                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 10-3142
                                     ___________

James Allen Gregg,                        *
                                          *
             Appellant,                   *
                                          * Appeal from the United States
      v.                                  * District Court for the
                                          * District of South Dakota.
United States of America,                 *
                                          *
             Appellee.                    *
                                     ___________

                              Submitted: June 6, 2012
                                 Filed: June 13, 2012
                                  ___________

Before BYE, SMITH, and COLLOTON, Circuit Judges.
                            ___________

SMITH, Circuit Judge.

       In January 2005, a jury convicted James Allen Gregg of second degree murder,
in violation of 18 U.S.C. §§ 1152 and 1111, and use of a firearm during a crime of
violence, in violation of 18 U.S.C. § 924(c). On appeal, Gregg argues that the district
court1 erred in denying his habeas petition for a new trial due to ineffective assistance
of counsel. Gregg argues that his trial counsel's failure to offer specific instances of
the victim's violent character to show Gregg's state of mind prejudiced his defense.
We affirm.

      1
       The Honorable Charles B. Kornmann, United States District Judge for the
District of South Dakota.
                                      I. Background
        On July 3, 2004, Gregg, an army veteran, visited friends on an Indian
reservation. While at a party, Gregg argued with James Fallis and Francis Red
Tomahawk about damage he had allegedly caused to Fallis's vehicle. The two
confronted Gregg about the damage, and the dispute escalated. Gregg offered to pay
for the vehicle's repair and stated that he did not intentionally damage the vehicle.
Still, Red Tomahawk unexpectedly punched Gregg in the face. After receiving the
blow, Gregg fell to the ground. Red Tomahawk then kicked Gregg in the head. As
Gregg attempted to stand, Fallis punched him in the face. At that point Gregg lost
consciousness. The beating broke bones in Gregg's face and nearly closed one of his
eyes. After regaining consciousness, Gregg became visibly upset and started crying.
Gregg was unsure who had just assaulted him. Gregg then went to his truck and
grabbed his rifle, but his friend, Jacob Big Eagle, persuaded him to put the rifle away.
At this point, Gregg accused Big Eagle of not standing up for him. Big Eagle
responded, "[If] I didn't stand up for you then, I will now." Big Eagle entered his
vehicle and drove away.

       According to Gregg, he believed that Big Eagle left to confront Fallis or Red
Tomahawk. Gregg decided to find Big Eagle to prevent another altercation. Less than
an hour after the dispute with Fallis, while searching for Big Eagle, Gregg saw Fallis's
car outside a mobile home. Gregg pulled into a driveway. He believed that he should
apologize to Fallis to prevent discord between their families. As Gregg pulled into the
driveway, Fallis exited the mobile home, ripping off his jacket as he walked towards
Gregg's vehicle. While walking, Fallis shouted, "You come back for some more of
this [expletive]? You want to fight?" Fallis then attempted to open Gregg's car door,
but Gregg pulled the door shut. Fearing further injury, Gregg grabbed a handgun,
pointed it at Fallis, and warned him to back away. In response, Fallis yelled, "You
want to f--- with guns?" Fallis then turned and moved towards the trunk of his own
vehicle. Gregg then fired nine shots at Fallis—five hitting him in the back—killing
him.

                                          -2-
        At trial, Gregg acknowledged killing Fallis, but argued that he did so in self
defense. Gregg's trial counsel incorrectly believed that he could not introduce into
evidence specific acts of violent conduct that Fallis committed to support Gregg's
state of mind. Under Federal Rule of Evidence 404(b), such evidence could not have
been introduced to prove Fallis was the aggressor, but could have been used to show
Gregg's state of mind. The only evidence Gregg proffered regarding his knowledge
of Fallis's violent nature was Gregg's opinion that Fallis was "tough." After a four-day
trial, the jury convicted Gregg of second degree murder.2

