Donald Sherman v. William Gittere

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

DONALD SHERMAN, No. 16-99000

Petitioner-Appellant, D.C. No. 2:02-cv-

01349-LRH-VCF

v.

WILLIAM GITTERE, Warden; OPINION

AARON DARNELL FORD, Attorney

General of Nevada,

Respondents-Appellees.

Appeal from the United States District Court

for the District of Nevada

Larry R. Hicks, District Judge, Presiding

Argued and Submitted September 20, 2023

San Francisco, California

Filed February 9, 2024

Before: Ronald M. Gould, Bridget S. Bade, and Patrick J.

Bumatay, Circuit Judges.

Opinion by Judge Bumatay

2 SHERMAN V. GITTERE

SUMMARY *

Habeas Corpus / Death Penalty

The panel affirmed the district court’s denial of Donald

Sherman’s 28 U.S.C. § 2254 habeas corpus petition

challenging his Nevada conviction and death sentence for

robbery, burglary, and the first-degree murder of Dr. Lester

Bauer.

The district court granted a certificate of appealability on

Sherman’s claim that the trial court violated Sherman’s

constitutional right to present a defense by excluding certain

impeaching evidence about Dr. Bauer’s daughter, whom

Sherman had dated.

Sherman argued that de novo review, rather than the

Antiterrorism and Effective Death Penalty Act’s deferential

standard, applies to his right-to-present-a-complete-defense

claim. The panel wrote that Sherman waived this issue by

not presenting it to the district court and that AEDPA review

applies in any event because Sherman did not rebut the

presumption that the Nevada Supreme Court adjudicated his

federal constitutional claim on the merits.

On the merits, the panel held that Sherman did not show

that the Nevada Supreme Court’s denial of his right-to-

present-a-complete-defense claim was contrary to, or

involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the

United States, or was based on an unreasonable

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

SHERMAN V. GITTERE 3

determination of the facts. The panel wrote the Nevada

Supreme Court’s rulings on the exclusion of the evidence

under Nev. Rev. Stat. § 50.085(3) (generally prohibiting the

use of extrinsic evidence to prove specific instances of

conduct to undermine a witness’s credibility) and Nev Rev.

Stat. § 48.035(1) (permitting the exclusion of evidence if its

probative value is substantially outweighed by the danger of

issue confusion or misleading the jury) were not contrary to,

or an unreasonable application of, clearly established federal

law. The panel concluded that the Nevada Supreme Court’s

alternative conclusion that any error was harmless was not

unreasonable.

In a concurrently filed memorandum disposition, the

panel declined to expand the certificate of appealability to

include other claims.

COUNSEL

David Anthony (argued), Assistant Federal Public Defender;

Rene L. Valladares, Federal Public Defender; Las Vegas

Federal Public Defender’s Office, Las Vegas, Nevada; for

Petitioner-Appellant.

Heather D. Procter (argued), Deputy Attorney General;

Aaron D. Ford, Nevada Attorney General; Nevada Attorney

General’s Office, Carson City, Nevada; Erica Berrett, Senior

Deputy Attorney General; Nevada Attorney General’s

Office, Las Vegas, Nevada; for Respondents-Appellees.

4 SHERMAN V. GITTERE

OPINION

BUMATAY, Circuit Judge:

On June 1, 1994, Dr. Lester Bauer was found bludgeoned

to death in his home in Las Vegas, Nevada. The next day,

Donald Sherman, who had dated Dr. Bauer’s daughter, was

arrested for his murder. In February 1997, a Nevada jury

found Sherman guilty of robbery, burglary, and first-degree

murder. The jury determined that the aggravating

circumstances outweighed the mitigating circumstances and

imposed the death penalty. The Nevada Supreme Court

affirmed Sherman’s convictions and sentence on direct

appeal.

Following unsuccessful postconviction petitions in state

court, Sherman raised several claims in a federal petition for

a writ of habeas corpus under 28 U.S.C. § 2254. The federal

district court later denied the petition but granted a certificate

of appealability on a single claim—whether the trial court

violated Sherman’s constitutional right to present a complete

defense by excluding certain impeaching evidence about Dr.

Bauer’s daughter. Sherman now appeals this ruling.

