Petition for Writ of Certiorari — Heiden v. Trujillo (No. 06-283)

Phe: Supreme Court, U.S.

‘ > P FILED

i.

j

VA

96-283 AUG 1- 2006

No. 06. OFFICE OF THE CLERK

IN THE

Supreme Court of the United States

JOHN WESLEY HEIDEN,

Petitioner,

v.

ERNEST J. TRUJILLO, Warden,

- and ARIZONA ATTORNEY GENERAL,

Respondents.

On PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

ROBERT BARTELS

Attorney for Petitioner

College of Law

Arizona State University

Tempe, AZ 85287-7906

(480) 965-7053

QUESTIONS PRESENTED

1. Whether the state court's exclusion of reliable evidence

that was critical to Petitioner's defense amounted to an

unreasonable application of federal due process law clearly

established by this Court in Chambers v. Mississippi, 410 U.S. 284

(1973), and Crane v. Kentucky, 476 U.S. 683 (1986).

2. Whether Petitioner exhausted state-court remedies with

regard to the due process issue stated above, prior to seeking federal

habeas corpus relief, when (a) he argued in the state courts that the

exclusion of reliable and critical evidence denied him "the

opportunity to fully present his defense" and that this "denied [him]

due process of law," and (b) the state standard for adjudicating a due

process right-to-present-a-defense claim was identical to, or less

exacting than, the corresponding federal standard.

.

-l-

TABLE OF CONTENTS

QUESTIONS PRESENTED

OPINIONS BELOW

JURISDICTION

CONSTITUTIONAL PROVISION INVOLVED

STATUTES INVOLVED

STATEMENT OF THE CASE

REASONS FOR ALLOWANCE OF THE WRIT

I. Petitioner's Fourteenth Amendment Right

to Due Process Was Violated When the

State Court Unreasonably Applied Clearly

Established Federal Law by Excluding

Reliable Expert Testimony That Was

Crixical to Petitioner's Defense

A.- Chambers v. Mississippi

B. Crane v. Kentucky

C. Application of Crane to this Case

D.

The Court of Appeals' Opinion

on the Merits

Il. ‘Petitioner Exhausted His Federal Due

Process Claim in the State Courts

CONCLUSION

APPENDIX

Page

Oo Co ~)

10

13

15

21

-

-ii-

TABLE OF CITED AUTHORITIES

Page

CASES:

Baldwin v. Reese, 541 U.S. 27 (2004) ..........s:ceeseeees 7, 15-16, 18-20

Boyer v. Florida, 825 So.2d 418 (Fla. Dist. Ct. App. 2002) ...12-13

Chambers v. Mississippi, 410 U.S. 284 (1973) ...7-10, 12-15, 17-19

Clark v. Arizona,___- U.S. ___, 74 U.S.L.W. 456°

A ED siehccpasisscsucdicnenicdicampusesiteniciasbinenpicaiiiniiciaadanddeancdbiidiee 17

Crane v. Kentucky, 476 U.S. 683 (1986) .........csee0 7-11, 13-15, 19

Duncan v. Henry, 513 U.S. 364 (1995) ...creccsessocsscerorsssvesessereorceses 15

Jackson v. Denno, 378 U.S. 368 (1964) ........cccscsssesessssessreseeeeees 10

Jackson v. Edwards, 404 F.3d 612 (2d Cir. 2005) ............ 15-16, 20

Lego v. Twomey, 404 U.S. 477 (1972) ETA NOE COE GPO 10

Miller v. Indiana, 770 N.E.2d 763 (Ind. 2002) ...........c.cceseeeees 12-13

O'Sullivan v. Boerckel, 526 U.S. 838 (1999) oo... eeecseeseeseeereeees 15

Picard v. Connor, 404 U.S. 270 (1971) ...ceeecseeceeresseceeseeeenees 15,20

State v. Gonzales, 140 Ariz. 349, 681 P.2d 1368 (1984) ...5, 17, 19

State v. Melendez, 172 Ariz. 68, 834 P.2d 154 (1992) .......0..... 18

State v. Mott, 187 Ariz. 536, 931 P.2d 1046 (1997) oes 17

State v. Parker, 121 Ariz. 172,589 P.2d 46 (App. 1978) ....... 17,19

State v. Youngblood, 173 Ariz. 502, 844 P.2d 1152 (1993) ........ 18

State ex rel. Romley v. Superior Court, 172 Ariz. 232,

Pe ia nc 18

Strickland v. Washington, 466 U.S. 668 (1984) .......c:cccecsesseereesees 14

Taylor v. Williams, 529 U.S. 362 (2000) ...........cccssesseeeseceesees 14-15

United States v. Hall, 93 F.3d 1337 (7th Cir. 1996) oe 12

CONSTITUTIONAL PROVISIONS:

U.S. Constitution, Fourteenth Amend. ........ 1,2, 7-8, 10, 13, 17, 20

U.S. Constitution, Eightth Amend. .1..0cccsecesccssccorsonsseossecvseceseerecieeess 6

- lii-

STATUTES: :

Be I OF eiidiva/scssnndaicesdunacpanobieanenbusiconiieonkeiensdupucinanensenes 1

Be ae Ee Kasbeidickianseeabslainccaabiscacectneaiseducicncehamceadiiedians 6

i BOE aiakihaccsassalitsosidccsisihaadicaratcsaendsihiaddaecaiinidsaatial 6

Bs IEE ids vi sr vetdsesnbapcdscecddadcuacodeceabadeaaaesasendaednsaais 6

a NR caicsisiias cist inaatodiniidomancsaneiniielamdasmuaaaene 6

Be ais TCE PID sess scseiviosedvcsimainvcdareaeineeininativeeta 1, 15-16

Be ak EI ED apiccthaviciccebncoesdvaicwsndarcunisecignacenin’ 2, 7-8,-13, 15

FF SS LIE siacsiniasssptinces tensile eb eoninn 5

RULES:

INS SIE TIED FICE sno isixcsscsdivtesediriicnasediiselaccaaienambeaiiniad 1

i n 6

PT Be aid eciisivnsassidislignsijcinaipaudeabetidadiealisevambuaee 6

OTHER AUTHORITIES:

Leo & Ofshe, "The Consequences of False

Confessions: Deprivations of Liberty and

Miscarriages of Justice in the Age of

Psychological Interrogation," 88 J. Crim. L.

CD incited edacnnsrinndenitibiincicetssenialiaciiabiotinnal 12

Soree, "When the Innocent Speak: False

Confessions, Constitutional Safeguards,

and the Role of Expert Testimony," 32 Am.

Bs Si Bs I DEED ccrtecrnctsnenitscersestinincnconisunnieipanetitiviiociea 12

Drizin & Leo, "The Problem of False Confessions

in the Post-DNA World," 82 N.C. L. Rev. 891 (2004) .............0. 12

OPINIONS BELOW

The unreported decisions of the United States Court of

Appeals for the Ninth Circuit and the United States District Court

for the District of Arizona are reproduced in the Appendix (pp. Al-

A5 and A6-A15). Relevant excerpts from the unreported decision

of the Arizona Court of Appeals also are reproduced in the

Appendix (pp. Al6-A20).

JURISDICTION

The Court of Appeals entered its judgment on May 3, 2006.

This Petition is being filed within 90 days after entry of that

judgment, pursuant to Supreme Court Rule 13.1. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL PROVISION INVOLVED

The Fourteenth Amendment to the United States

Constitution provides that "[n]o State shall . . . deprive any person

~ of life, liberty, or property, without due process of law... .

STATUTES INVOLVED

In pertinent part, 28 U.S.C. § 2254 provides that:

(b)(1) 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

unless it appears that --

(A) the applicant has exhausted

the remedies available in the courts of the

State;

* * *

(d) 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 --

(1) resulted in a decision that was

contrary to, or involved an unréasonable

application of, clearly established Federal

law, as determined by the Supreme Court

of the United States ....

STATEMENT OF THE CASE

This is a federal habeas corpus case in which Petitioner

challenges his state-court convictions for sexual conduct with a

minor on the ground that the state courts violated his clearly

established rights under the Due Process Clause of the Fourteenth

Amendment to the United States Constitution by excluding

reliable exculpatory evidence that was critical to his defense. The

Court of Appeals incorrectly found (a) that this claim had not been

exhausted in the state courts and therefore was procedurally

defaulted, and (b) that Petitioner would not be entitled to relief on

the merits in any event.

Petitioner was charged in the Superior Court of Arizona

with nine counts of sexual conduct with a minor under the age of

fifteen and one count of sexual conduct with a minor under the age

3

of eighteen. (App.' at 45; ER’ 21). With respect to all of those

charges, the alleged vi was Petitioner's niece, Laura Ballinger.

During the time periou im question, both Laura and Petitioner

resided in Prescott, Arizona, Laura with her parents and Petitioner

in a studio apartment. (ER 253, 257). At the beginning of the same

time period, Laura was thirteen years old; Petitioner was 30 years old

but had very limited mental capacities. (ER 250-54, 515-23).

