Moses v. Payne

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

JEFFREY DUANE MOSES,  No. 07-35468
Petitioner-Appellant, D.C. No.
v.
 CV-06-01105-MJP
ALICE PAYNE, ORDER AND
Respondent-Appellee. AMENDED
 OPINION

Appeal from the United States District Court
for the Western District of Washington
Marsha J. Pechman, District Judge, Presiding

Argued and Submitted
February 4, 2008—Seattle, Washington

Filed September 15, 2008
Amended January 30, 2009

Before: Raymond C. Fisher, Ronald M. Gould, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta;
Dissent by Judge Gould

1077
 MOSES v. PAYNE 1081

COUNSEL

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

Alex A. Kostin, Assistant Attorney General, Olympia, Wash-
ington, for the respondent-appellee.

ORDER

The opinion and dissent filed September 15, 2008 are
hereby amended. A majority of the panel has voted to deny
the petition for rehearing; Judge Gould votes to grant the peti-
tion for rehearing. The petition for rehearing en banc is still
pending, pursuant to General Order 5.4(b). The parties may
file new petitions for rehearing and rehearing en banc as to
1082 MOSES v. PAYNE
this amended opinion, in accordance with the Federal Rules
of Appellate Procedure.

OPINION

IKUTA, Circuit Judge:

A Washington state jury convicted Jeffrey Moses of second
degree murder for the shooting death of his wife, Jennifer
Moses. In this appeal, we consider whether the district court
erred in denying Jeffrey Moses’s petition for a writ of habeas
corpus. Moses contends that his federal constitutional rights
were violated by several evidentiary decisions made by the
trial court, including the decision to preclude one of Moses’s
experts from testifying. Moses maintains that he is entitled to
habeas relief because the Washington appellate court’s deci-
sion to affirm his conviction was “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). We disagree. The Washington appellate
court’s decision passes muster under the “highly deferential
standard for evaluating state-court rulings” in the habeas con-
text. Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per
curiam) (internal quotation marks omitted). We have jurisdic-
tion under 28 U.S.C. §§ 1291, 2253, and we affirm.

I

For a summary of the preliminary facts, we rely on the state
appellate court’s decision1:
1
Because this initial statement of facts is drawn from the state appellate
court’s decision, it is afforded a presumption of correctness that may be
rebutted only by clear and convincing evidence. See 28 U.S.C.
§ 2254(e)(1); Hernandez v. Small, 282 F.3d 1132, 1135 n.1 (9th Cir.
2002). Moses does not allege that these preliminary facts are erroneous.
 MOSES v. PAYNE 1083
In the early morning of September 27, 2002,
Moses’ mother, who lived in California, called the
police to report that her daughter-in-law, Jennifer
Moses was dead. The police found Moses on the
street outside his house, drinking beer, and carrying
his younger son on his back. Moses’ other son was
asleep in the house. According to Moses, Jennifer
shot herself and committed suicide. When the offi-
cers attempted to enter the house, he told them it was
unnecessary because he had cleaned everything up.
Police found Jennifer wrapped in a rug in the garage,
along with a pile of bloody towels and sponges. Jen-
nifer had a gunshot wound to her head, blunt force
trauma to her lips and a cracked tooth. The .410
gauge derringer used in Jennifer’s death was found
in the master bedroom. The derringer had been
recently cleaned and was loaded with two unspent
shells. When questioned, Moses told police Jennifer
had been depressed and that she came downstairs
that evening with the derringer, knelt down and shot
herself in the head while Moses tried to get the gun
away from her. Moses said he moved Jennifer’s
body to the garage to prevent their sons from seeing
her. He then backed his truck up to the garage to
load her body into it and bury her in the woods, as
she had requested. When the truck hit a post, Moses
said he abandoned the attempt to move Jennifer’s
body.

Following this incident, the state charged Moses with first
degree murder and unlawful possession of a firearm. The
state’s theory of the murder charge was that Moses intention-
ally shot Jennifer Moses during a domestic dispute. In support
of this theory, the prosecution introduced testimony from sev-
eral witnesses.

Among these witnesses was Dr. Richard Harruff, a medical
examiner, who testified that Jennifer Moses had died from a
1084 MOSES v. PAYNE
gunshot wound inflicted to the right side of her upper neck,
behind the ear. Dr. Harruff explained that Jennifer Moses’s
wound was a contact wound, that is, a wound indicating that
the gun had been in contact with Jennifer Moses’s skin when
it was fired. Dr. Harruff further testified that the gun was
pointed upwards, “at about an 11 o’clock position,” when it
was fired in the base of Jennifer Moses’s head. Dr. Harruff
also stated that a toxicology screen performed during Jennifer
Moses’s autopsy revealed a blood alcohol level of 0.15.

Over defense objections, the court also permitted Dr. Har-
ruff to testify that in his opinion Jennifer Moses’s death was
a “homicide.” When prompted, Dr. Harruff explained that his
use of the word “homicide” was a mixed “medical/legal”
standard, signifying the “likelihood of another person’s
responsibility leading to [the] death.” According to Dr. Har-
ruff, the principal reason a medical examiner would certify a
death as a homicide would be for purposes of the death certif-
icate. Dr. Harruff testified:

For example, I would classify something [as] homi-
cide if the evidence that I see, based on my experi-
ence and my professional responsibility, indicates
that this is a death that needs to be looked at for [the]
potential of criminal activity. That’s my responsibil-
ity, and I certify death based on that. I’m of course
not in a position, as the jury is, to render a final con-
clusion as to whether this represents a murder or not.

Dr. Harruff further clarified that his opinion did not bear on
the issue of legal intent, and that his conclusion under the
“likelihood” standard was not a determination beyond a rea-
sonable doubt.

Dr. Harruff testified that he tried to limit himself to only
“objective” and “unambiguous” factors in his cause-of-death
analysis, such as the nature and location of the wound. How-
 MOSES v. PAYNE 1085
ever, Dr. Harruff acknowledged that he also considered state-
ments in Jennifer Moses’s diary.

During cross-examination, the defense elicited testimony
from Dr. Harruff that “individuals who have difficulty with
drugs and alcohol are probably at a higher risk of suicide than
those who are not.” Additionally, Dr. Harruff testified that
intoxication and access to firearms are both risk factors for
suicide.

The government also called Evan Thompson, a ballistics
examiner for the Washington State Patrol Crime Laboratory.
Like Dr. Harruff, Thompson testified about the ballistics
implications of Jennifer Moses’s wound. Basing his analysis
on the same objective factors considered by Dr. Harruff,
Thompson concluded that Jennifer Moses’s death was more
likely a homicide than either a suicide or an accidental shoot-
ing during a struggle over the gun between Moses and Jenni-
fer Moses. Like Dr. Harruff, Thompson concluded that
Jennifer Moses’s death was likely the result of homicide.

The trial court also allowed testimony concerning a prior
incident of domestic violence between Moses and Jennifer
Moses that occurred on November 1, 2001, a little over ten
months before Jennifer Moses died. This incident resulted in
Jennifer Moses going to the hospital along with her children,
and several witnesses affiliated with the hospital testified to
the events that followed.

Dr. Warren Appleton, the emergency room physician, testi-
fied that he interviewed and examined Jennifer Moses in a
medical exam room shortly after the November 2001 incident
in order to provide treatment, and observed that Jennifer
Moses displayed physical signs of fear and anxiety during the
examination. In order to assess and understand her level of
fear, Dr. Appleton asked Jennifer Moses what had happened.
According to Dr. Appleton’s testimony, Jennifer Moses stated
that Moses assaulted her and broke her jaw.
1086 MOSES v. PAYNE
The hospital social worker, Tamara Muller, testified that
she interviewed Jennifer Moses’s children while Jennifer
Moses was under sedation, and then interviewed Jennifer
Moses. One of the children said that he saw Moses kick Jenni-
fer Moses. As a result of this statement, Muller contacted
Child Protective Services (CPS). Muller subsequently inter-
viewed Jennifer Moses, who identified Moses as the assailant
who broke her jaw. At some point during the interview, Mul-
ler told Jennifer Moses that she had contacted CPS.

Muller also gave more general testimony based on her
experiences as a domestic violence counselor. Specifically,
she testified that she “very seldom” tells victims of domestic
violence to leave their abusive situation immediately. The rea-
son, according to Muller, was that “a victim is most likely to
be killed . . . when they leave.” This testimony pertained to
the prosecution’s theory that Jennifer Moses was attempting
to leave Moses on or around the night she died.

Finally, the court allowed the government to introduce evi-
dence drawn from Jennifer Moses’s journals. Jennifer Moses
used two journals, one that was handwritten and one that was
posted online. The government principally relied on the
online journal (rather than the handwritten journal) to estab-
lish the abusive relationship between Jennifer Moses and
Moses. When the government sought to introduce evidence
from the online journal, the defense countered that the trial
court should also admit the handwritten journal, which
included several statements indicating that Jennifer Moses
was suffering from depression and had thoughts of suicide.

The trial court decided to include entries from both journals
for the four months prior to Jennifer Moses’s death. However,
the court did not admit all of the journal entries written during
this four-month period. Concluding that there was an “over-
lap” between the two journals, the trial court decided to
exclude some handwritten journal entries for days on which
 MOSES v. PAYNE 1087
Jennifer Moses had also posted an online journal entry. The
trial court explained its decision as follows:

The electronic journal, which covers a time,
although it overlaps with the written journal, closer
to the time of her death, at the beginning has a sec-
tion in each entry which describes her state of mind
that day or mood and some description of how she
was feeling. I did find that it was relevant regarding
her state of mind. The written journal didn’t neces-
sarily have such statements as to her state of mind.
And I believe the entire journal is cumbersome and
that we do not need the entire journal admitted into
evidence.

Moses objected to this decision, arguing that the court was
excluding important evidence regarding Jennifer Moses’s
state of mind and the nature of his relationship with his wife.

After the prosecution rested, the defense put on its case.
The defense’s theory of the case was that Jennifer Moses had
committed suicide. In support of this theory, the defense
introduced evidence from several witnesses to show that Jen-
nifer Moses suffered from depression and had thoughts of sui-
cide in the months leading up to September 27, 2002.

