Michael Ray Bredemier v. Theresa Cisneros

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK)
Petitioner, ORDER ACCEPTING REPORT
V. AND RECOMMENDATION TO
BRYAN PHILLIPS, Warden, DENY HABEAS PETITTON

Respondent.

Pursuant to
28 U.S.C. § 636
, the Court has reviewed the filed
(Corrected) Report and Recommendation to deny Petitioner’s Habeas
Petition and any relevant records as needed. Because the time for objections
has passed with none filed, the Court need not review de novo the findings
and conclusions in the Report and Recommendation. See Thomas v. Arn,
474 U.S. 140, 154
(1985); United States v. Reyna-Tapia,
328 F.3d 1114,
1121
(9th Cir. 2003) (en banc).
THEREFORE, the Court accepts the Report and Recommendation and
orders that the petition under
28 U.S.C. § 2254
be denied. Judgment will
accordingly be entered dismissing this action with prejudice.
IT IS SO ORDERED.
I “BE

DATED: __ 6/16/25
HERNAN D. VERA
United States District Judge

UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA

MICHAEL RAY BREDEMEIER, Case No. 5:22-cv-02016-HDV (SK)

Petitioner, REPORT AND
v. RECOMMENDATION TO DENY
HABEAS PETITION
BRYAN PHILLIPS, Warden,
Respondent.

Petitioner is a California inmate serving 90 years to life in prison after
a jury convicted him of child sex offenses against two victims. On appeal, he
claimed that the trial court incorrectly admitted evidence of uncharged bad
acts including prior child sex crimes, as well as unnecessary and unreliable
expert testimony, in violation of state evidence law and federal due process.
He also claimed that one of the victim’s testimony was insufficient to support
three of his seven convictions involving that victim. The California Court of
Appeal rejected these claims on the merits in the last reasoned state court
decision. Through retained counsel, petitioner now seeks federal collateral
review under
28 U.S.C. § 2254
, raising the same claims the court of appeal
denied on the merits.
As amended by the Antiterrorism and Death Penalty Act of 1996
(AEDPA), however, § 2254 precludes relitigation of these claims unless (as
pertinent here) petitioner proves that the court of appeal’s decision
contradicted or unreasonably applied clearly established federal law as
determined by the U.S. Supreme Court. See
28 U.S.C. § 2254
(d)(1).
Petitioner has not carried that burden. Indeed, he has not even framed his
habeas claims in correct AEDPA terms. In any case, petitioner has neither
shown that the court of appeal’s rejection of his evidentiary claims was
contrary to or an unreasonable application of controlling Supreme Court
precedent, nor established that the court of appeal unreasonably applied the
clearly established federal law governing his insufficiency of evidence claims.
As a result, the petition should be denied and this action dismissed.
I.
BACKGROUND
In 2018, police received a complaint that Jane Z.R., then 15 years old,
had been sexually abused by petitioner over many years starting when she
was nine or 10 years old. (1 RT 99–103). Z.R. met petitioner while living
with her adoptive parents who were close family friends of his, and so she
viewed him as surrogate grandfather (petitioner was in his mid to late-50s at
the time). (1 RT 110–12, 115–17, 125, 145). Z.R. reported at least two
instances of sexual penetration in late 2012 or early 2013 while in theaters
watching movies with petitioner, as well as “repeated” incidents of lewd acts
afterward at petitioner’s home during consecutive summers from 2013 to
2016. (1 RT 116–23, 126–27, 132–33).1 Police connected Z.R.’s complaint
to another they had received around 2007 from Jane M.D, who was a friend
of petitioner’s daughter in elementary school. (1 RT 53–64). M.D. reported
that petitioner had committed lewd acts when she was around 11 years old
during a sleepover with his daughter in 2000. (1 RT 62–66, 76–77). Like
Z.R., M.D. kept that alleged abuse a secret until years later when she
graduated from high school.

1 According to a police witness, Z.R. also reported to social services that petitioner
committed a sexual penetration or lewd act at a church her adoptive family attended with
A. Trial Testimonies
After investigating the victims’ allegations, the State of California
charged petitioner with two counts of sexual penetration with a child 10
years of age or younger (Z.R.); five counts of lewd acts with a child under 14
years of age (Z.R.); an additional sixth lewd acts count (M.D.); and one count
of molesting a minor under the age of 18 years (Z.R.). (CT 143–47, 156–
70). Both victims testified at trial along with several percipient witnesses,
including witnesses contradicting the victims’ accounts. (1 RT 53–64, 92–
185). One of the state’s witnesses was Z.R.’s biological grandmother who
uncovered her abuse upon discovering Instagram messages and comments
between her and petitioner. (1 RT 144–46). In the messages, exchanged
after Z.R. had moved out of her adoptive family’s home in 2017, petitioner
professed his continuing love for Z.R. and his desire to be her boyfriend. (1
RT 99–103, 150–52, 161). He also commented on Instagram pictures Z.R.
posted, describing her as “cutie” and “hottie.” (1 RT 144–46, 161, 166).2
For his part, petitioner didn’t testify at trial, but his attorney called
witnesses including members of Z.R.’s adoptive family and petitioner’s
daughter. One younger adoptive brother remembered (when he was in third
grade) going to two movies with petitioner and Z.R., where she sat between
them in the theaters. (2 RT 290–94). He saw nothing unusual during either
movie and said that Z.R. acted normal after the movies finished. (2 RT 293–
94). Z.R.’s adoptive mother testified that she only remembered Z.R. being
alone with petitioner perhaps twice during birthday parties. (2 RT 306–07).
She said that Z.R. never appeared upset after those visits and that all her

2 When the grandmother disclosed these posts to Z.R.’s adoptive parents, the mother was
“concerned” and “scared,” and the father thought they were “inappropriate.” (2 RT 335–
36, 342–43). The father confronted petitioner about them, but he neither denied nor
confirmed sending the messages to Z.R. (2 RT 342–43). Such comments were not
unusual according to Z.R., who recounted one birthday party of hers when petitioner said
children, including Z.R., liked petitioner and often wanted to sit next to him
in theaters. (2 RT 309–10). Finally, petitioner’s daughter testified about the
sleepovers with M.D. (2 RT 320–25). She recalled one when M.D. woke up
and said that her father had “done something” to her. (2 RT 324). But she
couldn’t remember how she responded and thought they both just eventually
went back to sleep. (Id.). According to the daughter, petitioner weighed
more than 400 pounds at the time and couldn’t walk well unassisted.3 (2 RT
325–26). She added that M.D. came over to their home again at least once
for another sleepover. (2 RT 325).
B. Challenged Evidence
In addition to victim and witness testimonies, the state introduced (1)
incriminating data found on petitioner’s cellphone, (2) evidence of prior
uncharged child sex abuse, and (3) expert testimony about “Child Sexual
Abuse Accommodation Syndrome” (CSAAS). The cellphone evidence
included links to videos titled “Father F*cks Schoolgirl Daughter” and
“Father and Daughter Live on Cute Baby Cam,” as well as Internet search
history for terms like “father f*cking daughter” and “young girls.” (1 RT
243–47, 265). The prior uncharged crimes involved petitioner’s younger
cousin by nine years, who testified that in the late 1970s (when she was
between seven and 10 years old) petitioner sexually molested and abused
her. (1 RT 24–35).4 And the CSAAS expert testified about the “pattern of

3 Other witnesses too, including Z.R., testified that petitioner had been a large man who
often used a cane to walk during the relevant years. (1 RT 172–73; 2 RT 291, 310).

4 According to the cousin (J.P.), petitioner would masturbate in front of her when they
were alone. (1 RT 24–28). One time, petitioner sat on top of her, causing pain but with
no sexual penetration. (1 RT 27). She described another time when petitioner woke her
while asleep at his house and performed oral sex. (1 RT 31–32). He tried again another
night while babysitting at her house, but she screamed until he left her alone. (1 RT 32–
33). Many years later, petitioner reportedly approached her and said that she has the
“sweetest p*ssy” he has ever “tasted.” (1 RT 41). The cousin never reported these
behaviors many children exhibit when they’ve been sexually abused,”
including delayed disclosure of abuse and contradictory or accommodating
behavior with abusers. (1 RT 191, 197–98, 200). The expert added,
however, that she had neither interviewed the victims nor reviewed any
police reports, so her testimony was not intended to offer opinions about
petitioner’s specific case. (1 RT 220–22).
Petitioner’s counsel objected before trial to the use of all this evidence.
(CT 98–108; 1 RT 3–9, 200–15). He argued that petitioner’s uncharged bad
acts—found in the cellphone and as alleged by his cousin—amounted to
criminal propensity evidence that should be excluded for unfair prejudice
and juror confusion. He also opposed the expert testimony, arguing that the
science around CSAAS was unreliable and that such testimony was unhelpful
in this case. Applying the relevant California rules of evidence, the trial
court overruled the defense objections. (1 RT 4–7, 10–11). It found that the
challenged evidence was offered for permissible purposes relevant to the
charged crimes and that none of the evidence would unduly prejudice,
confuse, or mislead the jury. When weighing the probative value of that
evidence against the risks of misleading, confusing, or prejudicing the jury,
the trial court added that any such risks would be further mitigated with
limiting instructions (which the court later issued for all three challenged
items of evidence) and defense counsel’s cross-examination of the witnesses
(through whom the challenged evidence was later introduced). (1 RT 9–11).
C. Petitioner’s Defense
Petitioner does not claim that his attorney performed inadequately in
mounting his defense at trial.5 Nor would the record support an ineffective

