NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS SEP 24 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFF N. ROSE, No. 17-15009
Petitioner-Appellant, D.C. No.
3:13-cv-00267-MMD-WGC
v.
RENEE BAKER, Warden; ATTORNEY MEMORANDUM*
GENERAL FOR THE STATE OF
NEVADA,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Miranda M. Du, District Judge, Presiding
Argued April 9, 2018
Submitted September 24, 2019
San Francisco, California
Before: WARDLAW and CLIFTON, Circuit Judges, and KATZMANN,** Judge.
Jeff Rose appeals the district court’s denial of his 28 U.S.C. § 2254 habeas
corpus petition. We have jurisdiction under 28 U.S.C. §§ 1291, 2253 and review
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Gary S. Katzmann, Judge for the United States Court
of International Trade, sitting by designation.
the district court’s denial of Rose’s petition de novo. Lambert v. Blodgett, 393
F.3d 943, 964 (9th Cir. 2004). We affirm in part and reverse in part.
1. Rose claims that the Nevada Supreme Court’s holding, without reasoning,
that the admission of polygrapher Gordon Moore’s testimony about Rose’s false
admissions during his polygraph exam and a selective transcript of the exam did
not violate his due process right to a fair trial was contrary to or an unreasonable
application of clearly established Supreme Court law. 28 U.S.C. § 2254(d)(1).
Although the district court denied this claim, it certified the claim for appellate
review. We conduct an independent review of the record. See Greene v. Lambert,
288 F.3d 1081, 1088-89 (9th Cir. 2002). We affirm.
A defendant is deprived due process of law if he is denied “a fair hearing
and a reliable determination on the issue of voluntariness” of an admission.
Jackson v. Denno, 378 U.S. 368, 377 (1964).
Although Rose received such a hearing, he claimed it was “aborted” and
“neither ‘fair’ nor a ‘reliable determination.’” It is not enough, however, for Rose
to point to shortcomings in the state court procedures used to decide the issue of
voluntariness. Procunier v. Atchley, 400 U.S. 446, 451 (1971). Rose must “also
show that his version of events, if true, would require the conclusion that his
confession was involuntary.” Id. Even if the hearing were procedurally deficient
as alleged, we conclude it would not have been unreasonable for the Nevada
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Supreme Court to have determined that Rose voluntarily made the false admissions
to Moore.
Moore read Rose his Miranda warnings, advised Rose that he was free to
leave at any time, and had Rose sign a document indicating he understood his
rights. Rose voluntarily drove himself to the building where the questioning took
place, he was not handcuffed or placed under arrest immediately before or after the
questioning, he was never physically threatened or harmed, and there is little
indication that the questioning rose to the level of improper psychological pressure.
Giving deference to the factual findings of the trial judge, who had presided over
Rose’s first trial, the Nevada Supreme Court could have reasonably concluded
Rose voluntarily made the statements to Moore.
Rose additionally claimed that even if the admissions to Moore were
voluntary, the trial court deprived him of “a meaningful opportunity to present a
complete defense” when it prohibited him from explaining that these false
admissions were made in an attempt to explain the purported results of a failed
polygraph examination. We conclude this argument has not been exhausted
because Rose failed to provide Nevada state courts with notice or a “fair
opportunity” to address this federal constitutional claim. Castillo v. McFadden,
399 F.3d 993, 998–99 (9th Cir. 2005); see also Duncan v. Henry, 513 U.S. 364,
365-66 (1995) (per curiam). We cannot grant habeas relief on an unexhausted
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claim. 28 U.S.C. § 2254(b)(1)(A).1
2. Rose additionally argued that the Nevada Supreme Court’s decision
upholding an order by the trial court that excluded all evidence relating to other
accusers or the results of the first trial was contrary to or an unreasonable
application of federal law. The district court did not certify this claim for appeal,
but Rose presented arguments on this and other uncertified claims in his opening
brief, and we ordered the parties to brief those issues on the merits. We construe
Rose’s arguments as a motion to expand the certificate of appealability (COA). See
9th Cir. R. 22-1(e). Because Rose “has made a substantial showing of the denial of
a constitutional right,” we grant a COA as to claim one of his amended federal
habeas petition. 28 U.S.C. 2253(c)(2); see also Buck v. Davis, 137 S. Ct. 759, 773
(2017). We reverse the judgment of the district court and remand with instructions
to conditionally grant the writ of habeas corpus pending a new trial.
