation

by cross-examining the complainant and by introducing

extrinsic evidence in the form of police reports and testimony

from the accused and the officers who investigated the inci-

dent. Id. at 1040 & n.9. The defense argued that this evidence

illustrated the complainant’s tendency to “[mis]perceive[ ],

exaggerate[ ] or overreact,” in relation to her interactions with

adult men, and revealed a disposition towards untruthfulness.

Id. at 1033 (alterations in original) (internal quotation marks

omitted). Although the prior incident was not identical, did

not involve the same alleged perpetrator, and it had not been

5

Although the prior decisions in this circuit are not sufficient to estab-

lish “clearly established” precedent, “[o]ur cases may be persuasive

authority for purposes of determining whether a particular state court deci-

sion is an ‘unreasonable application’ of Supreme Court law.” Duhaime v.

Ducharme, 200 F.3d 597, 600 (9th Cir. 2000).

8670 JACKSON v. STATE OF NEVADA

conclusively established that the complainant’s earlier accusa-

tion was false, this court recognized the clear relevance of the

excluded evidence. In concluding that the petitioner’s consti-

tutional right had been violated, we held that where the evi-

dence “might reasonably have influenced the jury’s

assessment of [the complainant’s] reliability or credibility,

absent sufficient countervailing interests, ‘the jurors were

entitled to have the benefit of the defense theory before them

so that they could make an informed judgment as to the

weight to place on [the complainant’s] testimony which pro-

vided a crucial link in the proof.’ ” Id. at 1040 (quoting Davis

v. Alaska, 415 U.S. 308, 317 (1974)). Under these facts, we

held that the state court’s determination that the exclusion of

this highly relevant evidence was “not unreasonable, arbitrary

or disproportionate given its concerns was itself objectively

unreasonable.” Id. at 1041.

In Holley v. Yarborough, 568 F.3d 1091, 1099 (9th Cir.

2009), we again considered whether the trial court’s exclusion

of evidence bearing on the claimant’s credibility violated the

defendant’s due process rights. Again we concluded that the

trial court’s ruling that prohibited the habeas petitioner from

presenting evidence at trial that bore on the complainant’s

credibility resulted in a constitutional violation, and we

remanded for issuance of the writ. In Holley, the habeas peti-

tioner was convicted of child molestation for sexually touch-

ing the eleven-year-old daughter of an acquaintance. At trial,

Holley sought to introduce evidence that the complainant had

previously made comments to her friends regarding a prior

sexual encounter and had claimed that other boys had

expressed a desire to engage in sexual acts with her. This evi-

dence was intended to challenge the prosecution’s portrayal of

her as a little girl who “would not fabricate things of a sexual

nature.” Id. at 1099. Although there was no evidence as to the

falsity of the complainant’s prior statements, this court agreed

with the defendant that this evidence displayed her “active

sexual imagination.” Id. at 1100. We recognized that with the

knowledge of these prior statements, a jury may reasonably

JACKSON v. STATE OF NEVADA 8671

have challenged the credibility and reliability of her claims.

We therefore held that the state court was objectively unrea-

sonable in its conclusion that these statements were properly

excluded as irrelevant, unduly prejudicial, and insufficiently

probative to justify the amount of time needed for their intro-

duction. In so holding, we noted that the evidence that would

have been elicited through the cross-examination of the com-

plainant and the introduction of witness testimony, was

“clearly relevant to impeach [the complainant], and thus [to]

allow the jury to evaluate the credibility of her allegations.”

Id. at 1099. We determined that the total exclusion of this evi-

dence was both “unreasonable and disproportionate” to the

purposes served by the evidentiary rules invoked by the state

court, id., and that had the jury known of the sexual comments

made by the complaint to others it “might reasonably have

questioned her [accusations].” Id. at 1100.

