# Petition for Writ of Certiorari — Duncan, Warden v. Bradley > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1985%3A1 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 2003 - **Citation:** 540 U.S. 963 ## Text OFFICE OF THE CIFRK IN THE SUPREME COURT OF THE UNITED STATES W. A. DUNCAN, WARDEN, Petitioner, Vv. GARY BRADLEY ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT PETITION FOR WRIT OF CERTIORARI BILL LOCKYER Attorney General of California MANUEL M. MEDEIROS State Solicitor General ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KRISTOFER JORSTAD Deputy Attorney General DONALD E. DE NICOLA Deputy Attorney General Counsel of Record 300 South Spring Street Los Angeles, California 90013 Telephone: (213) 897-2388 Fax: (213) 897-2806 Counsel for Petitioner +. toate MN Webons Yi SOP NET te Bik ha wtb AP Pa EES abit ba AAA Bi Phe Bs 9 NaS AL, QUESTIONS PRESENTED 1. May a federal habeas corpus court grant relief to a state prisoner on the basis of its own conclusion that, contrary to the ruling of the state court, state law required jury instructions on an affirmative defense at the prisoner’s trial? 2. May a federal habeas corpus court consider, in determining the prejudicial effect ofa trial error, affidavits from trial jurors asserting how they otherwise would have voted? il TABLE OF CONTENTS PETITION FOR WRIT OF CERTIORARI JURISDICTION OPINIONS BELOW Page CONSTITUTIONAL AND STATUTORY PROVISIONS 2 STATEMENT OF THE CASE REASONS FOR GRANTING THE WRIT i. Certiorari is warranted to review the Ninth Circuit’s holding that federal habeas corpus relief may be granted on the basis of its own determination, contrary to that of the state courts, that the trial judge violated state law by declining to instruct the petitioner’s jury on a state-law affirmative defense of “entrapment.” 2 6 A. The Ninth Circuit’s treatment of alleged state-law error as the basis for discerning a violation of the Constitution conflicts with decisions of this Court. B. In treating instructional errors impairing state-law affirmative defenses as violations of the Constitution, the Ninth Circuit opinion conflicts with decisions in other Circuits. 13 BR oe . ete at te ill TABLE OF CONTENTS (continued) Page Il. Certiorari is warranted to review the Ninth Circuit’s holding that a federal habeas corpus court may consider, in determining any prejudicial effect of an error occurring in the state trial, affidavits from trial! jurors asserting how they would have voted if the error had not occurred. 16 CONCLUSION 19 iV TABLE OF AUTHORITIES Cases Allen v. Redman, 858 F.2d 1194 (6th Cir. 1988) Baker v. Leapley, 965 F.2d 657 (8th Cir. 1992) Barker v. Yukins, 199 F.3d 867 (6th Cir. 1999) Blair v. McCarthy, 881 F.2d 602 (9th Cir. 198°) California v. Trombetta, 467 U.S. 485 (1984) Caspari v. Bohlen, 510 U.S. 383 (1994) Clemmons v. Delo, 177 F.3d 680 (8th Cir. 1999) Cupp v. Naughten, 414 US. 141 (1973) Davis v. Strack, ' 270 F.3d 111 (2d Cir. 2001) Early v. Packer, 537 U.S. 3 (2002) Page 11 14 ee 11,12 14 16 TABLE OF AUTHORITIES (continued) Page Ellis v. Hargett, 302 F. 3d 1182 (10th Cir. 2002) 13 Engle v. Isaac, 456 U.S. 107 (1982) 10 Estelle v. McGuire, 502 U.S. 62 (1991) Ae S Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) 15 Fulwood v. Lee, 290 F.3d 663 (4th Cir. 2002) 18 Gilmore v. Taylor, 508 U.S. 333 (1993) 9,10 Goeke v. Branch, 514 U.S. 115 (1995) 12 Gryger v. Burke, 334 U.S. 728 (1948) ee Herrera v. Collins, 506 U.S. 390 (1993) 15 In re Robbins, 18 Cal.4th 770 (1998) 8 In re Winship, 397 U.S. 358 (1970) 9 vi TABLE OF AUTHORITIES (continued) Jackson v. Virginia, 443 U.S. 307 (1979) Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997) Lambrix v. Singletary, 520 U.S. 518 (1997) Levine v. Torik, 986 F.2d 1506 (6th Cir. 1993) Lockyer v. Andrade, 123 S.Ct. 1166 (2003) Mathews v. United States, 485 U.S. 58 (1988) Mullaney v. Wilbur, 421 U.S. 684 (1975) Murphy v. Tivoli Enterprises, 953 F.2d 354 (8th Cir. 1992) Patterson v. New York, 432 U.S. 197 (1977) People v. Box, 23 Cal.4th 1153 (2000) People v. Santamaria, 8 Cal.4th 903 (1994) Page 10 13,14 1] 15 15 11,12 18 10 Vii TABLE OF AUTHORITIES (continued) Page People v. Watson, 22 Cal.4th 200 (2000) 8 Pulley v. Harris, 465 U.S. 37 (1984) 7 Schiro v. Farley, 510 U.S. 220 (1994) 16 Silagy v. Peters, 905 F. 2d 1086 (7th Cir. 1990) 18 Sloan v. Gramley, 215 F.3d 1330 (7th Cir. 2000) 15 Smith v. Horn, 120 F.3d 400 (3d Cir. 1997) 14 Strickland v. Washington, 466 U.S. 668 (1984) 17 Tanner v. United States, 403 U.S. 107 (1987) 17 Taylor v. Withrow, 288 F.3d 846 (6th Cir. 2002) 14, 15 Teague v. Lane, 489 US. 288 (1988) 9,11 Thomas v. Peters, 48 F.3d 1000 (7th Cir. 1995) 9 Vill TABLE OF AUTHORITIES (continued) Townsend v. Sain, 372 U.S. 293 (1963) Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995) United States v. Cappas, 29 F. 3d 1187 (7th Cir. 1994) United States v. Russell, 411 U.S. 423 (1973) Wade v. Terhune, 202 F.3d 1190 (9th Cir. 2000) Williams v. Taylor, 529 U.S. 362 (2000) Wood v. Marshall, 790 F.2d 548 (6th Cir. 1986) Statutes 28 U.S.C. § 2254 28 U.S.C. § 2254(a) 28 U.S.C. § 2254(d) 28 U.S.C. § 2254(d)(1) 28 U.S.C. § 2254(d)(2) Page 11,15 11, 16 15 16 iX TABLE OF AUTHORITIES (continued) Page Court Rules Fed. R. Evid. 606(b) 17 Fed. R. Evid. 1101(b) 18 Other Authorities PRICE WATERHOUSE COOPER, COST OF PRIVATE PANEL REPRESENTATION IN FEDERAL CAPITAL HABEAS CORPUS CASES (Feb. 1999) 17 IN THE SUPREME COURT OF THE UNITED STATES No. — W. A. DUNCAN, WARDEN, Petitioner, V. GARY BRADLEY PETITION FOR WRIT OF CERTIORARI Warden W. A. Duncan hereby petitions this Court for a writ of certiorari to review the judgment of the Ninth Circuit Court of Appeals affirming the district court’s grant of habeas corpus relief to state prisoner Gary Bradley. JURISDICTION The judgment of the Court of Appeals issued on December 24, 2002, and re-hearing was denied on May 14, 2003. This Court has jurisdiction over the instant petition, filed timely within ninety days of the denial of rehearing. 28 U.S.C. §§ 1254(1), 2101(c); Sup. Ct. R. 13.1, 13.4. OPINIONS BELOW The opinion of the Ninth Circuit Court of Appeals is reported as Duncan v. Bradley, 315 F.3d 1091 (9th Cir. 2002), and is reprinted in Appendix A to this petition. The report of the magistrate judge, and the judgment of the district court adopting it, are unpublished, and are reprinted in Appendices B and C. The opinion of the California Court of Appeal in People v. Bradley is unpublished, and excerpts from it are reprinted in Appendix F. CONSTITUTIONAL AND STATUTORY PROVISIONS The Fourteenth Amendment provides, in part, . nor shall any state deprive any person of life, liberty, or property, without due process of law. . . Section 2254(a) of Title 28 of the United States Code provides: The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the grounds that he is in custody in violation of the Constitution or laws or treaties of the United States. Section 2254(d) provides, in pertinent part, An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim— sina mdasecatuan . resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings. Federal Rule of Evidence 606(b) provides, Inquiry into validity or verdict or indictment. Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury’s deliberations or to the effect of anything upon that or any other juror’s mind or emotion as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror’s mental processes in connection therewith, except that a juror may testify on the question whether any extraneous prejudicial information was improperly brought to the jury’s attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror’s affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes. STATEMENT OF THE CASE 1. In 1996, two undercover policemen approached Jose Flores and asked him for help in buying drugs. Flores sought out respondent Gary Bradley; and Bradley, in turn, obtained some cocaine and delivered it to Flores and the policemen for twenty dollars. The officers then arrested Bradley for selling the cocaine. At his first trial in the California superior court, Bradley presented a defense of “entrapment,” based upon his own testimony and other evidence that the police had dealt with him through an intermediary whose sickly appearance played on Bradley’s sympathies. As recognized in cases such as People v. Reliford, 28 Cal.4th 647 (2002), entrapment under California law is not a question of the defendant’s subjective criminal intent or disposition; it is instead an objective question, as to which the defendant bears the burden of proof, of whether the police conduct would have induced even a “normally law- abiding person” to commit the crime. The trial judge instructed the jury on entrapment, and the jury deadlocked 11-to-1 in favor of a verdict of guilt. In Bradley’s re-trial, a different judge determined that the evidence—although much the same as in the first trial given that the prosecution relied on Bradley’s testimony from that trial—was insufficient to raise the entrapment defense. In the absence of entrapment instructions, the new jury found Bradley guilty, and the court sentenced him to a “three strikes” recidivist term of life imprisonment. On appeal, Bradley argued that the evidence sufficed under state law to require the entrapment instructions. But the California Court of Appeal held that there was no “substantial” evidence, as required by state law, to support instructions on the defense. Instead, the evidence showed a “run of the mill” undercover operation involving a decoy in which the policemen “did not conduct themselves improperly” by badgering or cajoling. The appellate court declined to take judicial notice of affidavits, submitted by Bradley, in which two jurors asserted that entrapment instructions would have changed the verdict. App. F4-F7. In a petition for discretionary review to the California Supreme Court, Bradley argued that state law required the instructions and that failure to give them therefore violated the United States Constitution too. The California Supreme Court denied review without comment. eee ee ee a 2. Bradley initiated federal habeas corpus proceedings, and the district court granted relief on his entrapment- instruction claim. The Ninth Circuit affirmed in a 2-to-1 opinion authored by Judge Ferguson. Disagreeing with the state appellate court, and asserting that the state court had engaged in an “unreasonable determination of the facts” under 28 U.S.C. § 2254(d)(2), the panel majority opined that the evidence at trial indeed had been sufficient to support the state-law entrapment defense so as to require the instructions. The panel discerned what it viewed as cajoling on the part of the decoy Flores. And it disputed the state court’s evaluation of what a “normally law abiding person” would have done under such circumstances. As the federal panel saw it, the California courts had “ignored the purpose” of the California policy reflected in the California entrapment defense. In addition, the panel opined that California “law of the case” doctrine also required the judge in the re-trial to adhere to the ruling of the judge who had given the instructions in the first trial. App. A5-A10. The majority then held that refusing the state-law instructions had violated Bradley’s federal due-process right to present “any recognized defense,” a right assertedly recognized by this Court in Mathews v. United States, 485 U.S. 58 (1988), and California v. Trombetta, 467 U.S. 485 (1984). Further, the majority deemed the constitutional violation to be prejudicial in light of the prior deadlock and affidavits from two jurors claiming that the jury otherwise would have voted to acquit. From there, the majority finally concluded that the state appellate court’s opinion could be discarded, even under AEDPA~ amendments to 28 U.S.C. § 2254(d), because the state decision had amounted to an “unreasonable application of clearly-established federal law.” App. Al0-A15. Judge Graber dissented. In her view, the majority’s grudging AEDPA analysis repeated mistakes for which this Court already had criticized the Ninth Circuit. She concluded I. Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. 104-132, 110 Stat. 1217. ao F i i | that federal courts lacked authority to second-guess California courts on state-law questions, and that the AEDPA deferential standard of review prohibited relief because no Supreme Court precedents required the defense instructioris © a constitutional matter in state cases. App. Al8-A27. The Warden’s petition for re-hearing, and hearing en banc, was denied. App. El. Bradley has been released from prison custody pending this appeal. j monn ee latin DID os me REASONS FOR GRANTING THE WRIT . Certiorari is warranted to review the Ninth Circuit’s holding that federal habeas corpus relief may be granted on the basis of its own determination, contrary to that of the state courts, that the trial judge violated state law by declining to instruct the petitioner’s jury on a state-law affirmative defense of “entrapment.” ee eS en eee opinion, basing habeas corpus relief upon the omission of instructions on a state-law affirmative defense of entrapment, conflicts with many of this Court’s clear precedents. This Court broadly has recognize that federal courts may not override state- court rulings on questions of state law and that federal habeas corpus relief may not be predicated upon mere errors of state law. And it has expressed grave doubt about the propriety of federal relief on state affirmative-defense claims specifically. The Ninth Circuit’s holding, that the federal Constitution guarantees instructions on state-law affirmative defenses, also conflicts with decisional law in other Circuits. And, in any event, it violates this Court’s well-established doctrine prohibiting the retroactive invocation of debatable “new rules” of law to grant relief in habeas corpus cases. Certiorari should be granted because the Ninth Circuit’s | RRA Bi indie ASL RADAR Sec ict te aaa niet? ve A. The Ninth Circuit’s treatment of alleged state-law error as the basis for discerning a violation of the Constitution conflicts with decisions of this Court. 