The jury heard testimony from four of Jennifer Moses’s
medical providers on the issue of her mental health. First, the
defense called Dr. William Dickinson, a doctor associated
with the Valley General Hospital where Jennifer Moses had
been treated for substance abuse and depression. Dr. Dickin-
son testified that Jennifer Moses suffered from major depres-
sion, albeit without suicidal thoughts, as of March 2002.
Second, the jury heard from Douglas S. Perry, a chemical-
dependency professional who also worked for Valley General
Hospital. Perry testified to Jennifer Moses’s depression,
cocaine and alcohol abuse, and suicidal thoughts. Third, the
defense called Barbara Alexander, a mental health counselor
1088 MOSES v. PAYNE
who treated Jennifer Moses from January 2002 through
March 2002 at the Hall Health Center of the University of
Washington. Alexander testified that she diagnosed Jennifer
Moses with major depression. Alexander also testified that
major depression can be a life-threatening illness and that
people who suffer from major depression tend not to improve
if they continue to abuse drugs and alcohol. Finally, the
defense called Jacquie Griffin, a record custodian for the Vir-
ginia Mason Medical Center. Jennifer Moses received treat-
ment at the Virginia Mason center from April 2002 to August
2002. Because Jennifer Moses’s treatment provider at Vir-
ginia Mason had died by the time of trial, Griffin was called
to testify about the treatment provider’s notes. Griffin’s testi-
mony indicated that Jennifer Moses continued to suffer from
depression and abuse alcohol and cocaine during the spring
and summer of 2002. The treatment provider’s notes also
indicated that Jennifer Moses had experienced suicidal
thoughts.

The defense then sought to introduce testimony from Dr.
Lawrence Wilson, an expert on depression. In a preliminary
evidentiary hearing outside the jury’s presence, Dr. Wilson
explained that he was prepared to testify regarding the nature
of Jennifer Moses’s depression and substance abuse, the
unlikelihood that Jennifer Moses’s depression would have
resolved itself before the date Jennifer Moses died, and the
ability of a person who was severely depressed to appear nor-
mal to friends and co-workers. (This latter opinion was rele-
vant insofar as it rebutted the government’s lay testimony that
Jennifer Moses was not visibly depressed in the final months
of her life.) Dr. Wilson was also prepared to testify that sev-
eral risk factors, such as depression, substance abuse, and
access to firearms, heighten the risk of suicide. Additionally,
Dr. Wilson was prepared to testify that lay persons do not
fully understand the implications of major depression and the
connection between these various risk factors and suicide. Dr.
Wilson explained to the court that he based his opinions on
Jennifer Moses’s mental health records, diary, autopsy report,
 MOSES v. PAYNE 1089
and interviews with Moses and one of Jennifer Moses’s
friends. Although Dr. Wilson was not willing to opine that
Jennifer Moses committed suicide, he was prepared to testify
that Jennifer Moses fell “into a group of people with an
extreme number of severe and significant risk factors for sui-
cide” and that “she continued to suffer [from] major depres-
sion . . . that continued to the time of her death.”

After hearing argument from both sides, the trial court
decided to exclude Dr. Wilson’s testimony. The court gave
several reasons for its conclusion. First, it stated that Dr. Wil-
son’s opinion that persons who suffer from depression, abuse
drugs and alcohol, and have access to firearms experience a
relatively higher risk of suicide was already within common
knowledge of the jury. Second, it concluded that Dr. Wilson’s
testimony was cumulative in light of the other evidence intro-
duced by the defense establishing that Jennifer Moses was
undergoing treatment for substance abuse, suffered from
depression, experienced suicidal thoughts, and had a gun in
the house. Third, the court concluded that Dr. Wilson’s
remaining testimony—namely, “that 15 percent of those diag-
nosed with major depression will take their own life at some
point in their life”—was not sufficiently probative to out-
weigh its prejudicial effects and potential to confuse the jury.

Finally, the defense sought to introduce a photograph of
Jennifer Moses’s unclothed and emaciated body taken prior to
her autopsy in order to show that Jennifer Moses experienced
weight loss as a result of an eating disorder. The court ruled
the photo inadmissible, concluding that the probative value of
the photograph was outweighed by its prejudicial effect on the
jury. Moreover, other evidence of Jennifer Moses’s weight
loss, including testimony and photos, had been provided to
the jury.

The jury convicted Moses of second-degree murder.2 The
2
Moses was also convicted on the unlawful possession of a firearm
charge following a bench trial.
1090 MOSES v. PAYNE
trial court then sentenced Moses to 420 months of incarcera-
tion. Moses appealed his conviction and sentence to the
Washington Court of Appeals. On September 19, 2005, the
appellate court affirmed Moses’s conviction in a reasoned
opinion, but vacated his sentence and remanded for re-
sentencing. Moses then appealed his conviction to the
Supreme Court of Washington. On May 31, 2006, the
Supreme Court of Washington summarily denied Moses’s
petition for review.

Moses filed his petition for a writ of habeas corpus in fed-
eral court on August 11, 2006. On January 9, 2007, the magis-
trate judge recommended denying Moses’s petition, and on
April 10, 2007, the district court adopted the magistrate
judge’s recommendation and denied Moses’s habeas petition.
Moses timely filed a notice of appeal on May 10, 2007, and
on June 8, 2007, the district court granted Moses a certificate
of appealability on all issues.

On appeal, Moses contends that the district court erred in
denying his habeas petition. Moses maintains that the state
court’s evidentiary decisions deprived him of rights secured
by the Constitution, and that the state appellate court’s adjudi-
cation of his appeal “was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.” 28
U.S.C. § 2254(d)(1). Specifically, Moses claims that: (1) the
admission of out-of-court statements made to Dr. Appleton
and Tamara Muller violated Moses’s Sixth Amendment right
to confrontation; (2) the exclusion of Dr. Wilson’s testimony,
the autopsy photograph of Jennifer Moses’s unclothed body,
and the select portions of Jennifer Moses’s handwritten jour-
nal denied Moses his constitutional right to present his
defense; and (3) the admission of opinion testimony from Dr.
Harruff, Evan Thompson, and Tamara Muller improperly
intruded upon the jury’s constitutionally mandated role,
thereby depriving Moses of a fair trial.
 MOSES v. PAYNE 1091
II

“[W]e review de novo the district court’s decision to grant
or deny a petition for a writ of habeas corpus.” Lambert v.
Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). Because Moses
filed his habeas petition after April 24, 1996, his petition is
governed by the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”). See id. at 965. AEDPA establishes
a “highly deferential standard for evaluating state-court rul-
ings.” Visciotti, 537 U.S. at 24 (internal quotation marks omit-
ted). We must deny habeas relief with respect to any claim
adjudicated on the merits in a state court proceeding unless
the proceeding “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “resulted in a decision that was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1), (2).

The “contrary to” and “unreasonable application of”
clauses in § 2254(d)(1) are distinct and have separate mean-
ings. See Lockyer v. Andrade, 538 U.S. 63, 73-75 (2003). “A
state court decision is ‘contrary to’ clearly established
Supreme Court precedent if the state court applies a rule that
contradicts the governing law set forth in Supreme Court
cases or if the state court confronts a set of facts materially
indistinguishable from those at issue in a decision of the
Supreme Court and, nevertheless, arrives at a result different
from its precedent.” Lambert, 393 F.3d at 974. “[U]nder the
‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct governing
legal principle from [the Supreme] Court’s decisions but
unreasonably applies that principle to the facts of the prison-
er’s case.” Andrade, 538 U.S. at 75 (internal quotation marks
and alterations omitted). “The ‘unreasonable application’
clause requires the state court decision to be more than incor-
rect or erroneous. The state court’s application of clearly
1092 MOSES v. PAYNE
established law must be objectively unreasonable.” Id. (cita-
tions omitted).

“[C]learly established Federal law under § 2254(d)(1) is the
governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its deci-
sion.” Id. at 71-72 (internal quotation marks omitted). In a
series of recent cases, the Supreme Court has provided addi-
tional guidance regarding when its precedent constitutes the
“correct governing legal principle,” Andrade, 538 U.S. at 75,
for the case before the state court, and thus is “clearly estab-
lished federal law” for purposes of § 2254(d)(1).

In Panetti v. Quarterman, the Supreme Court determined
that a previously established legal principle extended to the
facts before the state court, even though the facts were not
identical to those of the underlying Supreme Court decision.
See 127 S.Ct. 2842, 2858 (2007). The Court considered the
habeas petition of a death row inmate who challenged his exe-
cution on the ground that he was mentally incompetent. Id.
The petitioner requested a competency hearing that would
meet the requirements of Ford v. Wainwright, 477 U.S. 399
(1986), but the state court rejected his request. The federal
district court denied the petitioner’s habeas petition, and the
Fifth Circuit affirmed the decision of the district court. The
Supreme Court held that Justice Powell’s concurring opinion
in Ford “constitute[d] clearly established law for purposes of
§ 2254,” Panetti, 127 S.Ct. at 2856 (internal quotation marks
omitted), and that it established the following legal principle:
“Once a prisoner seeking a stay of execution has made ‘a sub-
stantial threshold showing of insanity,’ the protection afforded
by procedural due process includes a ‘fair hearing’ in accord
with fundamental fairness.” Id. Although Justice Powell did
not specify the procedures required by the Constitution, they
included certain “basic requirements” of due process. Id.

The Court held that the legal principle established by Ford
was applicable to the situation in Panetti even though the
facts in that case were not identical to those in Ford:
 MOSES v. PAYNE 1093
AEDPA does not require state and federal courts to
wait for some nearly identical factual pattern before
a legal rule must be applied. Nor does AEDPA pro-
hibit a federal court from finding an application of a
principle unreasonable when it involves a set of facts
different from those of the case in which the princi-
ple was announced. The statute recognizes, to the
contrary, that even a general standard may be
applied in an unreasonable manner.

Id. at 2858 (internal quotation marks and citations omitted).
The Court concluded that under a reasonable application of
the Ford standard, the petitioner in Panetti was entitled to the
procedural protections enunciated in Ford. The Court further
concluded that the state court had adopted procedures that did
not meet this standard. Due to the state court’s unreasonable
application of Ford, the Court held that AEDPA deference
was not applicable. Id. at 2859.

In Panetti, the legal principle established by Ford was
directly applicable to the habeas petitioner’s case, and there-
fore the state court was bound to apply it, regardless of the
difference in factual patterns between Ford and Panetti. How-
ever, in other cases, the Court has instructed that a legal prin-
ciple established by a Supreme Court decision is not the
“correct governing legal principle,” Andrade, 538 U.S. at 75,
for the case before the state court, and thus not clearly estab-
lished precedent for purposes of § 2254(d)(1), if a court must
modify that principle in order to apply it to a case. See Wright
v. Van Patten, 128 S.Ct. 743, 746-47 (2008); see also Carey
v. Musladin, 549 U.S. 70, 76-77 (2006). In Musladin, a
habeas petitioner argued that the conduct of the murder vic-
tim’s family, who wore buttons with a photo of the victim
during the defendant’s trial, deprived him of his Sixth
Amendment right to a fair trial. The state court rejected this
argument. On appeal to this court, we held that the state court
unreasonably applied clearly established Supreme Court pre-
cedent. Musladin v. Lamarque, 427 F.3d 653, 659-60 (9th Cir.
1094 MOSES v. PAYNE
2005), rev’d by Carey v. Musladin, 549 U.S. 70 (2006). In
reaching this determination, we relied on Estelle v. Williams,
425 U.S. 501, 512 (1976), which held that “the State cannot,
consistently with the Fourteenth Amendment, compel an
accused to stand trial before a jury while dressed in identifi-
able prison clothes,” and Holbrook v. Flynn, 475 U.S. 560,
571 (1986), which held that the presence of four uniformed
state troopers sitting behind the defendants at trial “was not so
inherently prejudicial that it denied the defendant a fair trial.”
We held that these cases clearly established the legal principle
that “certain practices attendant to the conduct of a trial can
create such an unacceptable risk of impermissible factors
coming into play, as to be inherently prejudicial to a criminal
defendant,” and held that the family members’ buttons had
created such inherent prejudice. Musladin, 427 F.3d at 656
(internal quotation marks omitted).

