                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 12 2012

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            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

decision that Celaya’s trial was fundamentally unfair, entitling her to habeas relief.

Celaya cross-appeals the lower 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 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 PCR petition was “pending” until the Arizona

Court of Appeals issued the mandate 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


                                           -2-
Lodge, Inc., 254 P.2d 1027, 1028 (Ariz. 1953). Accordingly, Celaya’s habeas

petition, filed on November 28, 2001, was timely.




                                          II

      The trial court’s exclusion of Celaya’s proferred witnesses rendered her trial

fundamentally unfair in violation of clearly established federal law. Arizona Rule

of Evidence 404(b) provides that “evidence of other crimes, wrongs, or acts is not

admissible to prove the character of a person in order to show action in conformity

therewith. It may, however, be admissible for other purposes, such as proof of

motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of

mistake or accident.” Ariz. R. Evid. 404(b). Celaya sought to introduce testimony

that was probative of Lopez’s motive and intent. 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 State v. Fish, 213 P.3d 258 (Ariz. Ct.

App. 2009); see also Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (“Few

rights are more fundamental than that of an accused to present witnesses in his own

defense.”); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991).




                                         -3-
      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

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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