FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DONALD SHERMAN, No. 16-99000
Petitioner-Appellant, D.C. No. 2:02-cv-
01349-LRH-VCF
v.
WILLIAM GITTERE, Warden; OPINION
AARON DARNELL FORD, Attorney
General of Nevada,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Nevada
Larry R. Hicks, District Judge, Presiding
Argued and Submitted September 20, 2023
San Francisco, California
Filed February 9, 2024
Before: Ronald M. Gould, Bridget S. Bade, and Patrick J.
Bumatay, Circuit Judges.
Opinion by Judge Bumatay
2 SHERMAN V. GITTERE
SUMMARY *
Habeas Corpus / Death Penalty
The panel affirmed the district court’s denial of Donald
Sherman’s 28 U.S.C. § 2254 habeas corpus petition
challenging his Nevada conviction and death sentence for
robbery, burglary, and the first-degree murder of Dr. Lester
Bauer.
The district court granted a certificate of appealability on
Sherman’s claim that the trial court violated Sherman’s
constitutional right to present a defense by excluding certain
impeaching evidence about Dr. Bauer’s daughter, whom
Sherman had dated.
Sherman argued that de novo review, rather than the
Antiterrorism and Effective Death Penalty Act’s deferential
standard, applies to his right-to-present-a-complete-defense
claim. The panel wrote that Sherman waived this issue by
not presenting it to the district court and that AEDPA review
applies in any event because Sherman did not rebut the
presumption that the Nevada Supreme Court adjudicated his
federal constitutional claim on the merits.
On the merits, the panel held that Sherman did not show
that the Nevada Supreme Court’s denial of his right-to-
present-a-complete-defense claim was contrary to, or
involved an unreasonable application of, clearly established
federal law, as determined by the Supreme Court of the
United States, or was based on an unreasonable
*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
SHERMAN V. GITTERE 3
determination of the facts. The panel wrote the Nevada
Supreme Court’s rulings on the exclusion of the evidence
under Nev. Rev. Stat. § 50.085(3) (generally prohibiting the
use of extrinsic evidence to prove specific instances of
conduct to undermine a witness’s credibility) and Nev Rev.
Stat. § 48.035(1) (permitting the exclusion of evidence if its
probative value is substantially outweighed by the danger of
issue confusion or misleading the jury) were not contrary to,
or an unreasonable application of, clearly established federal
law. The panel concluded that the Nevada Supreme Court’s
alternative conclusion that any error was harmless was not
unreasonable.
In a concurrently filed memorandum disposition, the
panel declined to expand the certificate of appealability to
include other claims.
COUNSEL
David Anthony (argued), Assistant Federal Public Defender;
Rene L. Valladares, Federal Public Defender; Las Vegas
Federal Public Defender’s Office, Las Vegas, Nevada; for
Petitioner-Appellant.
Heather D. Procter (argued), Deputy Attorney General;
Aaron D. Ford, Nevada Attorney General; Nevada Attorney
General’s Office, Carson City, Nevada; Erica Berrett, Senior
Deputy Attorney General; Nevada Attorney General’s
Office, Las Vegas, Nevada; for Respondents-Appellees.
4 SHERMAN V. GITTERE
OPINION
BUMATAY, Circuit Judge:
On June 1, 1994, Dr. Lester Bauer was found bludgeoned
to death in his home in Las Vegas, Nevada. The next day,
Donald Sherman, who had dated Dr. Bauer’s daughter, was
arrested for his murder. In February 1997, a Nevada jury
found Sherman guilty of robbery, burglary, and first-degree
murder. The jury determined that the aggravating
circumstances outweighed the mitigating circumstances and
imposed the death penalty. The Nevada Supreme Court
affirmed Sherman’s convictions and sentence on direct
appeal.
Following unsuccessful postconviction petitions in state
court, Sherman raised several claims in a federal petition for
a writ of habeas corpus under 28 U.S.C. § 2254. The federal
district court later denied the petition but granted a certificate
of appealability on a single claim—whether the trial court
violated Sherman’s constitutional right to present a complete
defense by excluding certain impeaching evidence about Dr.
Bauer’s daughter. Sherman now appeals this ruling.