The Supreme Court rejected our reasoning because “[b]oth
Williams and Flynn dealt with government-sponsored prac-
tices,” and “the effect on a defendant’s fair-trial rights of the
spectator conduct to which Musladin objects is an open ques-
tion in our jurisprudence.” Musladin, 549 U.S. at 76. As the
Court later explained, the “inherent prejudice test [from Wil-
liams and Flynn], which we thus far have applied only in
cases involving government-sponsored conduct, did not
clearly extend to the conduct of independently acting court-
room spectators.” Van Patten, 128 S.Ct. at 745 (explaining
Musladin) (internal citations, alterations, and quotation marks
omitted). Accordingly, the Court concluded that the state
court’s rejection of Musladin’s claim “was not contrary to or
an unreasonable application of clearly established federal
law.” Musladin, 549 U.S. at 77.

Van Patten, the most recent Supreme Court case on this
issue, followed the reasoning in Musladin. In Van Patten, a
defendant claimed a violation of his Sixth Amendment right
to effective assistance of counsel because his counsel had par-
ticipated in a plea hearing by conference call, rather than in
 MOSES v. PAYNE 1095
person. The state court rejected this argument because the
attorney’s performance had been neither deficient nor prejudi-
cial under Strickland v. Washington, 466 U.S. 668 (1984).
The Seventh Circuit, however, held that the state court erred
in applying Strickland, and that it should have instead applied
United States v. Cronic, 466 U.S. 648 (1984), which estab-
lished the rule that “a presumption of prejudice is appropriate
without inquiry into the actual conduct of the trial” in circum-
stances where there was only a small “likelihood that any law-
yer, even a fully competent one, could provide effective
assistance.” Van Patten, 128 S.Ct. at 746 (internal quotation
marks omitted). Because the Seventh Circuit concluded that
Cronic was applicable instead of Strickland, the state court’s
failure to apply Cronic was contrary to clearly established
federal law. But the Supreme Court reversed, explaining: “No
decision of this Court . . . squarely addresses the issue in this
case . . . or clearly establishes that Cronic should replace Str-
ickland in this novel factual context. Our precedents do not
clearly hold that counsel’s participation by speaker phone
should be treated as a complete denial of counsel, on par with
total absence.” Id. at 746 (internal quotation marks omitted).
The Court concluded that “[b]ecause our cases give no clear
answer to the question presented, let alone one in Van Pat-
ten’s favor, it cannot be said that the state court ‘unreasonably
applied clearly established Federal law.’ ” Id. at 747 (quoting
Musladin, 549 U.S. at 77) (alterations omitted).

This series of cases tells us that in order to determine
whether a state court failed to apply “clearly established Fed-
eral law, as determined by the Supreme Court” for purposes
of § 2254(d)(1), we must distinguish between situations
where a legal principle established by a Supreme Court deci-
sion clearly extends to a new factual context (as in Panetti)
and where it does not (as in Musladin and Van Patten). When
engaging in this line-drawing exercise, we have noted that a
state court must apply legal principles established by a
Supreme Court decision when the case “falls squarely within”
those principles, but not in cases where there is a “structural
1096 MOSES v. PAYNE
difference” between the prior precedent and the case at issue,
or when the prior precedent requires “tailoring or modifica-
tion” to apply to the new situation. Smith v. Patrick, 508 F.3d
1256, 1259-60 (9th Cir. 2007). We have acknowledged that
this series of Supreme Court cases “underscores that
§ 2254(d)(1) tightly circumscribes the granting of habeas
relief.” Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir.
2007).

In light of Musladin, Panetti, and Van Patten, we conclude
that when a Supreme Court decision does not “squarely
address[ ] the issue in th[e] case” or establish a legal principle
that “clearly extend[s]” to a new context to the extent required
by the Supreme Court in these recent decisions, Van Patten,
128 S.Ct. at 746, 745, it cannot be said, under AEDPA, there
is “clearly established” Supreme Court precedent addressing
the issue before us, and so we must defer to the state court’s
decision. If the Court’s decisions do provide a “controlling
legal standard,” Panetti, 127 S.Ct. at 2858, that is applicable
to the claims raised by a habeas petitioner without “tailoring
or modification” of the standard, Patrick, 508 F.3d at 1260,
the question is then whether the application of that standard
was objectively unreasonable, even if the facts of the case at
issue are not identical to the Supreme Court precedent. See
Panetti, 127 S.Ct. at 2858. It is from this starting point that
we address Moses’s petition for habeas relief.

III

Moses first contends that the admission of out-of-court
statements made by Jennifer Moses and her son to Dr. Apple-
ton and Tamara Muller regarding the November 2001 incident
of domestic violence violated his Sixth Amendment right to
confront the witnesses against him. The state court rejected
this claim, holding that the statements made to Dr. Appleton
and Tamara Muller were not testimonial under Crawford v.
Washington, 541 U.S. 36 (2004), and therefore did not impli-
cate the Confrontation Clause.
 MOSES v. PAYNE 1097
[1] The Sixth Amendment’s Confrontation Clause provides
that, “[i]n all criminal prosecutions, the accused shall enjoy
the right . . . to be confronted with the witnesses against him.”
In Crawford, the Supreme Court held that the Confrontation
Clause gives criminal defendants the right to confront wit-
nesses who make testimonial statements at trial, unless the
witness was unavailable to testify and the defendant had a
prior opportunity for cross examination. 541 U.S. at 53-54. In
contrast, non-testimonial statements do not implicate the Con-
frontation Clause. See Whorton v. Bockting, 127 S.Ct. 1173,
1183 (2007) (explaining Crawford).

Although Crawford did not offer a precise definition of tes-
timonial evidence, the Court offered various formulations of
the core class of testimonial statements, noting that
“[w]hatever else the term covers, it applies at a minimum to
prior testimony at a preliminary hearing, before a grand jury,
or a former trial; and to police interrogations.” 541 U.S. at
51-52, 68; see also Davis v. Washington, 547 U.S. 813, 822
(2006) (refining Crawford’s analysis of when statements
made during a police interrogation are testimonial for pur-
poses of the Sixth Amendment). Crawford’s holding regard-
ing the difference between testimonial and non-testimonial
out-of-court statements constitutes “clearly established Fed-
eral law” under 28 U.S.C. § 2254(d)(1) for purposes of our
AEDPA review of the state appellate court’s decision. See
Andrade, 538 U.S. at 71-72.

[2] The state court applied Crawford, the correct legal rule.
Because the court did not arrive at a result different from the
result reached by the Supreme Court in an indistinguishable
case, we conclude that the state appellate court’s decision was
not “contrary to” clearly established Supreme Court precedent
under 28 U.S.C. § 2254(d)(1). See Andrade, 538 U.S. at 73.
Nor did the state appellate court’s adjudication of Moses’s
Confrontation Clause claim involve an “unreasonable applica-
tion of” Crawford.3 28 U.S.C. § 2254(d)(1). In considering
3
The government maintains that we should decide this question by hold-
ing that Moses forfeited his Confrontation Clause rights by killing Jennifer
1098 MOSES v. PAYNE
Dr. Appleton’s testimony regarding Jennifer Moses’s out-of-
court statements, the state appellate court correctly noted that
although Crawford did not provide a “precise articulation” or
comprehensive definition of testimony, it did provide the
appropriate legal framework for analyzing whether statements
were testimonial. Applying state-law precedents interpreting
Crawford, the state appellate court concluded that Jennifer
Moses’s statements to Dr. Appleton were non-testimonial
because they were made for purposes of diagnosis and treat-
ment, rather than to inculpate Moses. We conclude this is not
an unreasonable application of the legal principle established
by Crawford.

The state appellate court next determined that Jennifer
Moses’s statements to Tamara Muller for purposes of treat-
ment were not testimonial under Crawford until Muller
informed Jennifer Moses that she had contacted the CPS. The
court concluded that because Muller’s statement notified Jen-
nifer Moses of possible legal consequences to her discussion
of the domestic violence incident, Jennifer Moses’s subse-
quent remarks were testimonial and the trial court erred in
admitting them. Nonetheless, the state appellate court con-
cluded that this error was harmless beyond a reasonable doubt
under Chapman v. California, 386 U.S. 18 (1967), because of
other, untainted evidence identifying Moses as the assailant in
the November 2001 assault.

[3] Assuming (without deciding) that the state appellate
court was correct in concluding that the trial court committed
constitutional error in admitting Jennifer Moses’s statements
after Muller informed her that CPS had been contacted, we
must consider whether such constitutional error had a “sub-
stantial and injurious effect or influence in determining the
jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637

Moses and thus making her unavailable to testify at trial. We need not
reach this argument, as we deny the petition on other grounds.
 MOSES v. PAYNE 1099
(1993) (internal quotation marks omitted); see also Fry v.
Pliler, 127 S.Ct. 2321, 2328 (2007). We conclude that there
was no such substantial and injurious effect. There was over-
whelming evidence that Moses caused Jennifer Moses’s inju-
ries during the November 2001 incident, including the
testimony of Dr. Appleton and the testimony of Brian Green,
Jennifer Moses’s stepfather, who read into evidence a state-
ment handwritten by Moses admitting to the assault. There-
fore, because any constitutional error involved in admitting
Muller’s testimony lacked the requisite “prejudicial impact,”
habeas relief is unavailable to Moses for this claim. Fry, 127
S.Ct. at 2327.

[4] Finally, the state appellate court considered the admis-
sion of Jennifer Moses’s son’s out-of-court statements to Mul-
ler. These statements were introduced at trial when the
prosecutor asked Muller why she had contacted CPS. Muller
explained that because Jennifer Moses’s son had told her that
his father had kicked his mother, Muller had a mandatory
duty under state law to notify CPS. The state appellate court
concluded that the government did not introduce this testi-
mony to prove the truth of the matter asserted (whether Moses
kicked Jennifer Moses), but rather to explain a separate rele-
vant issue: why Muller contacted the CPS. In Crawford, the
Court noted that the Confrontation Clause “does not bar the
use of testimonial statements for purposes other than estab-
lishing the truth of the matter asserted.” 541 U.S. at 59 n.9
(citing Tennessee v. Street, 471 U.S. 409, 414 (1985)). There-
fore, the state appellate court’s analysis is consistent with
Crawford and does not meet the criteria for habeas relief
under 28 U.S.C. § 2254(d)(1).