        On direct appeal, Gregg raised several grounds challenging his conviction and
sentence. See United States v. Gregg, 451 F.3d 930 (8th Cir. 2006). Most pertinent
to this appeal, Gregg argued that the district court erred by not permitting him to elicit
testimony regarding Fallis's specific violent acts for the purpose of showing Gregg's
state of mind at the time he shot Fallis. Id. at 933. We affirmed. In order to introduce
evidence of specific instances of a victim's prior violent conduct for purposes of
proving a defendant's state of mind, the defendant must establish that he knew of such
prior violent conduct at the time of the conduct of the underlying offense. Id. at 935.
Gregg made an offer of proof to the district court after the court excluded Gregg's
testimony of his state of mind. Gregg's counsel represented that Gregg would have
"testified that he believed that James Fallis was tougher than he was, that he's not a
person that he would want to have a fight with, that in his experience James Fallis
could have beaten him up, and that he would not have wanted to have an ongoing
feud with James Fallis." Gregg's trial counsel, however, did not produce evidence of
specific instances of Fallis's violent conduct under 404(b) to show Gregg's state of
mind. Id. The district court refused the offer of proof. On review, we declined to find
an abuse of discretion by the district court.




      2
          The government had sought a first degree murder conviction.

                                           -3-
      Based on his trial counsel's performance, Gregg filed this 28 U.S.C. § 2255
motion arguing ineffective assistance of counsel. Under Strickland v. Washington, a
defendant alleging ineffective assistance of counsel must show two things:

      First, the defendant must show that counsel's performance was deficient.
      This requires showing that counsel made errors so serious that counsel
      was not functioning as the "counsel" guaranteed the defendant by the
      Sixth Amendment. Second, the defendant must show that the deficient
      performance prejudiced the defense. This requires showing that
      counsel's errors were so serious as to deprive the defendant of a fair trial,
      a trial whose result is reliable. Unless a defendant makes both showings,
      it cannot be said that the conviction or death sentence resulted from a
      breakdown in the adversary process that renders the result unreliable.

466 U.S. 668, 687 (1984).

        At Gregg's § 2255 motion hearing, the magistrate judge found that Gregg's trial
counsel was ineffective under Strickland's first prong. Addressing Strickland's second
prong—prejudice—the magistrate judge found compelling two specific instances of
Fallis's conduct that Gregg would have sought to admit: (1) a widely known incident
that occurred in 1999 where Fallis threatened to assault an officer on a boat dock with
a tire iron, which led another officer to draw his weapon to control Fallis (the "boat
dock incident"); and (2) an incident that allegedly occurred between 2003 and 2005
during which Fallis was thrown out of a bar for fighting, but in attempting to continue
the fight outside bar, he climbed on a car to prevent the other party from leaving (the
"bar incident"). Gregg v. United States, No. Cr. 04-30068, No. Civ. 07-3030, 2009
WL 6700480 at *17–19 (D. S.D. Aug. 14, 2009). Gregg's father told Gregg about
both of these incidents, and he believed them to be true. Id. Upon hearing this
testimony, and focusing on the importance of the defendant's state of mind in a self-
defense case, the magistrate judge found that the testimony would have created a



                                          -4-
reasonable doubt in Gregg's conviction. Id. at *21–22. Thus, the magistrate judge
recommended that the district court grant Gregg a new trial. Id. at *22.

      Rejecting the magistrate judge's recommendation, the district court3 found that
Gregg's counsel's deficiency did not prejudice Gregg under Strickland. United States
v. Gregg, No. Cr. 04-30068, No. Civ. 07-3030, 2010 WL 3003235 at *4 (D. S.D. July
30, 2010). In reaching this conclusion, the district court found that the evidence
would not have changed the outcome of Gregg's trial and that the court would have
excluded the evidence under Rule 403. Id.

                                     II. Discussion
      Gregg argues that the district court erred in finding that his trial counsel's
actions did not prejudice him. Because neither party challenges the district court's
finding that Gregg satisfies Strickland's first prong—whether counsel's representation
was deficient—we assume without deciding that Gregg has satisfied this prong. In
reviewing a denial of a § 2255 motion, "[w]e review the district court's legal
conclusions de novo and its factual findings for clear error." Loefer v. United States,
604 F.3d 1028, 1029 (8th Cir. 2010).