Because the Nevada court’s resolution of this right-to-a-
complete-defense claim was not “contrary to, or . . . an
unreasonable application of, clearly established Federal law”
or “based on an unreasonable determination of the facts,” we
affirm. See 28 U.S.C. § 2254(d)(1)–(2). Sherman also seeks
to expand the certificate of appealability to include seven
other claims. In a concurrently filed memorandum, we deny
the certificate for each of the uncertified claims.
SHERMAN V. GITTERE 5
I.
Sherman began dating Dianne Bauer in 1992, moving
into her Longview, Washington house soon after. Dianne
would regularly visit her father, Dr. Bauer, in Las Vegas
while she and Sherman dated. The following year, Dianne
and Sherman relocated to Alaska but then broke up.
According to Dianne, in April 1994, while she was driving
on a highway, she saw Sherman in another car—Sherman
then pointed his hand, shaped as a gun, at her.
On May 1, 1994, Dianne’s friend, Erin Murphy,
informed her that Sherman was going to Las Vegas and that
she feared he would harm Dr. Bauer. Murphy told Dianne
that she should tell her father and the Las Vegas Police
Department. Dianne says that she informed her brother, the
Longview Police Department, and the FBI about the danger
Sherman posed to her father.
On June 1, 1994, after receiving a call from a concerned
neighbor, a Las Vegas police officer went to check on Dr.
Bauer at his home. The officer noticed that one of the front
windows was ajar and the screen was placed backward. She
entered through the window and found Dr. Bauer dead, lying
in a bed covered in blood. Blood was splattered across the
headboard and bedroom walls, and soaked the blankets on
the bed. The officer observed that a blood-spattered
telephone receiver had been removed from the bedroom and
placed in the hallway.
The autopsy report showed that Dr. Bauer was struck in
the head with a hammer five to seven times. Although the
strikes were hard enough to fracture his skull and damage his
brain, Dr. Bauer did not die instantly. The medical examiner
concluded that Dr. Bauer likely died between the night of
May 29 and the early hours of May 30.
6 SHERMAN V. GITTERE
Meanwhile, Sherman stayed at a local Las Vegas hotel
from May 28 to May 31, 1994, which coincided with the
murder. On May 30, Sherman called Swinging Susie’s, an
escort service, and asked for an escort to meet him at his
hotel room. An escort, “Paige,” met with Sherman, who
introduced himself as “Dr. Bauer.” Sherman paid for
Paige’s services with Dr. Bauer’s credit card and signed the
receipt as “Dr. Lester Bauer.” Paige returned to Sherman’s
hotel the next morning, May 31.
Later on May 31, Sherman checked into a hotel in Santa
Barbara, California. Again, he introduced himself as “Lester
Bauer,” paid with Dr. Bauer’s credit card, and signed the
receipt as “Dr. Lester Bauer.”
On June 2, Santa Barbara law enforcement arrested
Sherman while he slept in Dr. Bauer’s stolen car. Inside
Sherman’s wallet the officers found Dr. Bauer’s credit cards
and restaurant and jewelry-store receipts signed by “Lester
Bauer.”
Sherman was charged with robbery, burglary, and first-
degree murder. During the guilt phase of his trial, the jury
found Sherman guilty on all counts. At the penalty phase,
the jury found four aggravating circumstances: (1) Sherman
had been convicted of another murder; 1 (2) Sherman was
under a sentence of imprisonment when he committed the
murder; (3) the murder was committed during a burglary;
and (4) the murder was committed during a robbery. The
jury also found three mitigating circumstances: (1) the
murder was committed when Sherman was under the
1
In 1981, as a juvenile, Sherman was arrested for murdering 62-year-old
Harold Marley in his Idaho grocery store. Sherman pleaded guilty and
received a life sentence with the possibility of parole. He was paroled in
1992.
SHERMAN V. GITTERE 7
influence of an extreme mental or emotional disturbance;
(2) Sherman acted under duress or domination of another
person; and (3) “other mitigating circumstances.” The jury
determined that the aggravating circumstances outweighed
the mitigating circumstances and returned a death sentence.
On direct appeal, the Nevada Supreme Court affirmed
Sherman’s convictions and sentence. The United States
Supreme Court declined Sherman’s petition for writ of
certiorari. Sherman v. Nevada, 526 U.S. 1122 (1999). Next,
Sherman filed a state habeas petition, which the Nevada trial
court denied, and the Nevada Supreme Court affirmed the
denial.
Sherman then filed a federal habeas petition under 28
U.S.C. § 2254 in 2002 and a first amended petition in 2005.