IV

Moses next maintains that he is entitled to habeas relief
because the trial court denied him the opportunity to present
evidence on his own behalf. In particular, Moses points to the
trial court’s decisions to exclude: (1) Dr. Wilson’s testimony;
1100 MOSES v. PAYNE
(2) portions of Jennifer Moses’s handwritten journal; and (3)
Jennifer Moses’s autopsy photograph.4

A

[5] The state appellate court upheld the trial court’s deci-
sion to exclude Dr. Wilson’s testimony because it was cumu-
lative and because the non-cumulative portion of his proposed
testimony was not sufficiently probative to outweigh its likely
prejudicial and confusing effects on the jury. This analysis
was undertaken under the governing Washington evidentiary
rule, Rule 702, which admits expert testimony “if it will assist
the trier of fact to understand the evidence or a fact in issue.”
State v. Farr-Lenzini, 970 P.2d 313, 318 (Wash. Ct. App.
1999) (internal quotation marks omitted) (explaining that
Rule 702 requires that (1) the witness be qualified as an
expert and (2) the testimony be helpful to the trier of fact).5
4
Moses also contends that the trial court’s evidentiary rulings, when
analyzed cumulatively, favored the government because they excluded
more defense evidence than prosecution evidence. He argues these rulings
deprived him of his due process right to rebut arguments presented by the
state and therefore deprived him of his right to a fair trial. Even if Moses
had exhausted this issue, he has not explained how the state appellate
court’s rejection of these constitutional claims would be “contrary to, or
involved an unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States.” 28 U.S.C.
§ 2254(d)(1). Most of the cases Moses cites in support of his argument are
inapposite because they pertain to the unique context of capital sentencing
proceedings. See Simmons v. South Carolina, 512 U.S. 154 (1994); Skip-
per v. South Carolina, 476 U.S. 1 (1986); Gardner v. Florida, 430 U.S.
349 (1977). The remaining case, Ake v. Oklahoma, 470 U.S. 68 (1985),
is not applicable because it concerns a question not raised in this case,
“whether the Constitution requires that an indigent defendant have access
to the psychiatric examination and assistance necessary to prepare an
effective defense based on his mental condition, when his sanity at the
time of the offense is seriously in question.” Id. at 70.
5
Rule 702 of the Washington Rules of Evidence states: “If scientific,
technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified
as an expert by knowledge, skill, experience, training, or education, may
testify thereto in the form of an opinion or otherwise.”
 MOSES v. PAYNE 1101
Under Rule 702, expert testimony is helpful to the jury if it
concerns matters beyond the common knowledge of the aver-
age layperson and is not misleading. See id. at 319.

Moses asserts that the state appellate court’s decision is
contrary to the Supreme Court’s precedents holding that
defendants have a constitutional right to present relevant evi-
dence in their own defense. See Crane v. Kentucky, 476 U.S.
683, 690 (1986) (“[T]he Constitution guarantees criminal
defendants a meaningful opportunity to present a complete
defense.”) (internal quotation marks omitted). The Supreme
Court has indicated that a defendant’s right to present a
defense stems both from the right to due process provided by
the Fourteenth Amendment, see Chambers v. Mississippi, 410
U.S. 284, 294 (1973), and from the right “to have compulsory
process for obtaining witnesses in his favor” provided by the
Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23
(1967) (explaining that the right to compulsory process would
be meaningless if the defendant lacked the right to use the
witnesses whose presence he compelled).

[6] However, “[a] defendant’s right to present relevant evi-
dence is not unlimited, but rather is subject to reasonable
restrictions,” such as evidentiary and procedural rules. United
States v. Scheffer, 523 U.S. 303, 308 (1998). In fact, “state
and federal rulemakers have broad latitude under the Consti-
tution to establish rules excluding evidence from criminal tri-
als,” id., and the Supreme Court has indicated its approval of
“well-established rules of evidence [that] permit trial judges
to exclude evidence if its probative value is outweighed by
certain other factors such as unfair prejudice, confusion of the
issues, or potential to mislead the jury,” Holmes v. South Car-
olina, 547 U.S. 319, 326 (2006). Evidentiary rules do not vio-
late a defendant’s constitutional rights unless they “infring[e]
upon a weighty interest of the accused and are arbitrary or
disproportionate to the purposes they are designed to serve.”
Id. at 324 (alteration in original) (internal quotation marks
omitted); see also Scheffer, 523 U.S. at 315 (explaining that
1102 MOSES v. PAYNE
the exclusion of evidence pursuant to a state evidentiary rule
is unconstitutional only where it “significantly undermined
fundamental elements of the accused’s defense”). In general,
it has taken “unusually compelling circumstances . . . to out-
weigh the strong state interest in administration of its trials.”
Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir. 1983).

The Supreme Court has explained these principles in cases
where defendants have argued that state evidentiary rules, by
their own terms, impinge upon their constitutional right to
present a complete defense. Thus, in Holmes, the Court con-
cluded that a defendant’s constitutional rights were violated
by an evidentiary rule that prevented the defendant from pre-
senting evidence that a third party had committed the crime
if the judge determined that the prosecutor’s case was strong.
547 U.S. at 328-31. The Court determined that this evidenti-
ary rule did not “rationally serve” the goal of “excluding evi-
dence that has only a very weak logical connection to the
central issues.” Id. at 330. In Rock v. Arkansas, 483 U.S. 44,
61 (1987), the Court reached the same conclusion about an
evidentiary rule that limited the defendant’s testimony to mat-
ters she remembered before her memory had been hypnoti-
cally refreshed because it was “an arbitrary restriction on the
right to testify in the absence of clear evidence by the State
repudiating the validity of all posthypnosis recollections.”
Finally, in Washington v. Texas, the Court rejected an eviden-
tiary rule that precluded an alleged accomplice of the defen-
dant from testifying on the defendant’s behalf (though he
could testify for the government) because it could not “even
be defended on the ground that it rationally sets apart a group
of persons who are particularly likely to commit perjury.” 388
U.S. at 22; see also Crane, 476 U.S. at 690-92 (identifying a
constitutional violation where a state evidentiary rule pre-
cluded a defendant from introducing any evidence relating to
the unreliability of his own confession); Chambers, 410 U.S.
at 302 (concluding that a defendant’s fair trial rights were vio-
lated when the combined effect of two state rules of evidence
precluded him from effectively impeaching a witness whom
 MOSES v. PAYNE 1103
he alleged was the actual culprit). On the other hand, the
Supreme Court has upheld an evidentiary rule that excluded
polygraph evidence in military trials because it did not “impli-
cate any significant interest of the accused” and because it
“serve[d] several legitimate interests in the criminal trial pro-
cess.” Scheffer, 523 U.S. at 309, 316-17.

[7] The Supreme Court has not squarely addressed the
question whether Rule 702, the rule of evidence relied upon
by the state appellate court in this case, or an analogous evi-
dentiary rule requiring a trial court to balance factors and
exercise its discretion, “infring[es] upon a weighty interest of
the accused” and is “arbitrary or disproportionate to the pur-
poses [it is] designed to serve.” Scheffer, 523 U.S. at 308
(internal quotation marks omitted). Rather, as a “well-
established rule[ ] of evidence” that permits a court to exer-
cise its discretion in admitting expert testimony when rele-
vant, Rule 702 is more analogous to those evidentiary rules
described with approval in Holmes. See 547 U.S. at 326
(“While the Constitution . . . prohibits the exclusion of
defense evidence under rules that serve no legitimate purpose
or that are disproportionate to the ends that they are asserted
to promote, well-established rules of evidence permit trial
judges to exclude evidence if its probative value is out-
weighed by certain other factors such as unfair prejudice, con-
fusion of the issues, or potential to mislead the jury.”).

[8] Indeed, Rule 702 is different in kind from the rules in
Washington, Crane, Chambers, Rock, and Holmes. The evi-
dentiary rules in those cases, by their terms, required the trial
court to exclude crucial evidence that had a critical effect on
the trial, with little or no rational justification. In general, the
rules precluded a defendant from testifying, excluded testi-
mony from key percipient witnesses, or excluded the intro-
duction of all evidence relating to a crucial defense. In
contrast, Rule 702 does not require a trial court to exclude
evidence. Rather, it authorizes a court to admit expert testi-
mony “if it will assist the trier of fact to understand the evi-
1104 MOSES v. PAYNE
dence or a fact in issue.” Farr-Lenzi, 970 P.2d at 318 (internal
quotation marks omitted). Accordingly, a decision that Rule
702 itself is constitutional would be consistent with Supreme
Court precedent.

[9] Because Moses could not successfully argue that Rule
702 by its terms infringed his constitutional right to present
a complete defense, Moses’s argument is best interpreted as
challenging the trial court’s exercise of discretion in this case
to exclude expert testimony. As noted above, the Supreme
Court’s cases have focused only on whether an evidentiary
rule, by its own terms, violated a defendant’s right to present
evidence. These cases do not squarely address whether a
court’s exercise of discretion to exclude expert testimony vio-
lates a criminal defendant’s constitutional right to present rel-
evant evidence. See Van Patten, 128 S.Ct. at 746. Nor do they
clearly establish “a controlling legal standard” for evaluating
discretionary decisions to exclude the kind of evidence at
issue here. See Panetti, 127 S.Ct. at 2858. Therefore, the state
appellate court’s determination that the trial court’s exercise
of discretion to exclude expert testimony under Rule 702 did
not violate Moses’s constitutional rights cannot be contrary to
or an unreasonable application of clearly established Supreme
Court precedent. See Van Patten, 128 S.Ct. at 746-47; Panetti,
127 S.Ct. at 2858; Musladin, 549 U.S. at 76; cf. Patrick, 508
F.3d at 1260.

[10] Although the Supreme Court has not addressed this
issue, several of our prior decisions considered whether a trial
court’s discretionary determination to exclude evidence vio-
lated a defendant’s constitutional rights. In Perry v. Rushen,
713 F.2d 1447, 1450 (9th Cir. 1983), we derived a balancing
test to determine when a trial court’s exercise of discretion to
exclude evidence under an otherwise valid evidentiary rule
might violate a defendant’s rights. We refined this test in Mil-
ler v. Stagner, 757 F.2d 988 (9th Cir. 1985), amended on
other grounds, 768 F.2d 1090 (9th Cir. 1985), and held that,
 MOSES v. PAYNE 1105
In a habeas proceeding, determining whether the
exclusion of evidence in the trial court violated peti-
tioner’s due process rights involves a balancing test.
In weighing the importance of evidence offered by
a defendant against the state’s interest in exclusion,
the court should consider [1] the probative value of
the evidence on the central issue; [2] its reliability;
[3] whether it is capable of evaluation by the trier of
fact; [4] whether it is the sole evidence on the issue
or merely cumulative; and [5] whether it constitutes
a major part of the attempted defense.