5 On appeal, he raised only contingent claims of ineffective trial assistance to avoid
procedural default in case the court of appeal were to find that he had forfeited his
evidentiary claims for lack of objection at trial. (LD 3). But the court of appeal found no
assistance claim anyway. Most importantly, counsel worked to impeach the
credibility of the victims (including petitioner’s cousin) and the reliability of
their memories so many years after the alleged abuses. (1 RT 165–85; 2 RT
397, 399, 402–03). For instance, defense counsel successfully elicited Z.R.’s
denial that any lewd act happened in a church, as the state claimed she had
reported to social services. (1 RT 179). Counsel also established that police
hadn’t ruled out whether others had “access” to petitioner’s cellphone or
even if he had personally “downloaded” and “viewed” child pornography on
the phone. (1 RT 246, 247, 404). As well, counsel elicited from the CSAAS
expert that she couldn’t attest if the victims had that syndrome, that
teenagers often make up stories to deflect unrelated adolescent problems,
and that CSAAS cannot enhance a victim’s credibility or prove that alleged
abuse happened just because it isn’t revealed until years later. (1 RT 220–
22). Counsel established, moreover, that petitioner’s weight and restricted
mobility at the time of the victims’ alleged abuses would have made it too
difficult for him to commit the alleged sexual acts in the ways the victims had
described. (2 RT 397–98, 401).
Defense counsel also homed in on Z.R.’s testimony around her most
serious allegations of sexual penetration and the number of alleged lewd
acts. (1 RT 165–179). As pertinent here, when asked if petitioner’s fingers
entered her vagina during the first movie, Z.R. replied, “I don’t know if it was
that time it did . . . because I was young, but I believe so.” (1 RT 120). Asked
the same question about the second movie, Z.R. said that petitioner put his
hands in her pants again but she couldn’t remember if his fingers entered
her vagina. (1 RT 122–24). When asked to recount what happened in the
summers, Z.R. said that petitioner touched her vagina in his outdoor hot tub
“frequently.” (1 RT 127–33). Asked for a number, she said it happened
“more than two” times but couldn’t “remember” or “count” if it was “more
than three.” (1 RT 127–28). Even though she later testified that the lewd
acts happened “not just . . . one time each summer” but “repeatedly each
summer” from 2013 to 2016 (1 RT 179), defense counsel zeroed in on these
perceived equivocations or generalities in Z.R.’s testimony to argue that
there was insufficient evidence to convict petitioner of any sexual
penetration charges or lewd acts involving Z.R. (2 RT 397, 399–400).
Following seven days of trial, the jury was convinced by at least some
of petitioner’s defenses and returned partially split verdicts after a day and a
half of deliberations. (2 RT 416–21). For Z.R., the jury found petitioner
guilty of only one count of sexual penetration related to the first movie
incident, but acquitted him of the other count stemming from the second
incident. It otherwise convicted him of all remaining counts—five lewd acts
involving Z.R., one lewd act involving M.D., and one molestation involving
Z.R. Afterward, at sentencing, the trial court ordered petitioner to serve a
total indeterminate term of 90 years to life in state prison. (CT 250–51).
D. Direct Appeal
On appeal of his convictions, petitioner challenged the introduction of
his uncharged bad acts as revealed in the cellphone evidence and his cousin’s
allegations of sexual abuse, as well as the CSAAS testimony. He claimed that
the challenged evidence shouldn’t have been admitted under the pertinent
California Evidence Code sections and that the admission of the evidence
violated federal due process. (LD 3 at 24–49).6 He argued, too, that Z.R.’s
testimony was too equivocal to support the sexual penetration conviction
and too generic to establish any more than the three lewd acts she had
managed to identify by number. (Id. at 19–23). The California Court of
Appeal rejected each of these claims in a fully reasoned opinion. (LD 5).

6 Relatedly, petitioner added a cumulative error claim arguing that the combined effect of
First, the court of appeal ruled that the cell phone evidence had been
appropriately admitted under Evidence Code § 1101(b), which creates an
exception to the general ban found in § 1101(a) on character or other bad
acts evidence offered only to show criminal predisposition to commit the
charged crimes.
Cal. Evid. Code § 1101
. The court agreed with the trial
court that the evidence was relevant to prove at least petitioner’s “intent,”
which “was put at issue when he pleaded not guilty to the crimes charged.”
(LD 5 at 26–30). The court then found that the trial court had reasonably
exercised its discretion under Evidence Code § 352, which confers
“discretion” to “exclude evidence if its probative value is substantially
outweighed by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue prejudice, of
confusing the issues, or of misleading the jury.”
Cal. Evid. Code § 352
. It
held that the evidence “was not unduly prejudicial” because (among other
reasons) the cellphone evidence was “far less inflammatory than the
testimony from the victims regarding how defendant sexually abused them.”
(Id. at 30). It also recognized that the trial court had instructed jurors that
the cellphone evidence could be considered only “for the limited purposes of
deciding whether” defendant “acted with the intent to arouse, appeal to or
gratify the lust, passions, or sexual desires of himself or a child,” or in
deciding whether the “defendant’s alleged actions were not the result of
mistake or accident.” (CT 202). They were told not to consider the evidence
for “any other purpose”—including to find that defendant “has a bad
character or is disposed to commit crime”—and that it was “not sufficient by
itself to prove that the defendant is guilty of the crimes charged.” (Id.).
Second, the court of appeal rejected the claim that the evidence of prior
uncharged crimes should have been excluded under Evidence Code § 352 as
propensity evidence that was unduly prejudicial, misleading, and confusing.
(LD 5 at 22–26). This evidence was admitted under Evidence Code § 1108,
which exempts a “defendant’s commission of another sexual offense or
offenses” from the general ban on propensity evidence when those prior
crimes are similar to the charged crimes—so long as its probative value is not
substantially outweighed by risks of undue prejudice, juror confusion, or
other exclusionary factors listed in § 352.
Cal. Evid. Code § 1108
(a). Noting
that the uncharged crimes involving petitioner’s cousin counted as sexual
propensity evidence under § 1108, the court of appeal agreed with the trial
court that the uncharged acts were similar enough to the charged crimes.
Contrary to what petitioner had argued, the court found that the relevant
point of comparison was not differences in his age at the time of the crimes
but the common nature of the abuse which targeted children as young as
eight or nine years old. (LD 5 at 25). It also found that the trial court was
within its discretion to find that the prior crimes were not “unduly remote in
time” given that other courts had allowed dated incidents 20 to 30 years
before the charged crimes to be admitted under § 1108. (Id.).7 Moreover,
the court of appeal underscored that the jury presumptively followed the
trial court’s limiting instructions, which cautioned that if jurors were to find
petitioner committed the uncharged crimes, that “conclusion [was] only one
factor to consider along with all the other evidence” and “not sufficient by
itself to prove defendant [was] guilty” of the charged crimes. (Id. at 25–26;
CT 207). Indeed, the court observed, if the jury had been unable or
unwilling to follow those instructions because of some impulse to “punish”
petitioner for his prior crimes, it wouldn’t have acquitted him of the second