       To satisfy Strickland's second prong, a defendant must "affirmatively prove
prejudice." Strickland, 466 U.S. at 693. "[T]he defendant must show that [his or her
counsel's error] actually had an adverse effect on the defense." Id. "It is not enough
for the defendant to show that the errors had some conceivable effect on the outcome
of the proceeding," but rather, "[t]he defendant must show that there is a reasonable
probability that, but for counsel's unprofessional errors, the result of the proceeding
would have been different." Id. at 693–94. "A reasonable probability is a probability
sufficient to undermine confidence in the outcome." Id. at 694. In addition, in cases
where the alleged prejudice arose from a failure to introduce evidence, we must also


      3
          The same judge that presided over Gregg's trial.

                                           -5-
apply Rule 403 to determine if the evidence would have likely been admitted. See
Gregg, 451 F.3d at 935 n.6 ("Had the district court determined the evidence was
proper under Rule 405, it may well have determined the evidence should have been
excluded under Rule 403."); see also United States v. Chase, 451 F.3d 474, 479–480
(8th Cir. 2006) (affirming a district court's exclusion of Rule 404 state of mind
evidence under Rule 403).

        The Rule 404(b) evidence that Gregg seeks to have admitted in a new trial
does not establish "a reasonable probability that . . . the result of the proceeding
would have been different." Strickland, 466 U.S. at 693–94. At trial, in relation to
Gregg's state of mind, Gregg testified only to Fallis's toughness. Although both of the
incidents that Gregg seeks to admit show that Fallis acted aggressively and potentially
violently on two occasions, only the boat dock incident involves the threat of serious
bodily injury. But even in that incident, Fallis did not actually injure any person. At
most, the incidents Gregg seeks to admit show that Fallis could be belligerent and
aggressive. But Gregg introduced evidence to that effect at trial. Specifically, the trial
court allowed the jury to review evidence of Fallis's violent and aggressive nature
through two witnesses who testified about his reputation. Additional evidence making
that same point would have been cumulative. Moreover, the jury heard in great detail
how Fallis severely battered Gregg an hour before Gregg shot him. In addition, the
jury heard that Fallis may have intended to assault Gregg again immediately before
Gregg shot him. The jury knew Fallis exited the mobile home, ripped off his jacket
and yelled, "You come back for some more of this [expletive]? You want to fight?"
Fallis then attempted to open Gregg's car door. Given the record and the facts




                                           -6-
weighing against Gregg's self-defense claim,4 we are not persuaded that there exists
a reasonable probability that the result of the proceeding would have been different.

       Even assuming that Fallis's two violent acts could cast doubt on the jury's
verdict, the trial court likely would have excluded the evidence under Rule 403.5 Rule
403 imposes a balancing test, permitting a trial judge to exclude relevant evidence "if
its probative value is substantially outweighed by a danger of . . . unfair prejudice."
Fed. R. Evid. 403.

        United States v. Milk, 447 F.3d 594 (8th Cir. 2006) illustrates this point. In that
case, a defendant accused of murder on an Indian reservation sought to introduce
specific instances of the victim's violent conduct. Id. at 597. Excluding the evidence,
the trial court found that the prejudicial effect outweighed the probative value of the
evidence. Id. In reaching this conclusion, "the court reasoned that [the specific
instance at issue] happened roughly five years before the [instant crime], and that in