At trial, the only witness who testified that Petitioner had

engaged in sexual conduct with Laura was Laura herself. She

testified that she and Petitioner had consensual sexual intercourse

on several occasions, the first time when she was thirteen and the

last time when she was 15. (ER 257-85). In addition, the State

introduced evidence regarding an interrogation during which law

enforcement officers eventually elicited statements from Petitioner

that he had engaged in sexual intercourse with Laura.’

Petitioner himself testified that he did not engage in sexual

conduct with Laura, and that his incriminating statements to the

police were false. (ER 458, 461, 469). The defense also was

supported by testimony that Laura had made false accusations of

sexual impropriety against her father. (ER 305-308).

‘Thus, the incriminating statements that Petitioner had

made to the police were of critical importance to the case. The

defense sought to show that the methods the police had used in

interrogating Petitioner involved a substantial risk of producing

false confessions, especially with a subject like Petitioner. To that

' "App." refers to the Appendix to this petition.

? "ER" refers to the Excerpts of Record in the Court of Appeals.

> The interrogating officers testified about Petitioner's

statements (ER 310-21), and a videotape of the interrogation was

played for the jury (ER 321). A transcript of the videotape is

— in the Excerpts of Record in the Court of Appeals (ER 35-

0).

4

end, the defense presented the expert testimony of a psychologist,

Dr. Esplin, that Petitioner's mental capacities were limited and that

he was particularly susceptible to suggestion. (ER 489-526).

However, Dr. Esplin was not qualified to speak to whether the

interrogation of Petitioner was coercive, suggestive, or likely to lead

to false statements. On those crucial points, the defense attempted

(without success) to present the testimony of a second expert. Dr.

Ofshe.

Dr. Ofshe was a highly qualified social psychologist and

professor at the University of California at Berkeley who previously

had testified 83 times regarding police interrogations. (ER 102-117).

During a pre-trial hearing to determine the admissibility of his

proposed testimony, Dr. Ofshe testified that the interrogation

methods used by the detectives who questioned Petitioner were

coercive and prone to producing false confessions, and that Dr.

Esplin's evaluation of Petitioner indicated that he was especially

vulnerable to those methods. Although Dr. Ofshe could not give an

opinion as to whether Petitioner's confession was false, he testified

that "there's no question, what these tactics [used by the detectives

who questioned Petitioner] will do to some people on some

occasions, and illicit false confessions." (ER 192; see also ER 109-

110, 116-32). Dr. Ofshe's opinions were based on many years of

studying hundreds of interrogations and the "Reed Nine-Step

Method" used during the interrogation of Petitioner (ER 106-111,

116-32), and on a detailed analysis of the transcript of the

interrogation in question (ER 139-40, 145-98).

Following the pre-trial hearing at which Dr. Ofshe gave his

proposed testimony, defense counsel twice argued that exclusion of

that testimony at trial would violate Arizona evidentiary rules and

deny Petitioner "his due process rights under the United States

Constitution and the Arizona Constitution." (ER 92-98, 247-49).

However, the trial court rejected those arguments, ruling that Dr.

Ofshe would not be permitted to testify at trial. (ER 244-46).

5

During the trial, defense counsel cross-examined the

detectives who had questioned Petitioner and elicited factual

information about the detectives’ interrogation methods (ER 322-

25, 331-416, 430-47). But those cross-examinations predictably did

not produce testimony that the detectives' methods were coercive

or likely to produce false confessions; and the trial court's pre-trial

ruling regarding Dr. Ofshe precluded the defense from presenting

such testimony.

On July 14, 1998, the jury found Petitioner guilty on all

nine counts. (ER 21). As required by Ariz. Rev. Stat. § 13-604.01,

Petitioner received consecutive sentences totalling 181 years. (ER

21). :

Petitioner filed a notice of appeal on July 22, 1998.

Petitioner's Opening Brief in the Arizona Court of Appeals argued

that when the trial court excluded Dr. Ofshe's proffered testimony,

Petitioner "was wrongfully denied a defense and/or the opportunity

to fully present his defense," and that "[s]uch denied [Petitioner] due

process of law." (ER 504-506). In support of that argument,

Petitioner's Opening Brief cited State v. Gonzales, 140 Ariz. 349,

681 P.2d 1368 (1984), in which the Arizona Supreme Court had

held that the exclusion of relevant expert testimony on the

defendant's mental condition was "a denial of due process." Id. at

353, 681 P.2d at 1372.

The Arizona Court of Appeals affirmed Petitioner's

convictions and sentences on January 18, 2000. That court's

opinion found that the trial court's exclusion of Dr. Ofshe's

testimony was proper, without addressing Petitioner's due process

argument. (App. at Al7-A20). The Arizona Supreme Court denied

Petitioner's petition for discretionary review on September 26,

2000, and the Arizona Court of Appeals issued its mandate on

October 23, 2000. (DN* 1 at 2).

* "DN" refers to the District Court docket numbers.

6

On October 30, 2000, Petitioner filed a "notice" of post-

conviction relief in the state trial court; and he thereafter filed a

timely "petition" for post-conviction relief.’ The state trial court

dismissed that petition on September 17, 2001; the Arizona Court

of Appeals denied review on August 22, 2002; and the Arizona

Supreme Court denied review on January 7, 2003. (DN 1 at 2).

The petition for a writ of habeas corpus that is the subject

of this petition for a writ of certiorari was filed on January 6, 2004,

pursuant to 28 U.S.C. §§ 2241(a) and 2254(a). (DN 1). That

petition asserted two claims for relief: (1) that the exclusion of Dr.

Ofshe's above-referenced testimony violated Petitioner's clearly

established federal due process right to present reliable evidence

that was critical to his defense; and (2) that Petitioner's sentences

violated the Eighth and Fourteenth Amendments. (ER 22-23, 34).

The District Court's Order denying the petition was based on two

rulings: (A) that Petitioner's federal due process claim had not been

exhausted and therefore was procedurally defaulted (App. at A7-

Al2), and (B) that Petitioner's Eighth Amendment claim was

without merit (App. at Al13-A15). The District Court did not

reach the merits of Petitioner's due process claim.

On July 7, 2005, Petitioner filed a Notice of Appeal and a

Request for Certificate of Appealability with regard to his due

process claim (but not his Eighth Amendment claim). (ER 33; DN

28). The District Court subsequently issued the requested

Certificate of Appealability. (ER 34). The Court of Appeals

therefore had jurisdiction under 28 U.S.C. § 1291 and 2253(c).

On May 3, 2006, the Court of Appeals affirmed the

> Under Rule 32.4(a) of the Arizona Rules of Criminal

Procedure, a post-conviction relief proceeding is commenced by

filing a notice of post-conviction relief. Thereafter, the defendant

sets out his claims in a petition for post-conviction relief. Ariz. R.

Crim. P. 32.5.

7

judgment of the District Court, ruling (a) that Petitioner's federal

due process claim had not been exhausted in the state courts and

therefore was procedurally defaulted, and (b) that Petitioner would

not be entitled to relief on that claim in any event. (App. at Al-

A4).

REASONS FOR ALLOWANCE OF THE WRIT

As demonstrated below, there are two main reasons for

granting this petition:

1. The Court of Appeals' holding that Petitioner had not

exhausted his federal due process claim resolves an important issue

-- which this Court raised, but did not decide, in Baldwin v. Reese,

541 U.S. 27, 33-34 (2004) -- in a manner that is inconsistent (a)

with this Court's decisions regarding the purpose and scope of the

exhaustion requirement, and (b) with the decision of another

United States Court of Appeals on the same issue.

2. The Court of Appeals' ruling that Petitioner was not

entitled to relief on the merits of his federal due process cl. 1

plainly misapplies 28 U.S.C. § 2254(d)(1) and this Court's decisions

in Chambers v. Mississippi, 410 U.S. 284 (1973), and Crane v.

Kentucky, 476 U.S. 683 (1986).

Although the Court of Appeals placed primary reliance on

its holding with respect to the exhaustion issue, the clarity of this

petition will be served by beginning with a discussion of the merits

of Petitioner's federal due process claim.

I. Petitioner's Fourteenth Amendment Right to Due

Process Was Violated When the State Court

Unreasonably Applied Clearly Established Federal Law

by Excluding Reliable Expert Testimony That Was

Critical to Petitioner's Defense

8

Under 28 USC. § 2254(d\(1), federal habeas corpus relief

may be granted "with respect to any claim that was adjudicated on

the merits in State court proceedings" only if the state court's

adjudication was “contrary to, or involved an unreasonable

application of, clearly established Federal Law, as determined by the

Supreme Court of the United States.". The applicability of §

2254(d)(1) to this case is muddied somewhat by the fact that the

Arizona Court of Appeals did not explicitly adjudicate Petitioner's

due process claim on the merits. (App. at Al6-A20). But this ‘s a

point that need not be addressed here -- because the state court's

implicit rejection of Petitioner's due process claim amounted to an

unreasonable application of two decisions of this Court: Chambers

v. Mississippi and (more particularly) Crane v. Kentucky, supra.