7 Though not introduced at trial, the prosecution proffered the fact of petitioner’s 1984
conviction for indecent exposure when seeking to admit the prior crimes under § 1108.
Both state courts credited that proffered fact to reinforce their shared finding that the
prior crimes evidence was not too old to introduce just because it was from the late 1970s,
sexual penetration charge. (LD 5 at 26).
Third, the court of appeal found no merit to petitioner’s arguments
over the admissibility of the CSAAS evidence under California’s expert
evidence rules. See, e.g.,
Cal. Evid. Code § 801
(a) (permitting expert to
testify about topics “sufficiently beyond common experience that the opinion
of an expert would assist the trier of fact”). Recognizing the continued
acceptance of CSAAS testimony in prosecutions for child sex crimes, the
court rejected petitioner’s “suggestion that jurors no longer harbor confusion
or misconceptions about how children react to sexual abuse.” (LD 5 at 16–
17). Besides, as the court of appeal noted, it was bound by the California
Supreme Court’s decision reaffirming that CSAAS evidence remains
admissible “where, as here, the credibility of each victim is placed in issue
due to counterintuitive behavior.” (Id. at 17) (citing People v. McAlpin,
812
P.2d 563
, 568–570 (Cal. 1991)). The court also dismissed petitioner’s
“claim that CSAAS is no longer accepted within the scientific community”
and so should have been excluded as unreliable. (Id. at 17–18). It pointed
to “more than three decades” of state caselaw endorsing the use of CSAAS
testimony when, as here, “it is not offered as proof that a molestation
occurred but to rehabilitate the child victim’s credibility when the defense
suggests the victim’s postabuse [sic] conduct is inconsistent with having
been abused.” (Id. at 19).
Alternatively, the court of appeal found that even if the CSAAS
testimony should have been excluded, there was “no reasonable probability
of a more favorable result had the evidence been excluded.” (Id. at 20). The
court highlighted the substantial evidence of petitioner’s guilt—including
from the victims’ direct testimonies and petitioner’s own Instagram
messages to Z.R. (Id. at 21). It also explained that “any risk” of juror misuse
“was eliminated by [the expert’s] clear statements that she did not review
police reports, meet with the victims, interview witnesses, or review witness
statements” in petitioner’s case. (Id.). It added that the expert admitted on
cross-examination that her CSAAS testimony was “not evidence that
[petitioner] committed any of the charges.” (Id.). And last, it stressed that
the jury presumptively followed the trial court’s limiting instructions, which
cautioned that CSAAS testimony “is not evidence that the defendant
committed any of the crimes charged” and that jurors “may consider this
evidence only in deciding whether or not [the victims’] conduct was not
inconsistent with the conduct of someone who has been molested, and in
evaluating the believability of their testimony.” (CT 208).8
As for petitioner’s federal due process arguments, the court of appeal
recognized that trial evidence “will not offend due process” unless its
admission “is so prejudicial as to render the defendant’s trial fundamentally
unfair.” (LD 5 at 30). Applying that general standard, the court first found
no due process violation in the use of the cellphone evidence because “the
trial court properly conducted the required analysis under Evidence Code
section 352 and acted within its discretion in admitting” that evidence for
permissible purposes like establishing petitioner’s intent. The court of
appeal then rejected petitioner’s due process objection to the use of the
uncharged sex crimes because it was bound by the California Supreme
Court’s decision that use of sexual propensity evidence under § 1108 is
constitutional since trial courts retain discretion to exclude such evidence
under § 352. (Id. at 24) (citing People v. Falsetta,
986 P.2d 182
, 187–191
(Cal. 1999)). And finally, the court rejected petitioner’s due process
challenge to the CSAAS testimony because not only had the U.S. Supreme

8 Thus, having “assumed” only one possible—but harmless—evidentiary error at most
with the admission of the CSAAS testimony, the court of appeal rejected petitioner’s
cumulative error claim since there were no multiple trial errors to accumulate. (LD 5 at
Court permitted use of similar evidence (battered child syndrome) over due
process concerns, but also because many California state courts had likewise
found nothing unconstitutionally unfair in the use of CSAAS testimony for
child sex crime cases. (Id. at 19–20).
Finally, beyond the evidentiary challenges, the court of appeal rejected
petitioner’s insufficiency of evidence claims based on the alleged
equivocalness or genericness of Z.R.’s testimony. To start, the court
recognized that it had to view the record in the light most favorable to the
judgment, presume that the jury resolved evidentiary conflicts in favor of the
prosecution, and avoid reevaluating the credibility of witnesses. (LD 5 at 9).
Under those standards, the court of appeal found that the jury was entitled
to credit Z.R.’s belief that petitioner penetrated her during at least one of the
two movie incidents. (Id. at 10). Any equivocation, the court explained,
concerned possibly which theater the penetration happened in, “not whether
defendant actually did it.” (Id.). Likewise, viewing the evidence with all
inferences in support of the lewd act verdicts, the court found that Z.R.’s
testimony was sufficient to show five lewd acts had been committed because
she recalled at least three by number and otherwise testified that she was
“repeatedly” and “frequently” touched more than once each summer for four
straight years. (Id. at 13).9 Under California law, such descriptions—like
“twice a month” or “every time we went camping” during “the summer
before my fourth grade”—are considered legally adequate to prove the
“number of acts” and “the general time period” in which those acts occurred.
(Id.) (quoting People v. Jones,
792 P.2d 643
, 655–56 (Cal. 1990)).

9 The court of appeal also mentioned that the jury could have credited the alleged lewd act
in church described by police (1 RT 257–58), even though Z.R. couldn’t remember that
incident or reporting it to social services as police had testified. (LD 5 at 13). As she later
conceded on redirect examination, however, Z.R. said that her memory would have been
better a year earlier (when she had first talked to social services) before she began
After these unsuccessful efforts to overturn his convictions in the court
of appeal, petitioner sought discretionary review in the California Supreme
Court. But the state’s highest court summarily denied petitioner’s request
with no comment. (LD 7). This counseled § 2254 petition then followed.
II.
DISCUSSION
Petitioner reasserts in his habeas petition the same claims rejected on
their merits by the California Court of Appeal in the last reasoned state court
decision. (ECF 1–2, Memorandum in Support of Petition (“Pet.”) at 11–31).
The court of appeal’s opinion is thus the pertinent decision subject to habeas
review under AEDPA. See Wilson v. Sellers,
584 U.S. 122, 125
(2018);
Cannedy v. Adams,
706 F.3d 1148
, 1156–59 (9th Cir. 2013). AEDPA
precludes de novo review of petitioner’s claims, however, unless he first
proves that court of appeal’s 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).10 A
state court decision cannot be “contrary to” clearly established federal law
under § 2254(d)(1) unless it applied a rule directly contradicting one
announced by the Supreme Court or decided the case differently than a
Supreme Court case with indistinguishable facts. See Williams v. Taylor,
529 U.S. 362
, 405–06 (2000). And “an unreasonable application of federal

10 While de novo review is also possible if the decision “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding,”
28 U.S.C. § 2254
(d)(2), the first (and only) time petitioner mentions
§ 2254(d)(2) is in his traverse, but even then, only for his insufficiency of evidence claim.
(ECF 10 at 3). Never mind that claims raised that way are generally waived. See
Robinson v. Kramer,
588 F.3d 1212, 1217
(9th Cir. 2009); Cacoperdo v. Demosthenes,
37 F.3d 504, 507
(9th Cir. 1994). Challenges to sufficiency of evidence are reviewed
under § 2254(d)(1)—not § 2254(d)(2). See Maquiz v. Hedgpeth,
907 F.3d 1212
, 1217
law is different from an incorrect application of federal law.” Id. at 410. “To
meet that standard, a prisoner must show far more than that the state court’s
decision was ‘merely wrong’ or ‘even clear error’” according to controlling
Supreme Court precedent. Shinn v. Kayer,
592 U.S. 111, 118
(2020)
(quoting Virginia v. LeBlanc,
582 U.S. 91, 94
(2017) (per curiam)). He
“must show that the state court’s decision is so obviously wrong that its error
lies ‘beyond any possibility for fairminded disagreement.’”
Id.
(quoting
Harrington v. Richter,
562 U.S. 86, 103
(2011)). In other words, “even a
strong case for relief does not mean the state court’s contrary conclusion was
unreasonable.” Balbuena v. Sullivan,
980 F.3d 619, 633
(9th Cir. 2020).
A. The Failure to Allege that the Court of Appeal’s Decision Was
Unreasonable under AEDPA Bars Relief on the Face of the Petition
As a threshold matter, the petition—on its face—fails to allege
petitioner’s habeas claims in proper AEDPA terms, as evidenced by the fact
that the petition is substantively identical to his opening brief on appeal.
(Compare LD 3 at 21–22, 24, 37–43, 44–50, with Pet. at 12–13, 14, 15–20,
22–26, 27–31). Merits aside, that reveals a critical misunderstanding of
collateral review under § 2254. See Davis v. Ayala,
576 U.S. 257
, 267
(2015). Federal habeas review is not just a different name for another
chance at direct appellate review. See Greene v. Fisher,
565 U.S. 34
, 40
(2011); Hibbler v. Benedetti,
693 F.3d 1140, 1146
(9th Cir. 2012). Quite the
opposite: federal habeas relief is “different in kind from providing relief on
direct appeal” because, if nothing else, “undoing a final state-court judgment
is an extraordinary remedy.” Brown v. Davenport,
596 U.S. 118, 133
(2022) (cleaned up). That is why, for instance, “clearly established federal
law” under § 2254(d)(1) only “refers to the holdings”—not dicta—of the
Supreme Court “as of the time of the relevant state-court decision.”
Williams,
529 U.S. at 412
; see Atwood v. Ryan,
870 F.3d 1033, 1046
(9th
Cir. 2017). It is also why satisfying § 2254(d) on its own terms is a strict
“precondition” to federal habeas relief, not a potential “entitlement” to it.
Fry v. Pliler,
551 U.S. 112, 119
(2007). All the while, “petitioner carries the
burden of proof” under § 2254(d). Cullen v. Pinholster,
563 U.S. 170
, 181
(2011); see Ochoa v. Davis,
16 F.4th 1314, 1325
(9th Cir. 2021). So to have
even a chance at de novo review of his habeas claims, petitioner must prove
that the court of appeal “managed to blunder so badly that every fairminded
jurist would disagree” with its decision affirming his convictions. Mays v.
Hines,
592 U.S. 385, 392
(2021) (per curiam); see Davenport,
596 U.S. at
136
(“AEDPA asks whether every fair-minded jurist would agree” that a
state court decision is wrong).
If these standards seem “difficult to meet,” it is because they were
“meant to be.” Harrington,
562 U.S. at 102
. By congressional design,
AEDPA imposes a “highly deferential standard for evaluating state-court
rulings.” Lindh v. Murphy,
521 U.S. 320
, 333 n.7 (1997). It “demands that
state-court decisions be given the benefit of the doubt” if more than one
outcome is debatable, Woodford v. Visciotti,
537 U.S. 19, 24
(2002) (per
curiam), and thereby “prevents defendants—and federal courts—from using
federal habeas corpus review as a vehicle to second-guess the reasonable
decisions of state courts,” Renico v. Lett,
559 U.S. 766, 779
(2010).
“Because rational people can sometimes disagree, the inevitable
consequence of this settled law is that judges will sometimes encounter
convictions that they believe to be mistaken, but that they must nonetheless
uphold.” Cavazos v. Smith,
565 U.S. 1, 2
(2011) (per curiam).
While this case is not one of those close calls, the consequences of
AEDPA deference underscore how far petitioner’s claims fall short of the
required showings under § 2254(d). To make those showings, petitioner
cannot merely register his disagreement with the court of appeal’s reasons
for its decision and recycle the same arguments—practically verbatim—
raised and rejected on direct review.11 Rather, he must demonstrate that the
court of appeal’s decision was objectively unreasonable. But since
petitioner’s habeas claims are not framed in proper AEDPA terms, much less
convincingly argued in those terms, this oversight is reason enough to deny
the petition on its face. See Davenport,
596 U.S. at 127
; see also Shinn v.
Ramirez,
596 U.S. 366, 385
(2022) (“Where Congress has erected a
constitutionally valid barrier to habeas relief, a court cannot decline to give it
effect.”); Rule 4 of Rules Governing Section 2254 Cases (“If it plainly appears
from the petition . . . that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition.”).
B. The Due Process Clause Provides an Essential—But Limited and
Narrow—Right to Exclude Unduly Prejudicial Evidence When Its
Admission Renders a Criminal Trial Fundamentally Unfair
Even if generously construed in correct AEDPA terms, the petition still
rests on many flawed assumptions and premises when casting petitioner’s
evidentiary challenges as federal due process violations. The “Due Process
Clause guarantees the fundamental elements of fairness in a criminal trial.”
Spencer v. State of Tex.,
385 U.S. 554
, 563–64 (1967). But as the Supreme
Court has said “on more than one occasion, the Constitution entitles a
criminal defendant to a fair trial, not a perfect one.” Delaware v. Van
Arsdall,
475 U.S. 673, 681
(1986). Indeed, “given the myriad safeguards

