                                                                             FILED
                    UNITED STATES COURT OF APPEALS                            NOV 14 2012

                                                                          MOLLY C. DWYER, CLERK
                            FOR THE NINTH CIRCUIT                          U.S. COURT OF APPEALS




GINA GAIL CELAYA,                                No. 10-15935

              Petitioner - Appellant,            D.C. No. 4:01-cv-00622-DCB
                                                 District of Arizona,
  v.                                             Tucson

CHARLES L. RYAN; et al.,
                                                 ORDER
              Respondents - Appellees.



GINA GAIL CELAYA,                                No. 10-15964

              Petitioner - Appellee,             D.C. No. 4:01-cv-00622-DCB
                                                 District of Arizona,
  v.                                             Tucson

CHARLES L. RYAN; et al.,

              Respondents - Appellants.



Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

       The memorandum disposition filed on June 12, 2012, is withdrawn and

replaced with the accompanying memorandum disposition.

       The panel has voted to deny the petition for panel rehearing and the petition

for rehearing en banc.
      The full court has been advised of the petition for rehearing and rehearing en

banc and no judge has requested a vote on whether to rehear the matter en banc.

Fed. R. App. P. 35.

      The petition for panel rehearing and petition for rehearing en banc are

DENIED. No further petitions for en banc or panel rehearing shall be permitted.
                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 14 2012

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



                           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

determination that the Arizona Court of Appeals’s decision affirming Celaya’s

conviction was contrary to clearly established federal law, entitling Celaya to

habeas relief. Celaya cross-appeals the district 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 (“AEDPA”) 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 post-conviction review (“PCR”)

petition was “pending” until the Arizona Court of Appeals issued the mandate


                                          -2-
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 Lodge, Inc., 254 P.2d 1027, 1028-29 (Ariz.

1953). Accordingly, Celaya’s habeas petition, filed on November 28, 2001, was

timely.



                                         II

      Under AEDPA, we may grant Celaya’s petition only if we determine that the

Arizona Court of Appeals’s decision affirming her conviction 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).

“As a habeas court, we do not review the propriety of the state court’s application

of its own evidentiary rules; rather, we consider whether it was unreasonable for it

to conclude, in light of Chambers, that the exclusion did not violate [Celaya’s] due

process right to present a defense and receive a fair trial.” Lunbery v. Hornbeak,

605 F.3d 754, 761 n.1 (9th Cir. 2010). It does not matter that the court of appeals

did not cite to Supreme Court precedent on this issue. See Early v. Packer, 537

U.S. 3, 8 (2002) (explaining that avoiding the “pitfalls [of AEDPA] does not even




                                         -3-
require awareness of our cases, so long as neither the reasoning nor the result of

the state-court decision contradicts them”).1

      “The Supreme Court has made clear that the erroneous exclusion of critical,

corroborative defense evidence may violate both the Fifth Amendment due process

right to a fair trial and the Sixth Amendment right to present a defense.” DePetris

v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (citing Chambers v.

Mississippi, 410 U.S. 284, 294 (U.S. 1973)). Here, 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 Crane v. Kentucky, 476 U.S. 683, 690

(1986); Chambers, 410 U.S. at 302 (“Few rights are more fundamental than that of

an accused to present witnesses in his own defense.”).

      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




      1
       We recognize that the magistrate judge’s report and recommendation,
which the district court adopted, was mistaken in stating that Celaya’s
constitutional claim should be reviewed de novo. Because the Arizona Court of
Appeals’s decision was on the merits, we review it under AEDPA’s deferential
standard. See Harrington v. Richter, 131 S.Ct. 770, 784 (2011).

                                         -4-
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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