1. In Estelle v. McGuire, 502 U.S. 62, 67-68 & n. 2, 71- 72 (1991), this Court reversed the Ninth Circuit’s grant of habeas corpus relief to a California prisoner, explaining that the Circuit had exceeded the proper scope of federal habeas corpus by premising relief on its own conclusion, in contradiction of the ruling of the California appellate court, that the trial judge had committed an error under state law that had prejudicially affected the result of the petitioner’s trial. In reversing McGuire, tais Court also was constrained to reach out and repudiate a similar excess of power by the Ninth Circuit in the earlier case of Blair v. McCarthy, 881 F.2d 602 (9th Cir. 1989). McGuire, at 69 n. 2. McGuire in this way enforced long- standing Supreme Court doctrine restricting federal second- guessing of state-court interpretations of state law and, more important, limiting habeas corpus relief to federal constitutional claims rather than mere state-law claims. See Pulley v. Harris, 465 U.S. 37, 41 (1984) (“A federal court may not issue the writ based upon a perceived error of state law.”); Mullaney v. Wilbur, 421 U.S. 684, 691 (1975) (“This Court . . . repeatedly has held state courts are the ultimate expositors of state law ....”); Gryger v. Burke, 334 U.S. 728, 731 (1948) (“We cannot treat a mere error of state law, if one occurred, as a denial of due process; otherwise, every erroneous decision by a State court on state law would come here as a federal constitutional question”); see id. (“We are not at liberty to conjecture that the trial court acted under an interpretation of the State law different from that which we might adopt and then set up our own interpretation as a basis for declaring that due process has been denied”’). As evidenced by the 2-to-1 majority opinion in this case, however, this Court’s McGuire message has worn off in the Ninth Circuit. As Judger Graber properly condemned in her dissent, the majority opinion below explicitly rejected the California Court of Appeal’s legal conclusion that the evidence at Bradley’s trial had not made out a case of the state-law affirmative defense of entrapment. App. A6-A9. The panel further perceived an additional state-law error under what it incorrectly and eccentrically conjured to be California “law of the case” doctrine governing jury instructions in the retrial of a criminal case. See App. A9-A10, A26-A27; People v. Watson, 22 Cal.4th 200, 223 (2000). Compounding that second- guessing, the majority then granted relief, in essence, to vindicate a mere state-law affirmative defense not otherwise required by the Constitution.” The vice of the Ninth Circuit’s opinion in this regard i is not | simply that it got state law wrong yet again—although the Circuit’s errors in this regard have created much mischief in California. See, e.g., People v. Box, 23 Cal.4th 1153, 1188 fn. 7 (2000) (rejecting misinterpretation of California law employed by Ninth Circuit to grant habeas corpus relief in Wade v. Terhune, 202 F.3d 1190 (9th Cir. 2000)); People v. Santamaria, 8 Cal.4th 903, 923 (1994) (rejecting misinterpretation of California law employed by Ninth Circuit to grant habeas : corpus relief in Pettaway v. Plummer, 943 F.2d 1041 (9th Cir. 1991)); In re Robbins, 18 Cal.4th 770, 793 (1998) (rejecting misinterpretation of California law employed by Ninth Circuit 2. In ruling that the California state courts erred in their application of state law, the Ninth Circuit invoked 28 U.S.C. § 2254(d)(2)—an exception to the general AEDPA rule prohibiting habeas corpus relief that is triggered where the state-court adjudication of the merits of a federal claim “was based on an unreasonable determination of the facts.” The panel : majority never claimed, however, that Congress had intended to overturn McGuire through § 2254(d)(2). -or is there a basis for any such suggestion. The statutory language in Congress’ AEDPA habeas-corpus reforms in every respect appear to restrict and nowhere appear to expand the availability of the writ for state prisoners. Moreover, 28 U.S.C. § 2254(a) provides that habeas corpus relief may be granted to a state prisoner “only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.” Not surprisingly, then, no court in the nation has held that AEDPA diminishes the force of the principles announced in McGuire. ee / in habeas corpus case of Ashmus v. Calderon, 123 F.3d 1199 (9th Cir. 1997)). The worse harm is that granting federal habeas corpus relief to a state prisoner on a State-law claim violates Congress’ habeas corpus plan and undermines federalism and State-federal comity. The insult is particularly sharp where, as Judge Graber pointed out in her criticism of the majority opinion, the federal court has actually overridden state-court rulings on state-law questions. Unless reviewed, the Ninth Circuit’s opinion will open the doors to numerous similar challenges based on alleged state-law errors, with similarly deleterious results, in the future. 2. Certiorari is justified, further, because the Ninth Circuit adopted, under a “right to present a defense” rubric, a due-process rule as to which this Court has expressed grave doubt. According to the Ninth Circuit, the Constitution requires jury instructions on state-law affirmative defenses that embrace facts beyond the elements of the charged crime. In Gilmore v. Taylor, 508 U.S. 333, 343 ( 1993), however, this Court rejected a prisoner’s claim that his due-process rights were violated because the instructions at his trial had frustrated the jury’s consideration of evidence supporting his state-law affirmative defense. This Court’s 7, aylor opinion, to be sure, was based in significant part on the habeas corpus policy ground that the prisoner’s claim impermissibly sought the retroactive application of a “new rule” of law. See Teague v. Lane, 489 U.S. 288, 310 (1988) (plurality op.). But the opinion also Clearly indicates that the Constitution did not require that rule anyway. See Thomas v. Peters, 48 F.3d 1000, 1009-1010 (7th Cir. 1995) (Easterbrook, J -, concurring) (discussing 7% aylor). Refusing to apply the line of cases developed under Jn re Winship, 397 US. 358 (1970), which recognized the prosecution’s due-process burden of proving the elements of the charged crime beyond a reasonable doubt, the Taylor Court explained that “the most that can be said of the instructions given at respondent’s trial is that they created a risk that the jury would fail to consider evidence that related to an affirmative defense, vith respect to which Winship’s due process guarantee 10 does not apply.”’ 508 U.S. at 343 (emphasis added). In re- affirming that the due-process rules governing the state’s proof of the elements of a crime, see Jackson v. Virginia, 443 U.S. 307 (1979) (federal review of sufficiency of evidence of elements of state-law crimes), do not extend to state-law affirmative defenses comprising additional facts that do not merely negate the existence of those elements, this Court cited its precedents allowing the States to place upon defendants the burden of proving such defenses. /d. (citing Martin v. Ohio, 480 U.S. 228 (1987)); Patterson v. New York, 432 U.S. 197 (1977); see Engle v. Isaac, 456 U.S. 107, 119-121 (1982) (treating claim of error in instruction on a state-law affirmative defense as not cognizable in habeas corpus); but see id., at 341. Taylor distinguished, from the different context of state-law affirmative defenses in non-capital cases, Supreme Court precedents recognizing a special need to allow the jury to consider mitigating evidence as “constitutionally relevant” under the Eighth Amendment at the sentencing phase of a death-penalty case. /d., at 342. Taylor also distinguished this Court’s other precedents, insofar as they recognized a due- process right to “a meaningful opportunity to present a complete defense,” as exclusion-of-evidence cases that did not involve restrictions on a defendant’s ability to present state-law “affirmative defenses.” /d., at343. And Taylor recognized that expanding the “right to present a defense” cases to cover jury instructions on State affirmative defenses “would make a nullity of the rule reaffirmed in Estelle v. McGuire .°. . that instructional errors of state law generally may not form the basis of federal habeas relief.” /d., at 344. So, just as it disobeyed McGuire, the Ninth Circuit opinion below ignoréd this Court’s jurisprudence, as reflected in Taylor, on state-law affirmative defenses. Moreover, in holding that federal law “clearly established” a constitutional rule requiring proper instructions on state-law affirmative defenses, App. Al4- A15, the opinion below invoked a “new rule” of the very kind that Taylor itself recognized to be impermissible under this Court’s habeas corpus non-retroactivity doctrine. See Williams a EES :~'S 9 11 v. Taylor, 529 U.S. 362, 412 (2000) (equating AEDPA “clearly established federal law’ standard with “new rule” standard); see generally Lambrix v. Singletary, 520U.S. 51 8, 527-528 (1997): Teague v. Lane, 488 U.S. at 310. See fn. 4, post. It is true, as this Court indicated in Cupp v. Naughten, 414 U.S. 141, 146 (1973), that state-law error in jury instructions, and perhaps other trial procedures or rulings that coincidentally violate state law, also mi ght render a trial fundamentally unfair and violate due process. Accord, Estelle v. McGuire, 502 U.S. at 72. But it hardly follows from Naughten that a mere state- law error—an error that by definition affects only protections that the Constitution treats as unnecessary—can be “bootstrapped” into a fundamental due-process violation simply because the error impairs some non-constitutional interests that might be perceived as valuable or desirable or otherwise affects the trial result. See id. (“It must be established not merely that the instruction is undesirable, erroneous, or even “universally condemned,’ but that it violated some constitutional right’”’) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)): Allen v. Redman, 858 F.2¢ 1194 (6th Cir. 1988) (discussing Naughten). The question in this case is whether Naughten should be read to mean, unremarkably, that a procedure unauthorized by state-law may warrant federal habeas corpus relief if it also is condemned under a specific provision of the Constitution—or whether, as the Ninth Circuit would have it, Naughten instead means that an error impairing an affirmative defense that only the State guarantees is itself fundamentally unfair so as to be condemned by the Constitution. Although the panel below denied that it was granting the writ for state-law error, App. A10, the protest is untenable. Nothing in the panel’s opinion—and, certainly nothing in this Court’s cases—-purports to enshrine California’s entrapment defense as a constitutional right for all criminal defendants nationwide. See United States v. Russell, 411 U.S. 423, 433 (1973) (entrapment defense is “not of constitutional dimension”); see also Mathews v. United States, 485 U.S. at 66. Instead, the panel went to great lengths to establish that, in its 12 view, it was the specific entrapment defense recognized by California law that had been raised by the evidence in petitioner’s case, and that the failure to instruct on that affirmative defense had affected the result. App. AS-A9. The true theory of the panel’s grant of relief—the formula of “state- law error” on affirmative defenses equals “unfairness” equals “violation of Constitution’”—is functionally indistinguishable from the theory it tried to disclaim. If Naughten indeed supports that formula, federal habeas corpus courts then would function as super state appellate courts—a novel proposition indeed and one that would appear to conflict with the rule in Estelle v. McGuire. In addition, to base a finding of unconstitutional unfairness simply in the violation of the law of one State would be tantamount to constitutionalizing the policies of that State for the rest of the country as well. The panel in this case relied on Mathews v. United States, 485 U.S. 58, and California v. Trombetta, 467 U.S. 485, to find - aviolation of Bradley’s “right to present a defense.” App. A10- All. But neither case validates the panel’s holding. A!though involving instructions on entrapment as defined in federal criminal law, and stating that the defendant is entitled to instructions on defenses made out by the evidence, Mathews appears at most to be merely an exercise of this Court’s supervisory powers over the federal courts rather than an interpretation of the Constitution. Cf. Goeke v. Branch, 514 U.S. 115 (1995). Trombetta involved, not instructions on an affirmative defense, but a claim of intentional destruction of exculpatory evidence that might have negated the existence of an element of the charged crime itself. ——— ee Oe SO 13 B. Jn treating instructional errors impairing state-law affirmative defenses as violations of the Constitution, the Ninth Circuit opinion conflicts with decisions in other Circuits. 1. The Ninth Circuit’s opinion conflicts with decisional law in other Circuits. In the Third Circuit case of Johnson v. Rosemeyer, 117 F.3d 104 (3d Cir. 1997), for example, the petitioner claimed that the state judge in his homicide trial had erroneously introduced “added elements” to the jury instructions on his state-law defense of “justification” for the use of deadly force. Noting that Estelle v. McGuire prohibited relief for mere state-law error, the Third Circuit in Johnson observed that the petitioner was seeking to circumvent McGuire by arguing—like Bradley in the case at bar—that the alleged instructional error violated due process “because it deprived him of an opportunity to present his defense.” Id., at 109. The Third Circuit discerned, however, that the claim would be cognizable only if the instructional error relieved the state of its constitutional obligation to prove an element of the crime or “if it deprived the petitioner of a defense the state had to afford him under federal law.” Id., at 110. The appellate court explained, Johnson’s problem is that he cannot point to a federal requirement that jury instructions on the elements of an offense when justification is at issue must include particular provisions, nor can he demonstrate that the Jury instructions deprived him of a defense which federal law provided to him. Id. (emphasis added). Absent an independent requirement that States must afford such a defense as a federal constitutional matter, the Johnson court concluded that the instruction claim in essence concerned merely a question of state law that could not be addressed in federal habeas corpus proceedings. /d. at 110-111; see Ellis v. Hargett, 302 F. 3d 1182, 1188-1189 (10th Cir. 2002) (claim that self-defense instructions on self-defense 14 had violated Oklahoma law was “not cognizable in a federal habeas action’”’); cf. Smith v. Horn, 120 F.3d 400 (3d Cir. 1997) constitution requires proper instruction on justification where it negates malice element of offense). Indeed, as Johnson also correctly perceived, the question whether state law was violated is irrelevant to the habeas corpus court’s determination of whether the instructions violated the Constitution. Johnson, at 111-113. 