Id. at 994; accord Chia v. Cambra, 360 F.3d 997, 1003-04
(9th Cir. 2004); Alcala v. Woodford, 334 F.3d 862, 877 (9th
Cir. 2003).

The dissent relies on this balancing test as part of its
AEDPA analysis of the state appellate court’s decision to
affirm the exclusion of Dr. Wilson’s testimony. See dis. op.
at 1120-21. For purposes of AEDPA analysis, however,

[T]he only definitive source of clearly established
federal law under AEDPA is the holdings (as
opposed to the dicta) of the Supreme Court as of the
time of the state court decision. While circuit law
may be “persuasive authority” for purposes of deter-
mining whether a state court decision is an unreason-
able application of Supreme Court law, only the
Supreme Court’s holdings are binding on the state
courts and only those holdings need be reasonably
applied.

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003) (inter-
nal citations omitted); see also Crater, 491 F.3d at 1126
(“[Section] 2254(d)(1) renders decisions by lower courts non-
dispositive for habeas appeals.”); Brewer v. Hall, 378 F.3d
952, 957 (9th Cir. 2004). Nor can we conclude that Miller
merely “illuminates the application of clearly established fed-
1106 MOSES v. PAYNE
eral law as determined by the United States Supreme Court.”
Crater, 491 F.3d at 1126 n.8. Unlike Washington and its prog-
eny, Miller is not concerned with the question whether a
given rule of evidence, by its own terms, impinges on defen-
dants’ constitutional rights; rather, the Miller balancing test
evaluates whether the trial court used its discretion to uncon-
stitutionally apply an otherwise valid rule. Thus, because the
Miller balancing test is a creation of circuit law, rather than
a Supreme Court holding, we cannot fault the state appellate
court for not employing it, so long as the state’s ultimate dis-
position of Moses’s appeal is not contrary to or an unreason-
able application of the Supreme Court precedent that Miller
interpreted. See Casey v. Moore, 386 F.3d 896, 907 (9th Cir.
2004).

The dissent concludes otherwise, noting that we have
applied the Miller balancing test in the context of AEDPA
review. See Chia, 360 F.3d at 1003-04. We did so, however,
before the Supreme Court provided further clarification of the
bounds of an appellate court’s AEDPA analysis in Musladin,
Panetti and Van Patten. As discussed above, these precedents
clarified that in the absence of a Supreme Court decision that
“squarely addresses the issue” in the case before the state
court, Van Patten, 128 S.Ct. at 746, or establishes an applica-
ble general principle that “clearly extends” to the case before
us to the extent required by the Supreme Court in its recent
decisions, Van Patten, 128 S.Ct. at 745; see also Panetti, 127
S.Ct. at 2858; Musladin, 549 U.S. at 76, we cannot conclude
that a state court’s adjudication of that issue resulted in a deci-
sion contrary to, or an unreasonable application of, clearly
established Supreme Court precedent. Van Patten, 128 S.Ct.
at 747. By necessity, Van Patten and Musladin impose limits
on the relevance of circuit precedent; they are “clearly irrec-
oncilable,” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.
2003), with the conclusion that circuit law may be used to fill
“open question[s]” in the Supreme Court’s holdings for pur-
poses of AEDPA analysis. Musladin, 549 U.S. at 76; see also
Crater, 491 F.3d at 1126 & n.8 (explaining that, in Musladin,
 MOSES v. PAYNE 1107
the Supreme Court “discussed and accepted” the principle that
§ 2254(d)(1) imposes “limits on the relevance of circuit pre-
cedent”).

[11] Because the Supreme Court’s precedents do not estab-
lish a principle for evaluating discretionary decisions to
exclude the kind of evidence at issue here, AEDPA does not
permit us to rely on our balancing test to conclude that a state
trial court’s exclusion of evidence under Rule 702 violated
clearly established Supreme Court precedent. Therefore, we
cannot agree with the dissent’s argument that Miller is appli-
cable here.

B

[12] Moses next contends that he is entitled to habeas relief
because the trial court excluded some portions of Jennifer
Moses’s handwritten diary. The trial court admitted medical
provider testimony and documentary evidence establishing
that Jennifer Moses suffered from depression and experienced
suicidal thoughts before her death. The trial court also admit-
ted multiple journal entries indicating that Jennifer Moses was
depressed and contemplated suicide. The state appellate court
concluded that the trial court abused its discretion in exclud-
ing certain handwritten journal entries, but that any error
involved was harmless. In light of the evidence admitted by
the trial court, even assuming that the trial court’s exclusion
of evidence was a constitutional error, we agree that it did not
have “substantial and injurious effect or influence in deter-
mining the jury’s verdict.” Brecht, 507 U.S. at 623 (internal
quotation marks omitted).

C

[13] Moses also maintains that the state appellate court’s
affirmance of the trial court’s decision to exclude Jennifer
Moses’s autopsy photograph was contrary to Supreme Court
precedent. We disagree. The state appellate court noted that
1108 MOSES v. PAYNE
the autopsy photograph was cumulative because the trial court
had already admitted other photographs showing Jennifer
Moses’s emaciated body and because multiple witnesses had
testified that Jennifer Moses had lost weight in the months
prior to her death. The state appellate court concluded that the
photograph was properly excluded because it was cumulative
and because its probative value was outweighed by its likely
prejudicial effects on the jury. This decision was not contrary
to, or an unreasonable application of, controlling Supreme
Court precedent, see Scheffer, 523 U.S. at 308, and it there-
fore does not provide the basis for granting Moses’ habeas
petition under our deferential AEDPA standard of review.

V

Finally, Moses urges this court to grant the writ because the
trial court’s decision to admit the opinion testimony of Dr.
Harruff, Evan Thompson, and Tamara Muller violated
Moses’s constitutional rights.6 In support of this claim, Moses
relies on Supreme Court decisions establishing that it is the
sole province of the jury to determine questions of credibility
and to weigh the evidence adduced at trial. See Goldman v.
United States, 245 U.S. 474, 477 (1918); see also United
States v. Young, 470 U.S. 1, 18-19 (1985) (prosecutor erred
by expressing a personal view that the defendant was guilty).

[14] These cases do not support Moses’s contention that the
opinion testimony of Dr. Harruff, Evan Thompson, and
Tamara Muller improperly intruded upon the province of the
jury and thereby deprived Moses of a fair trial. Neither of
these cases, nor any other that we have found, supports the
general proposition that the Constitution is violated by the
6
We disagree with the state’s contention that this issue was not properly
exhausted. The district court correctly concluded that Moses argued this
issue to the state appellate court in a manner sufficient to satisfy the
requirements of AEDPA’s exhaustion doctrine. See Davis v. Silva, 511
F.3d 1005, 1008-09 (9th Cir. 2008).
 MOSES v. PAYNE 1109
admission of expert testimony concerning an ultimate issue to
be resolved by the trier of fact. Accordingly, under AEDPA,
we must reject Moses’s claims to the contrary. See 28 U.S.C.
§ 2254(d); Van Patten, 128 S.Ct. at 746-47; Panetti, 127 S.Ct.
at 2858; Musladin, 549 U.S. at 76.

[15] That the Supreme Court has not announced such a
holding is not surprising, since it is “well-established . . . that
expert testimony concerning an ultimate issue is not per se
improper.” Hangarter v. Provident Life & Accident Ins. Co.,
373 F.3d 998, 1016 (9th Cir. 2004) (internal quotation marks
omitted) (alterations in original). Although “[a] witness is not
permitted to give a direct opinion about the defendant’s guilt
or innocence . . . . an expert may otherwise testify regarding
even an ultimate issue to be resolved by the trier of fact.”
United States v. Lockett, 919 F.2d 585, 590 (9th Cir. 1990);
see also Fed. R. Evid. 704(a).

Here, Dr. Harruff testified to his opinion as a medical
examiner that Jennifer Moses died as a result of a homicide.
Dr. Harruff did not testify that Moses murdered Jennifer
Moses. Similarly, Thompson did not testify on the ultimate
issue; rather, he testified that he classified the death as a
homicide based on his expertise as a ballistics expert and his
assessment of Jennifer Moses’s wound. Finally, Muller testi-
fied that, in her experience, victims of domestic violence are
most likely to be killed when they attempt to leave their
domestic situation. Like Dr. Harruff and Thompson, Muller
did not express an opinion as to whether Moses murdered Jen-
nifer Moses. Thus, our own precedent ratifies the state court’s
decision to admit the testimony of Dr. Harruff, Thompson,
and Muller. See Lockett, 919 F.2d at 590.

[16] Ultimately, however, for purposes of our AEDPA
review, it suffices to determine that the constitutionality of
such testimony is “an open question in [the Supreme Court’s]
jurisprudence.” Musladin, 549 U.S. at 76. We conclude that
the state appellate court’s decision to affirm the trial court’s
1110 MOSES v. PAYNE
decision to admit the opinion testimony of Dr. Harruff,
Thompson, and Muller was not contrary to or an unreasonable
application of Supreme Court precedent.

VI

In sum, AEDPA’s “highly deferential standard for evaluat-
ing state-court rulings” directs the conclusion that Moses’s
habeas petition must be denied. Visciotti, 537 U.S. at 24
(internal quotation marks omitted). The Supreme Court’s
cases do not squarely address any of the three issues Moses
identifies in support of his petition for the writ, nor do any of
the legal principles established in the cases identified by
Moses “clearly extend” to the facts of this case. Van Patten,
128 S.Ct. at 745. AEDPA tethers our habeas review to
Supreme Court holdings alone. See 28 U.S.C. § 2254(d); see
also Crater, 491 F.3d at 1126 & n.8. Because the state appel-
late court’s disposition of Moses’s appeal was not contrary to
or an unreasonable application of apposite Supreme Court
precedent, we cannot grant the writ.

Where the state appellate court itself identified constitu-
tional error, we conclude that the identified error did not have
a “substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht, 507 U.S. at 623 (internal quotation
marks omitted); see also Fry, 127 S.Ct. at 2328.

PETITION DENIED.