Because the Nevada court’s resolution of this right-to-a-

complete-defense claim was not “contrary to, or . . . an

unreasonable application of, clearly established Federal law”

or “based on an unreasonable determination of the facts,” we

affirm. See 28 U.S.C. § 2254(d)(1)–(2). Sherman also seeks

to expand the certificate of appealability to include seven

other claims. In a concurrently filed memorandum, we deny

the certificate for each of the uncertified claims.

SHERMAN V. GITTERE 5

I.

Sherman began dating Dianne Bauer in 1992, moving

into her Longview, Washington house soon after. Dianne

would regularly visit her father, Dr. Bauer, in Las Vegas

while she and Sherman dated. The following year, Dianne

and Sherman relocated to Alaska but then broke up.

According to Dianne, in April 1994, while she was driving

on a highway, she saw Sherman in another car—Sherman

then pointed his hand, shaped as a gun, at her.

On May 1, 1994, Dianne’s friend, Erin Murphy,

informed her that Sherman was going to Las Vegas and that

she feared he would harm Dr. Bauer. Murphy told Dianne

that she should tell her father and the Las Vegas Police

Department. Dianne says that she informed her brother, the

Longview Police Department, and the FBI about the danger

Sherman posed to her father.

On June 1, 1994, after receiving a call from a concerned

neighbor, a Las Vegas police officer went to check on Dr.

Bauer at his home. The officer noticed that one of the front

windows was ajar and the screen was placed backward. She

entered through the window and found Dr. Bauer dead, lying

in a bed covered in blood. Blood was splattered across the

headboard and bedroom walls, and soaked the blankets on

the bed. The officer observed that a blood-spattered

telephone receiver had been removed from the bedroom and

placed in the hallway.

The autopsy report showed that Dr. Bauer was struck in

the head with a hammer five to seven times. Although the

strikes were hard enough to fracture his skull and damage his

brain, Dr. Bauer did not die instantly. The medical examiner

concluded that Dr. Bauer likely died between the night of

May 29 and the early hours of May 30.

6 SHERMAN V. GITTERE

Meanwhile, Sherman stayed at a local Las Vegas hotel

from May 28 to May 31, 1994, which coincided with the

murder. On May 30, Sherman called Swinging Susie’s, an

escort service, and asked for an escort to meet him at his

hotel room. An escort, “Paige,” met with Sherman, who

introduced himself as “Dr. Bauer.” Sherman paid for

Paige’s services with Dr. Bauer’s credit card and signed the

receipt as “Dr. Lester Bauer.” Paige returned to Sherman’s

hotel the next morning, May 31.

Later on May 31, Sherman checked into a hotel in Santa

Barbara, California. Again, he introduced himself as “Lester

Bauer,” paid with Dr. Bauer’s credit card, and signed the

receipt as “Dr. Lester Bauer.”

On June 2, Santa Barbara law enforcement arrested

Sherman while he slept in Dr. Bauer’s stolen car. Inside

Sherman’s wallet the officers found Dr. Bauer’s credit cards

and restaurant and jewelry-store receipts signed by “Lester

Bauer.”

Sherman was charged with robbery, burglary, and first-

degree murder. During the guilt phase of his trial, the jury

found Sherman guilty on all counts. At the penalty phase,

the jury found four aggravating circumstances: (1) Sherman

had been convicted of another murder; 1 (2) Sherman was

under a sentence of imprisonment when he committed the

murder; (3) the murder was committed during a burglary;

and (4) the murder was committed during a robbery. The

jury also found three mitigating circumstances: (1) the

murder was committed when Sherman was under the

1

In 1981, as a juvenile, Sherman was arrested for murdering 62-year-old

Harold Marley in his Idaho grocery store. Sherman pleaded guilty and

received a life sentence with the possibility of parole. He was paroled in

1992.

SHERMAN V. GITTERE 7

influence of an extreme mental or emotional disturbance;

(2) Sherman acted under duress or domination of another

person; and (3) “other mitigating circumstances.” The jury

determined that the aggravating circumstances outweighed

the mitigating circumstances and returned a death sentence.

On direct appeal, the Nevada Supreme Court affirmed

Sherman’s convictions and sentence. The United States

Supreme Court declined Sherman’s petition for writ of

certiorari. Sherman v. Nevada, 526 U.S. 1122 (1999). Next,

Sherman filed a state habeas petition, which the Nevada trial

court denied, and the Nevada Supreme Court affirmed the

denial.

Sherman then filed a federal habeas petition under 28

U.S.C. § 2254 in 2002 and a first amended petition in 2005.