A. Chambers v. Mississippi

In Chambers, this Court established the basic framework for

determining when a state court's exclusion of evidence offered by a

criminal defendant violates due process. The defendant in

Chambers, who was charged with murder, offered evidence that

another person, McDonald, had confessed to three friends (on three

separate occasions) that it was he who had shot the victim. 410 U.S.

at 285, 289. The state courts excluded that evidence as hearsayld.

at 292-294. This Court, however, held that the exclusion of

McDonald's out-of-court confessions, even if proper under the

state's rules of evidence, violated the defendant's federal due process

right to present a defense. Id. at 298-303.

This Court made it clear in Chambers that the exclusion of

relevant defense evidence under state evidentiary rules did not

always violate due process. Rather, the Chambers holding turned

on two factors that effectively defined a due process right to present

a defense. First, this Court found that the excluded testimony

concerning McDonald's extra-judicial confessions was "critical to

9

Chambers' defense" -- even though a sworn confession that

McDonald had given to Chambers’ attorneys already had been

admitted at trial. Id. at 291.° Second, this Court concluded that the

“hearsay statements involved in this case were originally made and

subsequently offered at trial under circumstances that provided

considerable assurance of their reliability" (including, most

importantly, the circumstance that McDonald was present at trial

and subject to cross-examination by the Stete). Id. at 300-301.

B. Crane v. Kentucky

Crane is even more clearly applicable to this case than

Chambers. In fact, Crane is distinguishable only in the sense that

Dr. Ofshe's testimony was more "critical" to the defense than the

excluded evidence in Crane.

In Crane, the defendant was charged with murder. 476 U.S.

at 684. The State's case rested primarily on a statement by the

defendant's uncle, who said that he was an eye-witness to the

murder, and on the defendant's confession to the police. Id. at 685.

Prior to trial, the defendant moved to suppress the confession on the

ground that it had been coerced, but the trial court denied the

motion. Id. at 684. Nevertheless, at trial defense counsel sought to

persuade the jury that the circumstances under which the defendant

made his confession "cast doubt on its credibility." Id. at 685. -In

that connection, the defense proffered "testimony from two police

officers about the size and other characteristics of the interrogation _

room, the length of the interview, and various other details about

the taking of the confession." Id. at 686. However, the trial court

® In addition, the testimony of one of McDonald's friends that

McDonald had confessed was given in the jury's presence (before

the State objected and the trial court instructed the jury to disregard

the testimony). 410 U.S. at 292, n. 4.

10

ruled that this evidence was not admissible, and the Kentucky

Supreme Court affirmed that ruling, reasoning that the excluded

evidence "related solely to voluntariness," an issue that already had

been conclusively determined by the trial court. Id.

This Court reversed the decision of the Kentucky Supreme

Court, holding that the exclusion of the defendant's proffered

a evidence regarding the circumstances surrounding his confession

violated his due process right to a "meaningful opportunity to

present a complete defense" under Chambers v. Mississippi. and

other precedents. Id. at 690-91. Central to that holding was this

Court's recognition that "the requirement that the court make a

pretrial voluntariness determination does not undercut the

defendant's traditional prerogative to challenge the confession's

reliability during the course of the trial," and that a defendant "has

been as free since Jackson [v. Denno, 378 U.S. 368 (1964)] as he

was before to familiarize a jury with the circumstances that attend

the taking of his confession, including facts bearing upon its weight

and voluntariness.'" Id. at 688, quoting from Lego v. Twomey, 404

U.S. 477, 485-86 (1972) (emphasis in original). In short, evidence

regarding the physical and other circumstances leading to the

confession was relevant both to voluntariness and to reliability.

Moreover, that evidence was sufficiently important to the defense

that its exclusion violated the defendant's due process rights. Id. at

691.’

C. Application of Crane to this Case

The applicability of Crane to this case is both clear and

complete, for the following reasons: _

1. Apart from Petitioner's confession to the police, the state

’ This Court reached this conclusion without passing on "the

strength or merits of that defense.” Id.

11

court trial was primarily a swearing match between the alleged

victim and Petitioner, with the former testifying that they had

engaged in sexual conduct and the latter testifying that they had

not. (See supra at 3). Thus, the non-reliability of Petitioner's

confession was every bit as central to his defense as the non-

reliability of the defendant's confession in Crane.

2. Dr. Ofshe's testimony plainly was more probative on, and

therefore more critical to, the defense (that Petitioner's confession

should not be believed) than the evidence at issue in Crane.

Although relevant, the evidence regarding the circumstances of the

interrogation in Crane cannot be characterized as highly probative

of whether Crane's confession was true or false. Dr. Ofshe's

testimony, however, spoke more directly and persuasively to the

reliability of Petitioner's confession, in the following respects:

a. Trial testimony by another defense expert, Dr.

Esplin, established that Petitioner's mental capacities were

limited and that he was particularly susceptible to

suggestion, but it did not speak to whether the

interrogation of Petitioner was coercive or suggestive. (See

supra at 4). Dr. Ofshe's proffered testimony, however,

carefully analyzed and explained the coercive and

suggestive nature of the interrogation methods employed by

the detectives who questioned Petitioner and concluded

that Petitioner was especially vulnerable to those methods.

(See supra at 4). Thus, Dr. Ofshe's testimony would have

provided the critical missing link betweer: Dr. Esplin's

testimony and Petitioner's position that his confession was

both coerced and false.

b. Dr. Ofshe would have testified that "there's no

question, what these tactics [used by the detectives who

questioned Petitioner] will do to some people on some

occasions, and illicit false confessions." (See supra at 4).

c. While defense counsel's cross-examinations of

12

the detectives who had questioned Petitioner elicited

factual information about the detectives’ interrogation

methods, those cross-examinations did not establish that

the detectives' methods were coercive or of the sort that

could produce false confessions. (See supra at 4-5). Dr.

Ofshe's testimony, however, would have provided the jurors

-with knowledge that they otherwise lacked concerning the

impact of the detectives’ interrogation techniques on the

credibility of Petitioner's confession.® See United States v.

Hall, 93 F.3d 1337, 1341-42, 1345 (7th Cir. 1996), Miller

v. Indiana, 770 N.E.2d 763, 770-74 (Ind. 2002), and Boyer

v. Florida, 825 So.2d 418, 419-20 (Fla. Dist. Ct. App.

2002).

3. Dr. Ofshe's proposed testimony in the instant case also

was at least as reliable as the testimony that was excluded in Crane).

Dr. Ofshe was a highly qualified expert who previously had testified

83 times regarding police interrogations; his testimony that the

methods used by the detectives who quéstioned Petitioner were

prone to producing false confessions was based on years of studying

interrogations -- and in particular the "Reed Nine-Step Method" --

and on a detailed analysis of the transcript of the interrogation in

question (see supra at 4); and (like McDonald in Chambers) he

would have been subject to cross-examination by the prosecution at

the trial. The reliability of Dr. Ofshe's proffered testimony in this

® As an increasing body of scholarship has shown, the common

perception that the innocent do not confess is misguided. See, e.g.,

Leo & Ofshe, The Consequences of False Confessions: Deprivations

of Liberty and Miscarriages of Justice in the Age of Psychological

Interrogation, 88 J. Crim. L. & Criminology 429 (1988); Soree,

When the Innocent Speak: False Confessions, Constitutional

Safeguards, and the Role of Expert Testimony, 32 Am. J. Crim. L.

191 (Spring 2005); Drizin & Leo, The Problem of False Confessions

in the Post-DNA World, 82 N.C. L. Rev. 891 (2004).

13

case also is evidenced by the fact that at least three reported

appellate decisions have reversed trial court rulings excluding

similar testimony by Dr. Ofshe. United States v. Hall, 93 F.3d 1337,

1340-45 (7th Cir. 1996); Miller v. Indiana, 770 N.E.2d 763, 770-74

(Ind. 2002); Boyer v. Florida, 825 So.2d 418, 419-20 (Fla. Dist. Ct.

App. 2002).’

4. Insum: Because Dr. Ofshe's testimony was both reliable

and critical to Petitioner's central defense, the state court's

exclusion of that testimony was contrary to, and an unreasonable

application of, this Court's holdings in Chambers and Crane.

Petitioner's due process claim therefore satisfies the requirements of

28 U.S.C. § 2254(d)(1).

D. The Court of Appeals' Opinion on the Merits

In rejecting Petitioner's federal due process claim on its

merits, the Court of Appeals noted that neither Chambers nor

Crane "addresses expert testimony or how to assess its reliability,"

and that the state trial judge "enunciated several reasons to doubt

the reliability of Heiden's expert's testimony, including that the

expert was not present during the confession, had not viewed the

available videotape of the confession, and had never directly spoken

to the participants." (App. at A4). The Court of Appeals then

concluded that "[gliven the lack of guidance from Chambers and

Crane, we cannot say that Heiden's expert testimony was reliable

enough, for due process purposes, that its exclusion deprived Heiden

of the claimed right to fully present a defense." ( Id.) But this

cursory "analysis" does not withstand scrutiny:

® Given the factors noted in the text «ve, Dr. Ofshe's

testimony obviously was more reliable than che out-of-court

=" by McDonald in Chamber v. Mississippi, see 410 U.S. at

00-301

14

1. The fact that neither Chambers nor Crane "addresses

expert testimony or how to assess its reliability" does not mean that

the federal law clearly established by the holdings in those cases '

cannot apply to a case, like this one, in which the exclusion of

expert testimony is at issue. For example, in Taylor v. Williams,

529 U.S. 362, 390-99, 402-416 (2000), this Court held that the

state court's rejection of the petitioner's ineffective-assistance-of-

counsel-at-sentencing claim involved an unreasonable application

of legal principles established by Strickland v. Washington, 466

U.S. 668 (1984), even though the factual context of Taylor was

quite different from the factual context in Strickland."