This petition was held in abeyance while Sherman returned
to state court to exhaust his claims. Sherman filed a second
state habeas petition, which the Nevada trial court denied as
procedurally barred. The Nevada Supreme Court then
affirmed and denied a petition for rehearing.
The federal habeas proceedings were then reopened, and
Sherman filed his second amended petition. The State of
Nevada moved to dismiss the petition. The federal district
court dismissed several claims as procedurally defaulted and
denied the remaining claims on the merits. The district court
later denied Sherman’s motion for reconsideration. This
appeal follows.
We have jurisdiction under 28 U.S.C. §§ 1291 and
2253(a) and review the district court’s denial of the petition
de novo. See Avena v. Chappell, 932 F.3d 1237, 1247 (9th
Cir. 2019).
8 SHERMAN V. GITTERE
II.
In his certified claim, Sherman alleges that the state trial
court violated his constitutional right to present a complete
defense by excluding certain testimony impeaching Dianne
Bauer, which he asserts prevented him from presenting his
theory of defense. See California v. Trombetta, 467 U.S.
479, 485 (1984); see also Crane v. Kentucky, 476 U.S. 683,
690 (1986) (holding that the defendant’s “opportunity [to be
heard] would be an empty one if the State were permitted to
exclude competent, reliable evidence bearing on . . . the
defendant’s claim of innocence”).
At the close of its case-in-chief, the State orally moved
in limine to bar Sherman from eliciting testimony from other
witnesses that (1) Dianne had told people that her father
molested her when she was a child and (2) contradicted
Dianne’s testimony that Sherman threatened her on a
highway in Alaska. The prosecutor argued that these topics
were collateral matters that could not be impeached with
extrinsic evidence under Nevada Revised Statute (“Nev.
Rev. Stat.”) § 50.085(3). Sherman opposed the motion.
According to Sherman, this evidence would counter the
State’s narrative that Sherman killed Dr. Bauer to hurt
Dianne after she broke up with him. Instead, Sherman
believes this evidence would show that Dianne was not a
loving or caring daughter and that she manipulated Sherman
into confronting Dr. Bauer.
The trial court ruled that this evidence went to collateral
matters and granted the State’s motion under Nev. Rev. Stat.
SHERMAN V. GITTERE 9
§ 50.085(3). 2 On direct appeal, the Nevada Supreme Court
affirmed. On federal habeas review, the district court ruled
that the Nevada Supreme Court’s decision was not contrary
to or an unreasonable application of clearly established
federal law. The district court also concluded that, even if
the evidentiary ruling was a constitutional violation, it was
harmless error under Brecht v. Abrahamson, 507 U.S. 619,
637 (1993). The district court then granted a certificate of
appealability on Sherman’s claim that the state court’s
evidentiary ruling violated his constitutional right to present
a complete defense.
A.
Before turning to the merits of this claim, we address the
proper standard of review. The Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”) “sharply limits” our
review of any claim adjudicated on the merits in state court.
Johnson v. Williams, 568 U.S. 289, 298 (2013). We may not
grant a petition on an adjudicated claim unless the state
court’s decision was (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law,
as determined by the Supreme Court of the United States,”
or (2) “based on an unreasonable determination of the facts
in light of the evidence presented in the State court
proceeding.” 28 U.S.C. § 2254(d)(1)–(2). But for any claim
not adjudicated on the merits by the state court, our review
is de novo. See Patsalis v. Shinn, 47 F.4th 1092, 1097–98
(9th Cir. 2022).
2
Under the Nevada law, “[s]pecific instances of the conduct of a witness,
for the purpose of attacking or supporting the witness’s credibility, other
than conviction of crime, may not be proved by extrinsic evidence.”
Nev. Rev. Stat. § 50.085(3).
10 SHERMAN V. GITTERE
For the first time on appeal, Sherman argues that de novo
review, not AEDPA’s deferential standard, applies to his
right-to-present-a-complete-defense claim because the
Nevada Supreme Court failed to adjudicate it on the merits.
Sherman contends that Nevada’s highest court “overlooked”
his federal constitutional claim and denied the claim solely
on state-law grounds. To begin, Sherman waived this issue
by not presenting it to the district court. See Allen v. Ornoski,
435 F.3d 946, 960 (9th Cir. 2006). In any event, we apply
AEDPA deference here.
