                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                           SEP 19 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk

    DAVID STUCKEY,

                Petitioner-Appellant,

    v.                                                    No. 99-3318
                                                    (D.C. No. 98-3140-DES)
    RICHARD KOERNER; ATTORNEY                              (D. Kan.)
    GENERAL OF THE STATE OF                          (71 F. Supp. 2d 1093)
    KANSAS,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
       In April 1998, petitioner David Stuckey filed a petition for a writ of habeas

corpus under 28 U.S.C. § 2254 challenging his 1995 convictions in a Kansas state

court on one count of robbery and two counts of aggravated robbery. In his

petition, Mr. Stuckey contended that the state court denied him his right to due

process by prohibiting his introduction of circumstantial evidence that another

individual committed the crimes, under a Kansas common law rule generally

making such circumstantial evidence irrelevant when the state relies on direct

evidence of guilt. The district court denied the petition,      see Stuckey v. Koerner ,

71 F. Supp. 2d 1093 (D. Kan. 1999), and Mr. Stuckey appeals. We grant his

request for a certificate of appealability,   see 28 U.S.C. § 2253(c), and affirm.


                                        Background

       The facts are presented in detail in the district court’s decision,    see Stuckey ,

71 F. Supp. 2d at 1094-95, and we summarize only what is necessary for our

analysis. Petitioner was convicted of three purse-snatchings that occurred in

Wichita on the evening of January 27, 1994. Two of the robberies occurred at

different Dillon’s grocery store parking lots, and the third took place at a

shopping center parking lot. Two of the victims identified Mr. Stuckey both

before and at trial as the individual who took their purses. The third victim

identified Mr. Stuckey both before and at trial as an individual she saw in the

parking lot shortly before she was knocked down and her purse stolen. There was

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evidence that Mr. Stuckey left the two Dillon’s robberies in a light-colored car

with a dark top with the license number EIA 338. Additionally, a police officer

investigating an unrelated matter encountered Mr. Stuckey that night in the same

vehicle.

      The crux of Mr. Stuckey’s defense was that another man who apparently

looked similar to him, Ronald Sandidge, committed the crimes. Called as

a witness by Mr. Stuckey, Mr. Sandidge testified at trial that he owned a

light-colored car with a dark top with the license number EIA 338 and that he

purchased the car in mid-January 1994, but did not put that license on the car

until March 1994. He also testified he did not know Mr. Stuckey but had been

introduced to him by a mutual friend once in January 1994, possibly at the

location at which the police officer encountered Mr. Stuckey on January 27.

He further testified that Mr. Stuckey had never been in his car.

      It is what the trial court prevented Mr. Sandidge from saying at trial, along

with the related testimony by a detective that the court also excluded, that leads to

Mr. Stuckey’s due process claim. Mr. Stuckey proffered that Mr. Sandidge would

have testified that he had been convicted of several purse-snatchings that occurred

in Wichita from March to May 1994, that in committing these crimes he used his

car with the EIA 338 license, and that two of the purse snatchings took place in

Dillon’s parking lots. Mr. Stuckey also proferred that Detective O’Mara would


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have testified that in investigating the January and March to May robberies, he

noted the similarity in the witnesses’ physical descriptions of the perpetrators,

which matched both Mr. Stuckey and Mr. Sandidge, and in the descriptions of the

vehicle used. Mr. Sandidge would have invoked his Fifth Amendment privilege

had he been asked at trial whether he committed the January 27 robberies, though

he apparently would have “told the whole story” had he been granted immunity

from prosecution for those robberies.

      The trial court granted the state’s motion in limine to exclude this evidence.

In doing so, the court relied on a Kansas common law rule providing that “[w]hen

the state relies on direct evidence, circumstantial evidence that someone other

than the defendant committed the crime charged is irrelevant in the absence of

other evidence to connect such third party with the crime.”   State v. Peckham ,

875 P.2d 257, 266 (Kan. 1994) (quotation omitted). On direct appeal, the Kansas

Court of Appeals affirmed the trial court’s exclusion of this evidence, and the

Kansas Supreme Court denied review.


                                       Discussion

       Because Mr. Stuckey’s habeas petition was filed after April 23, 1997, the

provisions of the Anti-Terrorism and Effective Death Penalty Act (AEDPA) apply

to his case. AEDPA requires federal courts entertaining federal constitutional

claims that had been first adjudicated on the merits in state court to give

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deference to the state court’s analysis of these claims, and to grant relief, as

relevant in this situation, only where the state court’s decision “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).

This is the standard that the district court applied to Mr. Stuckey’s claim.

See Stuckey , 71 F. Supp. 2d at 1095-96.     1



       Although Mr. Stuckey presented his due process claim regarding the

exclusion of evidence to the Kansas Court of Appeals on direct appeal, that court

did not explicitly address Mr. Stuckey’s claim on due process grounds. Instead,

its analysis relied on state law.   See State v. Stuckey , No. 74,853, slip op. at 2-5

(Kan. Ct. App. Feb. 21, 1997) (unpublished). While it might be arguable that

we need not defer to the state court decision in this situation,   cf. Smith v. Scott ,

___ F.3d ___, No. 00-6021, 2000 WL 1187688, at *1 n.1 (10th Cir. Aug. 22,

2000), Mr. Stuckey not only fails to challenge the district court’s use of this



1
       We note that in applying the deferential standard required by § 2254(d),
the district court stated that “habeas relief is authorized only when the state courts
have decided the question by interpreting or applying the relevant precedent in a
manner that reasonable jurists would all agree is unreasonable.”     Stuckey ,
71 F. Supp. 2d at 1096 (quotation omitted). The Supreme Court has since
rejected this “subjective” inquiry into the state court’s analysis in favor of an
“objective” one, such that the relevant inquiry is “whether the state court’s
application of clearly established federal law was objectively unreasonable.”
Williams v. Taylor , 120 S. Ct. 1495, 1521 (2000). The difference in inquiries
does not affect the result in this case.