2. As the Court of Appeals recognized, the basic legal

principle established by Chambers and Crane is that the exclusion

of reliable evidence that is critical to the defense violates due

process. (App. at A4). Of course, the meaning of "reliable" and

"critical" is given more precision by the facts and holdings in those

cases. See Taylor, supra, 529 U.S. at 412. But this petition already

has demonstrated that Dr. Ofshe's proffered testimony was at least

as reliable and critical as the evidence at issue in Chambers and

Crane. And that comparison is not affected by the reliability factors

mentioned by the Court of Appeals (that Dr. Ofshe did not attend

or review a videotape of the interrogation or speak to the

participants). Quite apart from the absurdity of supposing that an

expert witness ever would be able to attend the interrogation itself,

those factors were of little apparent importance, given that Dr.

Ofshe's testimony was based on his studies of the effects of the

"Reed Nine-Step Method" and on a detailed and lengthy analysis of

what the transcript of the interrogation of Petitioner disclosed about

the interrogating officers’ use of that method. In any event, neither

10 In this regard, it is noteworthy that this Court held in

Strickland that trial counsel was not ineffective. 466 U.S. at 698-

700.

15

Chambers (which involved hearsay evidence) nor Crane (which

involved only evidence about the circumstances of an

interrogation) requires that the excluded evidence be the best

conceivable evidence for the defense; and Chambers makes it clear

that Dr. Ofshe's availability for cross-examination regarding the

factors mentioned by the Court of Appeals cuts in favor of the

reliability of his testimony for due process purposes. 410 U.S. at 301.

3. In sum, the Court of Appeals’ interpretation of 28

U.S.C. § 2254(d)(1), which would make it virtually impossible for

any habeas corpus petitioner to show that a state court had

unreasonably applied clearly established federal law, was itself

unreasonable -- and inconsistent with this Court's holding in Taylor

v. Williams, supra. Because Dr. Ofshe's testimony was more critical,

reliable, and probative than the evidence at issue in Chambers and

Crane, the state court's implicit rejection of Petitioner's due process

argument amounted to an unreasonable application of the federal

law clearly established by those decisions.

Il. Petitioner Exhausted His Federal Due Process Claim in

the State Courts

As noted above, the Court of Appeals' primary holding in

this case was that Petitioner had failed to exhaust his federal due

process claim in state court, as required by 28 U.S.C. §

2254(b)(1)(A). (App. at A2-A3). The following paragraphs will

show that this holding incorrectly applied this Court's decisions

regarding the purpose and scope of the exhaustion requirement, and

that it was in conflict with the decision of the Second Circuit in

lackson v. Edwards, 404 F.3d 612, 620-21 (2d Cir. 2005).

A. The purpose of the exhaustion requirement in federal

habeas corpus cases is to provide the State with the "opportunity to

pass upon and correct! alleged violations of its prisoners' federal

rights." Baldwin v. Reese, 541 U.S. 27, 29 (2004) (quoting Duncan

18

2. InState ex rel. Romley v. Superior Court, 172 Ariz. 232,

236, 836 P.2d 445, 449 (App. 1992), the court held that an Arizona

defendant had "a due process right, under the federal and Arizona

constitutions, to present adefense,"citingto | Chambers _v.

Mississippi.

3. More generally, State ex rel. Romley also stated that

Arizona's due process guarantee was “congruent with the U.S.

Constitution, amendments 5 and 14." Id. Consistently with that

statement, the Arizona Supreme Court held in State v. Youngblood,

173 Ariz. 502, 844 P.2d 1152 (1993), that Youngblood's claim that

his due process rights under the Arizona Constitution had been

violated should be reviewed on the merits on remand from this

Court, even though Youngblood had referred only generally to "due

process" -- and had failed to cite to the Arizona Constitution -- in

the trial court, the Court of Appeals, and the Arizona Supreme

Court in the pre-remand direct appeal proceedings, id. at 504, 508

& n. 2, 509, 844 P.2d at 1154, 1158 & n. 2, 1159; and on the other

side of the same due process coin, the Arizona Court of Appeals, the

Arizona Supreme Court, and this Court all had previously reviewed

Youngblood's unspecified "due process" claim on the merits as a

federal due process claim, even though his original brief in the

Arizona Court of Appeals had not mentioned the United States

Constitution. Id. at 503-504, 509, 844 P.2d at 1159. See also State

v. Melendez, 172 Ariz. 68, 71, 834 P.2d 154, 157 (1992) ("The

touchstone of due process under both the Arizona and federal

constitutions is fundamental fairness").

extent it allowed evidence of a defendant's diminished capacity as

a defense to a charged crime." Because Mott concerned only the

diminished-capacity defense, it does not affect either the merits of

Petitioner's due process claim or the relevance of Gonzales to his

exhaustion-of-state-remedies argument. See Clark v. Arizona,

U.S.__, 74 U.S.L.W. 4560 (June 29, 2006).

19

E. In this case, the Court of Appeals did not address the

exhaustion issue left open in Baldwin, because it concluded that

"the federal and state standards for determining whether a

defendant received his due process right to fully present a defense

appear to differ":

In his briefs, Heiden acknowledges that the federal standard

turns on two factors: To constitute a due process violation,

the excluded evidence must have been (1) reliable, and (2

critical to the defensive theory. Crane v. Kentucky, 476

U.S. 683, 690 (1986); Chambers v. Mississippi, 410 U.S.

284, 291, 300-01 (1973). By contrast, the Arizona standard

seems to turn on one factor alone: The excluded evidence

must be critical to the defensive theory. State v. Gonzale{s],

140 Ariz. 349, 351, [681 P.2d 1368, 1372] (Ariz. 1984).

(App. at A3). But neither the premise nor the logic of the Court of

Appeals’ rationale for avoiding the Baldwin issue withstands

analysis:

1. Especially given Gonzales' reliance on State v. Parker,

and Parker's reliance on Chambers (see para. (D)(1), supra at 17),

the Court of Appeals' conclusion that the relevant federal and state

due process standards were different is dubious at best. A more

logical explanation for the fact that Gonzales only articulated one

of the two due process factors from Chambers and Crane is that the

Arizona Supreme Court properly saw those two factors as

inextricably related: Evidence cannot really be critical to the

defense unless it is reliable (or "probative").

2. More importantly: Even if one accepts the Court of

Appeals' conclusion that the Arizona due process right-to-present-a-

defense standard turned on only one of the two Chambers/Crane

factors, it simply does not make sense -- given the central purpose

of the exhaustion requirement -- to say that Petitioner's

presentation of his state due process claim to the state court did not

exhaust the corresponding federal due process claim. If the Arizona

20

Court of Appeals implicitly rejected Petitioner's state due process

claim under a one-factor standard, then it necessarily also would

have rejected Petitioner's federal due process claim under the more

stringent two-factor standard from Chambers and Crane. Thus,

presentation of the assumed one-factor state claim effectively would

have provided the state court with a fair opportunity to pass on the

two-factor federal claim.

F. The Court of Appeals' holding that Petitioner failed to

exhaust his federal due process claim is in conflict with Jackson v,

Edwards, 404 F.3d 612 (2d Cir. 2005). In that case, a federal habeas

corpus petitioner claimed that the state trial court's failure to give

a requested jury instruction on the defense of justification violated

his right to due process under the Fourteenth Amendment. Id, at

617-18. In the state courts, the petitioner had argued only that the

trial court's refusal to instruct on justification violated state law, and

he had "failed to cite the federal Constitution, federal case law, or

state cases employing federal constitutional analysis." Id. at 618-19.

Nevertheless, the Second Circuit held that the petitioner had

exhausted his federal due process claim. Id. at 621. That holding

was based on the court's affirmative resolution of the identical-

standards/exhaustion issue left open by Baldwin, and on the court's

conclusion (i) that if the petitioner had argued in the state court

that the denial of the justification instruction denied him due

process under the Fourteenth Amendment, the state court's "inquiry

would have been the same," and (ii) that the petitioner's state-law

claim therefore was "virtually identical" to his federal claim. Id. at

620-21.

G. If anything, Petitioner in this case has a stronger

argumerft for exhaustion of his federal due process claim than the

petitioner in Jackson (who failed to even mention the state or

federal Constitution in the state courts). Moreover, Jackson

demonstrates that the rule that presentation to the state courts of a

state-law claim exhausts a federal claim with the same (or more

21

stringent) decisional standards best serves the ultimate purpose of

the exhaustion requirement -- to give the state courts a fair

“opportunity to pass upon and correct alleged violations of [the

petitioner's] federal rights." Picard v. Connor, 404 U.S. 270, 275

(1971).