As we recently stated, “[w]hen a petitioner presents a
federal claim ‘to a state court and the state court has denied
relief,’ we presume that ‘the state court adjudicated the claim
on the merits in the absence of any indication or state-law
procedural principles to the contrary.’” Patsalis, 47 F.4th at
1098 (quoting Harrington v. Richter, 562 U.S. 86, 99
(2011)). We apply this presumption “even when the state
court resolves the federal claim in a different manner or
context than advanced by the petitioner so long as the state
court ‘heard and evaluated the evidence and the parties’
substantive arguments.’” Id. (quoting Johnson, 568 U.S. at
302 (emphasis in original)).
We adhere to this “strong” presumption because “it is not
the uniform practice of busy state courts to discuss
separately every single claim to which a defendant makes
even a passing reference.” Johnson, 568 U.S. at 298. And
so federal habeas law “does not require a state court to give
reasons before its decision can be deemed to have been
‘adjudicated on the merits.’” Id. (quoting Richter, 562 U.S.
at 100). Thus, the presumption applies “[w]hen a state court
rejects a federal claim without expressly addressing that
claim.” Id. at 301.
SHERMAN V. GITTERE 11
But this presumption can be “rebutted” in “limited” or
“unusual circumstances.” Id. at 301–02. Thus, for example,
the presumption doesn’t hold if the federal claim was
“rejected as a result of sheer inadvertence.” Id. at 302–03.
Even so, to show this, “the evidence” must “very clearly”
lead to “the conclusion that a federal claim was inadvertently
overlooked in state court.” Id. at 303.
Here, Sherman has not rebutted the presumption that the
Nevada Supreme Court adjudicated his federal claim on the
merits. Instead, we conclude that the state court “heard and
evaluated the evidence and the parties’ substantive
arguments” regarding Sherman’s federal right-to-a-
complete-defense claim. Patsalis, 47 F.4th at 1098 (quoting
Johnson, 568 U.S. at 302 (emphasis in original)). While
Sherman’s briefing was “somewhat confusing,” Sherman v.
State, 114 Nev. 998, 1007 (1998), Sherman presented his
federal claim to the Nevada Supreme Court in a section of
his appellate opening brief entitled “the [trial] court erred in
denying Sherman the ability to impeach Dianne Bauer and
to establish a defense to the charge of first degree murder.”
Sherman then discussed the evidentiary and constitutional
issues together—with most of the section focused on the
evidentiary error. Only in one line of the final paragraph of
the section did Sherman contend the evidentiary “ruling
deprived Sherman of an effective defense under the Sixth
Amendment and violated his right to a fundamentally fair
trial and due process of law.” Indeed, Sherman’s briefing
failed to cite a single federal case discussing the
constitutional right to present a complete defense.
Despite this lack of clarity, the Nevada Supreme Court’s
decision reflects its understanding that the substance of
Sherman’s evidentiary claim presented a constitutional
challenge. It expressly noted Sherman’s argument that the
12 SHERMAN V. GITTERE
excluded evidence was not “simply attacking Dianne’s
credibility as a witness,” but in fact “tended to support his
theory of the case.” Sherman, 114 Nev. at 1007. The
Nevada court recognized that Sherman sought to develop a
defense to first-degree murder with the excluded evidence.
Id. The court recognized Sherman’s argument that, had he
been permitted to introduce the excluded testimony, he could
have shown that “Dianne . . . had somehow provided the
impetus for him to make the trip to Las Vegas by playing
upon his feelings about child abuse” and that Sherman only
entered Dr. Bauer’s house to talk to him about his
“relationship with Dianne” and “only after he was inside the
house did he lose his temper.” Id. The court noted
Sherman’s argument that the excluded evidence could have
been used to “show[] a lesser degree of culpability on his
part.” Id. at 1006.
The Nevada high court thus understood that Sherman’s
claim implicated his constitutional rights. While the court
didn’t expressly purport to decide a federal constitutional
question, its discussion of Sherman’s defense theory shows
that it “understood itself to be deciding a question with
federal constitutional dimensions.” See Johnson, 568 U.S.
at 305. By acknowledging that the excluded evidence
touched on more than just Dianne’s credibility, the court
recognized that the evidentiary ruling also pertained to
Sherman’s constitutional right to present a defense.