Just prior to trial, the court ruled that “neither the State nor the Defense is
going to be able to bring in any evidence of any prior trial, any acquittal, any other
1
Even if the argument were exhausted, it is a nonstarter because, as Rose
conceded, he “never sought to admit the purported results of the test,” even in the
alternative. Rose’s statements to Moore were admissible to show Rose’s attempts
to explain the victims’ allegations, and the admission of the statements was not
prohibited by clearly established federal law. The allegedly excluded evidence that
would have put Moore’s testimony into context, the polygraph evidence, was the
evidence that Rose himself fought to exclude.
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victims,” even in the context of cross-examining his accusers. Rose contended this
ruling gutted his intended defense theory and violated his constitutional right to “a
meaningful opportunity to present a complete defense,” Crane v. Kentucky, 476
U.S. 683, 690 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485 (1984)).
“Whether rooted directly in the Due Process Clause of the Fourteenth
Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth
Amendment the Constitution guarantees criminal defendants a meaningful
opportunity to present a complete defense.” Crane, 476 U.S. at 690 (citations
omitted). An evidentiary ruling abridges this right if it is “‘arbitrary’ or
‘disproportionate to the purposes they are designed to serve[,]’ . . . [and] it has
infringed upon a weighty interest of the accused.” United States v. Scheffer, 523
US. 303, 308 (1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987).
A.C.’s and C.C.’s testimonies were “central, indeed crucial, to the
prosecution’s case.” Olden v. Kentucky, 488 U.S. 227, 233 (1988) (per curiam).
A.C. testified she saw Rose molest C.C., yet she had previously stated to a
detective that Rose molested other girls, all of whom were purportedly ready to
testify otherwise. The trial court’s limitation on the scope of Rose’s cross-
examination of A.C. prevented him from impeaching her on these similar
accusations. Further, because Rose could not cross-examine A.C. and C.C. about
their relationship with D.A. and other accusers or present evidence of his earlier
5
acquittals, Rose was unable to present the jury with a coherent narrative regarding
the context in which the accusations arose. Because the trial court’s ruling barred
Rose from mentioning the other accusations for which he was acquitted, it also
precluded him from introducing expert testimony that conversations between other
accusers and A.C. and C.C. contained “sufficient indicators of suggestibility or
taint which may render their statements unreliable.”
We conclude the limits the trial court placed on the scope of Rose’s cross-
examination of A.C. and C.C. were disproportionate and beyond reason as “[a]
reasonable jury might have received a significantly different impression of [the
witness’s] credibility had [defense counsel] been permitted to pursue his proposed
line of cross-examination.” Id. at 232 (quoting Delaware v. Van Arsdall, 475 U.S.
673, 680 (1986)). Although there was a risk that a focus on the results and
accusations from the first trial could confuse the jury in the second trial, the trial
court could have mitigated this concern with a narrower ruling.2 The overly broad
evidentiary ruling was not harmless as demonstrated by the hung jury in the first
trial, during which the charges relating to C.C. were placed in context.
2
Nevada v. Jackson, 569 U.S. 505 (2013), on which the state relies, is
distinguishable. Unlike Rose, the defendant in Jackson was given “wide latitude to
cross-examine” his accusers. Id. at 507; see id. at 511–12 (criticizing this court for
“elid[ing] the distinction between cross-examination and extrinsic evidence”).
6
Because the limits the trial court placed on the scope of Rose’s cross-
examination denied him a “meaningful opportunity to present a complete defense,”
Crane, 476 U.S. at 690, we conclude the Nevada Supreme Court’s decision
upholding it was contrary to clearly established federal law. We accordingly
reverse the district court on this issue and remand with instructions to grant the
writ pending a new trial.
3. We have carefully examined the remaining two uncertified issues and
conclude Rose has not demonstrated that “reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.” Miller-El v.
Cockrell, 537 U.S. 322, 338 (2003) (quoting Slack v. McDaniel, 529 U.S. 473, 484
(2000)). We accordingly deny Rose’s request to certify his two remaining
uncertified claims.
AFFIRMED IN PART, REVERSED IN PART, AND REMANDED
with instructions to conditionally grant the writ pending a new trial.
7