[4] Our conclusions in Fowler and Holley apply even more

strongly to the evidence in Jackson’s case.6 Heathmon’s credi-

bility was crucial to Jackson’s prosecution, because there was

minimal physical evidence suggesting that she had been phys-

ically or sexually assaulted, and the weapon, a screwdriver,

was never found, nor was it observed by the witness that saw

Jackson and Heathmon together immediately following the

assault. The jury therefore had to rely on Heathmon’s recita-

6

Both Fowler and Holley involved a trial court’s limitation on the scope

of cross-examination as well as its rulings that prevented the introduction

of extrinsic evidence to challenge the complainant’s credibility. While our

discussion of those cases were grounded in the confrontation clause of the

Sixth Amendment, the Supreme Court has held that the analysis is the

same whether the exclusion is framed as a limitation on the right to con-

front or the right to present a defense; in either case, a constitutional viola-

tion occurs only when the exclusion is arbitrary or disproportionate to the

purposes of the rule under which it is excluded. Michigan v. Lucas, 500

U.S. 145, 151 (1991) (“Restrictions on a criminal defendant’s rights to

confront adverse witnesses and to present evidence ‘may not be arbitrary

or disproportionate to the purposes they are designed to serve.’ ” (internal

citation omitted)).

8672 JACKSON v. STATE OF NEVADA

tion of the facts — as presented in her own testimony at trial

and as related through the testimony of other witnesses based

on statements she made around the time of the assault — to

conclude that Jackson had indeed assaulted her, and that he

was wielding a weapon at the time. Evidence that would have

undermined her credibility was central to Jackson’s theory

that this was just another instance in which Heathmon made

false or exaggerated claims against him to the police. It is rea-

sonable to conclude that witness testimony that Heathmon

made uncorroborated claims against Jackson in the past,

claims that were believed by impartial officers to be inaccu-

rate and inconsistent with the physical evidence, would have

influenced the jury’s assessment of Heathmon’s credibility.

There are instances in which this court has determined that

the preclusion of collateral evidence regarding false accusa-

tions did not implicate the defendant’s constitutional right and

that its exclusion was a proper exercise of the discretion of the

trial court. In these cases, however, the excluded evidence

was of marginal relevance to the defense. In Hughes v.

Raines, 641 F.2d 790 (9th Cir. 1981), for instance, the peti-

tioner, convicted of attempted rape, argued that the trial court

improperly excluded evidence that the complainant had previ-

ously accused a man of attempted rape. We held that the evi-

dence was irrelevant to the complainant’s accusation against

the petitioner due to the vastly differing circumstances under

which the two incidents were said to have occurred. Id. at

793. We held that the petitioner’s constitutional rights were

not implicated in the introduction of evidence that did not “es-

tablish bias against the defendant or for the prosecution [but

was] merely . . . to attack the general credibility of the witness

on the basis of an unrelated prior incident.” Id. We contrasted

the excluded testimony in Hughes with that recognized by the

Supreme Court as implicating a defendant’s due process

rights, such as evidence “directed toward revealing possible

biases, prejudices, or ulterior motives of the witness as they

may relate directly to issues or personalities in the case at

hand.” Id. (emphasis added) (quoting Davis, 415 U.S. at 316).

JACKSON v. STATE OF NEVADA 8673

The excluded evidence in Jackson’s trial involved prior accu-

sations against the same defendant by the same complainant

and, Jackson alleged, was part of a pattern of false accusations

of physical and sexual abuse by Heathmon made throughout

the course of their relationship. Such evidence clearly “re-

late[s] directly to issues or personalities in the case at hand,”

id.,and falls well within the category of testimony whose

exclusion may implicate a defendant’s constitutional rights.