And the Nevada Supreme Court’s evaluation of the claim
shows no basis to rebut the presumption of a merits
adjudication. While the state court expressly analyzed the
claim under both Nev. Rev. Stat. §§ 50.085(3) and
SHERMAN V. GITTERE 13
48.035(1), 3 the court’s analysis also suggests
acknowledgment of the claim’s federal dimensions.
Sherman, 114 Nev. at 1006–7. Take the court’s citation to
Rembert v. State, 104 Nev. 680, 683 (1988). Id. at 1006.
Rembert considered whether admitting extrinsic evidence
contrary to Nev. Rev. Stat. § 50.085(3) resulted in the denial
of a “fair trial” and cited Chapman v. California, 386 U.S.
18, 24 (1967)—the seminal case on the federal constitutional
harmless-error standard. See Rembert, 104 Nev. at 683–84.
Thus, this case is like Johnson, in which the Supreme Court
observed that it was “[m]ost important” that the Supreme
Court of California discussed a state-court opinion which
cited several federal cases discussing the constitutional
issue. See Johnson, 568 U.S. at 304 (citing People v.
Cleveland, 25 Cal. 4th 466 (2001)). 4
The Nevada Supreme Court then concluded that the trial
court “implicitly found that the evidence was not relevant for
any purpose other than impeachment or that any relevance
the testimony had toward proving Sherman’s theory was
substantially outweighed by the risk of misleading the jury
or confusing the issues.” Sherman, 114 Nev. at 1007. After
reviewing the record, the Nevada Supreme Court concluded
3
Nev. Rev. Stat. § 48.035(1) states that relevant evidence may be
excluded if “its probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues or misleading the jury.”
4
While the Nevada Supreme Court did not expressly cite this principle,
under Nevada law, the application of Nev. Rev. Stat. § 48.035(1) must
comport with the “due process clause[] . . . right to introduce into
evidence any testimony or documentation which would tend to prove the
defendant’s theory of the case.” See Vipperman v. State, 96 Nev. 592,
596 (1980). So Nevada’s standard for evaluating Nev. Rev. Stat.
§ 48.035(1) is “at least as protective as the federal standard” for
evaluating the admissibility of evidence. Patsalis, 47 F.4th at 1100.
14 SHERMAN V. GITTERE
that excluding the evidence was not “manifestly wrong” and
that any error was harmless. Id.
While the Nevada Supreme Court could have been more
explicit in explaining its ruling, we do not “impose
mandatory opinion-writing standards on state courts.”
Johnson, 568 U.S. at 300 (simplified). Indeed, any
shortcomings in its decision likely originate from Sherman’s
briefing. Considering the minimal attention Sherman
afforded the federal issue in his briefing, it’s understandable
that the Nevada court would not opine on it at length. And
while Sherman complains that the Nevada court’s use of the
deferential “manifestly wrong” standard of review means it
was ruling only on state-law grounds, Sherman himself
argued for the “clearly erroneous” standard in his briefing
before that court. Thus, it is “entirely plausible that the
[Nevada Supreme Court] applied a deferential standard of
review because [Sherman] invited the court to do so—not
because it ignored his constitutional claim.” See Hinkle v.
Neal, 51 F.4th 234, 240 (7th Cir. 2022). We do not demand
that state courts use magical phrases or minimum word
lengths before applying the presumption of adjudication on
the merits.
Even more evidence cuts against Sherman’s claim that
the Nevada court failed to resolve his federal claim. As we
noted earlier, Sherman did not argue that the Nevada
Supreme Court overlooked this federal claim until his
briefing in the Ninth Circuit—despite contending in the
district court that the Nevada court overlooked other claims.
As the Supreme Court has observed, a petitioner
“presumably knows her case better than anyone else, and the
fact that she does not appear to have thought that there was
an oversight” until the federal appellate process “makes such
a mistake most improbable.” See Johnson, 568 U.S. at 306.
SHERMAN V. GITTERE 15
Both Patsalis and Johnson thus show that we must treat
Sherman’s right-to-a-complete-defense claim as adjudicated
on the merits. As in Patsalis and Johnson, Sherman
“presented his state and federal constitutional . . . challenges
together and discussed them interchangeably.” Patsalis, 47
F.4th at 1100. As in Patsalis and Johnson, the Nevada
Supreme Court here “recognized that [Sherman] was
presenting both a state and federal constitutional challenge.”