11 For instance, because it is a near carbon copy of his appellate briefs, the petition
repeatedly mentions ineffective assistance of counsel as an ostensible basis for habeas
relief. (Pet. at 15, 20, 23, 26–27, 31). But those were only “conditional claim[s] of
ineffective assistance” raised on appeal in case any of the other underlying claims were
found procedurally defaulted because of untimely defense objection at trial. Moore v.
Johnson,
2022 WL 16952262
, at *1 n.2 (C.D. Cal. Sept. 30, 2022). Since the court of
appeal found no such procedural default, though, and instead addressed the claims on the
merits, “there is no justiciable ineffective assistance claim” to consider here. Id.; see
Garcia v. Dir., TDCJ-CID,
73 F. Supp. 3d 693, 765
(E.D. Tex. 2014) (If state court found
provided to assure a fair trial, and taking into account the reality of the
human fallibility of the participants, there can be no such thing as an error-
free, perfect trial.” United States v. Hasting,
461 U.S. 499
, 508–509 (1983).
One of those safeguards is, of course, the Due Process Clause. But federal
due process “draws a boundary beyond which state rules cannot stray; it
does not displace the law of evidence with a constitutional balancing test.”
Perry v. Rushen,
713 F.2d 1447, 1453
(9th Cir. 1983). Thus, as far a
criminal defendant’s constitutional right to exclude evidence is concerned,
the Supreme Court has “clearly established” only that “the Due Process
Clause forbids the introduction of evidence so unduly prejudicial as to
render a criminal trial fundamentally unfair.” Andrew v. White,
145 S. Ct.
75, 83
(2025) (reiterating that rule from Payne v. Tennessee,
501 U.S. 808,
825
(1991)).12
In so doing, the Supreme Court has “defined the category of infractions
that [can] violate ‘fundamental fairness’ very narrowly.” Dowling v. United
States,
493 U.S. 342, 352
(1990). So a rule of evidence, on its face or as
applied, cannot exceed the bounds of due process unless it offends
“fundamental conceptions of justice which lie at the base of our civil and
political institutions, and which define the community’s sense of fair play
and decency.”
Id. at 353
(internal citations omitted). That means routine

12 Before Andrew recently clarified that the Payne due process principle is not so
“general” as to be incapable of serving as “clearly established federal law” for AEDPA
purposes,
145 S. Ct. at 82
, the Ninth Circuit (and nearly every other circuit) maintained
that the Supreme Court had “not yet made a clear ruling that admission of irrelevant or
overtly prejudicial evidence constitutes a due process violation sufficient to warrant
issuance of the writ.” Holley v. Yarborough,
568 F.3d 1091, 1101
(9th Cir. 2009). Those
pre-Andrew cases are thus likely abrogated now. See, e.g., Garza v. Yates,
472 F. App’x
690, 692
(9th Cir. 2012) (Reinhardt, J., concurring) (explaining that Holley is “wrong,
and should be reconsidered in an appropriate case” because while the Supreme Court
may have “expressly left open the question of whether the introduction of propensity
evidence would violate due process because it was propensity evidence,” it has not “left
open the question of whether the admission of unduly prejudicial evidence could violate
admission of evidence will rarely infect a trial with fundamental unfairness
unless it presents a “threat to the truth-seeking function of the trial process,”
Hein v. Sullivan,
601 F.3d 897
, 915 n.12 (9th Cir. 2010), or impedes “the
truth-finding function of the court and jury,” Phillips v. Ornoski,
673 F.3d
1168, 1182
(9th Cir. 2012). Enlarging the scope of due process beyond
those elements “would be a wholly unjustifiable encroachment . . . upon the
constitutional power of States to promulgate their own rules of evidence to
try their own state-created crimes in their own state courts.” Spencer, 385
U.S. at 568–69. In short, the Due Process Clause (properly understood) sets
only the metes and bounds of a fair trial; it doesn’t impose per se
“constitutional constraints on ordinary evidentiary rulings by state trial
courts,” especially since they are “called upon to make dozens, sometimes
hundreds, of decisions concerning the admissibility of evidence.” Crane v.
Kentucky,
476 U.S. 683, 689
(1986); see McCray v. State of Ill.,
386 U.S.
300, 309
(1967); Spencer,
385 U.S. at 562
.
Several legal principles pertinent to the petition here emerge from this
recognition that the Due Process Clause provides an essential—but still
limited and narrow—constitutional right to exclude unduly prejudicial
evidence in criminal trials. First, contrary to petitioner’s assumption, a mere
violation of rules of evidence—whether found in contemporary codified
procedures of state and federal courts or in traditional English common
law—cannot for that reason alone violate the dictates of constitutional due
process. The “Fourteenth Amendment does not confine the states to the
common-law rules of evidence, however well established.” Great N. Ry. Co.
v. State of Wash.,
300 U.S. 154, 172
(1937). Nor does the Due Process
Clause “encompass all traditional legal rules and customs, no matter how
longstanding and widespread such practices may be.” United States v.
LeMay,
260 F.3d 1018, 1024
(9th Cir. 2001). As a result, the “Supreme
Court has cautioned against the wholesale importation of common law and
evidentiary rules into the Due Process Clause of [the] Constitution.”
Id.
at
1024–25. Even the Federal Rules of Evidence, which only became
(nonconstitutional) federal law around 1975, altered or abrogated many
common law rules of evidence even as they incorporated much of them. See
generally Funk v. United States,
290 U.S. 371, 379
(1933); United States v.
Allery,
526 F.2d 1362, 1364
(8th Cir. 1975).
Second, even on de novo review, federal habeas courts have no warrant
to independently review state court determinations about the admissibility
(or inadmissibility) of evidence under state law. In fact, “a state court’s
interpretation of state law, including one announced on direct appeal of the
challenged conviction, binds a federal court sitting in habeas corpus.”
Bradshaw v. Richey,
546 U.S. 74, 76
(2005). So in the collateral posture
that § 2254 petitions come to federal court, a state court’s relevant decision
finding the presence—or absence—of trial error under applicable state law is
beyond question and must be taken as given. See DePetris v. Kuykendall,
239 F.3d 1057
, 1061–62 (9th Cir. 2001); Jammal v. Van de Kamp,
926 F.2d
918, 919
(9th Cir. 1991); cf. Deck v. Jenkins,
814 F.3d 954, 979
(9th Cir.
2016) (“We accept the [California Court of Appeal’s] interpretation of
California law and take as established that prosecutorial error occurred.”).
Otherwise, “every erroneous decision by a state court on state law would
come here as a federal constitutional question,” Little v. Crawford,
449 F.3d
1075
, 1083 n.6 (9th Cir. 2006)—erasing the jurisdictional line set by
§ 2254(a). See Estelle v. McGuire,
502 U.S. 62, 68
(1991) (“In conducting
habeas review, a federal court is limited to deciding whether a conviction
violated the Constitution, laws, or treaties of the United States.”).
Yet beyond his overarching (and, as discussed next, mistaken) claim
that criminal propensity evidence is categorically proscribed by the Due
Process Clause, the balance of petitioner’s professed “due process”
arguments depend on or presuppose predicate evidentiary errors under state
law—including claimed mistakes in how the state courts assessed the
relative probative value of the uncharged bad acts with their potential for
undue prejudice under California Evidence Code § 352. (Pet. at 16–17, 25,
29–30). But not only do courts have “no authority to review [such] alleged
violations of a state’s evidentiary rules in a federal habeas proceeding,”
Windham v. Merkle,
163 F.3d 1092, 1103
(9th Cir. 1998), the court of
appeal’s finding that the uncharged bad acts were appropriately weighed
under § 352 before their use at trial is a binding and unreviewable state-law
determination.13 See Bradshaw,
546 U.S. at 76
; Estelle, 502 U.S. at 67–68;
see also DePetris, 239 F.3d at 1061–62 (state court’s admissibility
determination under state law is binding on federal habeas court).
Third, just like similarly evaluated trial errors also often entwined with
state law (e.g., jury instructional mistakes or prosecutorial misstatements in
closing), whether errors in admission of evidence rise to a federal due
process violation depends on “examination of the entire proceedings.”
Romano v. Oklahoma,
512 U.S. 1, 12
(1994) (quoting Donnelly v.
DeChristoforo,
416 U.S. 637, 643
(1974)); cf. Cupp v. Naughten,
414 U.S.
141, 147
(1973) (same for erroneous jury instructions); Darden v.
Wainwright,
477 U.S. 168
, 178–81 (1986) (same for prosecutorial
misconduct in argument). After all, the common due process question is not
just whether there is a trial error, but whether that claimed error “so infected
the trial with unfairness as to make the resulting conviction a denial of due