We also affirmed the district court’s denial of habeas in

Fenenbock v. Dir. of Corr. for California, 681 F.3d 968 (9th

Cir. 2012), in which the petitioner argued that the trial court’s

exclusion of evidence related to a witness’s false accusation

against a third party resulted in a constitutional violation. In

Fenenbock, the witness was a juvenile who had observed the

crime for which the petitioner was charged. The defense

sought to admit witness testimony that he made an unrelated

and allegedly false report that his foster father had threatened

his foster mother with a firearm. Id. at 972. We recognized

that there is no absolute right “to impeachment via extrinsic

evidence relating to the truth of a collateral out-of-court state-

ment,” and that no existing Supreme Court precedent required

the admission of evidence regarding such a purely collateral

matter. Id. at 977. In doing so, however, we distinguished

Fenenbock’s case from those in which the Supreme Court has

held that the defendant’s due process rights are implicated

because the excluded evidence regarding a witness’s credibil-

ity went to his bias or motive to lie. Id. at 977 & n.11. This

is precisely the nature of the evidence excluded in Jackson’s

case: evidence that Heathmon previously made false accusa-

tions against him as part of their relationship provided a

motive for her allegedly false testimony in this instance, and

was thus both relevant and constitutionally-protected under

recognized Supreme Court precedent.7

7

The trial court also explicitly recognized that the officers’ testimony

went to the question of whether Heathmon had “some motive of bad

intent,” but found that the state rules precluded the introduction of addi-

tional witnesses on this matter.

8674 JACKSON v. STATE OF NEVADA

Our holding in Fenenbock also does not support a conclu-

sion that a constitutional violation did not occur in this case

because the excluded evidence in Jackson’s trial was neither

collateral — because it related to the core of his defense that

Heathmon had a history of making false accusations against

him —and it was not intended to impeach an out of court

statement. To the contrary, the officers’ testimony would have

directly rebutted Heathmon’s own in-court statements that

Jackson had previously assaulted her on several occasions,

including the May 7, 1995 incident, to which she had already

testified at length. Thus, even an appropriate limitation on the

introduction of impeachment testimony on collateral or out of

court statements could not justify the total exclusion of Jack-

son’s evidence in this instance.

C.

Had the court concluded that the evidence Jackson sought

to admit was relevant and material, it would then have had to

consider whether its exclusion under the applicable evidenti-

ary rules was reasonable, or if it was disproportionate to the

interests served by those rules. The proportionality between

the excluded evidence and the interests served by the eviden-

tiary rule is the relevant constitutional question regardless

whether the basis for exclusion is a blanket prohibition on a

certain type of evidence or the defendant’s failure to strictly

comply with a notice provision of an otherwise valid evidenti-

ary rule. Holmes, 547 U.S. at 324; Lucas, 500 U.S. at 1747;

LaJoie v. Thompson, 217 F.3d 663, 670 & n.8 (9th Cir. 2000).

[5] Although the Nevada Supreme Court explicitly consid-

ered only whether the evidence was excludable under Miller,

the state always has a recognized interest in excluding evi-

dence that “poses an undue risk of harassment, prejudice, [or]

confusion of the issues.” Crane, 476 U.S. at 689-90 (alter-

ations in original) (internal citations and quotation marks

omitted). In this case, however, a consideration of the state’s

interests does not support the total exclusion of the officers’

JACKSON v. STATE OF NEVADA 8675

testimony in light of its substantial relevance to Jackson’s

defense.8

As in Holley and Fowler, the complete exclusion of the rel-

evant testimony was disproportionate to the limited interests

that could have been served by the exclusion of such evi-

dence. As discussed above, the evidence, if credited, likely

would have had a significant effect on the jurors’ perceptions

of Heathmon’s credibility. “Any prejudice the jury might

have developed as a result [of this evidence] would have been

to discredit her claims.” Holley, 568 F.3d at 1100. This poten-

tial effect on the jury’s assessment of Heathmon is precisely

what renders the evidence relevant in the first instance and is

necessary to the defendant’s ability to defend against the pros-

ecution’s charges. The officers’ testimony would have been

the only evidence presented by the defendant to suggest that

Heathmon had a pattern of making false accusations against

him and thus would not have been cumulative of any other

evidence that had been introduced.

The officers’ testimony that they did not credit Heathmon’s

past allegations of abuse was no more likely to confuse the

issues than the extensive discussion of these prior incidents

that the trial court allowed into evidence. At trial there was

substantial evidence admitted that referred to these past

alleged assaults including Heathmon’s testimony regarding

past instances in which she claimed to have been assaulted by

Jackson and an officer’s testimony regarding the existence of

the other reports of domestic violence made by Heathmon

8

The state court did not discuss the perceived interests served by the

exclusion of Jackson’s evidence under any rule, nor did it consider these

interests in relation to his ability to present a complete defense in the

absence of that evidence to determine whether its exclusion was dispro-

portionate to those interests. The petitioner argues only that this was an

unreasonable application of federal law, and we therefore need not con-

sider whether the state court’s opinion, by failing to conduct the necessary

analysis, resulted in a decision that was “contrary to” federal law under 28

U.S.C. § 2254(d)(1).