      4
        Several facts militated against the jury finding Gregg acted in self-defense.
First, Gregg stopped when he saw Fallis's car although he was searching for his friend
Big Eagle to avoid further conflict with Fallis. Second, Gregg indicated that he was
unsure that Fallis ever hit him. Third, Gregg acknowledged that he was able to pull
his car door shut against Fallis, but instead of locking it, he drew his firearm. Fourth,
Gregg did not leave after he pulled his car door shut. Finally, Gregg fired nine shots
at the unarmed Fallis while he had his back turned to Gregg. The jury could have
believed that he intended to kill Fallis rather than just prevent him from getting a gun.
      5
        In making this determination we are required to predict what a trial court
would have done if Gregg's counsel had attempted to admit the 404(b) evidence. The
dissent correctly notes that the district court improperly considered its own
propensities in determining whether a trial court presented with the 404(b) evidence
would have admitted the evidence. But as seen in United States v. Milk, 447 F.3d 594,
601 (8th Cir. 2006), we disagree with the dissent that "a reasonable, conscientious[,]
and impartial decisionmaker" would not have excluded the two specific instances of
Fallis's violent conduct as unduly prejudicial.

                                           -7-
the meantime, [the defendant and the victim] remained close friends, which suggested
[the defendant] was not scared of [the victim]." Id. Upholding the trial court's
exclusion of the evidence, we stated that "the district court 'has wide discretion in
determining the admissibility of evidence.'" Id. at 600 (quoting United States v.
Waloke, 962 F.2d 824, 830 (8th Cir. 1992). We noted that the court acted within its
discretion by admitting reputation evidence and specific acts of violence by the
defendant that occurred that day. Id. at 600–01.

       Here, a district court would have likely reached a similar conclusion by
excluding the specific instances of violence, aside from the violence that occurred
that day, but allowing evidence of the victim's violent reputation. Like the excluded
incident in Milk, the boat dock incident occurred five years prior to Gregg's encounter
with Fallis. Thus it was remote in time to the dispute between Gregg and Fallis.
Similarly, the bar incident, while closer in time, is prejudicial because Gregg could
not provide enough details about the incident for the court to determine whether it
was similar in kind. The incident shows that Gregg believed that Fallis was highly
aggressive and allegedly willing to go so far as to jump on top of a car to prevent his
opponent from leaving. However, there are no facts showing that Fallis's opponent
was not able to leave and avoid further conflict despite Fallis's antics. A court likely
would exclude this evidence to prevent mini-trials of the victim's character and to
prevent juror confusion. See Milk, 447 F.3d at 600; Waloke, 962 F.2d at 830.

      Because we find that the 404(b) evidence that Gregg's trial counsel failed to
admit did not prejudice Gregg under Strickland, the district court did not err in
denying Gregg's motion for a new trial.




                                          -8-
                                 III. Conclusion
      Accordingly, we affirm the judgment of the district court.

BYE, Circuit Judge, dissenting.

       If the jury in Gregg's murder trial had before it evidence of specific instances
of the victim's violent conduct in order to explain Gregg's state of mind at the time
of the shooting, evidence his trial counsel failed to offer, there is "a reasonable
probability . . . the result of the proceeding would have been different." Strickland
v. Washington, 466 U.S. 668, 694 (1984). I therefore respectfully dissent.

                                           I

        Before discussing why I disagree with the majority's legal analysis, I believe
it is necessary to more thoroughly describe the two specific instances of the victim's
violent conduct which Gregg seeks to admit in a new trial. Only a thorough
description of the two incidents, when compared to the marginal state-of-mind
evidence Gregg was allowed to introduce in his murder trial, demonstrates why the
failure to introduce the evidence prejudiced Gregg's theory of self defense.

      A.     The Boat Dock Incident

       In the summer of 1999, James Fallis (the victim) had an altercation with one
of Gregg's cousins and two wildlife conservation officers which garnered notoriety
in the community and well demonstrated Fallis's violent propensities. Gregg heard
about the incident from his father and grandfather, as well as neighbors, friends, and
other relatives. The incident started when Fallis spun his vehicle in tight circles
(commonly referred to as donuts or cookies) near a boat dock in the Lake Sharpe area
of the Missouri River. The vehicle's tires spit gravel on a number of people gathered
in the area. A female wildlife conservation officer was present and confronted Fallis

                                         -9-
about his behavior. Fallis went into a fit of rage after being challenged by the female
officer, and took after her as she walked away. Gregg's cousin, Todd Cowan, was
present at the boat dock area with his children. Cowan intervened to stop Fallis from
attacking the female officer. Fallis then retreated to his vehicle, retrieved a large tire
iron, and returned to attack Cowan with the tire iron.