13 To this extent, then, petitioner’s evidentiary claims—including his challenge to the
CSAAS evidence—could be summarily dismissed as disguised, unreviewable state law
claims. See Poland v. Stewart,
169 F.3d 573, 584
(9th Cir. 1999); Gray v. Netherland,
518 U.S. 152, 163
(1996); Groen v. Busby,
886 F. Supp. 2d 1150
, 1159–61 (C.D. Cal.
process.” Darden,
477 U.S. at 181
; see Hein,
601 F.3d at 914
. So “the effect
on the trial as a whole needs to be evaluated in context.” Floyd v. Filson,
949
F.3d 1128
, 1149–50 (9th Cir. 2020). And when assessing that effect
holistically, the Supreme Court has emphasized that the protection against
unfairly prejudicial evidence is primarily afforded not by an exclusionary
rule enforced through the procedural guarantees of the Due Process Clause,
but by the substantive protections of enumerated rights in provisions like the
Fourth, Fifth, and Sixth Amendments. See, e.g., Perry v. New Hampshire,
565 U.S. 228, 237
(2012).
Perhaps foremost among those “safeguards available to defendants to
counter the State’s evidence” are “the Sixth Amendment rights to counsel,”
to “compulsory process,” and to “confrontation plus cross-examination of
witnesses.”
Id.
The record here (as summarized above) reveals that
petitioner received the benefits of all these Sixth Amendment safeguards.
Relatedly, when defense counsel has been “fully apprised, well prior to trial,
that [objectionable] evidence would be introduced” and “had a full and fair
opportunity to challenge this evidence,” if not also to “present rebuttal
evidence,” a fair trial can be had even with eventual admission of unwanted
damaging evidence. Bey v. Bagley,
500 F.3d 514, 522
(6th Cir. 2007).
Petitioner had the benefit of this protection, too, before trial. Finally,
because jurors are presumed to follow instructions, see Richardson v.
Marsh,
481 U.S. 200
, 210–211 (1987), defendants can rely on the use of
limiting instructions to cabin evidentiary errors within the bounds of a fair
trial. See Perry,
565 U.S. at 246
. These guardrails were also protectively
used in petitioner’s trial. So “apart from trials conducted in violation of
express constitutional mandates, a constitutionally unfair trial takes place
only where the[se] barriers and safeguards are so relaxed or forgotten . . .
that the proceeding is more a spectacle . . . or trial by ordeal . . . than a
disciplined contest.” United States v. Augenblick,
393 U.S. 348, 356
(1969).
Nothing in the record here, though, suggests that petitioner was tried in such
patently unfair ways or disorderly circumstances.
Fourth, the constitutional measure of whether challenged evidence is
so extremely prejudicial as to render a trial fundamentally unfair is not to be
confused with the factual gauge of whether a given piece of evidence should
be excluded under the discretionary rules providing for exclusion of relevant
evidence when its probative value is substantially outweighed by the risk of
undue prejudice. See, e.g.,
Cal. Evid. Code § 352
; compare Fed. R. Evid. 403
(“The court may exclude relevant evidence if its probative value is
substantially outweighed by a danger of one or more of the following: unfair
prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.”). For one thing, the
concerns behind these balancing rules are broader than and distinct from
federal due process concerns: they primarily guard against inflaming
emotional biases, confusing or misleading jurors, and wasting time. See
Spencer,
385 U.S. at 562
; see also Adv. Comm. Notes to Fed. R. Evid. 403
(“‘Unfair prejudice’ within this context means an undue tendency to suggest
a decision on an improper basis, commonly . . . an emotional one.”). For
another thing, while the rules of evidence are generally “designed in the
interest of fair trials,” unfairness in the application of those rules “is no sure
measure of unconstitutionality.” Augenblick,
393 U.S. at 352
.
So, on the one hand, a trial court may abuse its discretion by
permitting irrelevant, confusing, cumulative, or inflammatory evidence to be
introduced. Cf. Andrew, 145 S. Ct. at 78–79, 81–83 (taking as undisputed
that, in woman’s trial for husband’s murder, pervasive use of pernicious sex
stereotypes was both irrelevant and highly inflammatory); McKinney v.
Rees,
993 F.2d 1378, 1385
(9th Cir. 1993) (finding no relevance or
permissible non-propensity purpose, in young man’s trial for mother’s
murder, of nearly 60 pages of transcript testimony describing defendant’s
apparent “fascination with knives and with a commando lifestyle”). But that
mistake in the balancing of probative value against prejudicial effect doesn’t
necessarily mean the admitted evidence “so infected the trial with unfairness
as to render the resulting conviction or sentence a denial of due process.”
Andrew,
145 S. Ct. at 83
(cleaned up). Proving that prejudicial evidence
should have been excluded in a trial court’s discretion may thus almost
always be necessary to show a due process violation, but on its own will often
be insufficient.14 See Schell v. Witek,
218 F.3d 1017, 1025
(9th Cir. 2000)
(en banc) (“A particular abuse of discretion by a state court may amount also
to a violation of the Constitution, but not every state court abuse of
discretion has the same effect.”); Williams v. Borg,
139 F.3d 737, 740
(9th
Cir. 1998) (Federal habeas relief is available “only for constitutional
violation, not for abuse of discretion.”).
On the other hand, since “it is certainly possible to have a fair trial even
when state standards are violated,” the “adherence to state evidentiary rules”
will strongly suggest (if not prove on collateral review) that “the trial was
conducted in a procedurally fair manner.” Jammal,
926 F.2d. at 919
. Thus,
if evidence is found—or, as here, presumed—to have been admitted under

