                                                             FILED
                                                 United States Court of Appeals
                    UNITED STATES COURT OF APPEALS       Tenth Circuit

                           FOR THE TENTH CIRCUIT                      September 26, 2012

                                                                      Elisabeth A. Shumaker
                                                                          Clerk of Court
CHARLES CHRISTIAN KRIDER,

             Petitioner-Appellant,

v.                                                        No. 12-3108
                                                 (D.C. No. 5:11-CV-03010-SAC)
EMMALEE CONOVER, Warden,                                    (D. Kan.)
Winfield Correctional Facility;
ATTORNEY GENERAL OF KANSAS,

             Respondents-Appellees.


                            ORDER AND JUDGMENT*


Before GORSUCH, Circuit Judge, BRORBY, Senior Circuit Judge, and HOLMES,
Circuit Judge.


      Charles Christian Krider was convicted of second-degree murder. After

exhausting his state court remedies, he filed for federal habeas corpus relief under

28 U.S.C. § 2254. The district court denied his § 2254 petition, but granted a

certificate of appealability (“COA”) on one issue involving the exclusion of


*
      After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of this
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument. This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and collateral
estoppel. It may be cited, however, for its persuasive value consistent with
Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
third-party perpetrator evidence. We have jurisdiction under 28 U.S.C. § 1291 and

2253(a) and affirm.

                       I. Factual and Procedural Background

      The Kansas Court of Appeals summarized the facts underlying Mr. Krider’s

conviction for second-degree murder:

             On January 19, 2004, Mary LaFaye Noble was supposed to meet
      the victim, Judith Shrum, at the victim’s house south of Chetopa,
      Kansas. When the victim did not answer her door or phone, Noble and a
      neighbor discovered the front door was unlocked, entered the house and
      searched it, but found only the victim’s purse and cell phone sitting on a
      counter and the victim’s car parked in the garage. Noble then called
      911.

             Although there was no sign of forced entry or a struggle, Noble
      informed the police she noticed wet towels on the bathroom vanity and
      clothes and a pillow on the floor of the bedroom, which seemed out of
      place for the victim, a meticulous housekeeper. Law enforcement
      officers collected the towels from the bathroom, a single hair lying on
      one towel, and swabs of two stains on the bathroom countertop.

              Initially, law enforcement officers feared the victim had harmed
      herself because of the recent death of her husband. Community
      members and law enforcement began searching for the victim. On
      January 21, the victim’s house was sealed off as a possible crime scene,
      and the sheriff’s office executed a search warrant on the house a day
      later, collecting hair from the shower drain and a nightgown and robe
      from the master bedroom.

            Eventually, the victim’s partially clothed body was located in a
      nearby creek on January 23. She had been strangled to death.

            The Chetopa police chief filed a report stating he had seen the
      defendant’s vehicle driving in Chetopa at midnight on January 19, 2004.
      On January 26, two KBI agents interviewed the defendant. The
      defendant told the agents he had been watching football at a friend’s
      house on January 18 before returning home at about 9 p.m. to play video
      games for a couple of hours. According to the defendant, around

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       11 p.m., he drove to some of his property southeast of Chetopa to shoot
       beavers and returned home around 2 a.m. on January 19, 2004. The
       defendant told the agents he had met the victim when they both worked
       for the Chetopa School District in 1996–97. According to the defendant
       he owned a tilling business and had been to the victim’s house to till a
       garden.

              DNA testing on stains from the robe, a towel from the bathroom,
       and the bathroom vanity revealed a mixture of DNA. Neither the
       defendant nor the victim could be excluded as contributors to the stains.
       The defendant’s facial hair was found to be consistent with the hair
       found on the bathroom towel, and his pubic hair was consistent with a
       hair from the shower drain.

State v. Krider, 202 P.3d 722, 726 (Kan. Ct. App. 2009).

       The State of Kansas charged Mr. Krider with one count of premeditated

first-degree murder. His first trial resulted in a mistrial after the jury could not reach

a unanimous decision.

       During the second trial, Mr. Krider sought to introduce circumstantial

evidence suggesting that the victim’s son-in-law, James Cook, had a motive to

commit the crime because his wife would benefit from the inheritance, and that as a

first-aid officer at Mr. Krider’s workplace, Mr. Cook could have had the opportunity

to collect Mr. Krider’s hair and blood to later plant at the crime scene to frame

Mr. Krider. The State moved for an order in limine prohibiting the defense from

presenting such evidence on the grounds that it was speculative and barred by

Kansas’s third-party evidence rule.

       The trial court considered the totality of the circumstances and granted the

State’s motion on the grounds that Mr. Krider’s proffered evidence was mere


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speculation and failed to reasonably connect Mr. Cook to the crime. The jury found

Mr. Krider guilty of second-degree murder and he was sentenced to a prison term of

165 months. On appeal, Mr. Krider challenged the trial court’s exclusion of his

third-party perpetrator evidence. The Kansas Court of Appeals upheld his conviction

and sentence and the Kansas Supreme Court denied review.