2. In several other Circuits, opinions on this issue go both ways—further highlighting the need for this Court’s intervention. Compare Taylor v. Withrow, 288 F.3d 846 (6th Cir. 2002) (relief based on error in self-defense instructions) with Wood v. Marshall, 790 F.2d 548, 551 (6th Cir. 1986) (instructional error on burden of proving affirmative defense of irresistible impulse not cognizable as due-process claim in federal habeas corpus); and Clemmons v. Delo, 177 F.3d 680 (8th Cir. 1999) (dicta)-(distinguishing purported cognizability of claims of erroneous self-defense instruction from those based on complete absence of instruction) with Baker v. Leapley, 965 F.2d 657, 658 (8th Cir. 1992) (per curiam) (claimed error in burden-of-proof instructions on insanity not remediable in federal habeas corpus where state court found no state-law error). It therefore is true that some Circuits occasionally have endorsed a federal habeas corpus remedy for erroneous instructions on some affirmative defenses in state trials. But they have done so on vague and varying grounds and in any event without adequate explanation of how such relief might be squared with Estelle v. McGuire or with this Court’s affirmative-defense jurisprudence. Some courts assume that, where the state-law error was so significant that it determined the outcome of the case, the error therefore reaches the level of a “due process” violation rendering the trial unfair. See, e.g., Davis v. Strack, 270 F.3d 111 (2d Cir. 2001) *(failure to instruct on state-law “Justification” defense creates prejudice rising to level of due- process violation); Barker v. Yukins, 199 F.3d 867, 873 (6th Cir. 1999) (offering no explanation why error was unconstitutional, Farrer a 15 but treating effect of error on outcome as sufficient “prejudice” warranting habeas corpus relief). Another court has simply inferred, from the constitutional right to present evidence negating the elements of charged offense, a ri ght to instructions on an affirmative defense. Tyson v. Trigg, 50 F.3d 436 (7th Cir. 1995) (mistake defense in rape case) (dicta). It is hard, to say the least, to reconcile such seemingly circular reasoning with Estelle v. McGuire’s conclusion that even prejudicial errors of State-law dimension cannot support habeas corpus relief under 28 U.S.C. § 2254, or to ignore the appellate courts’ tendency in the cited cases to conflate the defendant’s rights concerning proof of the elements of the crime with his interest in litigating affirmative defenses beyond those elements.” Review of the question presented in the case at bar is warranted in order ensure the vindication of this Court’s Estelle v. McGuire rule, to resolve the conflict in the Circuits, and to properly account for the federalism concerns implicated in an expanding area in which federal courts employ dubious theories, bottomed in unusual ways on state-law claims, in service of federal-court review of final state-court judgments.” 3. Other courts have embraced still other problematic theories in this — area. Compare Taylor v. Withrow, 288 F.3d 846 (finding a “fundamental right” to self defense), with United States v. Russell, 411 U.S. 423 (federal entrapment defense “is not of constitutional dimension”); and compare Sloan v. Gramley, 215 F.3d 1330 (7th Cir. 2000) (suggesting self-defense instructional error raises question of habeas corpus relief for actual innocence), with Herrera v. Collins, 506 U.S. 390, 404 (1993) (no freestanding habeas corpus claims of innocence); Townsend v. Sain, 372 U.S. 293 (1963) (same). Cf. Fetterly v. Paskett, 997 F.2d 1295 (9th Cir. 1993) (habeas corpus relief lies for state-law errors if they deprived petitioner of a “liberty interest”); Fetterly, 15 F.3d 1472, 1475 (diss. op. on denial of rehearing); Levine v. Torik, 986 F.2d 1506, 1515 (6th Cir. 1993) (rejecting “liberty interest” theory). 4. As reflected in Judge Graber’s dissent, see App. A18, the Bradley majority’s treatment of 28 U.S.C. § 2254(d), the fundamental AEDPA reform ordinarily precluding relief for federal claims “adjudicated on the merits in State proceedings,” repeats errors for which this Court already has reversed the Ninth Circuit in Lockyer v. Andrade, 123 S.Ct. 1166 (2003), 16 Il. Certiorari is warranted to review the Ninth Circuit’s holding that a federal habeas corpus court may consider, in determining any prejudicial effect of an error occurring in the state trial, affidavits from trial jurors asserting how they would have voted if the error had not occurred. This Court should grant certiorari, also, to decide whether federal habeas corpus courts may consider affidavits from jurors about the potential effect an unconstitutional error might have exerted on their deliberations. The Ninth Circuit’s reliance on juror affidavits to undermine the state-court verdict in this case, App. Al2-A13, departs widely from normal judicial procedure and from federal policies protecting both jurors from harassment and state criminal judgments from reversal based and Early v. Packer, 537 U.S. 3 (2002) (per curiam). The Warden, however, has concluded that certiorari review of the panel interpretations of the narrow exceptions to that reform is unavailable. For, it appears that—despite the assumption of the parties and the courts below—the state courts never adjudicated the merits of Bradley’s purported federal constitutional claim. The California Court of Appeal, the focus of the panel’s § 2254(d)(1) analysis in the opinion below, adjudicated on the merits only what Bradley presented to it: an unadorned state-law claim for entrapment instructions. See App. F. Although Bradley later presented the California Supreme Court with the new and improved claim he now presses in federal court—that the Constitution somehow guaranteed entrapment instructions if otherwise warranted under state law—the state supreme court merely denied discretionary review of that claim without reaching its merits. Review on the equivalent Teague v. Lane “new rule” issue, see p. 11, ante, however, should not be deemed foreclosed. Cf. Caspariv. Bohlen, 510 U.S. 383, 389 (1994); Schiro v. Farley, 510 U.S. 220, 228 (1994). In arguing before the Ninth Circuit, the state’s representatives relied on Gilmore v. Taylor, supra, a case that extensively discussed Teague’s application to a claim based on affirmative-defense instructions; the panel’s adoption of a rule requiring affirmative-defense instructions as “clearly established federal law” in effect answered the Teague “new rule” question, see Williams v. Taylor, 529 U.S. at 412; and the Warden explicitly relied on the Teague doctrine in his rehearing petition. 17 upon new and debatable rules of law. Not surprisingly, then, it also conflicts with the holdings of other Circuits. Here, in gauging whether the alleged entrapment- instruction error was harmless, the Ninth Circuit panel relied on affidavits from two jurors who claimed that they and the other jurors would have voted to acquit Bradley under entrapment instructions. This case thus presents, at the outset, a serious question of whether such hypothetical and after-the-fact affidavits are of sufficient reliability that they should be used to overturn State judgments. Use of such affidavits probably will have an especially pronounced impact in capital cases—where, even after state collateral proceedings, federal-court funding remains available to the petitioner, see PRICE WATERHOUSE COOPER, COST OF PRIVATE PANEL REPRESENTATION IN FEDERAL CAPITAL HABEAS CORPUS CASES (Feb. 1999), vi- vill, V40-43, V70-76, VIII-119 ($175,000 average for initial petition and evidentiary hearing), and where there has developed a culture of trying to enlist in the petitioner’s cause jurors who over time might well be more likely than other jurors to have grown dissatisfied with their death-penalty vote. At least equally important, reliance on such affidavits Seems. inconsistent with federal policies, reflected in Rule 606(b) of the Federal Rules of Evidence and'in precedents of this Court such as Zanner v. United States, 403 U.S. 107 (1987), against embroiling jurors in continuing disputes about their service and their deliberations. Rule 606(b), indeed, specifically prohibits receiving juror affidavits on “the effect of anything upon that or any other juror’s mind or emotion in influencing the juror to assent to or dissent from the verdict.” Moreover, in the related area of gauging prejudice caused by attorney incompetence at trial, this Court has endorsed objective consideration of the likely effect of the error on a reasonable decision-maker, as opposed to positing a unique or idiosyncratic decision-maker as the reference point. See Strickland v. Washington, 466 U.S. 668 (1984). Consideration 18 of affidavits from individual jurors would seem inconsistent with the preference for objective harmless-error review. See United States v. Cappas, 29 F. 3d 1187, 1191 (7th Cir. 1994). The panel’s casual reliance on juror affidavits for harmless- error review of errors other than those pertaining to jury misconduct itself is novel in the federal habeas corpus system and perhaps in the federal system entirely. See Murphy v. Tivoli Enterprises, 953 F.2d 354 (8th Cir. 1992). Such use has been assumed to be impermissible. E.g., Cappas, 29 F.3d at 1192. Other Circuits have enforced, in habeas corpus proceedings, the general rule prohibiting use of juror affidavits, outside the context of inquiring into improper external influences on the jury, to undermine state-court judgments. E.g., Fulwood v. Lee, 290 F.3d 663, 684 (4th Cir. 2002); Silagy v. Peters, 905 F. 2d 1086, 1008-1009 (7th Cir. 1990); see Fed. R. Evid. 1101(b). For these reasons, the petition for writ of certiorari should be granted. 19 CONCLUSION Dated: August 12, 2003 Respectfully submitted, BILL LOCKYER Attorney General of California MANUEL M. MEDEIROS State Solicitor General ROBERT R. ANDERSON Chief Assistant Attorney General PAMELA C. HAMANAKA Senior Assistant Attorney General KRISTOFER JORSTAD Deputy Attorney General DONALD E. DE NICOLA Deputy Attorney General Counsel of Record Counsel for Petitioner CC 7 _— > = A-1 APPENDIX A FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT GARY BRADLEY, No. 01-55290 D.C. No. Petitioner-Appellee, | CV-00-00527-VAP V. OPINION W. A. DUNCAN, Warden, Respondent-Appellant. Appeal from the United States District Court for the Central District of California Virginia A. Phillips, District Judge, Presiding Argued and Submitted February 14, 2002—Pasadena, California Filed December 24, 2002 Before: Warren J. Ferguson, A. Wallace Tashima, and Susan P. Graber, Circuit Judges. Opinion by Judge Ferguson; Dissent by Judge Graber COUNSEL Jeffrey S. Kross, Oakland, California, for the petitioner- appellee. J. Michael Lehmann (argued), Corey J. Robins, Office of the Attorney General of the State of California, Los Angeles, Cal- ifornia, for the respondent-appellant. OPINION FERGUSON, Circuit Judge: Warden William A. Duncan (“the State”) appeals the Dis- trict Court’s conditional grant of Defendant/Petitioner Gary Bradley’s (“Bradley’’) 28 U.S.C. § 2254 petition for a writ of habeas corpus challenging his conviction on the grounds that the state trial court’s refusal to instruct the jury on the defense of entrapment violated his federal due process rights. The Dis- trict Court adopted the recommendations of the Magistrate Judge, who found that the refusal to instruct effected prejudi- cial constitutional error, and that the California appellate court’s denial of his claim was contrary to and involved an objectively unreasonable application of controlling federal law. We affirm the District Court’s conditional grant of habeas relief. Defendant/Appellee Gary Bradley (“Bradley”) was arrested and charged with one count of selling cocaine in violation of California Health and Safety Code section 11352(a). Brad- ley’s only defense at trial was that he was entrapped by the police into committing the offense. At the conclusion of trial, the state trial court instructed the jury on the defense of entrapment pursuant to the defense’s request. The instructions are set forth in the appendix to this A-3 opinion. During deliberation, the jury requested two clarifica- tions regarding the entrapment instructions. After three days of deliberations, the jury still could not reach a verdict as to Bradley’s guilt, and a mistrial was declared. Bradley was retried before another state court judge. Dur- ing the second trial, Bradley’s testimony from the first trial was read into evidence during the prosecution’s case-in-chief. Bradley had admitted that he facilitated the sale of cocaine, but testified that his sole purpose was to help an unwitting police agent, Jose de Jesus Flores, who was suffering greatly due to drug withdrawal. At the close of evidence, the defense again requested an entrapment instruction. This time, the trial court denied the request without explanation. Not surprisingly, the jury found Bradley guilty. He was sentenced to twenty-five years to life imprisonment pursuant to California’s “three strikes” provisions. CAL. PEN. CODE §§ 667(b)-(i), 1170.12(a)-(d).¥ The state claims that Bradley did not present sufficient evi- dence to deserve an instruction on entrapment. Its reasoning is simply fallacious. The evidence presented at the first trial warranted an instruction. The same evidence was adduced at the second trial. Yet, Bradley was deprived of an instruction on entrapment at his second trial. To demonstrate why the District Court was correct in grant- ing habeas corpus relief, we review the facts underlying Brad- ley’s arrest. Next, we analyze these facts in light of the governing state law and find that Bradley was entitled to an entrapment instruction. Third, we determine that the failure to instruct on Bradley’s only defense violated his due process right to present a full defense. Finally, we conclude that Brad- ley is entitled to habeas relief under the Anti-Terrorism and Effective Death Penalty Act (“AEDPA”). 