        Before Fallis could hit Cowan with the tire iron, a second wildlife conservation
officer, Leon Leuning, positioned himself between the two men. Leuning's
description of Fallis's behavior (both in an interview occurring prior to the original
trial and then again at the evidentiary hearing in this proceeding) is especially telling.
Leuning said Fallis raised the tire iron above his head in a menacing fashion and
moved toward Cowan. Fallis's speech was incomprehensible. He was frothing at the
mouth and "blowin' snot and spit" and "totally out of control." App. at 115. His eyes
were out of focus. Leuning believed Cowan was in imminent danger. Leuning drew
his weapon and ordered Fallis to drop the tire iron several times. Fallis was between
six and twelve inches from the barrel of Leuning's gun, which was pointed directly
at Fallis's face. Even with a gun in his face, Fallis was in such a rage that he
continued his attempts to hit Cowan with the tire iron. Leuning finally told Fallis to
drop the weapon or he would "blow his head off." Id. at 236. Fallis finally dropped
the tire iron, and Leuning placed him in handcuffs. Leuning opined that Fallis had
"psychopathic tendencies" and an "explosive violent temper" and went "ballistic
when he got pissed." Id. at 118, 120.

      B.     The Longbranch Saloon Incident

       In 2003 or 2004, Gregg's father told him about another incident involving
Fallis. Fallis got into an altercation with a couple inside the Longbranch Saloon in
Pierre, South Dakota. A bouncer at the bar ordered all three to leave the bar, then
witnessed what happened when the three were outside. Outside the bar, Fallis wanted
to fight with the man. The man did not want to fight, and he and his girlfriend got

                                          -10-
into their car. Fallis would not let them leave. When the man tried to back out of the
parking lot, Fallis jumped on the hood of the car, banging his fist on the hood and the
windshield. As a result of what the bouncer witnessed, the Longbranch Saloon
banned Fallis from the bar for life. This reinforced Gregg's impression that he should
stay away from Fallis because Fallis would not let anyone get away from a fight even
if they wanted to back down. At the evidentiary hearing in this habeas proceeding,
Gregg stated "once [Fallis] had his eyes locked on you, he was going to – he was
going to follow through with it no matter what the task." Id. at 174.

       In addition to these two specific instances, Gregg had additional knowledge of
Fallis which affected his state of mind on the night he shot Fallis. His knowledge of
Fallis dated back to his own childhood when Fallis would bully Gregg's sister and
other young children on the school bus, and when Fallis got kicked out of school due
to his behavior. Gregg knew about a fight between Fallis and another boy over a girl
where the girl "took off and hid behind the trees because it was so violent." Id. at
164. Because Fallis had a violent temper and never backed down, Gregg "always
wanted to stay on his good side" and did not want to be "viewed as a threat to him or
anything of that nature." Id. at 160.

      At the evidentiary hearing, Gregg explained how his knowledge of Fallis's
violent approach to confrontations affected his state of mind at the time of the
shooting:

      I was precluded from saying exactly why I was afraid of him, why I was
      scared of him. If I could have given these instances that I knew of
      before, the way he acted that night, I mean, the way he come after me,
      the way he had this temperament about him, the look in his eyes – I
      mean, if you could have seen all of that that night and you would have
      known these past experiences from him, I mean, it would have been like
      the greatest fear in your life coming alive right in front of you. I mean
      there's no getting around it. There is – this guy was going to kill me.


                                         -11-
      ...