                                                 -5-
standard, but he encourages our application of it on appeal. We therefore will

view the state court’s decision as implicitly rejecting his federal claim, and will

defer to its result.   See Aycox v. Lytle , 196 F.3d 1174, 1177 (10th Cir. 1999)

(“[W]e owe deference to the state court’s result, even if its reasoning is not

expressly stated.”).

       Mr. Stuckey contends that application of the Kansas evidentiary rule to

exclude Mr. Sandidge’s and Detective O’Mara’s testimony regarding the other

purse-snatchings violated his right to due process. Mr. Stuckey’s argument rests

primarily on Chambers v. Mississippi , 410 U.S. 284 (1973), where the Court

noted that “[f]ew rights are more fundamental than that of an accused to present

witnesses in his own defense.”     Id. at 302. Although the Court stated that in

exercising this right, a defendant “must comply with established rules of

procedure and evidence designed to assure both fairness and reliability in the

ascertainment of guilt and innocence,” it cautioned that such rules “may not be

applied mechanistically to defeat the ends of justice.”    Id. ; see also Richmond v.

Embry , 122 F.3d 866, 872 (10th Cir. 1997) (“[T]he state may not arbitrarily deny

a defendant the ability to present testimony that is relevant and material and vital

to the defense.”) (quotations omitted). Mr. Stuckey contends that by excluding

the proffered testimony, the trial court denied him his right to present evidence

that he was misidentified and Mr. Sandidge committed the robberies.


                                            -6-
       While Mr. Stuckey challenges the rule distinguishing between direct and

circumstantial evidence, we need not address the validity of the rule itself.

Regardless of the reason the evidence was excluded, “to be eligible for federal

habeas relief, [Mr. Stuckey] must prove that the state trial court’s evidentiary

ruling rendered the trial so fundamentally unfair as to constitute a denial of

federal constitutional rights.”      Duvall v. Reynolds , 139 F.3d 768, 789 (10th Cir.

1998) (quotation omitted);        see also Mathews v. Price , 83 F.3d 328, 332 (10th Cir.

1996). “Our inquiry ‘hinges on the materiality of the excluded evidence to the

defense.’” Duvall , 139 F.3d at 789 (quoting         Mathews , 83 F.3d at 332). Evidence

is material if its admission might have affected the outcome of the trial; that is,

it would have created a reasonable doubt that did not otherwise exist.

See Richmond , 122 F.3d at 872.

       Mr. Stuckey contends that the exclusion of his proffered evidence violated

his right to present a defense. While exclusion of the evidence may have

weakened his defense somewhat, it did not prevent him from presenting his

defense, which was based on the victims’ alleged misidentification of him as the

robber and his argument that Mr. Sandidge actually committed the crimes.

Because Mr. Sandidge was present in the courtroom and admitted to owning the

vehicle used in the robberies, Mr. Stuckey was able to argue to the jury that




                                               -7-
Mr. Sandidge was the robber.     2
                                     The excluded evidence may have been relevant,

tending, as the Kansas Court of Appeals said, to implicate Mr. Sandidge in the

purse-snatchings.   3
                        However, “the proffered testimony was not the type that if

believed would have, by necessity, exculpated” Mr. Stuckey.       Richmond , 122 F.3d

at 874. The proffer indicated Mr. Sandidge would not admit to committing the

robberies. Cf. Chambers , 410 U.S. at 298, 302 (finding due process violation

where trial court precluded testimony regarding another individual’s

confessions).   4



      The evidence of Mr. Stuckey’s guilt was very strong, especially given the

unequivocal identification of him by the victims. Additionally, Mr. Stuckey

2
      In his closing argument regarding his contention that Mr. Stuckey had been
misidentified, Mr. Stuckey’s counsel argued as follows:

            Then we have Mr. Sandidge. Mr. Sandidge is not in this
      lineup [the photographic lineup shown to the victims who identified
      Mr. Stuckey as the robber]. Mr. Sandidge looks uncannily similar to
      Mr. Stuckey. It is Mr. Sandidge’s car that is at these robberies. It is
      Mr. Sandidge’s license plate that is on this car at this robbery.

Tr. Vol. 2 at 303-04.
3
       In approving the exclusion of the evidence by application of the rule, the
Kansas Court of Appeals stated that “while the excluded circumstantial evidence
proffered tended to implicate Sandidge, it did nothing to disprove defendant’s
guilt.” See State v. Stuckey , slip op. at 4.
4
      We note that the only possible evidence in this regard would have been
testimony from Detective O’Mara that Mr. Sandidge admitted committing
approximately eight other robberies, but denied committing the robberies with
which Mr. Stuckey was charged.

                                             -8-
identified himself to the officer he met on the night of the robberies, and the

officer identified him at trial and testified he saw him get into the car with the

EIA 338 license plate. The proffered testimony would not have rebutted this

evidence in any way. Thus, on review of the record, we are not persuaded that the

state court’s rejection of Mr. Stuckey’s due process argument “contravenes or

unreasonably applies clearly established federal law.”      Aycox , 196 F.3d at 1178.

      Mr. Stuckey’s request for a certificate of appealability is GRANTED.

The judgment of the United States District Court for the District of Kansas

is AFFIRMED.



                                                         Entered for the Court



                                                         Stephen H. Anderson
                                                         Circuit Judge




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