22

CONCLUSION

For the reasons stated above, this Court should issue a writ

of certiorari to review the judgment of the United States Court of

Appeals for the Ninth Circuit.

ROBERT BARTELS

Sandra Day O'Connor

College of Law

Arizona State University

Tempe, Arizona 85287

Tel.: (480)965-7053

Counsel for Petitioner

APPENDIX

Page

Unreported Memorandum Decision of

the United States Court of

Appeals for the Ninth Circuit

(May 3, 2006) Al

Unreported Order of the United States

District Court for the District

of Arizona (June 7, 2005) AS

Relevant Excerpts from the Unreported

Memorandum Decision of the

Arizona Court of Appeals

(January 18, 2000) Al6

A-1

NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

JOHN WESLEY HEIDEN, ) No. 05-16363

)

Petitioner - Appellant, ) D.C. No. CV-04-00011-

) DGC/LOA

v. )

)

ERNEST J. TRUJILLO; ) MEMORANDUM*

ARIZONA ATTORNEY )

GENERAL, )

)

Respondents - )

Appellees.

Appeal from the United States District Court

for the District of Arizona

Lawrence O. Anderson, Magistrate Judge, Presiding

Argued and Submitted April 7, 2006

San Francisco, California

Filed May 3, 2006

a This disposition is not appropriate for publication and may not be cited

to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.

A-2

Before: THOMPSON and CALLAHAN, Circuit Judges, and

MILLER**, District Judge.

John Wesley Heiden, an Arizona state prisoner, appeals the

district court’s denial of his 28 U.S.C § 2254 habeas petition,

challenging his conviction for multiple counts of sexual contact with

a minor. Heiden contends that the state trial court violated his

federal due process right to fully present a defense by excluding

expert testimony regarding the reliability of his confession. We

disagree.

In his direct appeal from the Arizona trial court, Heiden did

not explicitly refer to federal due process, cite the United States

Constitution, or cite any cases directly addressing federal due

process. Ordinarily this would render the federal due process claim

unexhausted, and bar us from considering it on habeas review. See

Fields v. Waddington, 401 F.3d 1018, 1021 (9" Cir. 2005).

In Baldwin v. Reese, 541 U.S. 27 (2004), however, the

United States Supreme Court left open the possibility that raising a

state constitutional claim may exhaust the corresponding federal

constitutional claim where the standards for deciding the two are

identical. See Case v. Moore, 386 F.3d 896, 914 (9 Cir. 2004).

Heiden argues that we must now decide that open issue, because the

Arizona and federal due process standards are identical.

It is Heiden’s burden to prove that the state and federal

standards are identical for his particular alleged due process

violation. See Fields, 401 F.3d at 1022-24 (“In the absence of an

affirmative statement by the [state] Supreme Court that is considers

a particular state and federal constitutional claim to be identical

rather than analogous... Petitioner was required to raise his federal

claims affirmatively; we will not infer that the federal claims have

been exhausted.” (emphasis in original)).

Heiden provides no affirmative statement from the Arizona

Supreme Court that the state and federal standards for evaluating the

due process right to fully present a defense are identicai. He cites two

“ The Honorable Jeffrey T. Miller, United States District Judge for the

Southern District of California, sitting by designation. pa

A-3

cases (only one from the Arizona Supreme Court) suggesting that

the federal and Arizona due process clauses are analogous. See State

v. Melendez, 172 Ariz. 68, 71 (Ariz. 1992) (“the touchstone of due

process under both the Arizona and federal constitutions is

fundamental fairness.”); see also State ex rel. Romley v. Superior

Court, 172 Ariz. 232, 236 (Ariz. Ct. App. 1992) (stating that

Arizona’s due process “guarantee is congruent with the U.S.

Constitution, amendments 5 and 14"). He cites one Arizona Court of

Appeals opinion stating that the federal and state due process clauses

are identical, but the opinion was later vacated by the Arizona

Supreme Court. See State v. Herrera-Rodriguez, 164 Ariz. 49, 52

(Ariz. Ct. App. 1989) (describing the clauses as “coterminous”),

judgment affirmed, opinion vacated by State v. Youngblood, 173

Ariz. 502, 508 (Ariz. 1993).

In fact, the federal and state standards for determining

whether a defendant received his due process right to fully present a

defense appear to differ. In his briefs, Heiden acknowledges that the

federal standard turns on two factors: To constitute a due process

violation, the excluded evidence must have been (1) reliable, and (2)

critical to the defensive theory. Crane v. Kentucky, 476 U.S. 683,

690 (1986); Chambers v. Mississippi, 410 U.S. 284, 291, 300-01

(1973). By contrast, the Arizona standard seems to turn on one

factor alone: The excluded evidence must be critical to the defensive

theory. State v. Gonzalez, 140 Ariz. 349, 351 (Ariz. 1984).

In light of this facial difference, and absent any affirmative

statement of identicalness from the Arizona Supreme Court, Heiden

has failed to prove that the Arizona standard for determining whether

a defendant received his due process right to fully present a defense

is identical to the federal standard. We therefore need not address

the issue left open in Baldwin, and instead conclude that Heiden

failed to exhaust his federal due process claim in state court by not

explicitly raising it there. See Casey, 386 F.3d at 918.

Even if Heiden’s federal due process claim were properly

before us, which it is not, it would fail on its merits. We are required

by 28 U.S.C. § 2254(d), as revised by the 1996 Anti-Terrorism and

Effective Death Penalty Act, to deny a state prisoner’s federal habeas

A-4

petition unless the state courts’ decision “(1) ‘was contrary to, or

involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court’ or (2) ‘was based on an

unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.’” Nunes v. Mueller, 350 F.3d

1045, 1051 (9" Cir. 2003) (quoting 28 U.S.C. § 2254(d)).

Heiden cites Crane and Chambers to support his argument

that the trial court violated his federal due process rights by

excluding expert testimony bearing on his confession. Although

these cases establish that the excluded evidence must have been

reliable (and critical to the defense), neither case addresses expert

testimony or how to assess its reliability. The trial judge enunciated

several reasons to doubt the reliability of Heiden’s expert’s

testimony, including that the expert was not present during the

confession, had not viewed the available videotape of the confession,

and had never directly spoken to the participants.

Given the lack of guidance from Chambers and Crane, we

cannot say that Heiden’s expert testimony was reliable enough, for

due process purposes, that its exclusion deprived Heiden of the

claimed right to fully present a defense. The district court’s decision

to exclude the testimony was neither an unreasonable application of

clearly established federal law as determined by the Supreme Court,

nor based on an unreasonable determination of the facts in light of

the evidence presented in the Arizona proceedings.

AFFIRMED.

A-5

IN THE UNITED STATES DISTRICT COURT FOR THE

DISTRICT OF ARIZONA

John Wesley Heiden, ) No. CV-04-11-PHX-DGC

) (LOA)

Petitioner, )

) ORDER

vs. )

)

Ernest J. Trujillo; the )

Attorney General of the State

of Arizona, )

)

Respondents. )

)

Pending before the Court are Petitioner John Wesley

Heiden’s petition for writ of habeas corpus filed pursuant to 28

U.S.C. § 2254 and United States Magistrate Judge Lawrence O.

Anderson’s report and recommendation (“R&R”). Docs. #1, 21.

The R&R recommends that the Court deny the petition. Doc. #21 at

19. Petitioner has filed objections to the R&R. Doc. #23. For the

reasons set forth below, the Court will accept the R&R in part and

deny the petition.

Background

Petitioner was sentenced to presumptive, consecutive prison

terms totaling 181 years after being convicted in state court on nine

counts of sexual conduct with a minor under 15 and one count of

sexual conduct with a minor under 18. Doc. #15 Exs. K at 18-20, L

at 17-19, M at 1-5. Petitioner filed a notice of appeal on July 22,

1998 and an opening appellate brief on August 19, 1999. Jd. Exs. N-

A-6

O. The Arizona Court of Appeals affirmed the convictions and

sentences on January 18, 2000. Jd. Ex. Q. Petitioner filed a petition

for review, which the Arizona Supreme Court denied on September

29, 2000. Jd. Exs. R,T. Petitioner subsequently filed a petition for -

post-conviction relief, which was denied by the trial court and on

appeal. /d. Exs. V-Z, AA-CC.

Discussion

i Legal Standard.

Under the Antiterrorism and Effective Death Penalty Act of

1996 (““AEDPA”), “a determination of a factual issue made by [the

state court] shall be-presumed to be correct” and Petitioner “shall

have the burden of rebutting the presumption of correctness by clear

and convincing evidence.” 28 U.S.C. § 2254(e)(1); see Bruce v.