GOULD, Circuit Judge, dissenting:

On September 27, 2002, Jeffrey Moses’s wife, Jennifer,
tragically died of a gunshot wound to her head. When police
responded to a 911 call from Moses’s mother, Moses claimed
that Jennifer had committed suicide. Moses said that Jennifer
had been depressed and had come downstairs with a gun,
 MOSES v. PAYNE 1111
knelt down, and shot herself in the head while Moses tried to
take the gun away from her. Moses was tried by jury for pre-
meditated, first degree murder of his wife, and for unlawful
possession of a firearm. At Moses’s trial the prosecution
argued that Moses had intentionally shot his wife in the back
of the head, while Moses countered that Jennifer had commit-
ted suicide because of severe depression and drug and alcohol
abuse, and that his attempt that night to stop her had failed.
Among the prosecution’s evidence was testimony from a
medical examiner and a ballistics expert who each concluded,
after an examination of forensic factors, that Jennifer’s
wounds were likely not self-inflicted, though the evidence
permitted the conclusion that suicide had occurred. The prose-
cution also presented evidence of a prior incident of domestic
violence between Moses and his wife. Moses, by contrast,
highlighted evidence of Jennifer’s history of major depres-
sion, including suicidal ideation, problems with eating disor-
ders and substance abuse. Moses also presented testimony by
a friend of Jennifer’s stating that Jennifer and the friend had
talked on the very night of Jennifer’s death and that the dis-
cussion encompassed the subject of death.

Thus the case presents in high contrast the question
whether Jennifer’s death was the consequence of her own sui-
cidal actions, or the result of murderous conduct by Moses. In
our system of justice, when a fair trial is held the decision of
the jury on such an issue is conclusive. If the defendant had
been able to present his defense case fairly, I would have no
issue with the jury’s decision. But if by evidentiary rulings the
deck was stacked against the defendant, we should be con-
cerned and insist on a new trial.

I conclude that a key evidentiary ruling rendered the trial
unfair. Moses had sought to introduce testimony from Dr.
Lawrence Wilson, an expert on depression who the defense
wanted to discuss with the jury Jennifer’s recent diagnoses
with major depression by three different health care profes-
sionals, the general nature of major depression, and the
1112 MOSES v. PAYNE
unlikelihood that the depression would have resolved itself
before the date Jennifer died. Dr. Wilson additionally would
have testified about the increased likelihood that someone suf-
fering from major depression would commit suicide and about
his perception that lay persons do not fully understand the
implications of major depression.

The trial court excluded Dr. Wilson’s testimony, stating
that Dr. Wilson would have offered information of “very little
weight,” namely, that depressed people are more likely to kill
themselves than people not depressed, that access to guns for
depressed people is bad, and that drugs, alcohol, financial
stress, and marital strife make the problem worse—all of
which, the court reasoned, fell within a juror’s common
knowledge. The trial judge dismissed Wilson’s remaining tes-
timonial offerings as being, in sum, that there was a roughly
0.25% higher chance that Jennifer, as an individual diagnosed
with major depression, would commit suicide within the six
month period between her diagnosis and her death than that
a non-depressed person would. The trial judge determined
that this information was of minimal probative value, out-
weighed by its prejudicial effects and potential for jury confu-
sion.

The jury found Moses guilty of second-degree murder and
first-degree unlawful possession of a firearm. The Washing-
ton Court of Appeals sustained Moses’s conviction, and the
Washington State Supreme Court denied Moses’s petition for
review without comment. Having made no progress in the
state courts, Moses filed his petition for a writ of habeas cor-
pus in federal court in August of 2006. The district court
denied Moses’s petition. The district court rejected Moses’s
argument that the exclusion of Dr. Wilson’s testimony had
violated his Sixth and Fourteenth Amendment rights, reason-
ing that the testimony would have been cumulative and of
such limited probative value that its exclusion did not deprive
Moses of any constitutional rights. On appeal Moses argues
that the trial judge’s exclusion of Dr. Wilson’s testimony
 MOSES v. PAYNE 1113
denied Moses his clearly established constitutional right to
present a defense. Although the majority affirms the district
court’s view, I rather think that the total exclusion of testi-
mony of this important defense expert witness was a grave
error that should shake our confidence that the jury reached
its verdict after a fair trial. Hence I respectfully dissent
because I would grant habeas relief and require the state to
retry Moses in light of the state trial court’s exclusion of Dr.
Wilson’s testimony.1

Moses argues that the trial court’s decision to exclude Dr.
Wilson’s testimony violated his constitutional rights under
Washington v. Texas, 388 U.S. 14 (1967), and its progeny.
Moses is up against a difficult standard. To succeed in his
claim, the state court’s decision must have been “contrary to,
or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). But the Supreme Court has long guaranteed the
defendant’s right to present his case, and so the extraordinary
exclusion in total, as contrasted with a mere limiting of testi-
mony, of a key defense expert witness, in a murder trial where
specialized expertise was pertinent, gets Moses inside the
door where we should be giving the very closest of attention
to his claim. For if he is right, possibly a jury convicted an
innocent man of murder. Though we must accept that risk
without much pause in a case where a defendant like Moses
fully and fairly presented his evidence, we should be much
more reluctant to accept the conclusion in a case where the
state court kept from the jury all testimony of an important
defense expert.
1
Reaching this conclusion, I need not, and do not, address any of
Moses’s remaining arguments. However, if the exclusion of Wilson’s tes-
timony does not in itself require habeas relief, then I believe that a very
close look would be required at the question whether the cumulative force
of trial court rulings, generally denying much of the helpful evidence prof-
fered by Moses and admitting almost whatever the prosecution tendered,
offended due process by depriving Moses of a fair trial. The majority
never addresses this question.
1114 MOSES v. PAYNE
A state court decision is “contrary to” clearly established
Supreme Court precedent if the state court “applies a rule that
contradicts the governing law set forth” in Supreme Court
decisions or “confronts a set of facts that are materially indis-
tinguishable from a [Supreme Court] decision . . . and never-
theless arrives at a result different from [Supreme Court]
precedent.” Williams v. Taylor, 529 U.S. 362, 405-06 (2000).
I conclude that exclusion of Dr. Wilson’s testimony was not
“contrary to” clearly established Supreme Court law, because
the state appellate court recognized the general principle
required in Washington that a defendant has the right to pre-
sent a defense. It cannot be said that the state court of appeals
applied the wrong law contrary to the dictates of Supreme
Court precedent. Nor were the facts of Moses’s case materi-
ally indistinguishable from those of the Supreme Court cases
that he invokes. In Washington, the trial court had prevented
a percipient witness from testifying because of a state statute,
which the United States Supreme Court held violated the
defendant’s Sixth Amendment right to have compulsory pro-
cess for obtaining witnesses, applicable to the states through
the Fourteenth Amendment. Washington, 388 U.S. at 23. In
Chambers v. Mississippi, 410 U.S. 284 (1973), state evidenti-
ary rules—specifically, a “voucher” rule preventing a defen-
dant from cross-examining his own witness and general rules
against hearsay—prevented a defendant from presenting one
witness who had repudiated a prior confession to the same
crime and other witnesses who would have discredited that
repudiation. Id. at 294. The United States Supreme Court held
that exclusion of this critical evidence that directly affected
the ascertainment of guilt denied the defendant a fair trial. Id.
at 302-03. See also Holmes v. South Carolina, 547 U.S. 319
(2006) (state evidentiary rule excluding evidence of third-
party guilt if prosecution’s case was strong violated defen-
dant’s right to present a complete defense); Rock v. Arkansas,
483 U.S. 44 (1987) (state evidentiary rule excluding post-
hypnosis testimony unconstitutionally burdened defendant’s
right to testify at trial in the absence of clear state evidence
that post-hypnosis recollections are invalid).
 MOSES v. PAYNE 1115
None of these Supreme Court cases specifically addresses
a state court’s exclusion of a critical defense expert based on
state evidentiary rules concerning the admissibility of expert
testimony and a trial court’s determination of whether the
expert testimony in its view would be helpful to the trier of
fact. Accordingly, I conclude that the state court decision was
not “contrary to” clearly established Supreme Court prece-
dent.

Our attention must focus on whether the state court deci-
sion was an “unreasonable application” of clearly established
Supreme Court precedent. A state court decision constitutes
an “unreasonable application” if it “correctly identifies the
governing legal rule but applies it [objectively] unreasonably
to the facts” of the case. Williams, 529 U.S. at 407-08,
410-11. Thus “section 2254(d)(1) permits a federal court to
grant habeas relief based on the application of a governing
legal principle to a set of facts different from those of the case
in which the principle was announced.” Lockyer v. Andrade,
538 U.S. 63 (2003); see also Wilcox v. McGee, 241 F.3d
1242, 1244 (9th Cir. 2001) (“The Supreme Court need not
have addressed a factually identical case; § 2254(d) only
requires that the Supreme Court clearly determine the law.”
(internal quotations, citation, and alteration omitted)). The
AEDPA does not “prohibit a federal court from finding an
application of a principle unreasonable when it involves a set
of facts ‘different from those of the case in which the princi-
ple was announced.’ . . . [t]he statute recognizes, to the con-
trary, that even a general standard may be applied in an
unreasonable manner.” Panetti v. Quarterman, 127 S. Ct.
2842, 2858 (2007). Our independent review of the legal ques-
tion must leave us with a “firm conviction” that the state court
committed a clear, objectively unreasonable error. Id.; see
also Andrade, 538 U.S. at 74-75.2
2
Although section 2254(d) mandates that only Supreme Court preceden-
tial holdings clearly establish a right, circuit law may be “persuasive
authority” on the question of whether a state court’s determination was an
unreasonable application of the Supreme Court’s precedent. Clark v. Mur-
phy, 331 F.3d 1062, 1069 (9th Cir. 2003); Duhaime v. Ducharme, 200
F.3d 597, 600-01 (9th Cir. 1999).
1116 MOSES v. PAYNE
The Washington line of cases from the United States
Supreme Court firmly establishes the general proposition that
a defendant has a constitutional right to present a defense at
trial. The crux here concerns how that principle is to be
applied in the context of the state court’s decision excluding
any testimony from Moses’s defense expert whose testimony
was proffered on a critical issue in Moses’s trial for murder
of his wife.

In Washington itself, the Court stated: “The right to offer
the testimony of witnesses, and to compel their attendance, if
necessary, is in plain terms the right to present a defense, the
right to present the defendant’s version of the facts as well as
the prosecution’s to the jury so it may decide where the truth
lies . . . . [A]n accused has the right to . . . present his own
witnesses to establish a defense. This right is a fundamental
element of due process of law.” Washington, 388 U.S. at 19.

Since Washington, the United States Supreme Court has
continually reaffirmed this fundamental right to present a
defense. In Chambers, the Court proclaimed: “Few rights are
more fundamental than that of an accused to present witnesses
in his own defense[,]” and stated that it was not establishing
any new principles of constitutional law but merely applying
established ones to hold that the trial court’s rulings deprived
the defendant of a fair trial. Chambers, 410 U.S. at 302-03.
The Court reemphasized the right’s centrality to due process
of law in Taylor v. Illinois, 484 U.S. 400, 409 (1988). More
recently in Holmes, the Court stated: “[S]tate and federal rule-
makers have broad latitude under the Constitution to establish
rules excluding evidence from criminal trials. This latitude,
however, has limits. . . . [T]he Constitution guarantees crimi-
nal defendants a meaningful opportunity to present a complete
defense. This right is abridged by evidence rules that
infring[e] upon a weighty interest of the accused and are
‘arbitrary’ or ‘disproportionate to the purposes they are
designed to serve.’ ” Holmes, 547 U.S. at 324-325 (citations
and quotations omitted, second alteration in original). See also
 MOSES v. PAYNE 1117
Crane v. Kentucky, 476 U.S. 683, 690 (1986) (holding that
“an essential component of procedural fairness is an opportu-
nity to be heard”).

