FILED
NOT FOR PUBLICATION JUN 12 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GINA GAIL CELAYA, No. 10-15935
Petitioner - Appellant, D.C. No. 4:01-cv-00622-DCB
v.
MEMORANDUM *
CHARLES L. RYAN; et al.,
Respondents - Appellees.
GINA GAIL CELAYA, No. 10-15964
Petitioner - Appellee, D.C. No. 4:01-cv-00622-DCB
v.
CHARLES L. RYAN; et al.,
Respondents - Appellants.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
Argued and Submitted May 16, 2012
San Francisco, California
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.
Charles Ryan, et al., (collectively, Respondents-Appellants/Cross-Appellees)
appeal the district court’s conclusion that Gina Gail Celaya’s habeas petition was
timely under 28 U.S.C. § 2244(d). Respondents also appeal the district court’s
decision that Celaya’s trial was fundamentally unfair, entitling her to habeas relief.
Celaya cross-appeals the lower court’s holding that she procedurally defaulted on
her ineffective assistance of counsel claims. We have jurisdiction under 28 U.S.C.
§§ 1291 and 2253, and we affirm. Because the parties are familiar with the factual
and procedural history of this case, we need not recount it here.
I
The Antiterrorism and Effective Death Penalty Act provides, “[t]he time
during which a properly filed application for State post-conviction . . . review . . . is
pending shall not be counted toward any period of limitation.” 28 U.S.C. §
2244(d)(2). The pendency of such an application is determined by state law. See
Wixom v. Washington, 264 F.3d 894, 897 (9th Cir. 2001) (applying Washington
law). Under Arizona law, Celaya’s PCR petition was “pending” until the Arizona
Court of Appeals issued the mandate concluding its review of that petition on
November 30, 2000. See Carey v. Saffold, 536 U.S. 214, 219-20 (2002); see also
Hemmerle v. Schriro, 495 F.3d 1069, 1077 (9th Cir. 2007); Borrow v. El Dorado
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Lodge, Inc., 254 P.2d 1027, 1028 (Ariz. 1953). Accordingly, Celaya’s habeas
petition, filed on November 28, 2001, was timely.
II
The trial court’s exclusion of Celaya’s proferred witnesses rendered her trial
fundamentally unfair in violation of clearly established federal law. Arizona Rule
of Evidence 404(b) provides that “evidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. It may, however, be admissible for other purposes, such as proof of
motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident.” Ariz. R. Evid. 404(b). Celaya sought to introduce testimony
that was probative of Lopez’s motive and intent. The three witnesses that the trial
court excluded would have corroborated Celaya’s testimony; indeed, they were
vital to Celaya’s defense. The trial court erred when it excluded that evidence,
rendering the trial fundamentally unfair. See State v. Fish, 213 P.3d 258 (Ariz. Ct.
App. 2009); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“Few
rights are more fundamental than that of an accused to present witnesses in his own
defense.”); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).
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This error “had substantial and injurious effect or influence in determining
the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting
Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The Arizona Court of
Appeals’s denial of relief for this constitutional violation was contrary to clearly
established federal law under 28 U.S.C. § 2254.
We need not reach any other issue raised on appeal.
AFFIRMED.
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