8676 JACKSON v. STATE OF NEVADA

against Jackson. The jury was required to consider this evi-

dence, not for its truth, but to assess Heathmon’s credibility

and state of mind. The evidence Jackson sought to introduce

was neither confusing nor prejudicial in its own right, and it

was far less so on both counts than the evidence admitted by

the trial court. Additionally, while the harassment of the vic-

tim may be a consideration when excluding evidence of past

allegations, the officers’ testimony would not have resulted in

the harassment of any party, particularly not Heathmon, who

had already recounted her version of these past assaults for

the jury. If the trial court had concerns regarding the time

spent on the officers’ testimony, or the possibility of confu-

sion, it could have placed reasonable limits on that testimony,

rather than excluding it in full. None of the concerns generally

considered in the exclusion of otherwise probative evidence

integral to a defendant’s ability to present a complete defense

therefore justify the total exclusion of the testimonial evi-

dence sought to be introduced.

Although the Nevada Supreme Court did not expressly con-

sider the general concerns underlying the exclusion of any

item of relevant information, it did explicitly hold that the evi-

dence was properly excluded for failure to comply with the

procedures of Miller. Miller applies specifically to the admis-

sion of prior accusations of sexual assault. 779 P.2d at 90. Not

all of the incidents regarding which Jackson sought to intro-

duce testimony, nor all of the incidents testified to by Heath-

mon, involved claims of sexual assault. Neither Miller, nor

the legitimate considerations upon which it is based, would

therefore apply to all of the testimony excluded by the trial

court. In particular, a failure to comply with Miller could not

have been the basis for excluding testimony regarding the

March, 1995 incident in which Officer Stiles reported that

Heathmon’s allegations of a physical assault by Jackson were

inconsistent with his observations at the scene. With regard to

evidence related to prior claims of sexual assault, to which the

Miller procedure would apply, the Nevada Supreme Court

was still required to consider whether the application of the

JACKSON v. STATE OF NEVADA 8677

rule resulted in the arbitrary or disproportionate exclusion of

material evidence.

In Lucas, the Supreme Court reversed a decision by the

Michigan Supreme Court that held that any notice and hearing

rule that could be applied to preclude the admission of rele-

vant evidence violated the defendant’s due process rights. 500

U.S. at 148. The Supreme Court recognized that some notice

and hearing requirements may indeed be applied in a manner

that violates the defendant’s constitutional rights, but it held

that Michigan’s per se rule that held that any such require-

ment was unconstitutional was incorrect. Id. at 151. Instead,

it held that the relevant question is whether the restriction was

arbitrary or was disproportionate to the purposes that it was

designed to serve, and the Court remanded for the state court

to make that determination in the first instance. Id. at 151,

153.

We applied the Court’s rule from Lucas in LaJoie, in which

the habeas petitioner failed to comply with Oregon’s notice

rule when he sought to introduce relevant evidence related to

the victim’s prior sexual assault. 217 F.3d at 670. Petitioner

filed a notice of intent seven days before trial, rather than fif-

teen days, as required under Oregon law. Id. at 665. We con-

sidered the materiality of the excluded evidence against the

purposes served by the fifteen-day notice rule in that case and

held that the total exclusion of the evidence was dispropor-

tionate to those purposes, and that the mechanical application

of the rule resulted in a constitutional violation. Id. at 673.