14 This is not to imply that an “item of evidence” is to be “viewed as an island, with
estimates of its own probative value and unfairly prejudicial risk the sole reference points
in deciding whether the danger substantially outweighs the value.” Old Chief v. United
States,
519 U.S. 172, 182
(1997). The trial court may “take account of the full evidentiary
context of the case as the court understands it when the ruling must be made.”
Id.
But
because the trial court has “considerable leeway” when arriving at that ruling, it is
reviewed on appeal only for manifest abuse of discretion. United States v. Sullivan, ---
F.4th---,
2025 WL 796111
, at *7 (9th Cir. Mar. 13, 2025) (direct review of district court’s
evidentiary ruling under Federal Rule 403); compare People v. Dworak,
490 P.3d 330
,
343–344 (Cal. 2021) (same for direct review of state trial court’s evidentiary ruling under
Evidence Code § 352). And so it always remains “important that a reviewing court
evaluate the trial court’s decision from its perspective when it had to rule and not indulge
state law based on a reasonable discretionary weighing of the evidence’s
potential prejudicial effect against its offsetting probative value, it is hard to
conceive a case when the use of such properly admitted evidence could ever
deprive a defendant of a fair trial. See, e.g., LeMay,
260 F.3d at 1027
(“If the
prior acts of molestation were properly admitted under Rule 403, there can
have been no as-applied constitutional violation.”); cf. Perry,
713 F.2d at
1453
(“[A] separate consideration of due process will rarely be needed in
day-to-day application of the rules of evidence.”). “All evidence introduced
against a criminal defendant might be said to be prejudicial if it tends to
prove the prosecution’s case.” LeMay,
260 F.3d at 1026
. But just because
evidence might be “highly prejudicial” doesn’t make it “necessarily unfairly
prejudicial.” United States v. Thornhill,
940 F.3d 1114, 1123
(9th Cir. 2019)
(original emphasis). So the “admission of even highly prejudicial evidence”
will not “necessarily trespass on a defendant’s constitutional rights.” LeMay,
260 F.3d at 1027
.
On their own, these overarching due process principles explain why
petitioner “bears a heavy burden in showing a due process violation based on
an evidentiary decision.” Boyde v. Brown,
404 F.3d 1159, 1172
(9th Cir.
2005); see Andrew,
145 S. Ct. at 83
(Alito J., concurring) (due process
violation depends on “properly admitted evidence” being “overwhelmed by a
flood of irrelevant and highly prejudicial evidence that renders the trial
fundamentally unfair”). So even on de novo review, the chances of federal
habeas relief on petitioner’s evidentiary claims are exceedingly low. When
AEDPA deference applies, however, those chances become vanishingly slim
because petitioner’s burden becomes doubly heavy. See Andrew,
145 S. Ct.
at 83
(The “ultimate question is whether a fairminded jurist could disagree”
that prejudicial evidence so infected a trial with fundamental unfairness as
to deny due process.); Garza,
472 F. App’x at 692
(Reinhardt, J., concurring)
(Because the Payne “‘fundamental conceptions of justice’ standard is a broad
one,” most “state court applications of it are therefore likely to be
reasonable.”) (citing Harrington,
562 U.S. at 101
).
C. Petitioner Has Identified No Supreme Court Precedent Establishing
that Propensity Evidence is Prohibited by the Due Process Clause
Start with petitioner’s claim that the admission of his uncharged bad
acts—as revealed in the cellphone evidence and his cousin’s testimony of
child sex abuse—violated federal due process because the evidence was used
only to show his “predisposition to commit the alleged offenses.” (Pet. at 23,
27, 30). As required by § 2254(d)(1), petitioner must identify Supreme
Court precedent establishing the premise for his claims—that the Due
Process Clause categorically prohibits the admission of uncharged bad acts,
including prior crimes, offered solely to show criminal propensity. See
Lockyer v. Andrade,
538 U.S. 63
, 70–71 (2003). Yet so far, the Supreme
Court has “express[ed] no opinion on 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.” Estelle,
502 U.S. at 75
n.5; accord
United States v. Porter,
121 F.4th 747, 752
(9th Cir. 2024) (No Supreme
Court case has held “that it would be improper to admit propensity evidence
in sexual assault cases” under the Due Process Clause.); Kipp v. Davis,
971
F.3d 939
, 951 n.8 (9th Cir. 2020) (“[T]here is no clearly established law that
addresses whether the admission of a defendant’s criminal history or prior
bad acts would violate due process.”); Mejia v. Garcia,
534 F.3d 1036, 1047
(9th Cir. 2008) (The “United States Supreme Court has never established the
principle that introduction of evidence of uncharged offenses necessarily
must offend due process.”); Larson v. Palmateer,
515 F.3d 1057, 1066
(9th
Cir. 2008) (“The Supreme Court has expressly reserved the question of
whether using evidence of the defendant’s past crimes to show that he has a
propensity for criminal activity could ever violate due process.”).
The principal cases cited by petitioner—like Michelson v. United
States,
335 U.S. 469
(1948), and Boyd v. United States,
142 U.S. 450
(1892)—do not establish otherwise.15 To be sure (as petitioner notes), the
traditional rule precluding character evidence offered solely to prove
criminal predisposition has deep roots in English common law. (Pet. at 27–
29). And that general propensity rule has been carried forward in modern
rules of evidence. See, e.g.,
Cal. Evid. Code § 1101
(a) (precluding “evidence
of a person’s character or a trait of his or her character”—including “evidence
of specific instances of his or her conduct”—“when offered to prove his or her
conduct on a specified occasion”); see also Fed. R. Evid. 404(a), 404(b)(1).
But as explained, even when a “common insight” like the general propensity
rule is reflected in “federal statutes as well as state and federal rules of
evidence and common law,” such a broad “consensus” is still not “inevitably
congruent with the dictates of the Constitution.” Crane,
476 U.S. at 689
.
Evidently misunderstanding these first principles, petitioner reads
Michelson and Boyd incorrectly as constitutional decisions placing—in the
Due Process Clause—a categorical prohibition against any evidence that
could be offered to show criminal propensity. (Pet. at 23–25, 27–29).16 But

15 The other main case he cites, Brinegar v. United States,
338 U.S. 160
(1949), is farther
afield. In that case, which dealt with admissibility standards for evidence between
suppression hearings and the guilt phase of trials, the Court remarked (in dicta no less)
that historical “rules of evidence” are “to some extent embodied in the Constitution,”
which is undeniably true so far as it goes.
Id. at 174
. And the cases he adds in his
traverse dealt with limits on the exclusion of defense evidence, not on the admission of
state’s evidence. (ECF 10 at 4–5). A defendant’s right to introduce exculpatory evidence
stems from enumerated rights and implicates concerns beyond just due process that are
not coextensive with the right to exclude inculpatory evidence. See generally Colin
Miller, A Constitutional Right to Exclude Evidence, 12 Tex. A&M L. Rev. 317 (2024).

16 Separately, petitioner also apparently misapprehends “the history of evidentiary rules
regarding a criminal defendant’s sexual propensities,” which “is ambiguous at best,
those cases relied not on federal constitutional demands, but on the
Supreme Court’s inherent “supervisory power” over federal courts. Spencer,
385 U.S. at 563
, 572–74 n.4–6. That supervisory power was needed at the
time to “formulate[] rules of evidence to be applied in federal criminal
prosecutions” since the Federal Rules of Evidence wouldn’t be enacted until
decades later. McNabb v. United States,
318 U.S. 332, 341
(1943). But the
rules created through such power, while “deemed desirable from the
viewpoint of sound judicial practice,” Cupp,
414 U.S. at 146
, were not
necessarily “required by the Constitution,” Bank of Nova Scotia v. United
States,
487 U.S. 250, 254
(1988). Indeed, there remains much daylight
between the “narrow” demand of due process and the “broad exercise of
supervisory power”—“for not every trial error or infirmity which might call
for application of supervisory powers correspondingly constitutes a ‘failure
to observe that fundamental fairness essential to the very concept of
justice.’” Donnelly,
416 U.S. at 642
(quoting Lisenba v. California,
314 U.S.
219, 236
(1941)).
Thus, contrary to petitioner’s mistaken reading of his own cited cases,
the Supreme Court has “never held that the use of prior convictions to show
nothing more than a disposition to commit crime would violate the Due
Process Clause of the Fourteenth Amendment.” Spencer, 385 U.S. at 572–
74. Even more misplaced, then, is petitioner’s supposition that the use of
other bad acts—when offered for non-propensity purposes (as with the
cellphone evidence)—is also forbidden by the Due Process Clause. At the
same time that common-law courts established the general propensity rule,