Id.; see Johnson, 568 U.S. at 294. And in both Patsalis and
Johnson, the federal courts concluded that the claim was
adjudicated on the merits by the state court. Johnson, 568
U.S. at 306; Patsalis, 47 F.4th at 1100. Given the
similarities here, we likewise hold that the Nevada Supreme
Court adjudicated Sherman’s constitutional claim for
violating his right to present a complete defense on the
merits.
In sum, “[t]here is no reason to think that the [Nevada]
court overlooked or failed to resolve [Sherman’s] claim”
regarding his right to present a complete defense. See
Patsalis, 47 F.4th at 1100. We thus review the claim under
AEDPA deference.
B.
Turning to the merits, Sherman has not shown that the
Nevada Supreme Court’s denial of Sherman’s right-to-
present-a-complete-defense claim was “contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States” or “based on an unreasonable determination
of the facts,” 28 U.S.C. § 2254(d)(1)–(2), and so the district
court was right to deny the claim.
Sherman argues that the trial court violated his
constitutional right to present a complete defense when it
16 SHERMAN V. GITTERE
precluded him from presenting evidence to rebut the State’s
theory that Sherman killed Dr. Bauer to hurt Dianne. He
contends that the excluded evidence would have shown that
he was not angry with Dianne over their failed relationship.
Sherman also asserts that the excluded evidence shows that
Dianne manipulated him into confronting Dr. Bauer by
claiming that he molested her and her daughter. From this,
Sherman argues that the jury could have found that he did
not have the requisite intent for first-degree murder—that he
did not intend to kill Dr. Bauer when he traveled to Dr.
Bauer’s Las Vegas home and instead Sherman lost control
when confronting Dr. Bauer.
The constitutional right to “a meaningful opportunity to
present a complete defense” is rooted in both the Due
Process Clause and the Sixth Amendment. Crane, 476 U.S.
at 690 (quoting Trombetta, 467 U.S. at 485); see Chambers
v. Mississippi, 410 U.S. 284, 294 (1973) (“The right of an
accused in a criminal trial to due process is, in essence, the
right to a fair opportunity to defend against the State’s
accusations.”); Washington v. Texas, 388 U.S. 14, 19 (1967)
(“The [Sixth Amendment] 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.”).
This right, however, is not absolute. “[S]tate and federal
rulemakers have broad latitude under the Constitution to
establish rules excluding evidence from criminal trials.”
United States v. Scheffer, 523 U.S. 303, 308 (1998). “Such
rules do not abridge an accused’s right to present a defense
so long as they are not ‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’” Id. (quoting Rock v.
SHERMAN V. GITTERE 17
Arkansas, 483 U.S. 44, 56 (1987)). Generally, the exclusion
of evidence is unconstitutional when it “significantly
undermine[s] fundamental elements of the defendant’s
defense.” Id. at 315. But “well-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.” Holmes v. South Carolina, 547 U.S. 319, 326 (2006).
“Only rarely” has the Supreme Court “held that the right to
present a complete defense was violated by the exclusion of
defense evidence under a state rule of evidence.” Nevada v.
Jackson, 569 U.S. 505, 509 (2013) (per curiam).
The Nevada Supreme Court affirmed the trial court’s
exclusion of the evidence on three grounds: (1) under Nev.
Rev. Stat. § 50.085(3), (2) under Nev. Rev. Stat.
§ 48.035(1), and (3) under a harmless-error analysis.
Reviewing each ground, we conclude that Sherman failed to
satisfy AEDPA’s strict requirements.
i.
Nev. Rev. Stat. § 50.085(3) generally prohibits the use
of extrinsic evidence to prove specific instances of conduct
to undermine a witness’s credibility. The Supreme Court has
expressly recognized its constitutionality and the legitimate
interests it serves. Jackson, 569 U.S. at 509. “The purpose
of that rule,” the Court explained, “‘is to focus the fact-finder
on the most important facts and conserve judicial resources
by avoiding mini-trials on collateral issues.’” Id. (quoting
Abbott v. State, 122 Nev. 715, 736 (2006)). In addition,
“[t]he admission of extrinsic evidence of specific instances
of a witness’ conduct to impeach the witness’ credibility
may confuse the jury, unfairly embarrass the victim, surprise
the prosecution, and unduly prolong the trial.” Id. at 511.
18 SHERMAN V. GITTERE
As the Court observed, Nevada’s rule is like the “widely
accepted rule of evidence law that generally precludes the
admission of evidence of specific instances of a witness’
conduct to prove the witness’ character for untruthfulness.”