[6] In Jackson’s case, as in LaJoie, the state court failed to

do the individual balancing required by Lucas to determine

whether the exclusion, even if properly authorized under the

rule, was disproportionate to the interests served in light of

the facts of the defendant’s case. Id. at 670. (“Because the

[state court] did not balance the interests in [the defendant’s]

particular case, as required by Lucas, the district court erred

in concluding that the state court decision was not an unrea-

8678 JACKSON v. STATE OF NEVADA

sonable application of clearly established federal law, as

determined by the United States Supreme Court.”). Neither

the Miller opinion nor the opinion in Jackson’s direct appeal

discussed the purposes of the notice provision, but we may

assume that it, like the provision in LaJoie, was intended to

“prevent surprise to the prosecution and the alleged victim,

avoid undue trial delay, and protect the alleged victim from

needless anxiety concerning the scope of the evidence to be

produced at trial.” LaJoie, 217 F.3d at 670. These concerns

must be balanced against the recognized relevance of a vic-

tim’s prior false allegations of sexual assault in the particular

case. See Miller, 779 P.2d at 89 (“[I]t is important to recog-

nize in a sexual assault case that the complaining witness’

credibility is critical and thus an alleged victim’s prior fabri-

cated accusations of sexual abuse or sexual assault are highly

probative of a complaining witness’ credibility concerning

current sexual assault charges.”).

Here, Jackson provided the court and opposing counsel

with written copies of the officers’ statements and explicitly

stated his desire to introduce the officers’ testimony if evi-

dence regarding Heathmon’s allegations of past abuse was

admitted. Although Jackson did not comply with the require-

ments of Miller, he nonetheless gave clear advance notice of

his desire to present the officers’ testimony, and reasserted

this desire prior to a hearing on the admissibility of Heath-

mon’s allegations of past abuse by Jackson. While this notice

was not sufficient under Miller, it nonetheless negated some

of the concerns that the Miller rule was created to address,

such as preventing unfair surprise to the prosecution and vic-

tim and avoiding unnecessary delay. Moreover, Heathmon

was already prepared to testify — and did testify — as to her

version of these prior assaults by Jackson. Thus any possible

embarrassment or apprehension by the victim due to uncer-

tainty about the scope of the examination would not have

applied under the facts of this case.

[7] Although a state court undoubtedly has the authority to

enforce procedural rules intended to serve its legitimate inter-

JACKSON v. STATE OF NEVADA 8679

ests in ensuring the orderly administration of justice, it must

always do so in light of the constitutional requirement that the

exclusion of evidence may not be disproportionate to the

interests served by the rule under which it is excluded. See,

e.g. Chambers, 410 U.S. at 302-03 (holding that otherwise

valid state evidentiary rules “as applied in this case” served to

“deprive [the defendant] of a fair trial”). Because of the criti-

cal importance of the excluded evidence to Jackson’s defense,

and because under the facts of this case all parties were aware

that Heathmon’s prior allegations were likely to be introduced

at trial and that Jackson sought to counter her testimony with

evidence from police officers, the total exclusion of this evi-

dence was disproportionate to the state’s interest in its exclu-

sion on account of Jackson’s failure to comply with Miller.

[8] As in LaJoie, we conclude that with respect to the trial

court’s exclusion of evidence regarding the victim’s past alle-

gations of sexual abuse, “the sanction of preclusion of this

evidence in this case was ‘ . . . disproportionate’ to the pur-

poses of the . . . notice requirement. Therefore, even under a

proper application of the Lucas test, the decision of the [state

court] to preclude the evidence would still amount to ‘an

unreasonable application of . . . clearly established Federal

law, as determined by the Supreme Court of the United

States.’ ” 217 F.3d at 673 (quoting 28 U.S.C. § 2254(d)(1)).

D.

[9] Although the exclusion of the police officer testimony

violated Jackson’s right to present a defense, habeas relief is

the appropriate remedy only if the constitutional violation

resulted in error that was not harmless. “[I]n a § 2254 pro-

ceeding[ ] [a] court must assess the prejudicial impact of con-

stitutional error in a state-court criminal trial under the

‘substantial and injurious effect’ standard set forth in [Brecht

v. Abrahamson, 507 U.S. 619 (1993)], whether or not the state

appellate court recognized the error and reviewed it for harm-

lessness under the ‘harmless beyond a reasonable doubt’ stan-

8680 JACKSON v. STATE OF NEVADA

dard set forth in Chapman [v. California, 386 U.S. 18

(1967)].” Fry v. Pliler, 551 U.S. 112, 121-22. (2007). To con-

sider whether the standard under Brecht has been met, we

consider the factors prescribed by the Court in Delaware v.