      When he turned, he made the motion that he was going to get a gun out
      of the trunk of his car. I mean, at that point, everything that I've heard
      about him, you know, what I just seen from him that moment, I mean,
      I was so scared. I mean, I've never been so scared in my life. This is
      something over the top of what I even experienced over in Iraq. I mean,
      this guy was going to kill me because I was trying to defend myself.
      And the only way I could keep him from getting me out of that truck
      was to pull a gun. And I wanted him to back away, and I said that. He
      backed up and he made the further threat. "Oh, you want to fu-- with
      guns? Well I got guns." And he ran right to the trunk of his car. I had
      to stop him. I couldn't let him get to the trunk of his car. I had to stop
      him. There was no getting out of the situation. I was in a dead-end
      road. I couldn't back up. There was no lights. There's people all around
      me. There was no way I could get out of there. I couldn't let him get a
      gun out of the trunk and shoot me.
      ...

      He's never been known to back down out of a fight. He's – all of the
      instances that I've known – I mean, he attacks a park ranger with a tire
      iron, you know. He's coming after him. He comes after Todd with a tire
      iron just because he stops him, you know, from attacking a woman. He
      won't let a person leave a fight at the Longbranch. I mean all these
      instances, it just clicked right then and there, you know. I 've had all
      these feelings about him, you know, wanting to stay away from him, you
      know, as much as I could and be on his good side, you know. And it all
      drops dead right there, and he comes right after me, you know.

      There's no way I could – he was just – he's vicious. If you could see it
      in his eyes, I mean, you would have known. You would have seen his
      body movements, the way he acted, his threatening speech, you know,
      everything, how he was – his face, the motions he was going through.
      I mean, I wish everyone else could have seen it because then they would
      have – they would have understood me.

Id. at 180-83.

                                        -12-
                                           II

       At his original trial, Gregg was only allowed to acknowledge he was scared of
Fallis. That was the limit of the state-of-mind evidence heard by the jury. Gregg was
never given the opportunity to explain why he was scared, and without such an
explanation, he was essentially denied the right to present a claim of self defense.
When Gregg tried to proffer evidence he was scared of Fallis because Fallis was
"tough," the trial court did not even allow that limited explanation of Gregg's state of
mind:

      Defense Counsel:        Were you scared of [Fallis] at all?

      Prosecutor:                  I'm going to object, Your Honor.

      The Court:                   Overruled.

      Gregg:                       Just wanted to stay on the good side, yeah.

      Defense Counsel:        Why was that?

      Gregg:                       Just because they're tough and —

      Government:             I'm going to object. They —

      The Court:                   Sustained. The answer is stricken. The jury
                                   should disregard that.

App. at 578.

      The right of an accused to present a defense is well established as a
fundamental element of due process. See, e.g., Washington v. Texas, 388 U.S. 14,
19 (1967). If the jury had been presented with meaningful evidence of Gregg's state
of mind, it may very well have concluded he "unreasonably but truly believed that

                                         -13-
deadly force was necessary to defend himself," and thus did "not have the requisite
mens rea to be guilty of second-degree murder." United States v. Milk, 447 F.3d 593,
599 (8th Cir. 2006). State of mind evidence is particularly critical in self defense
cases because "the crux of [the] defense rest[s] on [the defendant's] credibility."
United States v. James, 169 F.3d 1210, 1215 (9th Cir. 1999).

       The majority concludes there is no reasonable probability the result of the
proceeding would have been different if the jury had heard Gregg's state of mind
evidence, but even assuming there is doubt on that issue, Gregg failed to prove he
was prejudiced because "the trial court likely would have excluded the evidence
under Rule 403 or 404(b)." Ante at 7. I disagree. First of all, what this trial court
likely would have done is irrelevant under a proper Strickland analysis. In denying
Gregg's § 2255 motion, the district court (who was also the trial court who presided
at the original murder trial) concluded the outcome of the case would not have been
different, even if trial counsel had offered evidence of the victim's prior violent
conduct, because it would have excluded the evidence in any event. United States v.
Gregg, No. CR 04-30068, 2010 WL 3003235, at * 4 (D. S.D. July 30, 2010). The
district court based its decision on its own propensities regarding evidence offered
under Federal Rule of Evidence 404(b). See id. at *3 ("As stated, my practice has
been for years to rarely admit such evidence because I believe it often violates Fed.
R. Evid. 403.").