1. The prior convictions were for a 1980 and a 1988 burglary. A-4 A. Factual Background On January 8, 1996, while conducting an undercover nar- cotics operation, Officers Servando Pena and Melissa Town observed Jose de Jesus Flores standing on the sidewalk. Offi- cer Pena pulled the unmarked car over and motioned for Flo- res to approach the car. Flores came over to the car, smelling of alcohol. Officer Pena asked Flores if he could “hook” him up with twenty dollars worth of cocaine. Flores stated that he did not have any, but he would take the officers to obtain drugs. Flores got into the car and directed Officer Pena to drive toward a particular intersection, but he did not state that he was looking for any specific person. Officer Pena knew something was wrong with Flores and believed that he was going through drug withdrawal. Flores was pale and shaking, his head kept moving back and forth, and he said he desperately needed cocaine. As_ they approached the intersection, Flores spotted Bradley, whom he had previously seen in passing, and called out for him to stop. Flores told Officer Pena to pull over, exited the vehicle, and vomited audibly in front of the officers and Bradley. Moments later, he approached Bradley. Bradley observed that Flores was going through withdrawals—he looked “pinkish, yellowish, sick”; he smelled like vomit; he was “tweaking and twitching”; and he was “shaking, like . . . a junky dude.” Flores implored him to help him “get something.” Bradley asked him what he meant, and Flores responded “I’m hurting. I need a fix.” Flores begged Bradley for drugs, asking repeatedly “Can you help me?” Flores told Bradley he was ill and appealed to him say- ing, “Please, please, big man, would you help me out?” Bradley finally agreed but told Flores to wait, stating: “I have to go see because I don’t, you know, do it. I know peo- ple up and down the street that does it, but I don’t do it.” Bradley then rode his bicycle up the street where drug dealers congregated. The officers and Flores followed him in the vehicle. When they reached the designated intersection, Flo- A-5 res gave Bradley-the officers’ twenty-dollar bill. However, Bradley did not locate anyone selling drugs and returned the money. Bradley then proceeded homeward on his bicycle, but he stopped upon observing co-defendant Tyrone Jennings walk- ing towards a liquor store. Bradley caught up with Flores and the officers and told them to meet him at the liquor store. Bradley obtained twenty do!lars from the officers, exchanged it for cocaine from Jennings, and delivered the cocaine to the officers and Flores. Bradley was arrested minutes later. No drugs were found on his person. B. Entrapment under California Law The purpose of the entrapment defense is to deter imper- missible police conduct. People v. Barraza, 591 P.2d 947, 956 n.5 (Cal. 1979); People v. Holloway, 55 Cal. Rptr. 2d 547, 551 (Ct. App. 1996), overruled on other grounds by People v. Fuhrman, 941 P.2d 1189, 1199 n.11 (Cal. 1997). In adopt- ing an objective test of entrapment, the California Supreme Court reasoned, “the function of law enforcement manifestly ‘does not include the manufacturing of crime.’ ” Barraza, 591 P.2d at 954 (quoting Sherman v. United States, 356 U.S. 369, 372 (1958)). [1] It is permissible for the police to offer “the simple opportunity to act unlawfully,” by the use of decoys or other- wise. Id. at 955. However, “it is impermissible for the police or their agents to pressure the suspect by overbearing conduct such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law-abiding person to commit the crime.” /d. It is also impermissible for the police or their agents to conduct themselves in a manner that would induce a normally law-abiding person “to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose.” Jd. A-6 [2] Entrapment is a jury question because of “its potentially substantial effect on the issue of guilt.” /d. at 956 n.6; see also People v. Lee, 268 Cal. Rptr. 595, 598 (Ct. App. 1990) (“Entrapment is ordinarily a fact question.”) (citations omit- ted). The defendant is entitled to an entrapment instruction if he presents sufficient evidence for a reasonable jury to con- clude that he was entrapped. See People v. Watson, 990 P.2d 1031, 1032 (Cal. 2000) (citing substantial evidence standard from People v. Flannel, 603 P.2d 1, 10 (Cal. 1979). “Doubts as to the sufficiency of the evidence to warrant instructions should be resolved in favor of the accused.” Flannel, 603 P.2d at 10 (internal quotation marks and citation omitted). In this case, the California Court of Appeal found that Bradley was not entitled to an entrapment instruction under Califoriia law. However, its decision involved “an unreason- able determination of the facts in light of the evidence pre- sented.”” 28 U.S.C. § 2254(d)(2). Moreover, it failed to view the evidence in the light most favorable to Bradley. First, the California Court of Appeal’s decision was unrea- sonabie in light of the record. The court characterized the police conduct as “an ordinary, run-of-the-mill, undercover drug operation in which a decoy was used.” In so doing, it stated that “[nJeither officer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the crime.” {3} Although the California Court of Appeal was correct that neither Officer Pena nor Officer Town badgered, cajoled, or importuned Bradley personally, their decoy did. The court overlooked Flores’ actions in determining that the facts did not support an entrapment instruction. Yet, a decoy who is manipulated by the police also constitutes a police agent “for purposes of the entrapment defense, even [if] the third party remains unaware of the law enforcement object.” People v. McIntire, 591 P.2d 527, 530 (Cal. 1979). [4] Flores, the unwitting police agent, targeted Bradley individually and begged him for drugs. Flores’ appeal, “Please, please, big man, would you help me out?”—despite = A-7 Bradley’s statements that he neither had drugs nor sold them —could certainly be found by a jury to constitute “badgering” or “cajoling.” WEBSTER’S THIRD NEW INTERNATIONAL DICTIONARY UNABRIDGED 161 (1966) (defining “badger” as to “pester . . . in a manner likely to confuse, annoy, or wear down’); id. at 313 (defining “cajole” as “to persuade with deliberate flattery esp[ecially] in the face of reasonable objec- tion or reluctance”). In light of the urgency of Flores’ requests, his conduct also constituti d “importuning” in the ordinary meaning of the term. /d. at 1135 (defining “impor- tune” as “to press or urge with . . . unreasonable requests”). Moreover, the California Court of Appeal’s determination that the police merely offered the opportunity to act illegally was unreasonable in light of the record. Officers Pena and Town chose as their “hook” a drug addict who was going through withdrawals and was very ill. This was not a case in which the police merely used an underage decoy to purchase alcohol, see Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 869 P.2d 1163 (Cal. 1994), or to respond to an ad soliciting sex with a female of any age. See People v. Reed, 61 Cal. Rptr. 2d 658 (Ct. App. 1996). This was a case in which the police used a decoy whose physical suffering would appeal to the sympathies of most people. {5} Second, the California Court of Appeal failed to resolve its doubts as to whether a normally-!aw-abiding person would have been induced to commit the crime out of sympathy for Flores in favor of Bradley. See Flannel, 603 P.2d at 10. The court denied Bradley’s claim, reasoning that “the average per- son would not ... purchase illegal drugs to aid a stranger, even if the stranger appeared to be a drug addict going through withdrawal.”” What a normally-law-abiding person 2. The California Court of Appeal’s statement that Flores was a “strang- er” is also unreasonable in light of the record. At the very least, Flores was an acquaintance. The record reflects that Bradley had seen Flores in pass- ing. Moreover, Officer Town testified at trial that Bradley assured the offi- cers that he would not ‘rip them off because Flores knew where to find A-8 would do under the circumstances should have been left to the jury. A reasonable jury could find that a normally-law-abiding person would feel sympathy for Flores in his desperate state and decide to help him obtain drugs to relieve his suffering. The Court of Appeal compounded its error by speculating that a normally-law-abiding person confronted by an evi- dently ill drug-addicted stranger in the throes of withdrawal would not purchase drugs for Flores, but would opt for a legal alternative. Of course, calling the police is an alternative to acquiescing in illegal activity, and it is conceded that taking a drug addict to a clinic is preferable to enabling his drug addiction. But one could always speculate about a legal alter- native to the illegal action ultimately taken.” A normally-law-abiding person does not always take the high road in the face of pressures or inducements by the police or their agents. As Justice Frankfurter observed in Sherman: “Human nature is weak enough and sufficiently beset by temptations without government adding to them and generating crime.” 356 U.S. at 384 (Frankfurter, J., concur- ring). The state ignores the purpose of the entrapment defense, which is to curb unsavory police conduct. Instead of focusing on the impermissible police conduct, the state chooses to blame Bradley and to point out what he should have done differently. This argument is circuitous and leaves no situation where the defendant can assert entrapment as a defense. Moreover, in faulting Bradley for failing to call the police or take Flores to a treatment center, the state turns a blind eye to the fact that the officers did not do so either. Not only did the officers in this case fail to help Flores, they isolated him him. Thus, Flores was not a stranger to Bradley. 3. Further, the state’s reliance on People v. Graves, 113 Cal. Rptr. 2d 708 (Ct. App. 2001), for the proposition that Bradley should have chosen a “lawful alternative,” is misplaced. In that case, the defendant responded illegally to a legal request. /d. at 713. Here, Bradley acquiesced in an ille- gal request. eA eR Re _ A-9 from any potential assistance, using him as a decoy and then arresting him as a co-defendant in this case. If anyone in this case had a duty to assist Flores, it was the officers, not Brad- ley. This is especially true because Bradley was on a bicycle (and could not transport Flores anywhere), whereas the offi- cers were in a vehicle and had control over Flores as a passen- ger. However, instead of taking him to get help, the officers decided to exploit Flores’ addiction as a tool to induce another person’s participation in a drug sale. Under Barraza and its progeny, this is impermissible. [6] It is important to remember that at Bradley’s first trial, the trial judge found that the evidence presented required that the jury be given an entrapment instruction. The evidence pre- sented at the second trial was exactly the same as the first trial, yet the second trial judge refused to give the instruction. As the District Court below observed: By refusing to instruct the jury on entrapment, the trial judge essentially left the jury with petitioner’s confession to the offense, without ever allowing them to consider petitioner’s preclusive defense. By rejecting petitioner’s request for an entrapment instruction, the trial court effectively deprived peti- tioner of his only defense. (ER 77) This kind of manipulation of the jury is simply not permissi- ble. “The trial judge is . . . barred from attempting to override or interfere with the jurors’ independent judgment in a man- ner contrary to the interests of the accused.” United States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977). [7] Moreover, when one judge determines, as a matter of law and fact, that the evidence requires the giving of an entrapment instruction, and no additional evidence to the con- trary is proffered at a subsequent trial, the second judge may not simply ignore the findings of the first. “It is a fundamental principle of jurisprudence . . . that a question of fact or of law distinctly puf in issue and directly determined by a [criminal CURA SORRERORTER ASE eC PES NEAT SE ENS A TENET ITE ROI ACI A-10 or civil] court of competent jurisdiction cannot afterwards be disputed between the same parties.” Frank v. Magnum, 237 U.S. 309, 334 (1915) (internal citation omitted). California recognizes this application of the law of the case doctrine. The California Court of Appeal recently held that a superior court judge lacked the authority to vacate and redetermine the bail setting determination of another superior court judge. Jn re Alberto, No. B158722, slip. op. 11205 (Ct. App. September 25, 2002). The decision reasoned that “for one superior court judge, no matter how well intended, even if correct as a mat- ter of law, to nullify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” Jd. at 11206. See also, People v. Woodard, 131 Cal.App.3d 107, 111 (Ct. App. 1982). In the instant case, the second judge simply ignored the findings of the previous judge, without even bothering to assert that the earlier decision was erroneous or that the circumstances of the case had changed. This kind of unauthorized second-guessing is impermissibly arbitrary and can amount to a violation of Due Process. C. Due Process Violation The failure to instruct the jury on Bradley’s defense theory of entrapment was not simply a state law error. It also effected a violation of Bradley’s due process rights. [8] The Supreme Court has held that “[a]s a general propo- sition, a defendant is entitled to an instruction as to any recog- nized defense for which there exists evidence sufficient for a reasonable jury to find in his favor.” Mathews v. United States, 485 U.S. 58, 63 (1988) (citation omitted). We have applied this standard to habeas petitions arising from state convictions. See Conde v. Henry, 198 F.3d 734, 739 (9th Cir. 1999) (“It is well established that a criminal defendant is enti- tled to adequate instructions on the defense theory of the case.”’). eee A-11 The failure to instruct the jury on entrapment deprived Bradley of his due process right to present a full defense. The Supreme Court has held: “Under the Due Process Clause of the Fourteenth Amendment, criminal prosecutions must com- port with prevailing notions of fundamental fairness. We have long interpreted this standard of fairness to require that crimi- nal defendants be afforded a meaningful opportunity to pre- sent a complete defense.” California v. Trombetta, 467 U.S. 479, 485 (1984) (emphasis added). [9] Thus, the state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due pro- cess right to present a defense. See Barker v. Yukins, 199 F.3d 867, 875-76 (6th Cir. 1999) (granting habeas relief under AEDPA because the erroneous self-defense instruction deprived the defendant’s of a “meaningful opportunity to present a complete defense”’) (relying on Trombetta, 467 U.S. at 485), cert. denied, 530 U.S. 1229 (2000). This is so because the right to present a defense “would be empty if it did not entail the further right to an instruction that allowed the jury to consider the defense.” Tyson v. Trigg, 50 F.3d 436, 448 (7th Cir. 1997). In this case, the refusal to instruct on entrapment deprived Bradley of his only defense and, as a result, of due process. Bradley testified at his first trial that he bought the cocaine for Flores and explained that he did so out of concern for Flores’ well-being and sympathy for his plight. At the second trial, the prosecution read Bradley’s testimony into the evidence. During closing argument, the prosecutor pointed to the por- tion of the record in which Bradley had confessed to the crime. He admonished the jury not to consider the evidence that Bradley had acted as a “Good Samaritan” or that he had committed the crime out of sympathy for Flores. He also reminded the jury of the court’s instruction not to acquit on the basis of “sympathy” for Bradley. Defense counsel argued that the officers’ “tactics” of manipulating a drug addict going through withdrawals was “despicable” and is not “something that should be done.” However, because of the court’s refusal A-12 to instruct on entrapment, he could not point to a legal grounds on which the jury could acquit Bradley if it agreed.” [10] Under these circumstances, the failure to instruct on entrapment prevented Bradley from presenting his full defense. Accordingly, due process was violated. Nevertheless, because the failure to instruct on entrapment was a trial error, Bradley is entitled to relief only if he can show prejudice. Cal. v. Roy, 519 U.S. 2, 5 (1996) (explaining harmless-error analy- sis). [11] Prejudice is shown for purposes of habeas relief if the trial error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Jd. at 6 (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Moreover, we must grant the petition if we are “ ‘in grave doubt as to the harm- lessness of an error.’ ” Jd. (quoting O’Neal v. McAninch, 513 U.S. 432, 437 (1995)). [12] As aforementioned, Bradley presented ample evidence supporting the giving of the entrapment instruction. More- over, we need only look at the differing results of the two tri- als to find that the failure to so instruct had a substantial and injurious effect on the jury verdict. In the first trial, an instruc- tion was given, and a mistrial was declared after three days of deliberation and two clarifications on the defense. In the sec- ond trial, the same evidence was presented, but the instruction was not given. A guilty verdict was the result. In addition, in his appeal to the California Court of Appeals, Bradley filed declarations from two jurors on the second jury, both of whom stated that “the jury verdict (or the jury’s ability to 4. Use of Bradley’s testimony from the first trial, in which an entrapment instruction was given, against him in the second trial, in which no entrap- ment instruction was given, presents an additional element of unfairness. Presumably, Bradley elected to testify at the first trial to support his entrapment defense. If he knew that no entrapment instruction would be given, he may well have elected to stand on his Fifth Amendment right not to testify. Thus, the refusal to give an entrapment instruction at the second trial, in effect, sandbagged Bradley into testifying and virtually confessing guilt, even though no entrapment instruction was given. sceesnsnisisisieiicaiaiaenltinee A-13 reach a unanimous verdict) would have been different if these [entrapment] instructions had been given.” [13] Under these circumstances, the failure of the trial court to instruct the jury as to Bradley’s entrapment defense, causes at least a “grave doubt as to the harmlessness of the error.” O’Neal, 513 U.S. at 437. Thus, Bradley has sufficiently shown prejudice and is entitled to relief on his due process claim. D. Habeas Relief under AEDPA Having concluded that Bradley’s due process rights were violated, we turn to the issue whether he has fulfilled the requirements of AEDPA. As previously discussed, the Cali- fornia Court of Appeal’s decision that Bradley was not enti- tled to an entrapment instruction involved an “unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d)(2). However, it is the due process viola- tion, not the state law error, that triggers our habeas relief. Because the California Court of Appeal did not address Bradley’s due process claim, we must conduct an independent review of the record to determine “whether the state court’s resolution of the case constituted an unreasonable application of clearly established federal law.” Thomas v. Hubbard, 273 F.3d 1164, 1170 (9th Cir. 2001) (as amended) (quoting Del- gado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000)). We have held that a state court decision must be reversed as involving an “unreasonable application” of clearly estab- lished federal law when we have a “firm conviction” that the state court erred. Van Tran vy. Lindsey, 212 F.3d 1143, 1153- 54 (9th Cir. 2000) (adopting a “clear error” standard for habeas review under AEDPA), cert. denied, 531 U.S. 944 (2000). Contrary to the dissent’s suggestion, we accept the principles mandated by the Supreme Court in Woodford v. Vicciotti, No. 02-137, 2002 WL 31444314 (U.S. Nov. 4, 2002) (per curiam) and Early v. Packer, No. 01-1765, 2002 WL 31444316 (U.S. Nov. 4, 2002) (per curiam), requiring A-14 that the state court decision reflect an “objectively unreason- able” application of federal law. However, the record is clear that the California Court of Appeal’s decision was an “objec- tively unreasonably” application of federal law. The Court of Appeal failed to recognize Bradley’s right to present a com- plete and meaningful defense to the jury under the principles set out in Matthews and Trombetta. It failed to consider the facts relevant to the due process prejudice prong, including the undisputed evidence that jurors in the second trial would not have convicted the defendant if the entrapment instruction had been given. It failed to explain why the second judge could unilaterally ignore the first trial judge’s findings of fact and conclusion of law regarding the entrapment instructions and not compose even a single sentence to explain away the law of the case doctrine. It is clear that the California Court of Appeal’s failure to address these issues constituted an objectively unreasonable determination of both the law and the facts. The dissent would dismiss Bradley’s habeas petition on the basis that he “has cited no United States Supreme Court case ... that would require the giving of an entrapment instruction in a state-criminal trial when there is insufficient evidence to support such an instruction under state law.” Dissent at 27 (citing Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993)). However, no such case need be cited here. As shown above, Bradley more than sufficiently supported his defense theory of entrapment, and the fact that the entrapment instruction was given in his first trial is further proof of this. The dissent misconstrues the nature of our inquiry under AEDPA. Bradley need not produce a “spotted calf’ on the precise issue at hand to warrant habeas relief. See Van Tran, 212 F.3d at 1154 & n.16 (““AEDPA does not require an on- point Supreme Court case for us to reverse... .”). Rather, it is sufficient that the due process violation involved here offends the principles previously enunciated by Supreme Court precedent and reaffirmed by our case law. See id.; see also Taylor v. Withrow, 288 F.3d 846, 852 (6th Cir. 2002) A-15 (“The [Supreme] Court has made clear that its relevant prece- dents include not only bright-line rules but also the legal prin- ciples and standards flowing from precedent.”) (citing Williams v. Taylor, 529 U.S. 362, 407 (2000)). The District Court was correct to grant habeas relief. Affirmed. A-16 Appendix CALJIC No. 4.60 provides: It is a defense to a criminal charge that the commission of the alleged criminal act, was induced by the conduct of law enforcement agents or officers [or persons acting under their direction, suggestion or control] when the conduct would likely induce a normally law-abiding person to commit the crime. [{]] To establish this defense the defendant has the bur- den of proving by a preponderance of the evidence that the conduct of the law enforcement agents or officers [or persons acting under their direction, suggestion, or control] would likely induce a normally law-abiding person to commit the crime. CALJIC No. 4.61 provides: In deciding whether this defense has been established, guidance will generally be found in the application of one or both of two principles. First, if the actions of the law enforce- ment agent would generate in a normally law-abiding person a motive for the criminal other than ordinary criminal intent, entrapment will be established. An example of this type of conduct would be an appeal by the police that would induce a normally law-abiding person to commit the act because of friendship or sympathy, instead of a desire for personal gain or other typical criminal purpose. Second, affirmative police conduct that would make commission of the crime unusually attractive to a normally law abiding person will likewise con- stitute entrapment. This conduct would include, for example, a guarantee that the act is not illegal or the crime will go undetected, an offer of exorbitant consideration, or any simi- lar enticement. [{] Finally, while the inquiry must focus pri- marily on the conduct of the law enforcement agent, that conduct is not to be viewed in a vacuum; it should also be judged by the effect it would have on a normally law-abiding person situated in the circumstances of the case at hand. Among the circumstances that may be relevant for this pur- ee A-17 pose, for example, are the transactions preceding the crime, the suspect’s response to the inducements of the officer, the gravity of the crime, and the difficulty of detecting instances of its commission. [{] [Matters such as the character of the defendant, [his], [her] predisposition to commit the crime, and [his] [her] subjective intent are not relevant to the determina- tion of the question of whether entrapment occurred.] CALJIC No. 4.61.5 provides: It is permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to provide opportunity for the commission of a crime including reasonable, though restrained, steps to gain the confidence of suspects. It is not permissible for law enforcement agents or officers [or persons acting under their direction, suggestion or control] to induce the commission of a crime by overbearing conduct such as badgering, coaxing or cajoling, importuning, or other affirmative acts likely to induce a normally law- abiding person to commit the crime. A-18 GRABER, Circuit Judge, dissenting: I respectfully dissent. The majority fails to adhere to our standard of review. The California courts made no factual error and no error of California law. Federal law does not, independently, require an entrapment instruction in a state court criminal trial when there is insufficient evidence to sup- port it as a matter of state law. Accordingly, I would reverse the district court’s conditional grant of habeas relief to Peti- tioner. The Supreme Court of the United States has just chastised this court, in the strongest possible terms, for substituting our judgment for that of a state court on matters of federal law, including legal issues that involve an interpretation and appli- cation of facts. Woodford v. Visciotti, 123 S. Ct. 357 (2002) (per curiam); Early v. Packer, 123 S. Ct. 362 (2002) (per curiam). We have even less justification for substituting our judgment for that of a state court on matters of its own state law. Indeed, we wholly lack authority to second-guess a state court on a question of state law. Yet that is precisely what the majority does here, in clear contravention of both AEDPA and the Supreme Court’s interpretation of it. Petitioner was convicted in state court on one count of sell- ing cocaine in violation of California Health & Safety Code § 11352(a). At trial, he argued that he had been entrapped by the police officers’ use of a decoy who was obviously suffer- ing symptoms of withdrawal from drugs. Petitioner contended that the decoy’s plight induced him to commit a crime that he would not otherwise have committed. He requested an entrap- ment instruction, which the state trial court refused to give. On appeal, the California Court of Appeal held that the trial court properly declined to instruct the jury on entrapment because Petitioner had not presented substantial evidence in support of that theory: A-19 Here, there was no substantial evidence to support entrapment instructions. This was an ordinary, run- of-the-mill, undercover drug operation in which a decoy was used. The officers used Flores as a “hook” in locating a source for cocaine; [Petitioner] expressed his willingness to assist in finding cocaine, and [Petitioner] took actions toward accomplishing that goal. He located a source for the drugs and exchanged money for the drugs. The police did not conduct themselves improperly. Neither officer bad- gered, cajoled, nor did any other affirmative act | likely to induce a normally law-abiding person to commit the crime. [Petitioner] was simply offered the opportunity to commit the crime. . . . [TJhe average person would not, as [Peti- tioner] contends, purchase illegal drugs to aid a stranger, even if the stranger appeared to be a drug addict going through withdrawal. . . . (Cf People v. Lee (1990) 219 Cal. App. 3d 829 [sailor working with police befriends drug dealer to assist in gaining _ dealer’s confidence; such casual, brief, non-intimate acquaintances does not constitute entrapment]; com- pare with People v. McIntire [(1979)] 23 Cal. 3d 742 [facts sufficient to raise entrapment defense when defendant acquiesces to strong and persistent pres- sure applied by police through defendant’s younger brother based upon sympathy aroused by family problems].) People v. Bradley, No. B112640 (Cal. Ct. App. filed Nov. 17, 1998) (footnotes omitted). The California Supreme Court denied review in an unpublished decision. Petitioner then initiated this federal habeas action. The dis- trict court held that the California courts erted as a matter of California law when they concluded that Petitioner had failed to present sufficient evidence to be