This petition was held in abeyance while Sherman returned

to state court to exhaust his claims. Sherman filed a second

state habeas petition, which the Nevada trial court denied as

procedurally barred. The Nevada Supreme Court then

affirmed and denied a petition for rehearing.

The federal habeas proceedings were then reopened, and

Sherman filed his second amended petition. The State of

Nevada moved to dismiss the petition. The federal district

court dismissed several claims as procedurally defaulted and

denied the remaining claims on the merits. The district court

later denied Sherman’s motion for reconsideration. This

appeal follows.

We have jurisdiction under 28 U.S.C. §§ 1291 and

2253(a) and review the district court’s denial of the petition

de novo. See Avena v. Chappell, 932 F.3d 1237, 1247 (9th

Cir. 2019).

8 SHERMAN V. GITTERE

II.

In his certified claim, Sherman alleges that the state trial

court violated his constitutional right to present a complete

defense by excluding certain testimony impeaching Dianne

Bauer, which he asserts prevented him from presenting his

theory of defense. See California v. Trombetta, 467 U.S.

479, 485 (1984); see also Crane v. Kentucky, 476 U.S. 683,

690 (1986) (holding that the defendant’s “opportunity [to be

heard] would be an empty one if the State were permitted to

exclude competent, reliable evidence bearing on . . . the

defendant’s claim of innocence”).

At the close of its case-in-chief, the State orally moved

in limine to bar Sherman from eliciting testimony from other

witnesses that (1) Dianne had told people that her father

molested her when she was a child and (2) contradicted

Dianne’s testimony that Sherman threatened her on a

highway in Alaska. The prosecutor argued that these topics

were collateral matters that could not be impeached with

extrinsic evidence under Nevada Revised Statute (“Nev.

Rev. Stat.”) § 50.085(3). Sherman opposed the motion.

According to Sherman, this evidence would counter the

State’s narrative that Sherman killed Dr. Bauer to hurt

Dianne after she broke up with him. Instead, Sherman

believes this evidence would show that Dianne was not a

loving or caring daughter and that she manipulated Sherman

into confronting Dr. Bauer.

The trial court ruled that this evidence went to collateral

matters and granted the State’s motion under Nev. Rev. Stat.

SHERMAN V. GITTERE 9

§ 50.085(3). 2 On direct appeal, the Nevada Supreme Court

affirmed. On federal habeas review, the district court ruled

that the Nevada Supreme Court’s decision was not contrary

to or an unreasonable application of clearly established

federal law. The district court also concluded that, even if

the evidentiary ruling was a constitutional violation, it was

harmless error under Brecht v. Abrahamson, 507 U.S. 619,

637 (1993). The district court then granted a certificate of

appealability on Sherman’s claim that the state court’s

evidentiary ruling violated his constitutional right to present

a complete defense.

A.

Before turning to the merits of this claim, we address the

proper standard of review. The Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”) “sharply limits” our

review of any claim adjudicated on the merits in state court.

Johnson v. Williams, 568 U.S. 289, 298 (2013). We may not

grant a petition on an adjudicated claim unless the state

court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law,

as determined by the Supreme Court of the United States,”

or (2) “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)(1)–(2). But for any claim

not adjudicated on the merits by the state court, our review

is de novo. See Patsalis v. Shinn, 47 F.4th 1092, 1097–98

(9th Cir. 2022).

2

Under the Nevada law, “[s]pecific instances of the conduct of a witness,

for the purpose of attacking or supporting the witness’s credibility, other

than conviction of crime, may not be proved by extrinsic evidence.”

Nev. Rev. Stat. § 50.085(3).

10 SHERMAN V. GITTERE

For the first time on appeal, Sherman argues that de novo

review, not AEDPA’s deferential standard, applies to his

right-to-present-a-complete-defense claim because the

Nevada Supreme Court failed to adjudicate it on the merits.

Sherman contends that Nevada’s highest court “overlooked”

his federal constitutional claim and denied the claim solely

on state-law grounds. To begin, Sherman waived this issue

by not presenting it to the district court. See Allen v. Ornoski,

435 F.3d 946, 960 (9th Cir. 2006). In any event, we apply

AEDPA deference here.

