                                                                            FILED
                           NOT FOR PUBLICATION                              APR 06 2015

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



                            FOR THE NINTH CIRCUIT


TIMOTHY LEON FOY, Jr.,                           No. 12-15947

              Petitioner - Appellant,            D.C. No. 2:10-cv-02322-KJM-TJB

  v.
                                                 MEMORANDUM*
CONNIE GIPSON, Warden,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Kimberly J. Mueller, District Judge, Presiding

                    Argued and Submitted November 18, 2014
                            San Francisco, California

Before: THOMAS, Chief Judge, REINHARDT and CHRISTEN, Circuit Judges.

       In California state court, a jury convicted Timothy Foy of several forcible

sexual offenses and kidnapping. Foy appeals the district court’s denial of his




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                          1
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 1291,

and we affirm the district court’s judgment.1

        Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

“[this court] must defer to the state court’s resolution of federal claims unless its

determination ‘resulted in a decision that was contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by the

Supreme Court of the United States.’” Delgadillo v. Woodford, 527 F.3d 919,

924–25 (9th Cir. 2008) (citing 28 U.S.C. § 2254(d)(1)). “‘[C]learly established

Federal law’ under § 2254(d)(1) is the governing legal principle or principles set

forth by the Supreme Court at the time the state court renders its decision.”

Lockyer v. Andrade, 538 U.S. 63, 71–72 (2003) (quoting Williams v. Taylor, 529

U.S. 362, 405, 413 (2000)). “[A] federal habeas court may overturn a state court’s

application of federal law only if it is so erroneous that ‘there is no possibility

fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents.’” Nevada v. Jackson, 133 S. Ct. 1990, 1992 (2013)

(quoting Harrington v. Richter, 131 S. Ct. 770, 786 (2011)).

I.      Evidence of the victim’s conduct



        1
              The parties are familiar with the facts, so we will not recount them
here.

                                            2
      The trial court cited California Evidence Code § 1103 in denying Foy’s

motion to admit evidence of several specific instances where the victim (O.)

engaged in acts of prostitution, including directing undercover police officers to

drive her to secluded locations. The California Court of Appeal affirmed this

ruling. Foy argues that the trial court’s exclusion of evidence concerning the

manner in which O. engaged in prostitution violated his constitutional rights to

confront witnesses and present a complete defense. The evidence at issue is

particularly important to Foy’s defense to the kidnapping charge—if O. agreed to

go with Foy to the park, the jury could have decided that he did not kidnap her,

even if he sexually assaulted her after they arrived there. But under the

circumstances of this case, we cannot conclude that the California Court of

Appeal’s decision affirming the trial court’s exclusion of this evidence was

contrary to, or an unreasonable application of, clearly established federal law.

      A.     Right to cross-examination

      The Supreme Court has long recognized the right to confront and cross-

examine witnesses as an essential component of due process. See Chambers v.

Mississippi, 410 U.S. 284, 294–95 (1973). But “the right to confront and to cross-

examine is not absolute and may, in appropriate cases, bow to accommodate other

legitimate interests in the criminal trial process.” Id. at 295. “[T]rial judges retain

                                           3
wide latitude . . . to impose reasonable limits on such cross-examination based on

concerns about, among other things, harassment, prejudice, confusion of the issues,

the witness’ safety, or interrogation that is repetitive or only marginally relevant.”

Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986).

      The cases where the Supreme Court has found a violation of the right to

cross-examination establish that the right primarily protects the defendant’s ability

to attack a witness’s credibility. See Olden v. Kentucky, 488 U.S. 227, 231(1988)

(reversing state court decision excluding evidence that alleged rape victim and

corroborating witness lived together and were involved in romantic relationship

because it was critical to showing witness’s potential bias); Van Arsdall, 475 U.S.

at 679 (where state dismissed pending charges, prohibition of all inquiry into

possible witness bias violated defendant’s right to cross-examination); Davis v.

Alaska, 415 U.S. 308, 317–21 (1974) (exclusion of evidence tending to show

witness’s bias violated defendant’s right to cross-examination).