entitled to a jury instruc- —$$——_—$—— Ce A-20 tion on entrapment. Because Petitioner had been entitled to the instruction under state law, the court concluded, the state court’s failure to give the instruction violated Petitioner’s due process rights. The majority agrees and, by doing so, essen- tially reviews de novo questions of state law. We may grant habeas relief under 28 U.S.C. § 2254(d) only if the decision of the California Court of Appeal (1) “was con- trary 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.” In reviewing the petition, we are “bound by the state court’s interpretations of state law,” and we must presume the cor- rectness of the state court’s factual findings in the absence of “clear and convincing evidence” to the contrary. Bains v. Cambra, 204 F.3d 964, 972 (9th Cir.), cert. denied, 531 U.S. 1037 (2000); 28 U.S.C. § 2254(e)(1). Additionally, the stan- dard for finding an unreasonable application of federal law is a high one. See Williams v. Taylor, 529 U.S. 362, 411 (2000) (“[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.”). The majority’s opinion neither presumes the correctness of the state court’s factual findings nor holds itself bound by the state court’s interpretation of state law. Here we are reviewing the California Court of Appeal’s holding that, as a matter of California law, Petitioner failed to present sufficient evidence to be entitled to an instruction on entrapment. Therefore, we are bound by that holding unless it involves “an unreasonable determination of the facts in light of the evidence presented” or is contrary to federal law. 28 U.S.C. § 2254(d). “A state court has the last word on the interpretation of state law.” Mendez v. Small, 298 F.3d 1154, 1158 (9th Cir. 2002). A-21 The majority’s contention that the California Court of Appeal’s determination was “an unreasonable determination of the facts in light of the evidence presented” is flawed. The majority identifies two “factual” conclusions made by the California Court of Appeal that the majority finds unreason- able: (1) the Court of Appeal determined that “{nJeither offi- cer badgered, cajoled, nor did any other affirmative act likely to induce a normally law-abiding person to commit the i crime,” maj. op. at 10; and (2) the “Court of Appeal failed to resolve its doubts as to whether a normaliy law-abiding per- son would have been induced to commit the crime out of sympathy for Flores in favor of [Petitioner],” maj. op. at 11. Neither of those claimed errors is sufficient to merit relief under our standard of review, as the majority apparently real- izes when it states that “it is the due process violation, not the State law error, that triggers our habeas relief.” Maj. op. at 17. Under California law, as the majority concedes, maj. op. at 9-10, a defendant must present substantial evidence of entrap- ment to be entitled to a jury instruction on the defense. People v. Watson, 990 P.2d 1031, 1022 (Cal. 2000). Substantial evi- dence is “evidence enough to deserve consideration by the jury, i.e., evidence from which a jury composed of reasonable men could have concluded” that the defendant was entrapped. People v. Flannel, 603 P.2d 1. 10 (Cal. 1980) (citation and internal quotation marks omitted). “In California, the test for entrapment focuses on the police conduct and is objective.” Watson, 990 P.2d at 1032 (empha- sis added); see also People v. Barraza, 591 P.2d 947, 954-55 (Cal. 1979).“ To be entitled to an instruction on entrapment, a defendant must present substantial evidence that “the con- duct of the law enforcement agent [was] likely to induce a 1. Notably, one of Petitioner’s requested instructions, CALJIC 4.61, is entitled “Entrapment—Objective Test—Guidance” and cautions. among other things, that such matters as the defendant’s “subjective intent are not relevant to the determination of the question of whether entrapment occurred.” OOO A-22 normally law-abiding person to commit the offense.” Jd. at 955. The law “presume[s] that such a person would normally resist the temptation to commit a crime presented by the sim- ple opportunity to act unlawfully.” Jd. (emphasis added). The question is whether “the police or their agents . . . pressure[d] the suspect by overbearing conduct such as badgering, cajol- ing, importuning, or other affirmative acts likely to induce a : normally law-abiding person to commit the crime.” /d. “[T]he rule is clear that ruses, stings, and decoys are permissible stratagems in the enforcement of criminal law, and they become invalid only when badgering or importuning takes place to an extent and degree that is likely to induce an other- wise law-abiding person to commit a crime.” Provigo Corp. v. Alcoholic Beverage Control Appeals Bd., 869 P.2d 1163, 1167 (Cal. 1994) (emphasis added) (citation and internal quo- tations omitted). An appeal to a defendant’s sympathy by police can result in entrapment but only if that appeal would cause the “normally law-abiding person” to turn to crime. Barraza, 591 P.2d at 955. Whether the police conduct at issue constitutes entrapment is “judged by the effect it would have on a normally law-abiding person situated in the circum- stances of the case at hand.” Jd. Viewed in the light most favorable to Petitioner, the evi- dence shows that he was approached by a police decoy who was demonstrating overt signs of drug withdrawal. The decoy vomited just before approaching Petitioner, smelled like vomit, appeared “pinkish, yellowish, sick,” and was “tweak- ing and twitching.” The decoy asked Petitioner to “get some- thing” and to help him get a fix because he was hurting. He repeatedly told Petitioner that he was really ill and needed drugs. Petitioner had seen the decoy before, but did not know A-23 him.” Nevertheless, Petitioner decided to purchase drugs and provide them to the decoy. It is clear that the decoy’s withdrawal symptoms appealed to Petitioner’s sympathy and, I expect, would appeal to the sympathy of nearly every normally law-abiding person. How- ever, that fact, standing alone, is insufficient to permit an entrapment defense under California law. Instead, the appeal to sympathy must have been to an extent and degree that were likely to cause a normally law-abiding person to buy or sell drugs. As the California Court of Appeal permissibly and rea- sonably concluded, a normally law-abiding person confronted by an ill, drug-addicted stranger (or casual acquaintance) in the throes of withdrawal—like the decoy in this case—would not respond by providing illegal drugs to him. That conclu- sion is particularly reasonable in view of the fact that there are several obvious lawful alternatives available to help a mani- festly ill person, such as calling 911 or taking the person to a clinic. Cf People v. Graves, 113 Cal. Rptr. 2d 708, 712-13 (Ct. App. 2001) (holding that entrapment did not apply in part because lawful responses were available to a request for help made at the behest of law enforcement, reasoning that a “nor- mally law-abiding person” would opt for the lawful response). In short, the California courts reasonably concluded that Petitioner had not presented enough evidence to support the giving of state-law entrapment instructions, because the facts, even when viewed in favor of Petitioner, did not show gov- ernment conduct likely to induce a normally law-abiding per- son to break the law by selling cocaine. Even if we disagree with the California courts, we are obliged to give effect. to their reasonable determination. Packer, 123 S. Ct. at 366. 2. The majority quarrels with the state court’s reference to Flores as a “stranger.” Maj. op. at 11 n.2. The California Court of Appeal’s distinction between “casual, brief, non-intimate acquaintances” on the one hand and “family” ties on the other shows that the court understood, as the majority puts it, that Petitioner and Flores were “acquaintance[s]” who had at_least seen each other “in passing.” /d. The state court made no factual error in this respect. ee A-24 The majority explicitly rests its holding on the conclusion that Petitioner’s due process rights were violated by the Cali- fornia courts’ refusal to provide an entrapment instruction. Maj. op. at 17. It appears that the majority finds two distinct due process violations: (1) Petitioner was entitled to an entrapment defense as a matter of constitutional law even though he was not entitled to it under state law; and (2) the judge in the second trial was not permitted to give different jury instructions than the judge in the first trial, which ended in a mistrial. The majority fails to cite any persuasive author- ity for the proposition that Petitioner was denied due process. Petitioner has cited no United States Supreme Court case, and I am aware of none, that would require the giving of an entrapment instruction in a state-court criminal tnal when there is insufficient evidence to support such an instruction under state law. Cf Bueno v. Hallahan, 988 F.2d 86, 88 (9th Cir. 1993) (per curiam) (holding that a federal criminal defen- dant’s entitlement to an entrapment instruction is not constitu- tionally based and that Arizona, consistent with due process, could require that a state defendant “‘admit all of the elements of each offense” as a prerequisite to receiving a jury instruc- tion on entrapment); see also United States v. Russell, 411 U.S. 423, 433 (1973) (stating that the entrapment defense itself “is not of a constitutional dimension’). Indeed, the majority recognizes that a due process violation occurs from the failure to instruct as to a recognized defense only in the event that “ ‘there exists evidence sufficient for a reasonable jury to find’ ” in accordance with the proffered defense. Maj. op. at 14 (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). The majority recites the proposition that “the state court’s failure to correctly instruct the jury on the defense may deprive the defendant of his due process right to present a defense.” Maj. op. at 15. Relying on that principle, the major- ity states that the California courts’ refusal to give an entrap- ment instruction denied Petitioner due process because it deprived tim of his “only defense.” Maj. op. at 15. But a | A-25 defendant does not have a right to present whatever defense he or she desires, whether or not supported by the law, and a state court may refuse to give an instruction to which a defen- dant is not entitled even if it is the only theory that the defen- dant wishes to advance. The California courts conclusively held that Petitioner was not entitled to the entrapment instruc- tion under California law, so the failure to give an instruction was not arbitrary. The question, therefore, is whether Peti- tioner was entitled to an entrapment instruction as a matter of federal constitutional law. The majority cites no meaningful authority that it is “clearly established federal law” that a defendant in Petition- er’s circumstance is entitled to a defense of entrapment. Much is made of the fact that a defendant is entitled to a “complete defense.” Maj. op. at 14. Although that statement is accurate, it is entirely unhelpful to the present inquiry. We have author- ity to answer only a very narrow question: Did the California courts’ refusal to give the entrapment instruction deprive Peti- tioner of due process? All of the cases cited by the majority simply beg the question: It is undisputed that Petitioner had a right to a complete defense and that California could not arbitrarily deprive him of his chosen defense. The only matter of moment is whether an entrapment instruction was a part of a defense to which Petitioner was constitutionally entitled. The majority dismisses the need for a precedent stating that a defendant presented with the opportunity to commit a crime by a drug-affected decoy is per se entitled to an entrapment instruction as a matter of federal constitutional law, regardless of the state law of entrapment. Such a “spotted calf’ is not needed, the majority holds, because “[Petitioner] more than sufficiently supported his defense theory of entrapment.” Maj. op. at 18. The foregoing assertion is incorrect as a matter of law. We know that Petitioner did not “sufficiently support[ ]’” his theory of entrapment as a matter of California law. We know this because the California Court of Appeal has spoken ee A-26 directly to the issue, and the California Supreme Court did not disturb its holding. If the majority is stating, instead, that Petitioner “suffi- ciently supported” his defense theory as a matter of federal law, “as determined by the Supreme Court of the United States,” then it is necessary to find a Supreme Court precedent that “clearly establishe[s]” that defendants who satisfy a cer- tain evidentiary threshold in a state criminal case governed by state law are constitutionally entitled to an entrapment instruc- tion. As the majority concedes, no such case exists. What those in the majority seem to be saying is that they consider the evidence sufficient to support an entrapment instruction. This kind of federal oversight of state-court pro- ceedings is precisely what the Supreme Court in Visciotti and Packer has told us not to perform. The majority also errs when it reasons that the giving of an entrapment instruction in the first trial shows that Petitioner was entitled to such an instruction under California law, maj. op. at 13, or required the California Court of Appeal to explain “why the second judge could unilaterally ignore the first trial judge’s findings of fact and conclusions of law regarding the entrapment instructions,” maj. op. at 18. The California Court of Appeal held that, on the evidence pre- sented, Petitioner was not entitled to an entrapment instruc- tion under California law. By clear implication, this means that, as a matter of California law, the first trial judge erred. Petitioner is not constitutionally entitled to perpetuate an erro- neous instruction in his favor. Equally unpersuasive is the majority’s assertion that the judge’s decision not to give the entrapment instruction in the second trial was a “kind of unauthorized second-guessing [that] is impermissibly arbitrary and can amount to a violation of Due Process.” Maj. op. at 14. The majority cites the Cali- fornia Court of Appeal’s recent decision in Jn re Alberto, 125 Cal. Rptr. 2d 526, 530 (Ct. App. 2002), maj. op. at 13-14, for the proposition that “for one superior court judge, no matter how well intended, even if correct as a matter of law, to nul- A-27 lify a duly made, erroneous ruling of another superior court judge places the second judge in the role of a one-judge appellate court.” (Internal quotation marks omitted.) The majority fails to observe a crucial distinction between the present case and Alberto. In Alberto, one trial judge overruled a coequal trial judge’s in-force bail determination in the same case. 125 Cal. Rptr. 2d at 530. In this case, Petitioner’s first trial ended in a mistrial. The judge in a second trial is not compelled to follow determinations of fact or law established by the judge in an earlier proceeding that ended in a mistrial. : To hold otherwise would undermine a basic tenet of Califor- nia law. See Mouser v. Superior Court, 186 Cal. Rptr. 21, 23 (Ct. App. 1982) (“ ‘The granting of a new trial places the par- ties in the same position as if no trial had been had. All the testimony must be produced anew, and the former verdict or finding cannot be used or referred to, either in evidence or in argument... .’ Thus, the granting of a new trial has the same effect as a mistrial.” (quoting Cal. Penal Code § 1180)); Veitch v. Superior Court of the County of Santa Clara, 152 Cal. Rptr. 822, 825 (Ct. App. 1979) (same). The fact that defense counsel allowed Petitioner’s state- ment from the first trial to be read into the record of the sec- ond trial without first having secured the judge’s ruling regarding an entrapment instruction may well constitute inef- fective assistance of counsel. However, Petitioner makes no claim of ineffective assistance of counsel. We are not at lib- erty to distort his other claims so as to recognize this possibil- ity. In summary, the majority has failed to defer to the factual findings and state-law interpretation of the California courts, as we are required to do. When the correct standard of review is applied, reversal with instructions to deny the petition is required. I therefore dissent from the majority’s decision to affirm. B-1 APPENDIX B FILED SEP 14 2000 UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA GARY BRADLEY, ) No. EDCV 00-527 ) VAP (AIJ) Petitioner, ) ) REPORT AND V. ) RECOMMENDATION ) OF UNITED STATES WILLIAM DUNCAN, Warden, ) MAGISTRATE JUDGE ) Respondent. ) ) This Report and Recommendation is submitted to the Honorable District Judge Virginia A. Phillips, United States District Judge, pursuant to 28 U.S.C. § 636 and General Order 194 of the United States District Court for the Central District of California. PROCEDURAL HISTORY A jury convicted petitioner of one count of selling, furnishing, or giving away cocaine. (Clerk’s Transcript (“C.T.”) 182). The court sentenced petitioner to twenty-five years to life in state prison, pursuant to California’s “three strikes” provisions. (C.T. 293). Petitioner appealed, and, on November 17, 1998, the California Court of Appeal affirmed petitioner’s conviction. (Return, Exh. B, at 40). After the Court of Appeal denied petitioner’s petition for rehearing, petitioner filed a petition for review in the California Supreme Court. (Return, Exhs. C, D, at 41-42). On January 27, 1999, the California Supreme Court B-2 denied the petition for review without comment or citation to authority.” (Return, Exh. E, at 73). Petitioner filed his present federal Petition for Writ of Habeas Corpus on March 22, 1999. Respondent filed the Return on May 24, 1999. Petitioner filed the Traverse on July 1, 1999. The matter is now deemed submitted and ready for decision. STATEMENT OF FACTS On January 8, 1996, petitioner was arrested at the conclusion of an undercover police drug purchase. Petitioner was charged in an information, filed on February 5, 1996, with a single count of selling cocaine. (C.T. 54-56). The information also alleged that petitioner suffered two prior serious felony convictions for residential burglary in 1980 and 1988. (C.T. 54-55). Co-defendants Jose Flores and Tyrone Jennings were also charged with selling cocaine in the same count. (C.T. 54). A jury trial of petitioner and his co-defendants began on August 6, 1996. (C.T. 91). Petitioner testified at his first trial. (2 Reporter’s Transcript (“R.T.”’) at 483-519). At petitioner’s request, Judge Albert Matthews instructed the jury on entrapment. (2 R.T. 542; 3 R.T. 550, 632-34). During deliberations, the jury sent out two notes with questions regarding the entrapment instructions. (C.T. 100-01). After three days of deliberation, the jury reached a verdict as to petitioner’s co-defendants, Flores and Jennings. (C.T. 103; 4 R.T. 35-38”). The jury found both defendants guilty of sale, 1. Because the California Supreme Court did not provide reasons for rejecting petitioner’s claims, this court “looks through” the highest court’s silent denial to the last reasoned judgment. Yist v. Nunnemaker, 501 U.S. 797, 803, 111 S. Ct. 2590 (1991). In this case, that is the decision by the California Court of Appeal. 2. The final part of petitioner’s first trial before Judge Matthews is bound with the transcript of his second trial before Judge Fisher. In addition, this volume of the Reporter’s Transcript on Appeal is incorrectly captioned as volume 2 of 3 volumes, pages 34-325. To avoid confusion, the court shall refer to this transcript volume as volume 4 of 5 volumes, pages tnt 5 WARES as BI aA Mi Nits oad i en eee Ae Mle D5 ADDN ADEN Nima 6 mtr B-3 transportation or offer to sell cocaine. (/d.) The jury could not, however, reach a verdict as to petitioner. (C.T. 103; 4 R.T. 38- 39). On a vote of 11-1, the jury deadlocked. (4 R.T. 39). The trial court, thereafter, declared a mistrial as to petitioner. (C.T. 103; 4R.T. 42). On December 19, 1996, petitioner was retried before J udge John Fisher. (C.T. 118; 4 R.T. 66). The prosecution adduced the following evidence. In the evening on January 8, 1996, two Los Angeles police officers, Servando Pena and Melissa Town, were participating in an undercover narcotics operation. (4R.T. 81). Offficers Pena and Town were driving an unmarked car in an area known for narcotics trafficking. (4 R.T. 82, 141-42, 175). Pena pulled his car over, motioned to petitioner’s former co-defendant, Flores, to come over, and asked Flores if he could hook Pena up with twenty dollars worth of narcotics. (4 R.T. 83, 106-07). Flores said he did not have any drugs but could take Pena to get some. (4 R.T. 84). When Pena said, “let’s go get some,” Flores got in the car with the undercover officers. (4R.T. 132). Pena testified that Flores clearly expected to use some of the narcotics that he was helping the undercover ‘ata (4 R.T. 108). In fact, even after Pena told him that Peha did not intend to give any of his drugs away, Flores continued to importune Pena for some of the drugs that he was hoping to obtain.” (4 R.T. 108, 115, 119). Pena knew something was physically wrong with Flores. (4 R.T. 132). After getting into the car, Flores told the undercover officers he was desperate for cocaine, and hadn’t had any drugs for two days. (4 R.T. 107-08, 111, 113, 119). Pena believed Flores was visibly suffering the symptoms of drug withdrawal. (4 R.T. 143). Flores smelled strongly of alcohol, he was pale, his hands were visibly shaking, his head continuously jerked 34-325, and the court shall refer to the remaining transcript as volume 5 of 5 volumes, pages 326-656. 3. Although Pena testified that he later informed Flores of his intention not to share narcotics, Pena did not tell Flores that fact immediately. (4 R.T. 119). B-4 from side to side and, during the ride, Flores had to leave the car to vomit. (4 R.T. 108, 110-11, 116, 142-43). Flores directed the undercover officers to drive toward Magnolia and Riverton, which was about a mile away, but didn’t tell the officers that he was looking for anyone in particular. (4 R.T. 84-85, 132-33). At a liquor store at Magnolia and Riverton, Flores got out of the car and vomited. (4 R.T. 133, 301). Moments after being ill, Flores saw petitioner and approached him. (4 R.T. 301, 314). Walking up to petitioner, Flores said: “I’m hurting” and “IT need a fix.” (4 R.T. 218, 244-46). According to petitioner, Flores smelled of alcohol and vomit, was trembling “like a junky dude” and seemed to be sick “like a dope fiend.” (4 R.T. 218-19, 222, 230). As did Officer Pena, petitioner concluded that Flores was experiencing drug withdrawal because Flores was sick, and was “tweaking and twitching.” (4 R.T. 222, 230). Flores repeatedly asked petitioner to help him and said repeatedly, “I need some, man.” (4 R.T. 246). Although petitioner had no drugs to sell, and knew Flores only very casually, he directed Flores to a particular location on Cleon Street where dealers congregated. (4 R.T. 243-44, 247-48). Petitioner, who was riding his bicycle home from work, then rode off to the same location. (4 R.T. 220-21, 248). After speaking with petitioner, Flores returned to the undercover vehicle and told Pena to drive to the liquor store at Vineland and Magnolia. (4 R.T. 136, 301). Shortly thereafter, near the intersection of Magnolia and Cleon, petitioner waved to Flores and signaled to the undercover car to pull over. (4 R.T. 302-03). Petitioner approached the car and Flores handed petitioner Pena’s twenty dollar bill.” (4 R.T. 220-21, 304). 4. The testimony of the two officers differed regarding petitioner’s statements during this encounter. According to Officer Pena, petitioner told him not to worry about getting “ripped off” because the petitioner did drug transactions such as this one “all the time.” (4 R.T. 90). Officer Town recalled that petitioner had a different response to the officers’ stated concern that petitioner would take the money and disappear. According to Town, petitioner said that Flores knew how to reach him if he were to take off, and that he didn’t intend to do so. (5 R.T. 340-41). Neither Officer B-5 Pen Petitioner then went to look for a dealer for Flores. (4 R.T. 220-21, 249-50). When petitioner was unsuccessful, he returned to the car and gave the twenty-dollar bill back to Flores. (4R.T. 221, 304). Shortly afterward, petitioner saw the person he had been looking for, and he stopped and flagged down the undercover car. (4 R.T. 221-22). Petitioner told Flores and officers to go over to the liquor store at Magnolia and Vineland. (4 R.T. 222, 304-05). Petitioner rode over to the liquor store. (4 R.T. 224, 305). Petitioner approached his former co-defendant Jennings in the parking jot. (4 R.T. 225). Petitioner asked Jennings where petitioner “could get something at.” (4 R.T. 225). Jennings walked irito the store, and petitioner waited outside. (4 R.T. 225-26). When Jennings left the store, petitioner walked over to Flores and got two ten-dollar bills from Officer Town. (4 R.T. 226, 305). Petitioner then walked back over to Jennings, and told Jennings that he wanted to “get a 20” for Flores. (4 R.T. 227-28). Jennings and petitioner walked together for a short distance, and then petitioner gave Jennings money in exchange for rock cocaine.” (4 R.T. 228-29). Next, petitioner walked back to the undercover car and handed a rock of cocaine to Pena. (4 R.T. 229-30, 306). After that, petitioner walked away, pushing his bicycle. (4 R.T. 230, 263). After receiving the cocaine, Pena signaled to the back-up Town nor Officer Pena recorded petitioner’s statements in the police report prepared on the evening of petitioner’s arrest. (4 R.T. 122; 5 R.T. 338, 340- 41). 5. Although the testimony was contradictory, petitioner claimed that he received no drugs or other compensation for helping Flores obtain drugs. (4 R.T. 229-30). Although Officer Pena testified that he saw two rocks of cocaine in petitioner’s hand, Pena never mentioned the second rock to his partner, Town. (4 R.T. 120; 5 R.T. 340). Nor did the police report prepared the evening of petitioner’s arrest mention a second rock of cocaine in petitioner’s hand. (4 R.T. 120, 170). Nor did Pena testify about a second rock of cocaine at the preliminary hearing in petitioner’s case. (4 R.T. 120, 170). The police did not recover a second rock of cocaine when they arrested petitioner. (4 R.T. 152). B-6 officers that he had completed a confirmed buy. (4 R.T. 306). Petitioner was arrested almost immediately thereafter. (4 R.T. 104). When they arrested petitioner, the police found no drugs on him. (4R.T. 292). Petitioner’s principal defense was entrapment. During the prosecution case, the state read into evidence petitioner’s testimony at his first trial. (4 R.T. 214-56). In that testimony, petitioner admitted he purchased rock cocaine from Jennings for the sole purpose of helping Flores, who was sick. (4 R.T. 232). Petitioner testified that he had no intention of buying or selling drugs before meeting Flores, and that he did so to help a person in need. (4 R.T. 255). At the conclusion of the evidence, but before closing argument, defense counsel requested that Judge Fisher instruct the jury on the defense of entrapment. (5 R.T. 375, 377). As defense counsel noted, Mr. Bradley “took the stand” and “related why he did what he did under the circumstances.” (5 R.T. 377). The state objected. (5 R.T. 377). Without explanation, Judge Fisher denied defense counsel’s request and refused to give any instructions with regard to entrapment. (C.T. 176-79; 5 R.T. 377). On December 27, 1996, the jury convicted petitioner of selling cocaine.® (C.T. 182, 192-93; 5 R.T. 426-28). PETITIONER’S CONTENTIONS 1. The trial court’s failure to instruct on entrapment deprived petitioner of due process. (Petition, { 10a, at 6 & attachment). 6. In petitioner’s new trial motion, he submitted two affidavits from jurors from the second trial. (C.T. 210-11, 215-24). Jurors Ernest Rivers, Jr., and Jose Escobido stated that, had they been given petitioner’s requested entrapment instructions, “the jury verdict (or the jury’s ability to reach a unanimous verdict) would have been different.” (C.T. 210,216,221). Both jurors stated that their impression of the evidence could have supported a finding of entrapment. (C.T. 216, 221). The Court of Appeal denied petitioner’s request to take judicial notice of these declarations. (Return, Exh. B, at 32, n.2). pe en He le a nee le ne ee EE ne ee ee Pe ae ee, ee eG dea Rdtrs nt. B-7 2. The conduct of the police officers was sufficiently outrageous to deny petitioner due process. (Petition, § 10b, at 6 & attachment). 