As we recently stated, “[w]hen a petitioner presents a

federal claim ‘to a state court and the state court has denied

relief,’ we presume that ‘the state court adjudicated the claim

on the merits in the absence of any indication or state-law

procedural principles to the contrary.’” Patsalis, 47 F.4th at

1098 (quoting Harrington v. Richter, 562 U.S. 86, 99

(2011)). We apply this presumption “even when the state

court resolves the federal claim in a different manner or

context than advanced by the petitioner so long as the state

court ‘heard and evaluated the evidence and the parties’

substantive arguments.’” Id. (quoting Johnson, 568 U.S. at

302 (emphasis in original)).

We adhere to this “strong” presumption because “it is not

the uniform practice of busy state courts to discuss

separately every single claim to which a defendant makes

even a passing reference.” Johnson, 568 U.S. at 298. And

so federal habeas law “does not require a state court to give

reasons before its decision can be deemed to have been

‘adjudicated on the merits.’” Id. (quoting Richter, 562 U.S.

at 100). Thus, the presumption applies “[w]hen a state court

rejects a federal claim without expressly addressing that

claim.” Id. at 301.

SHERMAN V. GITTERE 11

But this presumption can be “rebutted” in “limited” or

“unusual circumstances.” Id. at 301–02. Thus, for example,

the presumption doesn’t hold if the federal claim was

“rejected as a result of sheer inadvertence.” Id. at 302–03.

Even so, to show this, “the evidence” must “very clearly”

lead to “the conclusion that a federal claim was inadvertently

overlooked in state court.” Id. at 303.

Here, Sherman has not rebutted the presumption that the

Nevada Supreme Court adjudicated his federal claim on the

merits. Instead, we conclude that the state court “heard and

evaluated the evidence and the parties’ substantive

arguments” regarding Sherman’s federal right-to-a-

complete-defense claim. Patsalis, 47 F.4th at 1098 (quoting

Johnson, 568 U.S. at 302 (emphasis in original)). While

Sherman’s briefing was “somewhat confusing,” Sherman v.

State, 114 Nev. 998, 1007 (1998), Sherman presented his

federal claim to the Nevada Supreme Court in a section of

his appellate opening brief entitled “the [trial] court erred in

denying Sherman the ability to impeach Dianne Bauer and

to establish a defense to the charge of first degree murder.”

Sherman then discussed the evidentiary and constitutional

issues together—with most of the section focused on the

evidentiary error. Only in one line of the final paragraph of

the section did Sherman contend the evidentiary “ruling

deprived Sherman of an effective defense under the Sixth

Amendment and violated his right to a fundamentally fair

trial and due process of law.” Indeed, Sherman’s briefing

failed to cite a single federal case discussing the

constitutional right to present a complete defense.

Despite this lack of clarity, the Nevada Supreme Court’s

decision reflects its understanding that the substance of

Sherman’s evidentiary claim presented a constitutional

challenge. It expressly noted Sherman’s argument that the

12 SHERMAN V. GITTERE

excluded evidence was not “simply attacking Dianne’s

credibility as a witness,” but in fact “tended to support his

theory of the case.” Sherman, 114 Nev. at 1007. The

Nevada court recognized that Sherman sought to develop a

defense to first-degree murder with the excluded evidence.

Id. The court recognized Sherman’s argument that, had he

been permitted to introduce the excluded testimony, he could

have shown that “Dianne . . . had somehow provided the

impetus for him to make the trip to Las Vegas by playing

upon his feelings about child abuse” and that Sherman only

entered Dr. Bauer’s house to talk to him about his

“relationship with Dianne” and “only after he was inside the

house did he lose his temper.” Id. The court noted

Sherman’s argument that the excluded evidence could have

been used to “show[] a lesser degree of culpability on his

part.” Id. at 1006.

The Nevada high court thus understood that Sherman’s

claim implicated his constitutional rights. While the court

didn’t expressly purport to decide a federal constitutional

question, its discussion of Sherman’s defense theory shows

that it “understood itself to be deciding a question with

federal constitutional dimensions.” See Johnson, 568 U.S.

at 305. By acknowledging that the excluded evidence

touched on more than just Dianne’s credibility, the court

recognized that the evidentiary ruling also pertained to

Sherman’s constitutional right to present a defense.

And the Nevada Supreme Court’s evaluation of the claim

shows no basis to rebut the presumption of a merits

adjudication. While the state court expressly analyzed the

claim under both Nev. Rev. Stat. §§ 50.085(3) and

SHERMAN V. GITTERE 13

48.035(1), 3 the court’s analysis also suggests

acknowledgment of the claim’s federal dimensions.