Van Arsdall, 475 U.S. 673 (1986), namely: “(1) the impor-

tance of the witness’ testimony in the prosecution’s case; (2)

whether the testimony was cumulative; (3) the presence or

absence of evidence corroborating or contradicting the testi-

mony of the witness on material points; (4) the extent of

cross-examination otherwise permitted; and (5) the overall

strength of the prosecution’s case.” Merolillo v. Yates, 663

F.3d 444, 455 (9th Cir. 2011) (citing Van Arsdall, 475 U.S.

at 684). In this case, after considering the relevant factors, we

conclude that the exclusion of the witness testimony was

likely to have had a substantial and injurious effect on the ver-

dict in Jackson’s case.

The defense’s theory was that there was no assault, and that

this was another instance in which Heathmon made false

claims to the police against Jackson. Although Heathmon

recounted her complaints to various people, there was no

physical evidence that an assault had occurred and extremely

limited corroboration for Heathmon’s claims. Webb, for

instance, testified that he did not see any signs of physical

injury at the time that he encountered Heathmon and Jackson

leaving the building, that he did not see Jackson with a screw-

driver, and when he examined Heathmon’s closet could not

find any clothes that had been cut. The nurse who examined

Heathmon after the assault found no signs of bruising and no

signs of sexual assault, and the responding officer did not

observe any readily visible marks or bruises.

[10] The primary evidence against Jackson was therefore

Heathmon’s own testimony and the testimony of those who

related statements that she made around the time of the

assault. The only evidence of the presence of the deadly

weapon, which accounted for the imposition of three consecu-

tive life sentences against Jackson, was Heathmon’s own tes-

JACKSON v. STATE OF NEVADA 8681

timony that Jackson was “holding [the screwdriver] against

her neck [and] threatening to put it into her temple.”9 Heath-

mon initially recanted her claim of assault in a notarized letter

produced prior to trial. After she was arrested and detained

under a warrant for failing to appear in court, and threatened

with a perjury charge, Heathmon agreed to testify. At trial she

testified to the original version of the events and stated that

she recanted her testimony because she was scared. Evidence

from uninterested third parties that “bore persuasive assur-

ances of trustworthiness,” Chambers, 410 U.S. at 302, that

Heathmon had previously made what appeared to be false or

exaggerated claims of either physical or sexual abuse would

have substantially bolstered Jackson’s claim that the sexual

assault never occurred. It would also have supported his the-

ory that Heathmon’s earlier refusal to testify was based on the

falsity of her own claims, not fear of Jackson. There was no

other evidence that Jackson produced that could have had the

same effect. The excluded evidence was relevant to a critical

issue at trial, namely whether the assault occurred, the evi-

dence was crucial to Jackson’s defense, and the “excluded

evidence, unlike the evidence [from petitioner’s family and

friends] was not subject to attack on the grounds of bias or

self-interest. It was the only unbiased source of corroboration

for [petitioner’s theory of the defense].” DePetris v. Kuyken-

dall, 239 F.3d 1057, 1063-64 (9th Cir. 2001) (first alteration

in original) (internal quotation marks and citation omitted).

[11] The prosecution introduced minimal evidence that

was not dependent on the veracity of Heathmon’s own asser-

tions of fact. If the jury discounted Heathmon’s testimony and

9

This testimony was inconsistent however, as Heathmon testified at trial

that Jackson was holding the screwdriver in his hand and threatened to

poke her, while at the preliminary hearing, she testified that the screw-

driver was in his pocket, and he did not say how or where he was going

to use it. In its cross-examination, the defense asked Heathmon to explain

her conflicting testimony, but the State objected, arguing that there was no

“inconsistency.” The court sustained the objection and informed Heath-

mon that she need not answer the question.