3. Petitioner’s sentence under the “three strikes” statute is cruel and unusual punishment. (Petition, 9 10c, at 7 & attachment). STANDARD OF REVIEW This court may grant federal habeas corpus relief only if petitioner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). State law errors are not cognizable on federal habeas corpus. /d_; Estelle v. McGuire, 502 U.S. 62, 67, 112 S. Ct. 475, 480 (1991); Pulley v. Harris, 465 U.S. 37, 41, 104 S. Ct. 871, 874 (1984). The Antiterrorism and Effective Death Penalty Act (“AEDPA”) imposes new requirements for the granting of habeas relief:” An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with the respect to any claim that was adjudicated on the merits in State court proceedings 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) (1997) (as amended). 7. Because petitioner filed the Second Amended Petition after April 24, 1996, the AEDPA’s effective date, it is subject to the AEDPA’s provisions. See Lindh v. Murphy, 521 U.S. 320, 335, 117 S. Ct. 2059, 2068 (1997). B-8 Further, if this court identifies a cognizable error during petitioner’s trial, it must further determine whether that defect constitutes a structural error or trial error. Trial errors are those “‘which occur during the presentation of the case to the jury, and which may therefore be quantitatively assessed” within the context of the trial as a whole to determine whether they are harmless. Arizona v. Fulminante, 499 U.S. 279, 307-08, 1115S. Ct. 1246, 1264 (1991). Structural errors, by contrast, are defects “affecting the framework within which the trial proceeds, rather than simply an error in the trial process itself.” Id., at 310, 111 S. Ct. at 1265. Where atrial error is identified, the petitioner must show that he has suffered “actual prejudice” as a result. See Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S. Ct. 1710, 1722 (1993). However, the Supreme Court has added in reference to trial errors that “where a judge, in a habeas proceeding, applying this standard of harmless error, ‘is in grave doubt as to the harmlessness of the error,’ the habeas petitioner must win.” California v. Roy, 519 U.S. 2, 5, 117 S. Ct. 337, 338 (1996) (citing O’Neal v. McAninch, 513 U.S. 432, 437, 115 S. Ct. 992, 995 (1995)). Therefore, without shifting the burden of establishing whether the error was prejudicial, the harmlessness standard involved places the risk of doubt on the State. O'Neal, 513 U.S. at 439, 115 S. Ct. at 996. DISCUSSION A. Habeas Relief Is Justified on Petitioner’s First Claim. Petitioner’s first claim alleges that the trial court’s refusal to instruct on entrapment precluded the jury from considering his principal defense, thereby violating his right to due process. To prevail on this claim in a collateral proceeding such as this one, petitioner must establish that (1) he was entitled under California law to an instruction on entrapment; and (2) that the evidence supported the instruction. In addition, petitioner must demonstrate that the omission of the instruction was so prejudicial that it will support a collateral attack on the Pare andl Ahr NT Rosette Lol A — B-9 constitutional validity of a state court’s judgment. Henderson v. Kibbe, 431 U.S. 145, 155, 97 S. Ct. 1730, 1737 (1977). The question in a habeas proceeding is whether “the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.” Cupp v. Naughten, 414 U.S. 141, 147, 94S. Ct. 396, 400 (1973). Further, if the court determines that a federal constitutional error occurred, it must then decide whether the error, if any, was contrary to, or an unreasonable application of, clearly established federal law. See Van Tran v. Lindsey, 212 F.3d 1143, 1155 (9th Cir. 2000) (requiring two-step inquiry to determine whether relief may be granted under Section 2254(d), pet. for cert. filed (No. 00-255, August 11, 2000). 1. The Trial Court’s Refusal to Give the Requested Entrapment Instructions Deprived Petitioner of Due Process. In California, the test for entrapment asks whether the conduct of the law enforcement officer, or his agent, was likely to induce a normally law abiding person to commit the offense.” People v. Barraza, 23 Cal. 3d 675, 689-90, 153 Cal. Rptr. 459, 467, 591 P.2d 947, 955 (1979). Although the law presumes that a law abiding person would normally resist the temptation to commit crime when presented with nothing more than the simple opportunity to act unlawfully, the defense of entrapment recognizes that it is impermissible for the police or their agents to “pressure the suspect by overbearing conduct, such as badgering, cajoling, importuning, or other affirmative acts likely to induce a normally law abiding person to commit the crime.” Jd. Thus, if the actions of an officer or his agent would induce a person to commit the illegal act “because of friendship or sympathy, instead of a desire for personal gain or 8. In California, entrapment can be accomplished either directly by the police, or indirectly through an unwitting agent. People v. McIntire, 23 Cal. 3d 742, 748, 153 Cal. Rptr. 237 (1979). B-10 other typical criminal purpose,” the defense of entrapment will be established. Jd. In his second trial, petitioner adduced substantial evidence to support a defense that he had been induced by Flores, acting under a plan conceived of an executed by the undercover officers, to purchase drugs for Flores out of concern for his physical well-being, and sympathy for the his plight. Flores, the person the police employed as their “hook,” was a drug- addict visibly going through the physical symptoms of withdrawal. As described by both petitioner and the police, Flores was pale, he reeked of alcohol, luis hands were trembling, and his head was continuously twitching. During the operation, Flores got out of the police car, and in the presence of both the officers and petitioner, was violently ill. Immediately after he vomited, Flores approached petitioner and begged petitioner to assist him in obtaining a fix. Flores told both petitioner and the undercover officers that he was desperate. Further, the prosecution presented scant evidence to tie petitioner into the regular use or sale of drugs.” And, nothing in the record suggested that Flores sought out petitioner as a known source of drugs, nor could the prosecution establish conclusively that petitioner obtained any personal benefit from his intercession.” See, e.g., Sherman v. United States, 356 U.S. 369, 375, 78 S. Ct. 819, 822 (1958). The evidence, therefore, presented the issue of whether petitioner’s conduct had been induced, rather than the independent product of avarice or criminal intent. /d., 356 U.S. at 377, 78 S. Ct. at 823. 9. Although Pena testified that petitioner told the undercover officers that he routinely engaged in drug transactions, Officer Town recalled no such statement being made. Further, either Officer Town nor Officer Pena recorded any statements by petitioner in the contemporaneous police report. 10. Although Officer Pena testified that petitioner received a second rock of cocaine during the transaction, that testimony was undercut by Pena’s failure to mention the second rock to his partner, or to include that fact in the police report, or to testify about the second rock at the preliminary hearing. It was, however, uncontroverted that when searched by the police at the time of his arrest (moments after handing one rock to Pena), petitioner had no drugs. i Ve ee B-11 Further, petitioner has met his “especially heavy” burden of showing that the error so infected his trial as to violate due process.” Henderson v. Kibbe, supra, 431 U.S. at 115, 97 S. Ct. at 1737; see also Estelle, 502 U.S. at 72, 112 S. Ct. at 482. Petitioner’s principal defense was that he had been entrapped by the police into providing drugs for Flores. In fact, during his testimony at the first trial (which the prosecutor read to the jury at petitioner’s second trial), petitioner admitted to buying cocaine for Flores, but then went on to explain that he had been induced to do so by the man’s obvious illness, and by his sympathy for Flores’ plight. By refusing to instruct the jury on entrapment, the trial judge essentially left the jury with petitioner’s confession to the offense, without ever allowing them to consider petitioner’s preclusive defense. By rejecting petitioner’s request for an entrapment instruction, the trial court effectively deprived petitioner of his only defense. That deprivation “so infected the entire trial” that the resulting conviction violates due process. Henderson, supra, 431 U.S. at 156-57, 97 S. Ct. at 1738. 2. The California Courts’ Decision Rejecting Petitioner’s Claim of Instructional Error Was an Unreasonable Application of Clearly Established Federal Law. Having concluded that the omission of entrapment instructions constitutes constitutional error, the court must still determine whether that error is contrary to or involves an unreasonable application of federal law as determined by the 11. Respondent does not address the issue of prejudice, opting instead to rely solely on the argument that the trial court’s refusal to give entrapment instructions was not objectively unreasonable. aarti B-12 United States Supreme Court.“ 28 U.S.C. § 2254(d)(1); Van Tran v. Lindsey, supra, 212 F.3d at 1154-55. This court concludes that it is. It is well established that a criminal defendant is entitled to adequate instructions on the defense theory of the case, where that defense is supported by some evidence and is legally permissible. See Mathews v. United States, 485 U.S. 58, 63, 108 S. Ct. 883, 887 (1988); see also United States v. Mason, 902 F.2d 1434, 1437 (9th Cir. 1990); Conde v. Henry, supra, 198 F.3d at 739 (state habeas case). See also Bashor v. Risley, 730 F.2d 1228, 1240 (9th Cir. 1984). The California Court of Appeal’s decision not to apply this legal rule in petitioner’s case was objectively unreasonable. It was not objectively reasonable for the state court to characterize the use of a visibly ill drug addict to entreat passers-by to alleviate his suffering as an “ordinary, run-of-the- mill, undercover drug operation.”” (Return, Exh. B, at 31). To rule, as did the appellate court, that the police did “nothing more” than present petitioner with “the simple opportunity to act unlawfully” is clearly erroneous given the record in this case. Further, as there was a factual and legal basis for petitioner’s defense theory of entrapment, the state court’s refusal to consider the petitioner’s due process claim was an objectively unreasonable application of federal law. See 12. The issue of whether the state court’s jury instructions have denied a habeas petitioner due process is purely a legal issue which, prior to AEDPA, was reviewed de novo. Willard v. People of the State of California, 812 F.2d 461, 462 (9th Cir. 1987). The issue of whether the instructional error is of constitutional dimension is a mixed question of law and fact. Herd v. Kincheloe, 800 F.2d 1526, 1528 (9th Cir. 1996). The presumption of correctness which applies to state court findings of historical fact under 28 U.S.C. § 2254(e)(1) does not apply to the state courts’ determinations on these issues. See Thompson v. Keohane, 516 U.S. 99, 109-10, 116 S. Ct. 457, 464 (1995). 13. Ninth Circuit authority, such as that cited here, “may be persuasive authority for purposes of determining whether a particular state court determination is ‘an unreasonable application’ of Supreme Court law, and may also help determine what law is ‘clearly established.’” Van Tran, 212 F.3d at 1154. B-13 Williams v. Taylor, _U.S.___, __, 120 S. Ct. 1495, 1520 (2000) (“[A] state-court decision that correctly identifies the governing legal rule but applies it unreasonably to the facts of a particular prisoner’s case certainly would qualify as a decision ‘involving an unreasonable application of . . . clearly established federal law.’’) 3. The State Court’s Error Requires that Petitioner’s Conviction Be Vacated. Having concluded that the trial court’s failure to instruct the jury on entrapment constitutes constitutional error, and that the AEDPA does not bar relief, the question remains whether the error requires reversal. To be entitled to habeas relief, the petitioner must show that he has suffered “actual prejudice” as a result of the constitutional error.” See Brecht v. Abrahamson, supra, 507 US. at 637, 113 S. Ct. at 1722; California v. Roy, supra, 519 US. at 5, 117 S. Ct. at 338. At a minimum, the jury’s conviction of petitioner based on a set of instructions that omitted a preclusive defense warrants “grave doubt as to the harmlessness of the error.” See O'Neal, supra, 513 U.S. at 437, 115 S. Ct. at 995. Prejudice, of a nature and degree so significant as to infect the entire trial, cannot be avoided where, as in this case, the instructions embodied petitioner’s principal defense. See Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995) (“Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions give to the jury.”). By refusing petitioner’s 14. Although some jury instruction errors are so fundamental that they constitute structural error and require automatic reversal, see Harmon v. Marshall, 69 F.3d 963, 966 (9th Cir. 1995); Conde v. Henry, supra, 198 F.3d at 741, this court shall require that petitioner demonstrate actual prejudice. See Villafuerte v. Stewart, 111 F.3d 616, 623 (9th Cir. 1997) (applying Brecht to claims of instructional error); see also Neder v. United States, 527 U.S. 1, 8-9, 119 S. Ct. 1827, 1833 (1999); Stanton v. Benzler, 146 F.3d 726, 728-29 (9th Cir. 1998). B-14 requested entrapment instructions, the trial judge effectively rendered the state’s charges uncontested. Further, unlike many cases in which a petitioner must hypothesize a trial in which the jury received the challenged instructions, petitioner can point to the result obtained in his first trial, at which the jury was instructed on entrapment and could not reach a unanimous verdict as to petitioner.” A comparison of the outcome in petitioner’s two trials, therefore, creates grave doubt as to the harmlessness of the error. In addition, the declarations of two jurors from petitioner’s second trial support this court’s conclusion that the trial court’s failure to instruct the jury on entrapment affected the jury’s deliberations. Both Juror Rivers and Juror Escobedo, after being shown petitioner’s requested instructions on entrapment, stated that “the jury’s ability to reach a unanimous verdict would have been different if these instructions had been given.” (C.T. 216, 221). In light of these facts, the court cannot conclude that the trial court’s error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. at 623, 113 S. Ct. at 1714 (1993). The court, therefore, conditionally grants petitioner’s writ of habeas corpus as [Text truncated at 120,000 characters. The full text is on the page linked above.] --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386015_1985%3A1. Public record. Not legal advice.