Sherman, 114 Nev. at 1006–7. Take the court’s citation to

Rembert v. State, 104 Nev. 680, 683 (1988). Id. at 1006.

Rembert considered whether admitting extrinsic evidence

contrary to Nev. Rev. Stat. § 50.085(3) resulted in the denial

of a “fair trial” and cited Chapman v. California, 386 U.S.

18, 24 (1967)—the seminal case on the federal constitutional

harmless-error standard. See Rembert, 104 Nev. at 683–84.

Thus, this case is like Johnson, in which the Supreme Court

observed that it was “[m]ost important” that the Supreme

Court of California discussed a state-court opinion which

cited several federal cases discussing the constitutional

issue. See Johnson, 568 U.S. at 304 (citing People v.

Cleveland, 25 Cal. 4th 466 (2001)). 4

The Nevada Supreme Court then concluded that the trial

court “implicitly found that the evidence was not relevant for

any purpose other than impeachment or that any relevance

the testimony had toward proving Sherman’s theory was

substantially outweighed by the risk of misleading the jury

or confusing the issues.” Sherman, 114 Nev. at 1007. After

reviewing the record, the Nevada Supreme Court concluded

3

Nev. Rev. Stat. § 48.035(1) states that relevant evidence may be

excluded if “its probative value is substantially outweighed by the danger

of unfair prejudice, of confusion of the issues or misleading the jury.”

4

While the Nevada Supreme Court did not expressly cite this principle,

under Nevada law, the application of Nev. Rev. Stat. § 48.035(1) must

comport with the “due process clause[] . . . right to introduce into

evidence any testimony or documentation which would tend to prove the

defendant’s theory of the case.” See Vipperman v. State, 96 Nev. 592,

596 (1980). So Nevada’s standard for evaluating Nev. Rev. Stat.

§ 48.035(1) is “at least as protective as the federal standard” for

evaluating the admissibility of evidence. Patsalis, 47 F.4th at 1100.

14 SHERMAN V. GITTERE

that excluding the evidence was not “manifestly wrong” and

that any error was harmless. Id.

While the Nevada Supreme Court could have been more

explicit in explaining its ruling, we do not “impose

mandatory opinion-writing standards on state courts.”

Johnson, 568 U.S. at 300 (simplified). Indeed, any

shortcomings in its decision likely originate from Sherman’s

briefing. Considering the minimal attention Sherman

afforded the federal issue in his briefing, it’s understandable

that the Nevada court would not opine on it at length. And

while Sherman complains that the Nevada court’s use of the

deferential “manifestly wrong” standard of review means it

was ruling only on state-law grounds, Sherman himself

argued for the “clearly erroneous” standard in his briefing

before that court. Thus, it is “entirely plausible that the

[Nevada Supreme Court] applied a deferential standard of

review because [Sherman] invited the court to do so—not

because it ignored his constitutional claim.” See Hinkle v.

Neal, 51 F.4th 234, 240 (7th Cir. 2022). We do not demand

that state courts use magical phrases or minimum word

lengths before applying the presumption of adjudication on

the merits.

Even more evidence cuts against Sherman’s claim that

the Nevada court failed to resolve his federal claim. As we

noted earlier, Sherman did not argue that the Nevada

Supreme Court overlooked this federal claim until his

briefing in the Ninth Circuit—despite contending in the

district court that the Nevada court overlooked other claims.

As the Supreme Court has observed, a petitioner

“presumably knows her case better than anyone else, and the

fact that she does not appear to have thought that there was

an oversight” until the federal appellate process “makes such

a mistake most improbable.” See Johnson, 568 U.S. at 306.

SHERMAN V. GITTERE 15

Both Patsalis and Johnson thus show that we must treat

Sherman’s right-to-a-complete-defense claim as adjudicated

on the merits. As in Patsalis and Johnson, Sherman

“presented his state and federal constitutional . . . challenges

together and discussed them interchangeably.” Patsalis, 47

F.4th at 1100. As in Patsalis and Johnson, the Nevada

Supreme Court here “recognized that [Sherman] was

presenting both a state and federal constitutional challenge.”

Id.; see Johnson, 568 U.S. at 294. And in both Patsalis and

Johnson, the federal courts concluded that the claim was

adjudicated on the merits by the state court. Johnson, 568

U.S. at 306; Patsalis, 47 F.4th at 1100. Given the

similarities here, we likewise hold that the Nevada Supreme

Court adjudicated Sherman’s constitutional claim for

violating his right to present a complete defense on the

merits.

