                                                                                         FILED
                               NOT FOR PUBLICATION                                        MAR 16 2012

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



                                FOR THE NINTH CIRCUIT


 LEONARD MOORE, Jr.,                                    No. 09-55540

                Petitioner-Appellant,                   06-cv-01782-JM-CAB

   v.
                                                        MEMORANDUM*
 MATTHEW CATE,

                Respondent-Appellee.


                      Appeal from the United States District Court
                         for the Southern District of California
                       Jeffrey T. Miller, District Judge, Presiding

                        Argued and Submitted February 15, 2012
                                 Pasadena, California

Before:        FARRIS and W. FLETCHER, Circuit Judges, and KORMAN,
               Senior District Judge.**
        Leonard Moore, Jr., who was convicted in California of forcible rape and

related offenses, appeals from the denial of his petition for a writ of habeas corpus.

Moore argues that the trial judge erroneously excluded evidence of statements made


        *
              This disposition is not appropriate for publication and is not precedent except as
provided by 9th Cir. R. 36-3.
        **
               The Honorable Edward R. Korman, Senior United States District Judge for the
Eastern District of New York, sitting by designation.
by Autumn Taylor, the victim, about sexual intercourse she had with Joel Holmes, a

prosecution witness, two days prior to the rape. Specifically, Taylor said that she

could not remember if she consented to sex with Holmes but would not have if she

were sober and that she was mad at Holmes, did not want to talk with him or be alone

with him, and felt that his actions were inappropriate but not criminal.

      Moore argues that the trial court’s error prevented the defense from effectively

challenging Taylor’s and Holmes’s testimony in three discrete ways. Our de novo

review of the record persuades us that the alleged error did not have a “substantial and

injurious effect or influence in determining the jury’s verdict.”            Brecht v.

Abrahamson, 507 U.S. 619, 637 (1993) (quotation omitted); see also Merilillo v.

Yates, 663 F.3d 444, 454-55 (9th Cir. 2011).

      First, Moore argues that the excluded evidence supports a finding that Taylor

was upset with Holmes—who was with Taylor at the time that she was

kidnapped—and would provide a reason why she voluntarily decided to leave with

Moore. The excluded evidence shows only that Taylor was upset with Holmes on

Friday, the day after her sexual intercourse with Holmes. The evidence presented at

trial, however, shows that Taylor did not harbor ill will towards Holmes on Saturday

night, when the kidnapping and rape occurred. Indeed, even Moore testified that

Taylor was physically affectionate towards Holmes while in the back of Moore’s car


                                           2
before Holmes was forced out at gunpoint and Taylor was kidnapped. Taylor’s

behavior on Saturday night renders it exceedingly unlikely that the jury would have

concluded from the excluded evidence that Taylor would have voluntarily left with

Moore because she was upset with Holmes. Moreover, additional evidence which we

discuss below in relation to Moore’s other claims of prejudice significantly

corroborates the testimony of both Holmes and Taylor.

      Particularly significant is the evidence that undermines Moore’s argument that

the excluded evidence substantially affected the credibility of Holmes’s testimony.

The argument is based on the premise that the evidence showed that Holmes would

lie to support Taylor’s story out of fear that, if he did not, she could file rape charges

against him. Holmes, however, told both the police and his friends immediately after

the incident that Taylor was kidnapped at gunpoint. At the time he made these reports

he had no opportunity to speak with Taylor. Taylor called 911 upon being dropped

off at the trolley station immediately following the rape and said that she was

kidnapped and raped at gunpoint. Taylor and Holmes had no way of communicating

prior to either’s report to the police; such strong corroboration undercuts the argument

that Holmes was lying.

      Nor does the excluded evidence cast doubt on Taylor’s ability to accurately

remember the events of Saturday night. There was ample evidence from which Moore


                                            3
could argue that Taylor’s drinking prevented her from accurately recalling the events

of that night. More significantly, there was compelling evidence that her recollection

of the events was remarkably accurate.        Taylor’s testimony was detailed and

corroborated by Holmes’s and by Moore’s own testimony, which dovetailed with

Taylor’s narrative, except for the issue whether she was kidnapped and voluntarily

consented to sexual intercourse. Indeed, Taylor was also able to lead police back to

the motel at which she said she was raped. She identified the specific room that was

later proven to be the crime scene by forensic evidence and motel records. Moreover,

when he registered at the hotel, Moore gave a false address and license plate number.

All of this evidence provides ample support for the conclusion that any error in

excluding the evidence at issue was harmless.

      AFFIRMED.




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