Id. at 510 (citing Fed. R. Evid. 608(b)).
Given all this, “[t]he constitutional propriety of
[§ 50.085(3)] cannot be seriously disputed.” Id. Indeed, the
Supreme Court expressly held that none of its decisions
“clearly establishes” that excluding evidence consistent with
§ 50.085(3)’s purposes “violates the Constitution.” Id.
at 511. Sherman has not pointed to any Supreme Court
decision holding otherwise.
And nothing in the record shows that the trial court’s
evidentiary ruling deviated from § 50.085(3)’s legitimate
purposes. As the Nevada Supreme Court found, it was not
manifestly wrong to exclude collateral allegations of
misconduct of a witness who was not on trial. While the
excluded evidence may have somewhat undermined the
State’s theory that Sherman killed Dr. Bauer to get back at
Dianne, it does not negate Sherman’s culpability for first-
degree murder and may have confused the jury with a mini-
trial on the collateral issue of Dianne’s alleged misconduct.
Thus, the Nevada Supreme Court’s ruling on the
exclusion of the extrinsic evidence here was not contrary to,
or an unreasonable application of, clearly established federal
law.
ii.
Nev. Rev. Stat. § 48.035(1) permits the exclusion of
evidence “if its probative value is substantially outweighed
by the danger of . . . confusion of the issues or of misleading
the jury.” The Supreme Court has repeatedly affirmed state
SHERMAN V. GITTERE 19
rules giving trial courts discretion to exclude evidence that
is more prejudicial than probative or confuses the issues.
See, e.g., Crane, 476 U.S. at 689–90 (“[T]he Constitution
leaves to the judges who must make these decisions ‘wide
latitude’ to exclude evidence that is ‘repetitive . . . , only
marginally relevant’ or poses an undue risk of ‘harassment,
prejudice, [or] confusion of the issues.’”) (quoting Delaware
v. Van Arsdall, 475 U.S. 673, 679 (1986)).
We have previously observed that the Supreme Court has
not “squarely addressed” whether an “evidentiary rule
requiring a trial court to balance factors and exercise its
discretion” to exclude evidence, like § 48.035(1), itself
violates a defendant’s “right to present a complete defense.”
Moses v. Payne, 555 F.3d 742, 758 (9th Cir. 2009). And
Sherman provides no Supreme Court case showing
otherwise. Instead, Sherman relies on general propositions
of law found in Chambers, 410 U.S. at 294; Ake v.
Oklahoma, 470 U.S. 68, 83–84 (1985); Crane, 476 U.S. at
690–91; and Skipper v. South Carolina, 476 U.S. 1, 4–5
(1986).
But all these cases pre-date Moses and thus none clearly
establish that an evidentiary rule requiring a trial court to
balance factors and exercise its discretion, like § 48.035(1),
deprived a defendant of his right to present a complete
defense. See Chambers, 410 U.S. at 294 (concerning
Mississippi’s rules against hearsay and impeachment of a
party’s own witness); Ake, 470 U.S. at 76–77, 86–87
(finding a Due Process Clause right to access to a competent
psychiatrist if the defendant cannot afford one and his mental
state is likely to be a significant issue at trial); Crane, 476
U.S. at 690 (holding that the government may not “exclude
competent, reliable evidence bearing on the credibility of a
confession when such evidence is central to the defendant’s
20 SHERMAN V. GITTERE
claim of innocence”); and Skipper, 476 U.S. at 3 (evaluating
whether testimony from an incarcerated defendant’s jailers
and a visitor about his “adjustment” to jail met the threshold
test for relevance under South Carolina law).
Again, nothing in the record shows that the trial court’s
ruling fell outside § 48.035(1)’s appropriate scope—as the
Nevada Supreme Court concluded. The excluded evidence
was, at best, of limited exculpatory value and risked
confusing the jury because it related to misconduct of a
person not charged in the crime. Because Sherman cites no
Supreme Court cases that “squarely address the issue in the
case or establish a legal principle that clearly extends to
[this] context,” Moses, 555 F.3d at 754 (simplified), the
Nevada Supreme Court’s § 48.035(1) ruling is not contrary
to or an unreasonable application of clearly established
federal law.
iii.