In sum, “[t]here is no reason to think that the [Nevada]

court overlooked or failed to resolve [Sherman’s] claim”

regarding his right to present a complete defense. See

Patsalis, 47 F.4th at 1100. We thus review the claim under

AEDPA deference.

B.

Turning to the merits, Sherman has not shown that the

Nevada Supreme Court’s denial of Sherman’s right-to-

present-a-complete-defense claim was “contrary to, or

involved an unreasonable application of, clearly established

Federal law, as determined by the Supreme Court of the

United States” or “based on an unreasonable determination

of the facts,” 28 U.S.C. § 2254(d)(1)–(2), and so the district

court was right to deny the claim.

Sherman argues that the trial court violated his

constitutional right to present a complete defense when it

16 SHERMAN V. GITTERE

precluded him from presenting evidence to rebut the State’s

theory that Sherman killed Dr. Bauer to hurt Dianne. He

contends that the excluded evidence would have shown that

he was not angry with Dianne over their failed relationship.

Sherman also asserts that the excluded evidence shows that

Dianne manipulated him into confronting Dr. Bauer by

claiming that he molested her and her daughter. From this,

Sherman argues that the jury could have found that he did

not have the requisite intent for first-degree murder—that he

did not intend to kill Dr. Bauer when he traveled to Dr.

Bauer’s Las Vegas home and instead Sherman lost control

when confronting Dr. Bauer.

The constitutional right to “a meaningful opportunity to

present a complete defense” is rooted in both the Due

Process Clause and the Sixth Amendment. Crane, 476 U.S.

at 690 (quoting Trombetta, 467 U.S. at 485); see Chambers

v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an

accused in a criminal trial to due process is, in essence, the

right to a fair opportunity to defend against the State’s

accusations.”); Washington v. Texas, 388 U.S. 14, 19 (1967)

(“The [Sixth Amendment] right to offer the testimony of

witnesses, and to compel their attendance, if necessary, is in

plain terms the right to present a defense, the 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.”).

This right, however, is not absolute. “[S]tate and federal

rulemakers have broad latitude under the Constitution to

establish rules excluding evidence from criminal trials.”

United States v. Scheffer, 523 U.S. 303, 308 (1998). “Such

rules do not abridge an accused’s right to present a defense

so long as they are not ‘arbitrary’ or ‘disproportionate to the

purposes they are designed to serve.’” Id. (quoting Rock v.

SHERMAN V. GITTERE 17

Arkansas, 483 U.S. 44, 56 (1987)). Generally, the exclusion

of evidence is unconstitutional when it “significantly

undermine[s] fundamental elements of the defendant’s

defense.” Id. at 315. But “well-established rules of evidence

permit trial judges to exclude evidence if its probative value

is outweighed by certain other factors such as unfair

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

jury.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006).

“Only rarely” has the Supreme Court “held that the right to

present a complete defense was violated by the exclusion of

defense evidence under a state rule of evidence.” Nevada v.

Jackson, 569 U.S. 505, 509 (2013) (per curiam).

The Nevada Supreme Court affirmed the trial court’s

exclusion of the evidence on three grounds: (1) under Nev.

Rev. Stat. § 50.085(3), (2) under Nev. Rev. Stat.

§ 48.035(1), and (3) under a harmless-error analysis.

Reviewing each ground, we conclude that Sherman failed to

satisfy AEDPA’s strict requirements.

i.

Nev. Rev. Stat. § 50.085(3) generally prohibits the use

of extrinsic evidence to prove specific instances of conduct

to undermine a witness’s credibility. The Supreme Court has

expressly recognized its constitutionality and the legitimate

interests it serves. Jackson, 569 U.S. at 509. “The purpose

of that rule,” the Court explained, “‘is to focus the fact-finder

on the most important facts and conserve judicial resources

by avoiding mini-trials on collateral issues.’” Id. (quoting

Abbott v. State, 122 Nev. 715, 736 (2006)). In addition,

“[t]he admission of extrinsic evidence of specific instances

of a witness’ conduct to impeach the witness’ credibility

may confuse the jury, unfairly embarrass the victim, surprise

the prosecution, and unduly prolong the trial.” Id. at 511.