      Mr. Krider filed for § 2254 habeas relief in federal court. He raised four

claims for relief. The district court denied the habeas petition, but granted a

certificate of appealability on one claim: “whether the trial court’s application of the

‘effective connection’ test and exclusion of [Mr. Krider’s] third-party perpetrator

evidence violated [his] right to present a complete defense.” R. at 307-08.

                                     II. Discussion

      In order to be entitled to habeas relief, Mr. Krider must establish that the state

court decision 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), or “was based on an unreasonable determination of the facts

in light of the evidence presented,” id. § 2254(d)(2). A state court decision will be

“contrary to” clearly established precedent if the state court either “applies a rule that

contradicts the governing law set forth in [United States Supreme Court] cases” or

“confronts a set of facts that are materially indistinguishable from a decision of th[e]

Court and nevertheless arrives at a result different from [Supreme Court] precedent.”

Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court decision will be an


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“unreasonable application of” clearly established precedent if it “unreasonably

extends a legal principle from [Supreme Court] precedent to a new context where it

should not apply or unreasonably refuses to extend that principle to a new context

where it should apply” or “correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.” Id. at 407-08.

      Kansas’s third-party evidence rule prohibits the admission of evidence of a

third party’s motive to commit a crime, unless “there is other evidence connecting the

third party to the crime.” State v. Adams, 124 P.3d 19, 28 (Kan. 2005) (internal

quotation marks omitted), disapproved of on other grounds by State v. Warrior,

277 P.3d 1111, 1128 (Kan. 2012). The trial court “must evaluate the totality of facts

and circumstances in a given case to determine whether the defense’s proffered

evidence effectively connects the third party to the crime charged.” Id.

      The Kansas Court of Appeals concluded that the trial court properly applied

Kansas’ third-party evidence rule by evaluating the totality of Mr. Krider’s proffered

evidence and determining that it did not effectively connect Mr. Cook to the crime

charged. The court noted that the evidence of Mr. Cook’s possible motive (wife was

the beneficiary of life insurance proceeds) and opportunity to commit the crime and

frame Mr. Krider (access to the house and access to Mr. Krider’s blood and hair

samples from the workplace first aid station) was “nothing more than mere

speculation and conjecture and [did] not connect the third party to the crime.”

Krider, 202 P.3d at 729.


                                          -5-
      Proceeding pro se, Mr. Krider argues that the exclusion of this evidence

violated his right to defend himself; was contrary to, or involved an unreasonable

application of, clearly established Federal law; and was an unreasonable

determination of the facts in light of the evidence presented. He cites to the Supreme

Court’s decision in Holmes v. South Carolina, 547 U.S. 319, 324 (2006), in support

of his argument.

      In Holmes, the Supreme Court reiterated that “well-established rules of

evidence permit trial judges to exclude evidence if its probative value is outweighed

by certain other factors such as unfair prejudice, confusion of the issues, or potential

to mislead the jury.” Id. at 326. The Court further noted, “[a] specific application of

this principle is found in rules regulating the admission of evidence proffered by

criminal defendants to show that someone else committed the crime with which they

are charged.” Id. at 327. Third-party evidence may therefore be excluded “where it

does not sufficiently connect the other person to the crime, as, for example, where the

evidence is speculative or remote, or does not tend to prove or disprove a material

fact in issue at the defendant’s trial.” Id. (internal quotation marks omitted). The

Court explained that such third-party evidence rules “are widely accepted.” Id.

       The Holmes court did find error in South Carolina’s application of its

third-party evidence rule, however, because “the South Carolina Supreme Court

radically changed and extended the rule.” Id. at 328. The South Carolina court

applied a rule “that where there is strong evidence of [a defendant’s] guilt, especially


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where there is strong forensic evidence, the proffered evidence about a third party’s

alleged guilt may (or perhaps must) be excluded.” Id. at 329 (internal quotation

marks omitted). The Court explained that the rule applied by South Carolina did not

rationally serve the end that the third-party evidence rules were designed to

promote—“to focus the trial on the central issues by excluding evidence that has only

a very weak logical connection to the central issues.” Id. at 330.

      The state court’s application here of Kansas’s third-party evidence rule did not

result in a decision that was contrary to, or an unreasonable application of, clearly

established Federal law, and its decision was not based on an unreasonable

determination of the facts in light of the evidence. The Kansas rule is consistent with

the Supreme Court’s description of proper third-party evidence rules in Holmes

because the focus of the rule is on whether the proffered evidence tends to show that

a third-party committed the crime, as opposed to on the strength of the evidence

against the accused, as was the case with South Carolina’s rule. Thus, without

running afoul of clearly established federal law, the state court applied the Kansas

rule to exclude Mr. Krider’s proffered evidence that Mr. Cook had the motive and

opportunity to murder the victim and frame him because the evidence was

speculative and did not show an effective connection between Mr. Cook and the

crime charged.




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Accordingly, we AFFIRM the judgment of the district court.


                                      Entered for the Court


                                      Jerome A. Holmes
                                      Circuit Judge




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