Terhune, 376 F.3d 950, 957 (9 Cir. 2004) (“If confronted by a

record that supports conflicting inferences, a federal habeas court

‘must presume — even if it does not affirmatively appear in the

record— that the trier of fact resolved any such conflicts in favor of

the prosecution, and must defer to that resolution.”). The Court may

not grant habeas relief under the AEDPA unless it concludes that the

state court’s “adjudication of the claim — (1) resulted in a decision

that was contrary to, or involved an unreasonable application of,

clearly established [flederal 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 [s]tate court proceeding.” 28 U.S.C. §

2254(d){1)-(2); see Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.

2003). Nor may the Court grant habeas relief unless Petitioner has

exhausted his claim in state court. 28 U.S.C. § 2254(b)(1)(A); see

O'Sullivan v. Boerckel, 526 U.S. 838, 839 (1999).

II. Analysis.

Petitioner asserts two claims for relief under the United

States Constitution: (1) a violation of his Fifth Amendment night to

due process based on the trial court’s exclusion of testimony from

two expert witnesses regarding the voluntariness and reliability of

Petitioner’s confession and (2) a violation of his Eighth Amendment

right against cruel and unusual punishment based on the 181-year

A-7

sentence. Doc. #1 at 5-6.

The R&R concludes that the first claim should be denied (1)

as procedurally defaulted because Petitioner did not exhaust the

claim and relief is now unavailable in the state courts and (2) on the

merits because the Fifth Amendment does not apply to the states and

Petitioner has not shown that the trial court’s ruling rendered the trial

fundamentally unfair. Doc. #21 at 6-9, 16-17. The R&R concludes

that the second claim should be denied because Petitioner has not

shown that the state courts unreasonably applied United States

Supreme Court precedent in denying his Eighth Amendment claim.

Id. at 17-19. -

The Court must undertake a de novo review of those portions

of the R&R to which specific objections are made. See Fed. R. Civ.

P. 72(b); 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140,

149 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9"

Cir. 2003). Because the Court finds that Petitioner’s first claim for

relief is procedurally defaulted, the Court need not address the merits

of that claim. See Castillo v. McFadden, 399 F.3d 993, 1003 (9" Cir.

2005) (“Castillo did not fairly present his federal due process claim

to the Arizona Court of Appeals. Thus, he failed to exhaust that

claim. . . . Accordingly, we do not reach the merits of Castillo’s

federal due process claim[.]”).

A. Petitioner’s First Claim for Relief: Due Process

Violation. i

As set forth in the R&R, to satisfy the AEDPA’s exhaustion

requirement Petitioner had to afford the state courts the opportunity

to rule on the merits of his federal due process claim by “fairly

presenting” the claim t:. ie state courts. Doc. #21 at 6-7 (citing 28

U.S.C. § 2254(b)(1)(A)); see Fields v. Waddington, 401 F.3d 1018,

l

Cf. Cassett v. Stewart, 406 F.3d 614, 624 (9* Cir. 2005) (holding that

the district court erred in denying Cassett’s federal due process claim on the

merits under 28 U.S.C. § 2254(b)(2) before the state courts had an opportunity to

rule on the claim because it was not perfectly clear that the claim was not

colorable).

A-8

1020-21 (9th Cir. 2005). Petitioner fairly presented the claim only

if he alerted the state courts that the claim rested on the United States

Constitution. Id. To alert the state courts, Petitioner had to reference

the appropriate provision of the United States Constitution within the

“four comers” of his appellate briefing. /d.; see Castillo, 399 F.3d

at 1000.

Petitioner does not object to the R&R’s discussion of

exhaustion and procedural default principles. Doc. #23 at 2. Rather,

Petitioner argues that his federal due process claim was fairly

presented to the state courts because “[t]he record on direct appeal

in the Arizona Court of Appeals and the Arizona Supreme Court

included Petitioner’s explicit argument that the exclusion of [the]

proposed expert testimony . . . violated Petitioner’s ‘due process’

rights under the United States Constitution{.]” Jd. (citing Docs.

##17, 20; emphasis in original). Petitioner correctly points out that

the R&R omits the language “under the United States Constitution”

in concluding that Petitioner did not fairly present his due process

claim to the state courts. Jd. n.1 (citing Doc. #21 at 13). Petitioner

states that he included this language at the trial court level in his

response to the state’s motion to preclude expert witness testimony

and that the response was included in the record on direct appeal in

the Arizona Court of Appeals and in the appendices to his petition

for review by the Arizona Supreme Court. See Docs. ##17, 20, 23 at

2.

Petitioner, however, fails to show that he included this

language within the four corners of his appellate briefing. See

Castillo, 399 F.3d at 1000. In Castillo, the Ninth Circuit relied on

Baldwin v. Reese, 124 S.Ct. 1347 (2004), in rejecting the petitioner’s

argument that his trial court pleadings fairly presented a federal due

process claim to the Arizona Court of Appeals:

Castillo principally argues that his motion for a new trial,

trial supplemental briefing, and trial motion to reconsider

fairly presented his federal, constitutional due process claim

to the Arizona Court of Appeals. The Supreme Court

foreclosed that argument in Baldwin. The Arizona appeals

court was not required to comb the trial court’s decision to

A-9

discover Castillo’s federal constitutional issue. Baldwin,

124 S.Ct at 1350 (declining to require state appellate judges

to read lower state court opinions). A fortiori, the Arizona

Court of Appeals was not required to review the parties’ trial

court pleadings to see if it could discover for itself a federal,

constitutional issue. To exhaust his claim, Castillo must

have presented his federal, constitutional issue before the

Arizona Court of Appeals within the four corners of his

appellate briefing. Id. at 1351. Therefore, we reject

Castillo’s assertion that his trial court pleadings fairly

presented his federal due process claim to the Court of

Appeals. ’

399 F.3d at 1000 (emphasis added); see Baldwin, 124 S.Ct. at 1351

(“[A] state prisoner does not ‘fairly present’ a claim to a state court

if that court must read beyond a petition or a brief. . . that does not

alert it to the presence of a federal claim in order to find material . .

. that does so.”). The Court need not construe Petitioner’s state court

appellate briefing liberally for exhaustion purposes because he was

represented by counsel during the appellate proceedings. See Fields,

401 F.3d at 1021 (“A habeas petition from a state prisoner . . . who

is proceeding pro se may be viewed more leniently for exhaustion

purposes than a petition drafted by counsel.”) (internal citations

omitted).? Indeed, Petitioner’s ability through counsel to present

federal constitutional claims to the state courts within the four

corners of his appellate briefing is shown by the Eighth Amendment

claim explicitly raised in his opening appellate brief and petition for

review. Doc. #15b Exs. O, R. Petitioner fairly presented his Eighth

Amendment claim by discussing the claim in the statement of issues,

legal argument, and conclusion sections of those appellate briefs. Jd.

Exs. O at I, 12, 19-21, Rat 2, 10-12. In contrast, Petitioner does not

mention a federal due process claim under either the Fifth or

Fourteenth Amendments to the United States Constitution within the

four corners of his appellate briefing. See id.

Petitioner was represented on direct appeal by attorney C. Kenneth Ray

Il.

A- 10

Moreover, even if the “under the United States Constitution”

language contained in Petitioner’s response to the motion to preclude

expert witness testimony was included in his appellate briefing, it

was too general and conclusory to alert the state courts to a federal

due process claim. See Castillo, 401 F.3d at 1000-01; Fields, 401

F.3d at 1021. In his eight-page response, Petitioner argued that the

proposed expert witness testimony was relevant and admissible under

the Arizona Rules of Evidence. Doc. #19 Ex. E at 1-8. In the

penultimate sentence, Petitioner concluded: “[The expert’s]

testimony goes right to the heart of Mr. Heiden’s defense and by not

admitting [the] testimony the jury would be deprived of critical

information necessary in evaluating Mr. Heiden’s case as well as

denying Mr. Heiden’s due process rights under the United States

Constitution and the Arizona Constitution.” Jd. at 8 (emphasis

added). Such a general and conclusory reference to “due process”

and “the United States Constitution” does not suffice to exhaust a

federal claim. See Castillo, 401 F.3d at 1000-01 (“Nowhere in the

argument, until the penultimate sentence, did Castillo even refer to

the U.S. Constitution. Finally, at the end of his argument, Castillo

claimed that . . . [he] was denied a fair trial in violation of the united

States and Arizona Constitutions.” That general appeal to a ‘fair

trial’ right . . . failed to exhaust Castillo’s claim. It did not reference,

as we require, any specific provision of the U.S. Constitution on

which he rested his claim.”) (citing Hiivala v. Wood, 109 F.3d 1098,

1106 (9" Cir. 1999); Lyons v. Crawford, 232 F.3d 666, 670 (9" Cir.