18 SHERMAN V. GITTERE

As the Court observed, Nevada’s rule is like the “widely

accepted rule of evidence law that generally precludes the

admission of evidence of specific instances of a witness’

conduct to prove the witness’ character for untruthfulness.”

Id. at 510 (citing Fed. R. Evid. 608(b)).

Given all this, “[t]he constitutional propriety of

[§ 50.085(3)] cannot be seriously disputed.” Id. Indeed, the

Supreme Court expressly held that none of its decisions

“clearly establishes” that excluding evidence consistent with

§ 50.085(3)’s purposes “violates the Constitution.” Id.

at 511. Sherman has not pointed to any Supreme Court

decision holding otherwise.

And nothing in the record shows that the trial court’s

evidentiary ruling deviated from § 50.085(3)’s legitimate

purposes. As the Nevada Supreme Court found, it was not

manifestly wrong to exclude collateral allegations of

misconduct of a witness who was not on trial. While the

excluded evidence may have somewhat undermined the

State’s theory that Sherman killed Dr. Bauer to get back at

Dianne, it does not negate Sherman’s culpability for first-

degree murder and may have confused the jury with a mini-

trial on the collateral issue of Dianne’s alleged misconduct.

Thus, the Nevada Supreme Court’s ruling on the

exclusion of the extrinsic evidence here was not contrary to,

or an unreasonable application of, clearly established federal

law.

ii.

Nev. Rev. Stat. § 48.035(1) permits the exclusion of

evidence “if its probative value is substantially outweighed

by the danger of . . . confusion of the issues or of misleading

the jury.” The Supreme Court has repeatedly affirmed state

SHERMAN V. GITTERE 19

rules giving trial courts discretion to exclude evidence that

is more prejudicial than probative or confuses the issues.

See, e.g., Crane, 476 U.S. at 689–90 (“[T]he Constitution

leaves to the judges who must make these decisions ‘wide

latitude’ to exclude evidence that is ‘repetitive . . . , only

marginally relevant’ or poses an undue risk of ‘harassment,

prejudice, [or] confusion of the issues.’”) (quoting Delaware

v. Van Arsdall, 475 U.S. 673, 679 (1986)).

We have previously observed that the Supreme Court has

not “squarely addressed” whether an “evidentiary rule

requiring a trial court to balance factors and exercise its

discretion” to exclude evidence, like § 48.035(1), itself

violates a defendant’s “right to present a complete defense.”

Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). And

Sherman provides no Supreme Court case showing

otherwise. Instead, Sherman relies on general propositions

of law found in Chambers, 410 U.S. at 294; Ake v.

Oklahoma, 470 U.S. 68, 83–84 (1985); Crane, 476 U.S. at

690–91; and Skipper v. South Carolina, 476 U.S. 1, 4–5

(1986).

But all these cases pre-date Moses and thus none clearly

establish that an evidentiary rule requiring a trial court to

balance factors and exercise its discretion, like § 48.035(1),

deprived a defendant of his right to present a complete

defense. See Chambers, 410 U.S. at 294 (concerning

Mississippi’s rules against hearsay and impeachment of a

party’s own witness); Ake, 470 U.S. at 76–77, 86–87

(finding a Due Process Clause right to access to a competent

psychiatrist if the defendant cannot afford one and his mental

state is likely to be a significant issue at trial); Crane, 476

U.S. at 690 (holding that the government may not “exclude

competent, reliable evidence bearing on the credibility of a

confession when such evidence is central to the defendant’s

20 SHERMAN V. GITTERE

claim of innocence”); and Skipper, 476 U.S. at 3 (evaluating

whether testimony from an incarcerated defendant’s jailers

and a visitor about his “adjustment” to jail met the threshold

test for relevance under South Carolina law).

Again, nothing in the record shows that the trial court’s

ruling fell outside § 48.035(1)’s appropriate scope—as the

Nevada Supreme Court concluded. The excluded evidence

was, at best, of limited exculpatory value and risked

confusing the jury because it related to misconduct of a

person not charged in the crime. Because Sherman cites no

Supreme Court cases that “squarely address the issue in the

case or establish a legal principle that clearly extends to

[this] context,” Moses, 555 F.3d at 754 (simplified), the

Nevada Supreme Court’s § 48.035(1) ruling is not contrary

to or an unreasonable application of clearly established

federal law.

iii.