particularly with regard to sexual abuse of children.” LeMay,
260 F.3d at 1026
(quoting
United States v. Castillo,
140 F.3d 874, 881
(10th Cir.1998)). American courts “routinely
allowed propensity evidence in sex-offense cases, even while disallowing it in other
criminal prosecutions.” Id. at 1027. “As early as 1858,” in fact, many common law courts
were relaxing the rule against propensity evidence when the charged offense involved a
they developed “broad” exceptions to that rule—“whose application [was] left
largely to the discretion of the trial judge”—permitting other bad acts
evidence when offered to prove non-propensity matters like “intent, identity,
malice, motive, and plan.” Marshall v. Lonberger,
459 U.S. 422
, 438 n.6
(1983). What’s more, the common law of evidence historically “recognized
that any unfairness resulting from admitting prior [bad acts] was more often
than not balanced by its probative value and permitted the prosecution to
introduce such evidence without demanding any particularly strong
justification.”
Id.
The Supreme Court has thus rejected the premise “that
the common law regarded the admission of prior [bad acts] as grossly unfair
and subject to some sort of blanket prohibition.”
Id.
None of this is to deny the valid concerns when propensity evidence is
offered for no purpose other than criminal predisposition. “The question,
however, is whether it is acceptable to deal with the potential for abuse
through nonconstitutional sources like the [rules of evidence], or whether
the introduction of this type of evidence is so extremely unfair that its
admission violates ‘fundamental conceptions of justice.’” Dowling,
493 U.S.
at 352
. Nor is it to suggest that the Supreme Court will never hold that the
propensity rule can be underwritten by federal due process. See, e.g.,
LeMay,
260 F.3d at 1025
(outlining counterarguments why “general ban on
propensity evidence” may have “requisite historical pedigree to qualify for
constitutional status”). It’s just to say that, so far, the Supreme Court has
reserved that question—and not taken “the logical next step” in
constitutionalizing that rule through the Due Process Clause. White v.
Woodall,
572 U.S. 415, 427
(2014).
In sum, petitioner has not carried his “very high burden in proving”
that the “traditional rule precluding the use of a defendant’s prior bad acts to
prove his disposition to commit the type of crime charged is so ingrained in
Anglo–American jurisprudence as to be embodied in the due process clause
of the Constitution.” LeMay,
260 F.3d at 1024
. And far from being
prohibited at common law, the longstanding use of other bad acts evidence
for non-propensity purposes is as venerable as the propensity rule itself. See
Spencer,
385 U.S. at 563
. Petitioner thus cannot show that the court of
appeal’s rejection of his challenge to the uncharged bad acts—based on mere
historical acceptance of the general propensity rule—was contrary to or an
unreasonable application of clearly established federal law. See Alberni v.
McDaniel,
458 F.3d 860, 866
(9th Cir. 2006) (“We cannot conclude that the
[state court] acted in an objectively unreasonable manner in concluding that
the propensity evidence . . . did not violate due process, given that Estelle
expressly left this issue an ‘open question.’”); Mejia,
534 F.3d at 1046
(When
petitioner “can point to no Supreme Court precedent establishing that
admission of propensity evidence . . . is unconstitutional,” the state court’s
decision admitting such evidence cannot be “contrary to clearly established
Supreme Court precedent.”).
D. Fairminded Jurists Could Agree that the Admission of the Uncharged
Bad Acts Resulted in No Denial of Petitioner’s Right to a Fair Trial
Nor can petitioner prove that the court of appeal’s decision affirming
the use of his uncharged bad acts was contrary to or an unreasonable
application of clearly established federal law just because, in his view, its
probative value was substantially outweighed by its “prejudicial” effect.
Recall that the court of appeal found that the cellphone evidence was
properly admitted under state law because it was evidence of other bad acts
offered to prove not his “disposition to commit” those bad acts, but his
“intent” to commit the charged crimes.
Cal. Evid. Code § 1101
(b); compare
Fed. R. Evid. 404(b)(2) (permitting evidence “of any other crime, wrong, or
act” when offered “for another purpose, such as proving motive, opportunity,
intent, preparation, plan, knowledge, identity, absence of mistake, or lack of
accident”). It also found that the evidence of petitioner’s uncharged sexual
misconduct was admissible under California law, which permits that
evidence expressly for propensity purposes—to prove that he committed the
charged sex offenses. See
Cal. Evid. Code § 1108
(a).17 Then, for both items
of evidence, the court of appeal found that the trial court reasonably
exercised its discretion under Evidence Code § 352—by weighing the
probative value of the evidence against its risk of undue prejudice—before
admitting the evidence. And not least, the court of appeal found that the
admission of the uncharged bad acts did not violate federal due process
because it was relevant evidence offered for permissible purposes and
accompanied by reasonable findings that the probative value of the evidence
outweighed any risks of unfair prejudice, juror confusion, or other
countervailing exclusionary factors in § 352.
None of these determinations contradicted or unreasonably applied
the general due process rule prohibiting admission of evidence so unduly
prejudicial as to deny a fair trial. For starters, the court of appeal recognized
and applied, as appropriate, the same general fundamental fairness principle
recognized in Payne and Andrew (LD 5 at 30), so its decision was not
“contrary to” clearly established federal law. Early v. Packer,
537 U.S. 3
, 8