8682 JACKSON v. STATE OF NEVADA

relied solely on the remaining evidence presented, it may rea-

sonably have found that Jackson was not guilty of some or all

of the charges. The state’s evidence of guilt was therefore not

so overwhelming that we can say there is not a “grave doubt

about whether a constitutional error substantially influenced

the verdict.” Slovik v. Yates, 556 F.3d 747, 755 (9th Cir.

2009) (quoting Parle v. Runnels, 387 F.3d 1030, 1044 (9th

Cir. 2004)).

[12] The exclusion of critical evidence that would have

served to rebut the testimony of the principal prosecution wit-

ness and to directly undermine her credibility constituted a

clear violation of Jackson’s right to present an adequate

defense and we must conclude that this unconstitutional

exclusion caused a substantial and injurious influence on the

jury’s verdict. The state court’s decision to the contrary was

an unreasonable application of clearly established Supreme

Court law.

II.

Jackson additionally argues that the trial court violated his

right to confront the witnesses against him by preventing him

from questioning Heathmon about a prior arrest for prostitu-

tion. At trial, Jackson’s counsel asked Heathmon if she was

“hooking” on two different nights. After the prosecution’s

objection, the jury was told to disregard the question, and no

further inquiries were made as to any possible prostitution

acts or arrests. Jackson lodged an objection that the court pre-

vented him from questioning the witness regarding prior pros-

titution arrests. The court upheld its ruling, noting that the

nature of the questioning was about acts of prostitution, not

arrests for prostitution, and that the precluded line of ques-

tioning was improper.

The Supreme Court has recognized that a defendant’s con-

stitutional right to confront the prosecution’s witnesses

includes the right to impeach the witness through the “intro-

JACKSON v. STATE OF NEVADA 8683

duc[tion] of evidence of a prior criminal conviction of that

witness.” Davis, 415 U.S. at 316. Although Jackson now con-

tends that he was prevented from questioning Heathmon

regarding prior arrests for prostitution, the record does not

reveal that to be the case.10 Moreover, even if Heathmon

engaged in prior acts of prostitution, this behavior would have

no bearing on Jackson’s theory of the defense, nor would it

suggest that her testimony was motivated by any improper

motive or bias. The trial court therefore acted within its dis-

cretion to exclude the prostitution questions as irrelevant, and

this limitation on Jackson’s right of confrontation did not

amount to a constitutional violation. See Hughes, 641 F.2d at

793 (recognizing that the trial court’s exclusion of a general-

ized attack on the witnesses’ credibility, particularly her sex-

ual exploits, did not rise to the level of a constitutional

violation due to its minimal relevance).

CONCLUSION

[13] The district court erred in concluding that the state

court determination that the exclusion of the police witness

testimony did not constitute a violation of Jackson’s well

established right to present a complete defense. The excluded

evidence was relevant and vital to his defense, and the total

exclusion of this testimony was arbitrary and disproportionate

to the purposes the evidentiary rules were intended to serve.

The Nevada Supreme Court decision holding otherwise was

an unreasonable application of clearly established United

States Supreme Court precedent. We therefore reverse the dis-

trict court’s judgment and remand with directions to issue a

conditional writ of habeas corpus, releasing Jackson from

10

The district court adopted the trial court’s interpretation of Jackson’s

questioning of Heathmon, and also concluded that “the trial court did not

allow petitioner to question the victim about prior acts of prostitution,” not

merely arrests. (emphasis in original). We review the district court’s find-

ing of fact for clear error, and on this record, we cannot say that the dis-

trict court’s conclusion that the defense only attempted to inquire as to

prior acts of prostitution was incorrect.

8684 JACKSON v. STATE OF NEVADA

detention unless the state retries him within a reasonable

period of time.

REVERSED and REMANDED.

GOODWIN, Circuit Judge, dissenting:

I respectfully dissent. The appellant did not present in his

appeal to this court a competency-of-counsel question, and I

believe that his failure timely to request a Miller hearing to

support his effort to impeach the complaining witness was a

default by the defense. Rejection of the proffered evidence,

therefore, was not a constitutional error by the state trial court.

The United States District Court for the District of Nevada

complied with the requirements of AEDPA. I would affirm

the judgment.