The Nevada Supreme Court alternatively concluded that
any error was harmless. Sherman, 114 Nev. at 1007–08. A
federal constitutional error can be harmless only if a court is
“able to declare a belief that it was harmless beyond a
reasonable doubt.” Chapman, 386 U.S. at 24. While the
Nevada Supreme Court did not cite Chapman in its opinion,
it cited Rembert, which in turn cited Chapman’s harmless-
error standard. See Sherman, 114 Nev. at 1006; Rembert,
104 Nev. at 683. We thus presume that the Nevada court
applied the Chapman standard and review its application of
that standard under AEDPA deference. See Brown v.
Davenport, 596 U.S. 118, 127, 135 (2022) (explaining that a
“harmless-error determination qualifies as an adjudication
on the merits under AEDPA” and requires a petitioner to
prove that the state court’s decision was “unreasonable”).
SHERMAN V. GITTERE 21
Sherman has not shown that the Nevada Supreme Court’s
application of the harmless error standard was
“unreasonable.”
Overwhelming evidence supports Sherman’s conviction
for murder in the first degree. See Nev. Rev. Stat.
§§ 200.010, 200.030. None of the excluded evidence
contradicts or minimizes the evidence that Sherman broke
into Dr. Bauer’s house in the middle of the night, struck him
several times with a hammer, moved the telephone receiver
away from Dr. Bauer, and stole items from Dr. Bauer’s
house. And a review of the transcripts from the guilt and
penalty phases shows that Sherman presented evidence that
Dianne told people, including Sherman, that she hated her
father, that Dr. Bauer sexually abused her, and that she
wanted to see him dead.
In addition, as the Nevada Supreme Court found,
Sherman got much of his story out in closing. Sherman, 114
Nev. at 1007. While Sherman suggests that this factual
finding was unreasonable, at closing, Sherman clearly
offered his defense theory that Dianne manipulated and
controlled him knowing that he was emotionally
unbalanced. According to Sherman’s counsel, Dianne
purposefully exploited Sherman’s sensitivities about child
abuse and molestation by telling him that Dr. Bauer had
molested her and her daughter. Sherman’s counsel also
argued that Dianne was desperate for Dr. Bauer’s money.
Sherman’s counsel then contended that Dianne’s
manipulations drove Sherman to “confront Dr. Bauer over
molesting Dianne’s child and he lost it.” All of this would
contradict the State’s putative motive of revenge and support
a lower culpability than first-degree murder. Even so, the
jury found Sherman guilty of first-degree murder.
22 SHERMAN V. GITTERE
And Sherman presented several witnesses who testified
about Dianne’s relationship with Sherman and her father
during the penalty phase. Sherman’s counsel argued in the
penalty phase that Sherman was susceptible to Dianne’s
manipulation and that Sherman believed that Dr. Bauer had
sexually abused her. He also blamed Sherman’s increasing
drug use and fragile emotional state. Sherman’s counsel
explained that Sherman killed Dr. Bauer in a rage due to his
instabilities and Dianne’s manipulation. As a result, the jury
found, as mitigating factors, that the murder was committed
when Sherman was under duress or domination of another
person and under an extreme mental or emotional
disturbance.
To the Nevada state court, all this demonstrated that the
jury considered the excluded evidence about Dianne but that
it was not compelling enough to reduce his sentence from
death. Id. at 1007–08. The state court thus concluded that
“even had the evidence at issue been presented at trial, the
jury would not have found that Sherman was either innocent
or guilty of a lesser included offense.” Id. at 1008.
Finally, Sherman contends that the trial court’s ruling
also precluded a former psychologist, Dr. Stephen Pittel,
from testifying on his behalf during the guilt phase. But the
trial court’s ruling did not bar Dr. Pittel’s testimony and it is
unclear why the expert witness declined to take the stand
during the guilt phase. See Fed. R. Evid. 703 (the facts or
data that an expert relies on to form the basis of an opinion
“need not be admissible for the opinion to be admitted”).
Sherman contends that the excluded testimony provided
factual corroboration and foundation for Dr. Pittel’s
opinions, but he does not provide an argument or evidence
on why Pittel did not testify at the penalty phase.
SHERMAN V. GITTERE 23
Thus, Sherman has not shown that the Nevada Supreme
Court’s harmless error determination was unreasonable.
III.
Because the Nevada Supreme Court’s denial of
Sherman’s right-to-present-a-complete-defense claim was
not erroneous under AEDPA’s deferential standard of
review, we affirm.