      The constitutional right to cross examination as interpreted by the Supreme

Court was not violated by the trial court’s refusal to admit evidence that O.

previously directed undercover police officers to drive to secluded locations

because this evidence would have had little additional impact on the jury’s

perception of O.’s general credibility. The jury heard evidence that O. had

                                           4
convictions for prostitution, that O. used drugs, and, despite her testimony she was

not working as a prostitute on the evening she was assaulted, that O. had the DNA

of someone other than herself or Foy in her underwear. These facts generally call

O.’s credibility into question, and defense counsel used this evidence to

strenuously attack O.’s credibility.

      B.     Right to present a complete defense

      Foy argues on appeal that he was denied the right to present a complete

defense. “[T]he constitution guarantees criminal defendants a meaningful

opportunity to present a complete defense.” Jackson, 133 S. Ct. at 1992 (quoting

Crane v. Kentucky, 476 U.S. 683, 690 (1986)). But “state and federal rulemakers

have broad latitude under the Constitution to establish rules excluding evidence

from criminal trials.” Id. (quoting Holmes v. South Carolina, 547 U.S. 319, 324

(2006)). “Such rules do not abridge an accused’s right to present a defense so long

as they are not ‘arbitrary’ or ‘disproportionate to the purposes they are designed to

serve.’” United States v. Scheffer, 523 U.S. 303, 308 (1998) (quoting Rock v.

Arkansas, 483 U.S. 44, 56 (1987)). A rule is “arbitrary” where it “exclude[s]

important defense evidence but . . . [does] not serve any legitimate interests.”

Holmes, 547 U.S. at 325. “[A] federal habeas court may overturn a state court’s

application of federal law only if it is so erroneous that ‘there is no possibility

                                            5
fairminded jurists could disagree that the state court’s decision conflicts with [the

Supreme] Court’s precedents.’” Jackson, 133 S. Ct. at 1992 (quoting Harrington,

131 S. Ct. at 786).

      Here, the trial court’s decision unquestionably excluded relevant defense

evidence, but the ruling did not prevent Foy from presenting a defense to the

kidnaping allegation. The jury was instructed that the kidnaping charge required a

showing that Foy moved O. without her consent. The jury heard evidence

suggesting that O. had been “strolling” as a prostitute the night she was assaulted,

contrary to her testimony, and O. admitted she got into Foy’s car willingly. Foy

relied on this evidence to argue that the prosecution failed to meet its burden of

proof. He specifically countered the kidnaping charge by arguing: “prostitution in

and of itself is basically a very hazardous occupation by willingly going into cars

with strangers and going off somewhere to have consensual sex for money.” The

jury heard evidence critical to Foy’s defense to the kidnapping charge and he

argued his defense theory to the jury.

      Given the evidence that was admitted, a fairminded jurist could conclude the

trial court’s ruling struck the right balance between Foy’s right to present a defense

and the state’s “legitimate interest in protecting rape victims against unwarranted

invasions of privacy and harassment regarding their sexual conduct.” See Wood v.

                                           6
Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992) (citing Michigan v. Lucas, 500 U.S.

145, 149–50 (1991)). The evidence of O.’s interaction with undercover officers is

clearly prejudicial—as Foy argued to the California Court of Appeal, the excluded

evidence would have shown that O. “engaged in oral copulation . . . [, and]

willingly got into cars and drove to public locations in order to provide sexual

services in those cars.” The fact that the jury was aware O. was a prostitute and

used drugs does not negate the cumulative effect of the additional details defense

counsel sought to introduce.

      Applying AEDPA deference, as we are obliged to do, we conclude that it

was not unreasonable for the California Court of Appeal to find no constitutional

violation here. Reasonable jurists could differ concerning whether excluding

evidence of the manner in which O. engaged in prostitution was “arbitrary” or

“disproportionate to the purposes [California’s rape shield laws were] designed to

serve.” See Scheffer, 523 U.S. at 308.