       It was improper for the district court to consider its own propensities in
assessing whether Gregg was prejudiced by his trial counsel's failures. "The
assessment of prejudice . . . should not depend on the idiosyncracies of the particular
decisionmaker, such as unusual propensities toward harshness or leniency."
Strickland, 466 U.S. at 695. "[A] particular judge's . . . practices should not be
considered in the prejudice determination." Id. Rather, "[t]he assessment of
prejudice should proceed on the assumption that the decisionmaker is reasonably,
conscientiously, and impartially applying the standards that govern the decision." Id.

                                         -14-
Applying Strickland's standard, I do not believe a reasonable, conscientious and
impartial decisionmaker would have excluded the two specific instances of Fallis's
violent conduct because the evidence was critical to Gregg's state of mind at the time
of the shooting, and critical to his due process right to present a claim of self defense.

       To be admissible under Rule 404(b), the two incidents had to be "similar in
kind and close in time to the event at issue" and "supported by sufficient evidence to
support a finding by the jury that the act[s] occurred." United States v. Chase, 451
F.3d 474, 479 (8th Cir. 2006). If admissible under Rule 404(b), the two incidents
should not have been excluded unless their "probative value [was] substantially
outweighed by the danger of unfair prejudice." "When evidence is offered to prove
state of mind [under Rule 404(b)], we presume that the evidence is admissible for that
purpose." Chase, 451 F.3d at 479. "A district court abuses its discretion if evidence
of a critical nature is excluded and there is no reasonable assurance that the jury
would have reached the same conclusion had the evidence been admitted." Harris v.
Chand, 506 F.3d 1135, 1140 (8th Cir. 2007) (internal quotation marks and citation
omitted).

        I believe the two incidents were similar in kind and close enough in time that
they should have been admitted. Although the boat dock incident occurred roughly
five years before Gregg shot Fallis, the incident occurred when Fallis was an adult
and reflected the manner in which he conducted himself as an adult during a
confrontation. Fallis's behavior at the boat dock was similar to Gregg's version of the
events on the night of the shooting, in that Fallis retreated to his vehicle only to return
armed with a deadly weapon and ready to attack, despite being threatened with a
deadly weapon himself. Officer Leuning's description of Fallis's demeanor at the boat
dock (i.e., incomprehensible speech, "totally out of control," his eyes out of focus)
was similar to Gregg's description of Fallis's demeanor on the night of the shooting
(i.e., the look in his eyes, his threatening speech, his body movements). The



                                           -15-
Longbranch Saloon incident was also similar in that it reflected Fallis's unwillingness
to walk away from a confrontation without resorting to violent behavior.

       This case stands in stark contrast to Milk, where a five-year-old incident of the
victim's violent conduct was excluded because the defendant and victim had become
close friends in the meantime, "which suggested [the defendant] was not scared of
[the victim]." 447 F.3d at 597. Here, Gregg testified he had always been afraid of
Fallis, trying to be friendly only out of necessity "to stay on his good side" so as not
be viewed as a threat specifically because Fallis was such a violent person. In
addition, there was no evidence that Fallis's violent approach to confrontations had
changed at all in the five years between the boat dock incident and the shooting, as
demonstrated by the more recent incident at the Longbranch Saloon.

        The meager, almost non-existent evidence Gregg was allowed to offer at his
trial regarding his state of mind did not satisfy his due process right to present a claim
of self defense. If the jury had been given a clear picture of Gregg's knowledge of
the violent, explosive, and out of control manner in which Fallis conducted himself
during a confrontation, it may well have decided Gregg truly believed he needed to
use deadly force to defend himself on the night of the shooting, even if his belief was
unreasonable. I would therefore reverse the judgment of the district court, and grant
Gregg a new trial.

      For the reasons stated above, I respectfully dissent.
                      ______________________________




                                          -16-