2000)); Fields, 401 F.3d at 1021 (“Petitioner’s briefing to the state

court mentioned the ‘federal Constitution’ twice, and ‘due process’

once, but discussed an applicable provision of the state constitution

throughout the remainder of the argument. Petitioner’s mere mention

of the federal Constitution as a whole . . . does not suffice to exhaust

the federal claim. . . . Nor is a federal claim exhausted by a

petitioner’s mention, in passing, of a broad constitutional concept,

such as due process.”) (citing Castillo, 399 F.3d at 1002; Hiivala,

195 F.3d at 1106); Rose v. Palmateer, 395 F.3d-1103, 111 (9" Cir.

2005) (“[P]etitioners must plead their claims with considerable

specificity before the state courts in order to satisfy the exhaustion

requirement. . . . In addition to requiring specificity in pleading the

A- 11

federal nature of a claim, we also require a petitioner to articulate the

substance of an alleged violation with some particularity.”); Galvan

v. Alaska Dep't of Corr., 397 F.3d 1198, 1204 (9 Cir. 2005)

(“Briefing a case is not like writing a poem, where the message may

be conveyed entirely through allusions and connotations. . . . If a

party wants a state court to decide whether she was deprived of a ~

federal constitutional right, she has to say so. . . . If she does not say

so, she does not ‘fairly present’ the federal claim to the state court.”).

Petitioner further argues that his federal due process claim

was fairly presented to the state courts because “Arizona courts

traditionally have treated the due process provisions of the Arizona

and United States Constitutions as substantively the same[.]” Doc.

#23 at 2-3 (citing Baldwin, 124 S.Ct. at 1352).’ Under the law of this

Circuit, however, if Petitioner “fail[ed] to alert the state court to the

fact that he is raising a federal constitutional claim, his federal claim

is unexhausted regardless of its similarity to the issues raised in state

court.’” Casey v. Moore, 386 F.3d 896, 914 (9" Cir. 2004) (“[W]e

have clearly stated that . . . the ‘essentially the same’ standard is no

longer viable, meaning that we cannot assume federal claims were

impliedly brought by virtue of the fact that they may be ‘essentially

the same’ as state law claims.”) (citation omitted); Fields, 401 F.3d

at 1022-23 (“(R]aising a state claim that is merely similar to a federal

claim does not exhaust state remedies. Even if we were to assume

that raising identical state and federal claims satisfied exhaustion

requirements, Petitioner would not have exhausted his state court

remedies because he failed to show that his claims would be treated

identically.”) (citations omitted; emphasis in original). Moreover,

Petitioner did not sufficiently alert the state courts to a state

constitutional due process claim because no such claim was

presented within the four corners of Petitioner’s appellate briefing.

, Petitioner’s reliance on Baldwin is misplaced. The petitioner in that

case argued that because the standards for adjudicating a state and federal

constitutional claim were identical, he fairly presented a federal claim by raising

the corresponding state claim. 124 S.Ct. at 1352. The Supreme Court declined to

address the merits of this argument because the petitioner had waived it. /d.

A-12

See Doc. #15b Exs. O, R.

The Court will accept the R&R’s conclusion that Petitioner’s

first claim for relief should be denied as procedurally defaulted

because Petitioner did not exhaust the claim and relief is now

unavailable in the state courts. Doc. #21 at 6-9; see Beaty v. Stewart,

303 F.3d 975, 987 (9" Cir. 2002) (“A claim is procedurally defaulted

‘if the petitioner failed to exhaust state remedies and the court to

which the petitioner would be required to present his claims in order

to meet the exhaustion requirement would now find the claims

procedurally barred.”); Castillo, 399 F.3d at 1003 (“Castillo did not

fairly present his federal due process claim to the Arizona Court of

Appeals. Thus, he failed to exhaust that claim. ... Accordingly, we

... affirm the District Court’s dismissal of his petition.”); Fields, 401

F.3d at 1024 (“We conclude that Petitioner did not raise any of his

three federal claims in his [state court] briefing and, consequently,

did not exhaust his state court remedies.”); Galvan, 397 F.3d at 1205

(“To exhaust a federal constitutional claim in state court, a petitioner

has to have, at the least, explicitly alerted the court that she was

making a federal constitutional claim. Galvan did not.”); Casey, 386

F.3d at 915 (affirming the district court’s dismissal of the petition

because “Casey’s federal claims were not fairly presented to the state

court of appeals”).*

. Petitioner does not dispute that he is procedurally barred from returning

to state court to exhaust his federal due process claim. See Beaty, 303 at 987 &

n.5 (“If Beaty has any unexhausted claims, he has procedurally defaulted them,

because he is now time-barred under Arizona law from going back to state

court.”) (citing Ariz. R. Crim. P.32.2(a)); Rose, 395 F.3d at 1112 (“Rose did not

fairly present his Fifth Amendment claim to the state courts. . . . [T]he district

court held that this ‘claim is now procedurally barred . . .. As Rose does not

contest this aspect of the district court’s opinion, we hold that the district court

did not err in rejecting this claim.”). But cf. Cassett v. Stewart, 406 F.3d 614, 624

(9 Cir. 2005) (addressing Cassett’s explicit argument that he did not personally

waive his federal due process claim under Arizona Rule of Criminal Procedure

Rule 32.2(a)(3) and concluding that the claim was not procedurally defaulted

because it was not clear that the Arizona courts would find the claim barred under

A- 13

B. Petitioner’s Second Claim for Relief: Eighth

Amendment Violation.

Petitioner does not object to the R&R’s discussion of Eighth

Amendment legal principles. Doc. #23 at 5; see Doc. #21 at 17-19.

Rather, Petitioner contends that the R&R’s “largely conclusory

finding that ‘Petitioner’s sentence was not grossly disproportionate

to his crimes’ . . . is not warranted by the facts of this case[.}” Doc.

#23 at 5 (quoting Doc. #21 at 19). The Court disagrees.

Consistent with R&R’s and the Arizona Court of Appeals’

factual findings, Petitioner acknowledges that the evidence at trial,

construed in the state’s favor, showed the following: Petitioner

seduced his-niece and started sexually abusing her when he was in

his thirties and she was only 13 years old. The sexual abuse was

frequent and lasted for nearly two years. Petitioner furnished his

niece with alcohol and illegal drugs to advance and maintain his

pattern of abuse. Petitioner’s relationship with his niece caused her

to drup out of school and run away from home. In an attempt to gain

custody of his niece so that he could continue the sexual abuse

without interference from her parents, Petitioner convinced her to

falsely accuse her own father — Petitioner’s brother — of sexual

molestation. Petitioner assisted his niece in filing those false

charges. Id. at 5-6; see Doc. #21 at 19 (R&R); Doc. #15b Ex. Q at

9-10 (4/18/00 Ariz. Ct. App. Op.); see also 28 U.S.C. § 2254(e)(1)

(“[A] determination of a factual issue made by a [s]tate court shall be

presumed to be correct. The [petitioner] shall have the burden of

rebutting the presumption of correctness by clear and convincing

evidence.”).

Petitioner states — without citation to the record — that the

R&R “fails to note that Petitioner’s mental capacities were very

limited, that the sexual relationship involved no actual or threatened

violence, and that the victim was post-pubescent and a willing

participant.” Doc. #23 at 6. Even if true, Petitioner has not shown

that either the R&R’s or the state courts’ “adjudication of the claim

. . resulted in a decision that was based on an unreasonable

Rule 32.2(a)(3)).

A-14

determination of the facts in light of the evidence presented [at

trial].” 28 U.S.C. § 2254(d)(2) (emphasis added); see Buckley v.

Terhune, 397 F.3d 1149, 1161 (9" Cir. 2005) (“Because the state

court’s determination of the facts was not unreasonable under the

AEDPA, we reverse the district court’s decision granting Buckley’s

§ 2254 habeas petition.”); Rose v. Palmateer, 395 F.3d 1108, 1113

(9™ Cir. 2005) (affirming the district court’s denial of habeas relief

in part because Rose did not show that “the state court’s decision

involved an unreasonable determination of the facts”).°

Petitioner further contends that his second claim for relief is

strongly supported by State v. Davis, 79 P.2d 64 (Ariz. 2003). Doc.

#23 at 6-7. In Davis, the defendant was convicted on four counts of

sexual conduct with a minor under 15. 79 P.2d 4] 7,9. After

considering the specific facts of Davis’s sexual misconduct, the

Arizona Supreme Court held that Davis’s 52-year sentence

constituted cruel and unusual punishment under the Eighth

Amendment. Jd. 4] 35-37, 48-49 (“While recognizing that many sex

crimes against children may well justify such a sentence, others do

not. We conclude that given the circumstances of Davis’s offenses,

the sentence imposed in this case appears to be grossly

disproportionate to his crimes.”)

As Petitioner acknowledges, however, Davis was only 20

years old and had sexual intercourse with the teenage victims on only

four occasions over a two-week period. Doc. #23 at 6. Unlike

Petitioner’s sexual relationship with his niece, Davis’s relationships

were not incestuous. Nor did Davis furnish his victims with alcohol

and illegal drugs or cause them to drop out of school, run away from

home, and make false allegations of molestation against their parents.

See Davis, 79 P.3d 491-6.

’ Cf, Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (“The ‘unreasonable

application’ clause [in 28 U.S.C. § 2254(d)(1)] requires the state ce» decision to

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

established law must be objectively unreasonable.”) (citation omitted); Torres v.