II.   Admission of propensity evidence

      Foy argues that introduction of evidence he assaulted another woman after

he allegedly assaulted O. runs afoul of the general principle articulated in Alberni

v. McDaniel that “denial of due process is demonstrated if the action complained

of . . . violates those fundamental conceptions of justice which lie at the base of our

                                           7
civil and political institutions.” 458 F.3d 860, 866 (9th Cir. 2006). AEDPA

“recognizes . . . that even a general standard may be applied in an unreasonable

manner.” Panetti v. Quarterman, 551 U.S. 930, 953 (2007). But in this case,

precedent forecloses the conclusion that the state court’s decision was contrary to,

or an unreasonable application of, clearly established federal law. Estelle v.

McGuire, 502 U.S. 62, 75 n.5 (1991) (expressly reserving the question “whether a

state law would violate the Due Process Clause if it permitted the use of ‘prior

crimes’ evidence to show propensity to commit a charged crime”); Alberni , 458 at

866, 875 (“The scant supply of Supreme Court precedent applicable to the

propensity evidence issue does not . . . provide sufficient ‘clearly established

Federal law, as determined by the Supreme Court of the United States’”

(McKeown, J., concurring)). The trial court’s decision did not unreasonably apply

a “governing legal principle or principles set forth by the Supreme Court at the

time the state court render[ed] its decision,’” Lockyer, 538 U.S. at 71–72 (2003),

because the Supreme Court had not set forth any applicable legal principles

concerning whether the introduction of propensity evidence violates due process.

      AFFIRMED.




                                           8
                                                                             FILED
                                                                             APR 06 2015

                                                                          MOLLY C. DWYER, CLERK
Foy, Jr. v. Gipson, No. 12-15947                                           U.S. COURT OF APPEALS



REINHARDT, Circuit Judge, concurring in part and dissenting in part.

      I dissent from the majority’s conclusion in Part I.B that the exclusion of

Foy’s evidence regarding the kidnapping charge did not justify issuing the writ

under AEDPA with respect to that charge.

      The relevant question is whether excluding evidence that O. “willingly

enter[ed] into stranger’s cars” and “direct[ed] them to a location of her choosing,”

which Foy argued would provide “circumstantial evidence to establish that no

‘kidnap’ had occurred,” violated Foy’s due process right to present a complete

defense to the kidnapping charge. The only reasonable answer is yes.

      It is clearly established that a defendant’s right to “a meaningful opportunity

to present a complete defense,” Holmes v. South Carolina, 547 U.S. 319, 324

(2006) (quoting Crane v. Kentucky, 476 U.S. 683, 690 (1986)) (internal quotation

marks omitted), “is abridged by evidence rules that ‘infringe upon a weighty

interest of the accused’ and are ‘arbitrary’ or ‘disproportionate to the purposes they

are designed to serve.’” Id. (quoting United States v. Scheffer, 523 U.S. 303, 308

(1998)).

      Under AEDPA, “[a] federal habeas court may issue the writ under the

                                          1
‘contrary to’ clause if the state court applies a rule different from the governing law

set forth in our cases.” Bell v. Cone, 535 U.S. 685, 694 (2002). Instead of applying

Holmes, the California Court of Appeal in this case simply concluded that Foy’s

rights were not violated because, had the evidence been admitted, the jury would

not have received a significantly different impression of the witness’s credibility.

This may be an accurate description of the standard for assessing Confrontation

Clause violations, but it is not the Holmes standard that governs the right to present

a complete defense. The California Court of Appeal’s decision was thus “contrary

to” clearly established Supreme Court precedent. See Lafler v. Cooper, 132 S. Ct.

1376, 1390 (2012) (holding that a state court decision was “contrary to” federal

law because the state court “identified respondent’s ineffective-assistance-of-

counsel claim but failed to apply Strickland to assess it. Rather than applying

Strickland, the state court simply found that respondent’s rejection of the plea was

knowing and voluntary.”).