The central theme running through each of these Supreme
Court cases is the clearly established right that the Constitu-
tion guarantees to a criminal defendant to present relevant and
material witnesses in his defense. These cases circumscribe
the state’s ability to infringe that right: a state may limit the
defendant’s evidence only when that limitation has a nonarbi-
trary purpose(s) that is (are) proportionate to the correspond-
ing infringement upon the defendant. See, e.g., Chambers,
410 U.S. at 295 (“the right to confront and to cross-examine
is not absolute . . . . But its denial or significant diminution
calls into question the ultimate ‘integrity of the fact-finding
process’ and requires that the competing interest be closely
examined.” (citations omitted)).3
3
The government’s citation to Carey v. Musladin, 127 S. Ct. 649 (2006),
to support its argument that the Washington state court’s adjudication was
not contrary to or an unreasonable application of clearly established fed-
eral law, does not avail it. In Musladin, the Supreme Court held that the
effect on a defendant’s fair-trial rights of courtroom spectator conduct was
an open question in its jurisprudence. Id. at 653. The Court reasoned that
it had clearly established the law in this general area only as to
government-sponsored practices, not as to spectator conduct. Id. By con-
trast, in the present case, the Supreme Court has clearly established the
applicable law, as outlined above.
Similarly, the majority’s reliance on Wright v. Van Patten, 128 S.Ct.
743 (2008), is unavailing. In Van Patten, the Supreme Court held that its
jurisprudence does not clearly hold that counsel’s participation in a plea
hearing “by speaker phone should be treated as a ‘complete denial of
counsel’ on par with total absence.” Id. at 746. The Court noted that it had
clearly established law regarding the finding of a Sixth Amendment viola-
tion without inquiring into counsel’s actual performance when “counsel is
either totally absent, or prevented from assisting the accused during a criti-
cal stage of the proceeding,” but not where counsel participates by speaker
phone.” Id. at 746.
Neither of these precedents sufficiently undermines our Circuit law so
as to allow the majority to disregard it in light of the standards set in Mil-
1118 MOSES v. PAYNE
Here, as the Washington Court of Appeals noted, Dr. Wil-
son’s testimony was excluded under a Washington evidenti-
ary rule governing admissibility of expert testimony, which
requires that 1) the witness is qualified as an expert, and 2)
the testimony would be helpful to the trier of fact. The state
appellate court determined that the trial court did not abuse its
discretion in determining that Dr. Wilson’s proffer failed the
second prong. The court of appeals concluded that Dr. Wil-
son’s testimony added only that Jennifer had a minimally
greater chance of committing suicide than a person who had
not been diagnosed with major depression during the time
period in question, dismissing his remaining proffer as infor-
mation either that would already be introduced by other wit-
nesses or that was within the average juror’s common
knowledge.

The state evidentiary rule at issue is of the type that United
States Supreme Court precedent has contemplated to be a
valid exception to a defendant’s general right to present a
defense. See, e.g., Holmes, 547 U.S. at 326-27 (“ . . . [W]ell-
established rules of evidence permit trial judges to exclude
evidence if its probative value is outweighed by certain other
factors such as unfair prejudice, confusion of the issues, or
potential to mislead the jury. Plainly referring to rules of this
type, we have stated that the Constitution permits judges ‘to
exclude evidence that is repetitive . . . , only marginally rele-
vant or poses an undue risk of harassment, prejudice, [or] con-
fusion of the issues.’ ” (citations and quotations omitted,
ellipsis and second brackets in original)). However, the fact
that the exclusion of evidence is grounded in familiar eviden-
tiary rules alone does not determine that such exclusion is

ler v. Gammie, 335 F.3d 889 (9th Cir. 2003). (“Issues decided by [the
Supreme Court] need not be identical in order to be controlling [in the
Ninth Circuit]. Rather, [the Supreme Court] ‘must have undercut the the-
ory or reasoning underlying the prior circuit precedent in such a way that
the cases are clearly irreconcilable.’ ”) Id. at 900.
 MOSES v. PAYNE 1119
constitutionally permissible. It is one thing to limit the scope
of testimony, via evidentiary rulings, but it is another thing,
and of drastic consequence for Moses, for the state court to
have entirely excluded his important defense expert.

In Chambers, as discussed above, the Supreme Court con-
sidered and invalidated the state’s application of its hearsay
rules. The Court preliminarily noted, “The hearsay rule,
which has long been recognized and respected by virtually
every State, is based on experience and grounded in the
notion that untrustworthy evidence should not be presented to
the triers of fact.” Chambers, 410 U.S. at 298. Nonetheless,
the Court held that its application in that case was unconstitu-
tional: the Court admonished, “where constitutional rights
directly affecting the ascertainment of guilt are implicated, the
hearsay rule may not be applied mechanistically to defeat the
ends of justice.” Id. at 302. The Court overturned the state’s
application of the hearsay rule in those circumstances, despite
the rule’s status as perhaps the most “respected [and most]
frequently applied [rule of evidence] in jury trials.” Id.
Despite the values served by the hearsay rule, it could not be
applied in a way that unreasonably denied the defendant his
right to present a defense.

To consider whether the rule permitting Moses to present
his defense was unreasonably applied requires placing the
exclusion of the defense expert testimony in context. First, it
should be recognized that as a general matter the presentation
of defense witnesses lies at the heart of the defendant’s right
to mount a defense. Washington, 388 U.S. at 19. Second, in
the context of Moses’s trial, whether his wife committed sui-
cide was critical. There was no question that she was shot in
the head. There was no question that Moses’s prints were on
the gun. There was no question that Jennifer suffered from
major depression and at times had had a suicidal ideation. The
issue was whether the jury should believe or reject Moses’s
story that his suicidal wife was attempting to kill herself when
he unsuccessfully intervened trying to stop her from making
1120 MOSES v. PAYNE
the fatal shot. In a sense, we can never know for certain what
happened: Did Moses shoot her in cold blood and try to place
the blame on her previously expressed suicidal tendencies? Or
did she take her own life, ensnaring Moses in culpability
because he was there and tried to stop her? In our system of
justice, appellate judges must recognize that they can never
know for certain what were the underlying facts. Determina-
tion of those facts is in the province of the jury. But what we
must do is to ensure that the process by which the jury
receives the question is a fair one, so that we can have confi-
dence in its determination of criminal guilt beyond a reason-
able doubt.

In my view, under the circumstances of Moses’s case,
application of Washington’s expert evidentiary rule unconsti-
tutionally denied Moses his right to present a defense to the
jury. To put the key issue a different way, did the state’s inter-
est in preventing what the trial judge perceived to be inadmis-
sible testimony under Washington evidentiary rules
constitutionally have to make way to Moses’s right to have
the jury hear Dr. Wilson’s testimony? To make such a deter-
mination in habeas cases, “we employ a balancing test for
determining whether the exclusion of testimony violates due
process.” Alcala v. Woodford, 334 F.3d 862, 884 (9th Cir.
2003) (citing Miller v. Stagner, 757 F.2d 988, 994 (9th Cir.
1985)).4 We must “weigh the probative value of the evidence,
its reliability, whether the trier of fact can evaluate the evi-
dence, whether the evidence is cumulative, and whether the
evidence proves integral to the defense theory” against the
state’s interest in excluding the evidence in order to evaluate
whether it was constitutionally excluded. Id. (citing Miller,
757 F.2d at 994).

Under this test, I conclude that the trial judge improperly
4
Although Miller itself preceded enactment of AEDPA, we have applied
its test after AEDPA to determine what Supreme Court precedent requires.
See, e.g., Chia v. Cambra, 360 F.3d 997, 1003-04 (9th Cir. 2004).
 MOSES v. PAYNE 1121
excluded the defense expert’s testimony. First, there is no
indication that the evidence was not reliable. To the contrary,
the trial court excluded the testimony based in part on its
assumption that the bulk of Dr. Wilson’s testimony was
within the average juror’s “common knowledge,” suggesting
that the evidence was in fact not only reliable but plausible.
Second, and for similar reasons, Dr. Wilson’s proposed testi-
mony was readily within the jury’s ability to evaluate. Dr.
Wilson would have presented no complicated or technical
issues for the jury to navigate but rather a straightforward,
expert assessment of, among other things, major depression
and suicide generally, the implications of a diagnosis with
major depression, and potential inconsistencies between the
external appearances and the internal state of a depressed and/
or suicidal individual.

As for whether the testimony would have been cumulative,
as the Washington appellate court noted, the jury ultimately
heard much of the evidence concerning Jennifer’s recent treat-
ment history from either the different medical examiners
themselves or from an individual from the examiner’s records
office who read the contents of the medical file to the jury.
However, the jury did not hear the testimony Moses hoped to
offer through Dr. Wilson concerning: the unlikelihood that
Jennifer would have recovered from her major depression by
the time of her death; the higher likelihood that individuals
diagnosed with major depression, particularly with Jennifer’s
individual risk factors, have of committing suicide than indi-
viduals not so diagnosed; the possibility that a significantly
depressed person might successfully mask that depression to
his or her acquaintances; and the unlikelihood that those who
are not experts fully understand the ramifications and nature
of major depression. The jury also did not hear Dr. Wilson’s
analysis of other evidence of Jennifer’s emotional state, such
as her journal entries. Thus the jury did hear some of the
information that Dr. Wilson’s testimony would have encom-
passed, but it never heard substantial portions; the evidence
was only partially cumulative.
1122 MOSES v. PAYNE
A defendant in a murder case has an interest in presenting
his defense points and themes through witnesses whose views
support the defense theory of the case and whose testimony
may be ordered in a way aimed at persuading the jury to a
conclusion of doubt. Here, if the state trial court had let the
defense expert testify, but had imposed some reasonable limit
on scope of his testimony, with the aim of managing trial time
and avoiding cumulative testimony, no significant constitu-
tional issue could be presented. But in my view what makes
the decision of the state trial court an unreasonable applica-
tion of Supreme Court precedent is the total exclusion of testi-
mony by a key defense expert witness in a murder case on a
critical issue that could likely affect the verdict of the jury. Cf.
Boykins v. Wainwright, 737 F.2d 1539, 1544-45 (11th Cir.
1984) (noting that fundamental fairness is violated when the
evidence excluded is material as being crucial, critical, and a
highly significant factor in the defense, and concluding that
exclusion of defense witness’s testimony concerning defen-
dant’s mental health history violated fundamental fairness
when defendant’s sole defense at trial was insanity).