The Nevada Supreme Court alternatively concluded that

any error was harmless. Sherman, 114 Nev. at 1007–08. A

federal constitutional error can be harmless only if a court is

“able to declare a belief that it was harmless beyond a

reasonable doubt.” Chapman, 386 U.S. at 24. While the

Nevada Supreme Court did not cite Chapman in its opinion,

it cited Rembert, which in turn cited Chapman’s harmless-

error standard. See Sherman, 114 Nev. at 1006; Rembert,

104 Nev. at 683. We thus presume that the Nevada court

applied the Chapman standard and review its application of

that standard under AEDPA deference. See Brown v.

Davenport, 596 U.S. 118, 127, 135 (2022) (explaining that a

“harmless-error determination qualifies as an adjudication

on the merits under AEDPA” and requires a petitioner to

prove that the state court’s decision was “unreasonable”).

SHERMAN V. GITTERE 21

Sherman has not shown that the Nevada Supreme Court’s

application of the harmless error standard was

“unreasonable.”

Overwhelming evidence supports Sherman’s conviction

for murder in the first degree. See Nev. Rev. Stat.

§§ 200.010, 200.030. None of the excluded evidence

contradicts or minimizes the evidence that Sherman broke

into Dr. Bauer’s house in the middle of the night, struck him

several times with a hammer, moved the telephone receiver

away from Dr. Bauer, and stole items from Dr. Bauer’s

house. And a review of the transcripts from the guilt and

penalty phases shows that Sherman presented evidence that

Dianne told people, including Sherman, that she hated her

father, that Dr. Bauer sexually abused her, and that she

wanted to see him dead.

In addition, as the Nevada Supreme Court found,

Sherman got much of his story out in closing. Sherman, 114

Nev. at 1007. While Sherman suggests that this factual

finding was unreasonable, at closing, Sherman clearly

offered his defense theory that Dianne manipulated and

controlled him knowing that he was emotionally

unbalanced. According to Sherman’s counsel, Dianne

purposefully exploited Sherman’s sensitivities about child

abuse and molestation by telling him that Dr. Bauer had

molested her and her daughter. Sherman’s counsel also

argued that Dianne was desperate for Dr. Bauer’s money.

Sherman’s counsel then contended that Dianne’s

manipulations drove Sherman to “confront Dr. Bauer over

molesting Dianne’s child and he lost it.” All of this would

contradict the State’s putative motive of revenge and support

a lower culpability than first-degree murder. Even so, the

jury found Sherman guilty of first-degree murder.

22 SHERMAN V. GITTERE

And Sherman presented several witnesses who testified

about Dianne’s relationship with Sherman and her father

during the penalty phase. Sherman’s counsel argued in the

penalty phase that Sherman was susceptible to Dianne’s

manipulation and that Sherman believed that Dr. Bauer had

sexually abused her. He also blamed Sherman’s increasing

drug use and fragile emotional state. Sherman’s counsel

explained that Sherman killed Dr. Bauer in a rage due to his

instabilities and Dianne’s manipulation. As a result, the jury

found, as mitigating factors, that the murder was committed

when Sherman was under duress or domination of another

person and under an extreme mental or emotional

disturbance.

To the Nevada state court, all this demonstrated that the

jury considered the excluded evidence about Dianne but that

it was not compelling enough to reduce his sentence from

death. Id. at 1007–08. The state court thus concluded that

“even had the evidence at issue been presented at trial, the

jury would not have found that Sherman was either innocent

or guilty of a lesser included offense.” Id. at 1008.

Finally, Sherman contends that the trial court’s ruling

also precluded a former psychologist, Dr. Stephen Pittel,

from testifying on his behalf during the guilt phase. But the

trial court’s ruling did not bar Dr. Pittel’s testimony and it is

unclear why the expert witness declined to take the stand

during the guilt phase. See Fed. R. Evid. 703 (the facts or

data that an expert relies on to form the basis of an opinion

“need not be admissible for the opinion to be admitted”).

Sherman contends that the excluded testimony provided

factual corroboration and foundation for Dr. Pittel’s

opinions, but he does not provide an argument or evidence

on why Pittel did not testify at the penalty phase.

SHERMAN V. GITTERE 23

Thus, Sherman has not shown that the Nevada Supreme

Court’s harmless error determination was unreasonable.

III.

Because the Nevada Supreme Court’s denial of

Sherman’s right-to-present-a-complete-defense claim was

not erroneous under AEDPA’s deferential standard of

review, we affirm.