      Even assuming that the California Court of Appeal implicitly identified

Holmes as the correct standard, its decision would be an unreasonable application

of that precedent. Under Holmes, state exclusionary rules cannot be applied to

exclude relevant evidence if doing so would be “disproportionate to the purposes

[those rules] are designed to serve.” Holmes, 547 U.S. at 324–25 (quoting Scheffer,

                                           2
523 U.S. at 308). The question is thus whether the state’s interest in protecting

alleged “rape victims against unwarranted invasions of privacy and harassment

regarding their sexual conduct” outweighed Foy’s due process right to introduce

evidence important to his defense to the kidnapping charge.

        The majority first notes that the jury was properly instructed as to the

elements of the kidnapping charge. Many things were done properly in Foy’s trial,

but I see no logical connection between a correct jury instruction and whether it

was error to exclude the crucial evidence at issue. The majority also notes that the

jury heard evidence suggesting that O. had been “strolling” as a prostitute that

night, and she admitted that she got into Foy’s car willingly. Of course, the state

court did not exclude all relevant evidence favorable to Foy, but even AEDPA

requires more than that. That O. was “strolling” as a prostitute and that she

willingly got into Foy’s car in no way shows what the excluded evidence would

have shown: that she would “direct” clients where to go once she got into a client’s

car.1

        1
       Even more off the mark is the majority’s reliance on the fact that in his
closing statement Foy’s counsel argued that “prostitution in and of itself is
basically a very hazardous occupation by willingly going into cars with strangers
and going off somewhere to have consensual sex for money.” As juries are always
reminded, statements by defense counsel are not evidence, and in any event Foy’s
counsel simply restated what the admitted evidence showed. This in no way
suggested that O. had herself directed Foy (or anyone else) where to go, rather than

                                            3
      I strongly doubt that the state’s interest in preventing unwarranted intrusions

into an alleged victim’s sexual conduct is at all implicated here. Telling a customer

where to drive hardly constitutes sexual conduct.2 More important, the California

Rape Shield Law invoked to exclude the evidence in this case applies only when

the evidence is sought to be introduced in order to show that the alleged rape was

in fact consensual sex. See Cal. Evid. Code § 1103(c)(1). Foy, however, sought to

introduce evidence of O’s non-sexual conduct after she voluntarily entered the car

in order to rebut the kidnapping charge. The asserted interests underlying the Rape

Shield Law are thus not present in this case at all, and they certainly cannot

outweigh Foy’s due process right to present a complete defense to the kidnapping

charge.

      In short, I have no question that it was not only “arbitrary” but

“unreasonable” for the California Court of Appeal to hold that the exclusion of the

evidence that O. directed her customers to the locations she selected did not

deprive Foy of his due process right to present a complete defense to the



being the victim of a kidnapping.
      2
       The majority states that “the excluded evidence would have shown that O.
‘engaged in oral copulation,’” but it was of course possible for the trial court to
admit testimony about O. directing clients to locations of her choosing and at the
same time exclude evidence about her engaging in oral copulation.

                                           4
kidnapping charge. The evidence from the undercover police officers that directing

her customers to secluded locations was O’s method of operation was the only

evidence offered by Foy that she, not Foy, was responsible for the pair’s going to

the secluded location at which the sexual offense transpired. It was in fact the only

evidence, and the only defense, Foy offered regarding the kidnapping charge.

Excluding that evidence deprived him of that defense.

         Foy was properly convicted of being a rapist but he was unconstitutionally

convicted of being a kidnapper, under any standard that a reasonable jurist could

employ, specifically including that of whether the exclusion of the only defense

evidence on the kidnapping charge was an unreasonable application of clearly

established Supreme Court law. I can add only that the exclusion of that evidence

was “disproportionate” to any purpose the California Rape Shield Law was

designed to serve, given that the jury had been informed that O. was strolling as a

prostitute at the time she entered Foy’s car, and had been convicted of prostitution,

or, as the majority puts it, “the jury was aware that O. was a prostitute.” Evidence

as to her method of selecting the location of her business activities bears directly

on the kidnapping charge but adds little if anything to what the jury knew about her

past sexual conduct. I would reverse without the slightest hesitation or shadow of a

doubt.

                                           5