Although I understand the majority’s line of reasoning in
analysis, I am left with the conclusion that the expert Dr. Wil-
son’s testimony was critical to Moses’s case in the full con-
text presented. Moses had admitted not only to his presence
when Jennifer died, but that he was either reaching for the gun
or actually had his hand on it when it fired. Moses’s trial
boiled down to a determination of whether Moses killed Jen-
nifer with the requisite intent or whether Jennifer had commit-
ted suicide as Moses tried to stop her. Given this defense
theory, Dr. Wilson’s testimony was central to the defense’s
case. It was imperative that the jury fully understand not only
Jennifer’s history of major depression but also the nature,
attending implications, and occasionally-misleading external
appearance of major depression and suicidal tendencies gen-
erally. Moreover, Moses had an interest in presenting his
points of defense through Dr. Wilson who, in a coordinated
way, could put together the disparate pieces of the puzzle that
 MOSES v. PAYNE 1123
Jennifer’s mental health treatment providers, from whom the
jury heard portions of Jennifer’s medical records, had pre-
sented, and give an overview that would be helpful to the
jury’s understanding.

Dr. Wilson’s testimony in my view was of significant pro-
bative value. Dr. Wilson’s testimony was aimed at providing
framework and context to help the jury make sense of the
medical and psychological diagnoses that it heard from other
witnesses, to assess the plausibility that Jennifer had commit-
ted suicide. The trial judge based his dismissal of Dr. Wil-
son’s testimony in large part on his assessment that
“depressed people are more likely to kill themselves than peo-
ple who are not depressed. I think the jury understands that,”
and a series of corresponding, reductive assessments that “ac-
cess to guns for people who are depressed is a bad thing . . . .
Drug and alcohol use makes the problem worse[,]” and so on.
Although the trial court thus reduced much of Dr. Wilson’s
testimony to being common knowledge, and though the spe-
cific statements that the trial judge made are indeed arguably
common knowledge, or at least common sense, an analysis of
Dr. Wilson’s proffered testimony reveals that those simplistic
propositions are an unfair characterization of the essence of
his testimony. The state trial court would have judged in a
more fair procedure if it had let the jury hear the defense’s
expert evidence and then make its own decision.

First, it is not without significance that one of the most cen-
tral points of Dr. Wilson’s testimony—as a renowned, indis-
putable expert in the field of psychiatry generally and
depression specifically—would have been to elaborate on
implications of major depression, including the extent to
which the reality of major depression in fact diverges from the
layperson’s impression. Elaboration on implications of a key
illness, and particularly a mental illness, is not in common
knowledge of all jurors.

Second, the trial court improperly discarded Dr. Wilson’s
proffered testimony about studies, concerning the increased
1124 MOSES v. PAYNE
likelihood that a depressed person will commit suicide, that
are not within the jury members’ common knowledge. In his
offer of proof, Dr. Wilson had discussed, among other things,
empirical studies indicating that if one follows a group of peo-
ple who have major depression over their lifetime, about 15%
will kill themselves. Both the trial court and the Washington
Court of Appeals diminished this testimony to, in essence, an
indication that Jennifer had a 0.25% increased chance of com-
mitting suicide during the six-month period preceding her
death.

There are flaws with this reasoning. First, this statement
and the trial judge’s comment, stated above, about depressed
people being more likely than non-depressed people to com-
mit suicide, both misunderstand the import of Dr. Wilson’s
testimony: his statement concerns the probability that a
depressed person will commit suicide over his/her lifetime,
not the extent to which a depressed person is more likely than
a non-depressed person to commit suicide. Second, the calcu-
lation falsely assumes a linear trajectory that is an inappropri-
ate inference from the statistics Dr. Wilson cites; that the
overall percent is 15% does not mean that one can mechanisti-
cally divide a depressed person’s life expectancy by a particu-
lar time frame to determine in any meaningful way the
chances of suicide during that time frame. The state trial court
missed the broader message: that people with major depres-
sion have a significant likelihood of committing suicide at
some point in their lives, and correspondingly, that the lives
of 15% of individuals with major depression end in suicide
(i.e., the statistic derives its import from a focus on the
depressed person’s death, not the life or its duration). Again,
the state trial court would have been on sounder ground to let
the jury assess the significance of the expert’s testimony,
rather than just suggesting it was obvious as well as de
minimis and excluding it. The issue was not whether a person
with major depression is more likely than other individuals to
commit suicide but rather the likelihood that a person with
major depression is going to commit suicide at all. To assess
 MOSES v. PAYNE 1125
that likelihood the jury would have benefitted from hearing
Dr. Wilson.

The trial court also excluded Dr. Wilson’s testimony on the
basis that he could not state, on a more probable than not
basis, that Jennifer committed suicide. However, no one who
was not a percipient witness could have done so definitively.
The case presented very little objective evidence of Jennifer’s
mental state in the weeks and days immediately preceding her
death. Yet this does not render Dr. Wilson’s testimony any
less essential to the jury’s complete picture of Moses’s case.
Given the dearth of psychological evidence one way or
another, Dr. Wilson’s testimony about the implications of
major depression and the unlikelihood of Jennifer’s recovery
was pivotal to Moses’s case and all the more constitutionally
protected.

Moses’s only defense was that Jennifer had committed sui-
cide. It was essential that the jury understand major depres-
sion in conjunction with Jennifer’s history. Exclusion of Dr.
Wilson’s testimony handicapped Moses’s ability to impart
such an understanding. Stated another way, the defense did
not get a fair shot to present its defense theory through expert
testimony.

By contrast, the state’s interest in wholly excluding Dr.
Wilson’s testimony in this instance was minimal. The trial
judge noted that the jury would already know that there were
firearms in the Moses home and would hear evidence of Jen-
nifer’s various recent medical and psychological treatments.
The trial court summarized the state’s interest, in effect, as
follows: “the expert witness testimony . . . would be a waste
of time. It poses a risk of confusion for the jury and brings us
far too far afield of the issues relevant in this case.” However,
Moses offered Dr. Wilson’s testimony so that the depression
expert could testify on issues at the very heart of Moses’s
trial: the likelihood or plausibility that Jennifer had committed
suicide and the likelihood that other individuals—Jennifer’s
1126 MOSES v. PAYNE
acquaintances and the jury alike—would misunderstand the
appearance and ramifications of a “major depression” diagno-
sis without the insight his testimony would provide. Dr. Wil-
son’s testimony cannot fairly be characterized either as a
waste of time or as “too far afield.” Dr. Wilson was indisputa-
bly competent to give his views on depression, and it strains
imagination to suggest that his views would have been a time
waste and not a help to a jury charged with determining the
fate of Moses.

Further, contrary to the trial court’s suggestion, the subject
matter posed no likelihood of confusing the jury. Indeed, the
trial court’s statement on the one hand that Dr. Wilson’s testi-
mony was, in essence, “common knowledge” is at odds with
its subsequent statement, on the other hand, that the testimony
poses a risk of jury confusion. And any minimal, potential
risk for confusion could have been contained by simple, clari-
fying cross examination. As for the potential for some aspects
of Dr. Wilson’s testimony to be cumulative of points estab-
lished by testimony from other witnesses, or from documen-
tary sources, a reasonable solution, in light of the fact that Dr.
Wilson’s testimony added some additional perspectives about
the nature of depression and possibilities of recovering from
it, would have been to permit Dr. Wilson’s testimony, but to
draw reasonable lines or limits on its scope.

The state’s interest in excluding Dr. Wilson’s testimony
was minimal when weighed against Moses’s substantial inter-
est in having the jury hear it, given its centrality to his sole
theory of defense. Exclusion of the testimony not only inhib-
ited the jury’s ability to have a clearer picture of the case
before it, but it denied Moses his clearly established constitu-
tional right to present a defense to the jury. Just as the
Supreme Court in Chambers held that existing constitutional
principles determined that the evidence exclusion deprived
the defendant of his right to present a defense, here it was an
objectively unreasonable application of Washington for the
 MOSES v. PAYNE 1127
trial court to exclude Dr. Wilson’s testimony and for the court
of appeals to affirm.

Finally, I cannot say that the exclusion of Dr. Wilson’s tes-
timony did not have a “substantial and injurious effect” on the
jury’s verdict. See Brecht v. Abrahamson, 507 U.S. 619, 623
(1993). Dr. Wilson’s testimony was important to the jury’s
ability fully to assess the ramifications not only of major
depression generally but of Jennifer’s specific past, including
her various diagnoses. Given the centrality of this testimony
to Moses’s sole theory of defense, I am in “grave doubt” as
to the error’s effect, and thus cannot deem the error harmless.
See O’Neal v. McAninch, 513 U.S. 432, 436-37 (1995). The
error significantly hampered Moses’s ability to present a com-
plete and accurate picture of Jennifer’s mental state at the
time of death and its implications for her likely cause of
death, and I cannot say that it was not likely to have a sub-
stantial and injurious effect on the jury verdict.

Even if the majority were right that we should not apply the
balancing test of Miller v. Stagner, I would not view this case
in an “open area” where habeas relief is unwarranted. Even
without applying a balancing test, I reach the same conclusion
simply by recourse to what the Supreme Court said in Wash-
ington and its related cases. Our Miller case merely shows a
rational way to assess considerations that are pertinent under
the Supreme Court’s precedent. This balancing test does not
impose a new standard of circuit-made law upon the states.
Here, the presentation of a key defense witness was excluded,
and Moses did not get the opportunity to fairly present his
defense theory.

I reluctantly conclude that Moses was unduly constricted in
presenting his defense which was objectively unreasonable,
and thereby did not receive a fair trial. The Supreme Court’s
Washington decision and related cases are ample precedent to
give relief. The case presents a question of high concern
because if Moses’s wife committed suicide, then an innocent
1128 MOSES v. PAYNE
man is in prison. As noted earlier in such a case we can never
be absolutely certain of what truly occurred, and in our sys-
tem of criminal justice we must rest on the jury’s decision
when it has been fully and fairly advised of the defense’s
position. Doubtless, the trial court could have limited and cir-
cumscribed the scope of testimony from Moses’s expert, but
to totally preclude that expert witness from testifying is for
me a step drastically too far in a murder case where possible
suicide was the critical issue and the deceased had a history
of severe depression.

The way the majority reads Musladin and Van Patten
would go pretty far in depriving anyone habeas relief who
does not have a case identical to one the Supreme Court has
already decided. To take that approach reflects an incorrect
judgment that may limit the efficacy of habeas relief, an
approach particularly ironic in light of the Supreme Court’s
recent tribute to habeas jurisdiction in Boumediene v. Bush,
128 S.Ct. 2229 (2008).

I would therefore reverse the district court’s order denying
Moses’s petition for a writ of habeas corpus, and remand the
case with instructions to grant the writ and to order the pris-
oner released absent retrial within a specified period. Thus, I
respectfully dissent.