                                                                              FILED
                            NOT FOR PUBLICATION                                APR 20 2012

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


CANDELARIO GARZA,                                No. 10-17375

              Petitioner - Appellant,            D.C. No. 2:08-cv-03095-FCD-
                                                 GGH
  v.

JAMES A. YATES, Warden,                          MEMORANDUM*

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                 Frank C. Damrell, Senior District Judge, Presiding

                             Submitted April 17, 2012**
                              San Francisco, California

Before: GOODWIN, REINHARDT, and MURGUIA, Circuit Judges.

       California state prisoner Candelario Garza appeals the district court’s denial

of his 28 U.S.C. § 2254 petition challenging his jury conviction for inflicting

corporal injury on a spouse, dissuading a witness, and making criminal threats.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Garza argues that the state trial court violated his federal due process rights and

rendered his trial fundamentally unfair by admitting his former girlfriend’s

testimony about prior conduct as propensity evidence.

      Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”), we

may grant a habeas petition only if the state court’s decision was “forbidden by

‘clearly established Federal law,’ as laid out by the Supreme Court.” Holley v.

Yarborough, 568 F.3d 1091, 1101 (9th Cir. 2009) (quoting 28 U.S.C. § 2254(d)).

A legal principle is “clearly established” within the meaning of 28 U.S.C. §

2254(d)(1) if “it is embodied in a holding of [the Supreme] Court.” Thaler v.

Haynes, 130 S. Ct. 1171, 1173 (2010) (citing Carey v. Musladin, 549 U.S. 70, 74

(2006)).

      Although the Supreme Court has said the writ should issue “when

constitutional errors have rendered the trial fundamentally unfair,” the Supreme

Court “has not yet made a clear ruling that admission of irrelevant or overtly

prejudicial evidence constitutes a due process violation sufficient to warrant

issuance of the writ.” Holley, 568 F.3d at 1101. The Supreme Court reserved the

issue of whether admitting other-crimes evidence to show conduct in conformity

therewith violates due process. Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991);

see also Alberni v. McDaniel, 458 F.3d 860, 863 (9th Cir. 2006). Therefore, we


                                           2
cannot conclude that the California Court of Appeal acted in an objectively

unreasonable manner in concluding that the propensity evidence introduced against

Garza did not violate due process.

      AFFIRMED.




                                         3
                                                                                 FILED
Garza v. Yates, No. 10-17375                                                       APR 20 2012

                                                                             MOLLY C. DWYER, CLERK
REINHARDT, Circuit Judge, concurring.                                         U.S. COURT OF APPEALS



      I concur in the memorandum disposition. I write separately to express my

view that Holley v. Yarborough, 568 F.3d 1091 (9th Cir. 2009) was wrongly

decided, and merits reconsideration en banc at a future date. It is not true, as

Holley held, that the introduction of “overtly prejudicial” evidence at trial could

never be found to violate “clearly established federal law” because the Supreme

Court “has not yet made a clear ruling that admission of irrelevant or overtly

prejudicial evidence constitutes a due process violation sufficient to warrant

issuance of the writ.” Id. at 1101.

      The Supreme Court has expressly left open the question of whether the

introduction of propensity evidence would violate due process because it was

propensity evidence. See Estelle v. McGuire, 502 U.S. 62, 75 n.5 (1991). Alberni

v. McDaniel, 458 F.3d 860 (9th Cir. 2006), therefore correctly held that there is no

clearly established law that the admission of propensity evidence per se violates

due process. See id. at 866-67. The Court has not, however, left open the question

of whether the admission of unduly prejudicial evidence could violate due process.

Although it has not held that the admission of a particular piece of evidence did, in

fact, violate due process, the Court has stated that due process entitles a defendant

to a trial that is fundamentally fair, and has applied this standard in holding that the
admission at trial of particular prejudicial evidence did not violate due process.

See Estelle, 502 U.S. at 75; Dowling v. United States, 493 U.S. 342, 352 (1990).

Thus, as we held in Alberni, “The Supreme Court has established a general

principle that evidence that ‘is so fundamentally unfair that its admission violates

fundamental conceptions of justice’ may violate due process.” 458 F.3d at 864

(quoting Dowling, 493 U.S. at 352).

        This “fundamental conceptions of justice” standard is a broad one. Most

state court applications of it are therefore likely to be reasonable. See Harrington

v. Richter, 131 S. Ct. 770, 778 (2011) (“[T]he more general the rule being

considered, the more leeway courts have in reaching outcomes in case-by-case

determinations.”) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)).

Habeas petitioners are not, however, categorically foreclosed from prevailing on

such a due process claim when the deferential 28 U.S.C. § 2254(d)(1) standard

applies. In some cases, it undoubtedly would be unreasonable for a state court to

conclude that the introduction of “overtly prejudicial” evidence did not violate due

process. Holley is therefore wrong, and should be reconsidered in an appropriate

case.