Prunty, 223 F.3d 1003, 1107-08 (9th Cir. 2000) (stating that the same standard of

unreasonableness applies under subsections (d)(1) and (d)(2) of § 2254).

A-15

As the Arizona Supreme Court stated in Davis, not “all

incidents of sexual conduct are of equal seriousness and pose the

same threat to their victims or to society.” Jd. 437. In assessing the

constitutionality of a sentence, courts “must carefully examine the

facts of the case and the circumstances of the offender to see whether

the sentence is cruel and unusual.” Jd. § 34. Given the facts of this

case, the Court finds that Davis does not support Petitioner’s Eighth

Amendment claim. See id. 99 41-43 (distinguishing the facts of

Davis’s case from five other cases affirming extremely harsh

sentences imposed against defendants convicted of sex crimes

against children.)

The Court will accept the R&R’s conclusion that Petitioner

has not shown that the state courts unreasonably applied United

States Supreme Court precedent to his Eighth Amendment claim.

Doc. #21 at 19; see 28 U.S.C. § 2254(d)(1). Nor has Petitioner

shown that the state courts unreasonably determined the facts in light

of the evidence presented at trial. See 28 U.S.C. § 2254(d)(2). The

Court will accordingly deny the petition with respect to Petitioner’s

second claim for relief. See Lockyer v. Andrade, 538 U.S. 63, 76

(2003) (holding that the district court did not err in denying a petition

for writ ef habeas corpus challenging sentences because the

petitioner did not show that the state court unreasonably applied

clearly established federal law in adjudicating his Eighth Amendment

claim.)

IT IS ORDERED that the R&R (Doc. #21) is accepted in

part as set forth in this order. ;

IT IS FURTHER ORDERED that Petitionex’s petition for

writ of habeas corpus (Doc. #1) is denied.

IT IS FURTHER ORDERED that the Clerk of Court shall

terminate this action.

DATED this 7" day of June, 2005.

David G. Campbell

United States District Judge

A - 16

, IN THE COURT OF APPEALS

STATE OF ARIZONA

DIVISION ONE

EE

STATE OF ARIZONA, ) 1 CA-CR 98-0583

)

Appellee, ) DEPARTMENT D

)

v. )

) MEMORANDUM

JOHN WESLEY HEIDEN, ) DECISION

) (Not for Publication - Rule

111, Rules of the Arizona

Supreme Court)

Appellant.

Appeal from the Superior Court in Yavapai County

Cause No. CR 97-0517

The Honorable William T. Kiger, Judge

AFFIRMED

(Filed January 18, 2000)

Janet Napolitano, Arizona Attorney General

by Paul J. McMurdie, Chief Counsel

Criminal Appeals Section

and

A-17

Diane M. Ramsey, Assistant Attorney General

Attorneys for Appellee Phoenix

Ray & Adair, P.L.L.C.

by C. Kenneth Ray, I

Attorneys for Appellant Prescott

LANKFORD, Judge

Defendant John Wesley Heiden appeals his convictions and

sentences on nine counts of sexual conduct with a minor (under 15),

class two felonies and dangerous crimes against children, and one

count of sexual conduct with a minor (under 18), a class six felony.

The trial court sentenced him to presumptive, consecutive terms

totaling 181 years in prison. Defendant raises four issues on appeal.

We exercise jurisdiction pursuant to Arizona Revised Statutes

Annotated (“A.R.S.”) sections 12-120.21(A)(1) (1992), 13-4031

(1989), and 13-4033(A) (Supp. 1999).

Defendant first contends that the trial court erred by

precluding testimony from one of his expert witnesses, a social

psychologist, concerning the voluntariness of the video-taped

confession he gave to police. Specifically, defendant argues that the

“Reed Nine-Step” technique “employed by law enforcement resulted

in a false confession or, at the least, was involuntary ... .”

After the social psychologist testified at a voluntariness

hearing, the court made the following findings in excluding his

testimony from trial:

1, [The expert] has testified that he would tell the jury

that coercive police tactics rendered the confession

made by [defendant] to be of no probative value.

He would leave the determination of voluntariness

of the confession to the finder of fact.

2. The theories and explanations offered by [the

expert] are not of such a nature that the average

A-18

citizen does not already possess the ability to

perceive and interpret the same events and

accurately assess the situation.

3. Although [the expert] says he would defer to the

jury on voluntariness, the court finds that his

testimony would be a direct infringement on the

province of the jury in determining the voluntariness

of the confession.

4. The court finds the proffered testimony of [the

expert] to be:

. observations by a man with a Ph.D. in sociology;

. who was not present at the time of the events;

° who has not directly spoken to the participants;

. has not viewed the video tape of the events;

° and wishes to tell the jury that the confession-was

coerced and therefore, unreliable.

5. The court finds that even if the federal standard of

allowing testimony from an expert regarding a

subject within the comprehension of the average

juror was applicable, that based on #4 above and the

record before this court, in this case [the expert]

would not be allowed to testify before the jury. . . .

We review the trial court’s ruling concerning the

admissibility of expert testimony for clear abuse of discretion. See

State v. Hyde, 186 Ariz. 252, 276, 921 P.2d 655, 679 (1996). Expert

psychological testimony can be appropriate to demonstrate general

character traits such as having a propensity to violence or being

unreasonably protective or easily intimidated. See id.; State v.

Dickey, 125 Ariz. 163, 169, 608 P.2d 302, 308 (1980).

Such character trait evidence was involved here. The social

A-19

psychologist testified that after he had reviewed defendant’s

psychological tests, which a clinical psychologist had administered,

he concluded that defendant is “someone who’s easily confused .. .

highly [compliant] and very suggestive .... [H]e’s someone who is

a cut above from being mentally impaired, but not much.” The court,

however, reserved ruling on the social psychologist’s testimony on

this issue until it had evaluated the proposed expert opinion of the

clinical psychologist who actually administered defendant’s

psychological examination. While the court ultimately allowed the

admission of the clinical psychologist’s opinion as to defendant’s

personality traits and characteristics, it did not permit the social

psychologist to testify. Arguably, under Hyde, the social

psychologist’s opinion on this issue would have been admissible.

186 Ariz. at 276, 921 P.2d at 679 (stating expert opinion regarding

a defendant’s intelligence and personality traits is admissible).

We nevertheless find no error. Because defendant did not

reassert the admission of the social psychologist’s opinion as to his

personality traits or intelligence at trial or in his appellate brief, he

has waived this issue. See Van Loan v. Van Loan, 116 Ariz. 272,

274, 569 P.2d 214, 216 (1977) (failure to raise issue either at trial

level or in appellate briefs constitutes waiver of that issue on appeal).

The court did not abuse its discretion by excluding the social

psychologist’s expert opinion of defendant’s intelligence, compliant

nature, or ease of susceptibility to suggestion.

The trial court also did not abuse its discretion by precluding

the social psychologist from testifying that defendant’s confession

was involuntary. Expert testimony is not appropriate to show a

defendant’s actual mental state at a given time. See Hyde, 186 Ariz.

at 276, 921 P.2d at 679 (citing Dickey, 125 Ariz. at 169, 608 P.2d at

308); see also State v. Lindsey, 149 Ariz. 472, 275, 720 P.2d 73, 76

(1986) (“It is not the expert’s function . . . to substitute himself or

herself for the jury and advise them with regard to the ultimate

disposition of the case.”).

Indeed, Hyde is dispositive. The Arizona Supreme Court

approved the exclusion of expert testimony about the voluntariness

of a defendant’s statements to police. See Hyde, 186 Ariz. at 276,

A - 20

921 P.2d at 679. The Hyde court said: “The expert testified at the

pre-sentence hearing to his opinion about ¢#! :ndant’s state of mind

during the interrogation. As we have stated, this kind of testimony

is not permitted.” Jd. (citations omitted). Therefore, the trial court —

did not abuse its discretion by precluding the social psychologist’s

expert opinion that defendant’s confession was involuntary, a

determination reserved for the trier of fact.

Expert testimony may also be appropriate where there is a

reasonable basis to believe that the testimony will benefit the jury

and that the testimony “explains recognized principles of social or

behavioral science which the jury may apply to determine issues in

the case.” Lindsey, 149 Ariz. at 473, 720 P.2d at 74. Thus, under

certain conditions, a trial court may allow an expert witness to testify

regarding human behavior.

However, defendant “failed to lay the foundation that [his

expert witness] based his opinions on facts or data ‘of a type

reasonably relied upon by experts in [his] particular field.’” Adams

v. Amore, 182 Ariz. 253, 254, 895 P.2d 1016, 1017 (App. 1994)

(quoting Ariz. R. Evid. 703); see also State ex. rel. Collins v. Seidel,

142 Ariz. 587, 590, 691 P.2d 678, 681 (1984) (stating that the

proponent of the expert testimony has the burden of showing that the

opinion is based on generally accepted theories and principles within

the relevant scientific community). Specifically, defendant failed to

establish that behavioral responses to the “Reed Nine-Step”

technique are, or reflect, generally accepted principles of social or

behavioral sciences. Without this information, the court correctly

rejected the social psychologist’s proffered expert opinions.

** *