17 California modeled Evidence Code § 1108 (and its companion provision in § 1109 for
domestic violence crimes) on similar federal rules approved by Congress years before.
See Fed. R. Evid. 413 and 414. These federal rules likewise exempt sexual assault and
child molestation cases from the default propensity rule in Federal Rule 404, which like
its California equivalent in § 1101(a), precludes bad character or other bad acts evidence
when offered solely to prove a defendant’s propensity to commit crimes. See Fed. R.
Evid. 404(a), 404(b)(1). As a result, federal prosecutors, too, may offer evidence of prior
uncharged sexual misconduct to prove that a defendant committed charged sex offenses
with no need to prove a non-propensity purpose under Rule 404(b)(2). Still, just as state
courts can exclude sex crimes evidence in their discretion under Evidence Code § 352,
federal courts retain discretion to do the same under Rule 403 even if that evidence is
(2002) (state court opinion is not “contrary to” clearly established federal
law “so long as neither the reasoning nor the result of the state-court
decision contradicts” controlling Supreme Court precedent). It then
reasonably applied that general due process principle when affirming the
trial court’s evidentiary rulings, including its discretionary decision to admit
the challenged evidence after performing the required § 352 weighing of
probative value against potential prejudicial effect. “Because AEDPA
authorizes federal courts to grant relief only when state courts act
unreasonably, it follows that the more general the rule at issue—and thus
the greater the potential for reasoned disagreement among fair-minded
judges—the more leeway state courts have in reaching outcomes in case-by-
case determinations.” Renico,
559 U.S. at 779
(cleaned up). “In turn, the
state courts’ greater leeway in reasonably applying a general rule translates
to a narrower range of decisions that are objectively unreasonable under
AEDPA.” Cheney v. Washington,
614 F.3d 987, 995
(9th Cir. 2010) (citing
Yarborough v. Alvarado,
541 U.S. 652, 664
(2004)).
So too here. The broad due process guarantee of a fair trial free of
unduly prejudicial evidence is, of course, a highly generalized legal rule. See
Andrew,
145 S. Ct. at 82
. As a result, to prove that the court of appeal
unreasonably applied that general standard, petitioner bears an
exceptionally heavy burden—beyond just establishing state law evidentiary
error with even a “highly” prejudicial effect on jurors’ minds. After all, the
prosecution was not required to choose the least “prejudicially”
incriminating method of proving its case to avoid a due process violation.
See Old Chief,
519 U.S. at 186-87
; United States v. Dixon,
698 F.2d 445, 446
(11th Cir. 1983); see also Sidibe v. Sutter Health,
103 F.4th 675, 702
(9th
Cir. 2024) (“It is inappropriate to exclude evidence under Rule 403 because
it casts [the opposing party] in a really bad light.”) (quoting Cuff v. Trans
States Holdings, Inc.,
768 F.3d 605, 609
(7th Cir. 2014)). Instead, to meet
§ 2254(d)(1), petitioner must show that every fairminded jurist would agree
with him that the challenged evidence was so unduly prejudicial—that it
unconstitutionally infected the entire trial with so much unfairness—that it
rendered his resulting conviction a denial of fundamental due process. See
Andrew,
145 S. Ct. at 83
(citing Payne,
501 U.S. at 825
, and Romano,
512
U.S. at 13
). Petitioner’s claim comes nowhere close to that necessary
showing, especially since the court of appeal had the widest of berths for
reasonable application of a rule as general as the fair-trial backstop in the
Due Process Clause. See Cheney,
614 F.3d at 995
.
To start, fairminded jurists could agree with the court of appeal’s
finding that the cellphone evidence—admitted as other bad acts to establish
the non-propensity issue of petitioner’s intent—was consistent with due
process. “Only if there are no permissible inferences the jury may draw from
the evidence” can the admission of “other acts” evidence ever violate due
process. Jammal,
926 F.2d at 920
(original emphasis); accord McKinney
993 F.2d at 1384
(Bad character evidence can violate due process only if
there are no non-propensity inferences that the jury may draw from the
evidence.); Windham, 163 F.3d at 1103–04 (same). Because petitioner pled
not guilty to the charged offenses, however, the prosecution had the burden
of proving every element of the crimes—including his intent—beyond a
reasonable doubt. See Estelle, 502 U.S. at 69–70. And the court of appeal’s
finding that the cellphone evidence was relevant to show such intent under
state criminal law is a binding determination. See Bradshaw,
546 U.S. at
76
; DePetris, 239 F.3d at 1061–62. Thus, it was not objectively
unreasonable for the state court to find that admission of the cellphone
evidence resulted in no denial of petitioner’s right to a fair trial. See, e.g.,
McNally v. White,
164 F.3d 630
(9th Cir. 1998) (admission of racial epithets
did not taint trial because statements were admitted as evidence of motive
for murder); Groen, 886 F. Supp. 2d at 1160–61 (“Given that petitioner
denied the charged allegations and claimed he . . . was no longer sexually
attracted to young boys, it was not fundamentally unfair to introduce” media
“depicting naked or semi-naked young boys”); Smith v. Pliler,
278 F. Supp.
2d 1060
, 1075–76 (N.D. Cal. 2003) (reasonable for state court to find that
prior acts of violence and stalking admitted to show intent and motive did
not render trial unfair in violation of due process).
Similarly, fairminded jurists could agree that admission of petitioner’s
uncharged sex crimes was not so unduly prejudicial as to infect the trial with
intolerable unfairness. Unlike the admission of “other acts” evidence for
non-propensity purposes under § 1101(b), prior sex crimes are admitted
under § 1108(a) precisely to show propensity to commit the charged sex
crimes. The parallel federal rules are the same. See Fed. R. Evid. 413 and
414. Still, the California Supreme Court has long held that admission of
evidence under § 1108(a) does not violate due process so long as trial courts
retain discretion—as they do—to exclude such evidence beforehand under
§ 352 if deemed too prejudicial, confusing, or wasteful (among other
exclusionary considerations). See People v. Rhoades,
453 P.3d 89, 110
(Cal.
2019); Falsetta, 986 P.2d at 189–190. And naturally bound by that state
precedent, the court of appeal affirmed the use of the prior crimes evidence
here over petitioner’s due process challenge. (LD 5 at 24).
That was not an objectively unreasonable application of clearly
established federal law. After all, faced with the same type of due process
attacks on the comparable federal rules (which both § 1108 and § 1109 were
modeled on), the Ninth Circuit itself has held—just like the California
Supreme Court—that admission of sexual propensity evidence in sex crime
prosecutions (under either Federal Rules 413 or 414) is not unfair when, as
here, the trial court maintains discretion to exclude that evidence (under
Rule 403) if its probative value is substantially outweighed by unfair
prejudice or other countervailing factors. See LeMay,
260 F.3d at 1031
(“[W]e hold that Rule 414 is constitutional and does not violate due process,
equal protection, or any other constitutional guarantee.”); Porter,
121 F.4th
at 752
(9th Cir. 2024) (“We reaffirm LeMay and join the other circuits in
holding that Rule 413 does not violate due process.”); Ray v. Kernan,
646 F.
Supp. 2d 1102, 1123
(N.D. Cal. 2009) (“The reasoning of LeMay applies
equally to this case because the California rules are analogous to the federal
rules.”). So it couldn’t have been objectively unreasonable for the court of
appeal to likewise recognize that the trial court’s discretionary authority to
exclude such evidence (under state law) when the balance between relevance
and prejudice tips too far unfairly was enough to keep the use of petitioner’s
sexual propensity evidence within federal due process boundaries. And like
its determination of the admissibility of the cellphone evidence under
California law, the court of appeal’s finding that the trial court reasonably
exercised its discretion under state law before admitting the prior crimes
evidence cannot be second-guessed on federal habeas review. See
Bradshaw,
546 U.S. at 76
; DePetris, 239 F.3d at 1061–62.
Besides, past sexual misconduct is “indisputably relevant” to whether a
defendant committed current charged sex offenses. LeMay,
260 F.3d at
1026
. And “introduction of relevant evidence, by itself, cannot amount to a
constitutional violation.”
Id.
“There is, of course, a non-probative aspect to
all evidence of prior crimes or prior criminal conduct.” United States v.
Bailleaux,
685 F.2d 1105, 1112
(9th Cir. 1982). And “evidence of a
defendant’s prior acts of molestation will always be emotionally charged and
inflammatory.” LeMay,
260 F.3d at 1030
. But so, too, “is the evidence that
he committed the charged crimes.”
Id.
As far as due process, though, when
a “jury learns of prior crimes committed by the defendant,” the “conceded
possibility of prejudice is believed to be outweighed by the validity of the
State’s purpose in permitting introduction of the evidence.” Spencer,
385
U.S. at 561
. Moreover, the defendant’s “interests are protected by limiting
instructions . . . and by the discretion residing with the trial judge to limit or
forbid the admission of particularly prejudicial evidence even though
admissible under an accepted rule of evidence.”
Id.
All this practical play in
the joints of the Due Process Clause means that there will invariably be a
wide range of fairminded disagreement over when use of any defendant’s
prior crimes is so extremely prejudicial as to preclude a fair trial. See
Romano, 512 U.S. at 13–14 (When it is “equally plausible” that jury drew
either damaging or helpful inference from evidence and “[e]ither conclusion
necessarily rests upon one’s intuition,” concluding that admission of that
evidence was “fundamentally unfair” would be “exercise in speculation,
rather than reasoned judgment.”). So too here for the court of appeal’s case-
specific review of the trial court’s inherently discretionary decision to admit
legislatively-authorized sex crimes evidence, under accepted state rules of
evidence, in an otherwise typical state sex crimes prosecution. See Renico,
559 U.S. at 779
; Cheney,
614 F.3d at 995
.
If nothing else, it was not objectively unreasonable for the court of
appeal to find no due process violation in the admission of uncharged bad
acts given the other procedural safeguards that protected petitioner’s
overarching right to a fair trial. As the court of appeal observed, the trial
court permitted defense counsel to fully cross-examine not only the police
investigator who found the cellphone evidence but also the testifying cousin
who alleged petitioner had sexually abused her as a child. Petitioner does
not claim—nor does anything in the record suggest—that his counsel
performed at all inadequately in this regard or was otherwise unable to
mount a plausible defense. Moreover, the trial court attentively gave
limiting instructions to the jury for both the cellphone evidence and the prior
crimes evidence, telling the jury what permissible inferences they could
draw—and warning them about what impermissible inferences they must
not draw. See, e.g., Sullivan,
2025 WL 796111
, at *7 (recognizing that
“unfair prejudice” of evidence can be avoided with “limiting instruction” to
jury). The jury is “presumed” to have followed those instructions. Weeks v.
Angelone,
528 U.S. 225, 234
(2000); see Spencer,
385 U.S. at 561
. Indeed,
the fact that the jury returned a partially split verdict in petitioner’s favor
belies any suggestion that jurors were unduly swayed by improper inferences
or incapable of carefully parsing the evidence. See Jammal,
926 F.2d at 920
(“Evidence introduced by the prosecution will often raise more than one
inference, some permissible, some not; we must rely on the jury to sort them
out in light of the court’s instructions.”). With all these safeguards in play,
there is more than ample room for fairminded jurists to agree that the
admission of the uncharged bad acts was not “fundamentally unfair,” since
as many could agree as disagree that it created no “unacceptable risk” that
petitioner was “convicted based on predisposition” alone, rather than proven
criminal “wrongdoing.” Porter, 121 F.4th at 751–52.
E. The Court of Appeal’s Decision Affirming Use of CSAAS Evidence
Neither Contradicted Nor Unreasonably Applied Clearly Established
Federal Law
Petitioner also cannot meet his burden to show that the court of
appeal’s decision affirming the admission of the expert CSAAS testimony,
which he maintained was inherently unreliable and factually unhelpful,
contradicted or unreasonably applied any clearly established federal law
pronounced by the Supreme Court. “CSAAS describes various emotional
stages, experienced by sexually abused children, that may explain their
sometimes piecemeal and contradictory manner of disclosing abuse.” Brodit
v. Cambra,
350 F.3d 985, 991
(9th Cir. 2003). “While CSAAS evidence is
not relevant to prove the alleged sexual abuse occurred, it is well established
in California law [that] CSAAS evidence is relevant for the limited purpose of
evaluating the credibility of an alleged child victim of sexual abuse.” People
v. Lapenias,
282 Cal. Rptr. 3d 79
, 87 (Cal. Ct. App. 2021). So the court of
appeal’s holding that CSAAS expert testimony remains relevant, reliable, and
admissible in California child sex abuse cases (LD 5 at 16–17) is a binding
interpretation of state law that cannot be disturbed on federal habeas review.
See Bradshaw,
546 U.S. at 76
.
Even so, petitioner maintains that “the history and development of
CSAAS reveals that it is not scientific, and, therefore, the admission of such
testimony against Petitioner violated his Due Process rights.” (Pet. at 15).
He contends that because “finders of fact—especially lay jurors—afford
particular weight to scientific evidence,” somehow “due process concerns are
only heightened in such context.” (Id.). In petitioner’s view, then, use of
“scientific evidence” lacking sufficient “reliability” offends “fundamental
conceptions of justice.” (Id. at 15–16). Critically missing from these
assertions, however, is any Supreme Court precedent establishing a federal
due process right to exclude scientific expert testimony claimed to be
unreliable. That omission is likely no accident since both state and federal
rules of evidence provide on their own—with no need for a redundant due
process check—robust and enforceable gatekeeping protections against
unreliable expert evidence. See Fed. R. Evid. 702; Daubert v. Merrell Dow
Pharm., Inc.,
509 U.S. 579
(1993);
Cal. Evid. Code §§ 801
, 802; Sargon
Enters., Inc. v. Univ. of S. Cal.,
288 P.3d 1237, 1252
(Cal. 2012).
Indeed, to the extent it has addressed the question, the Supreme Court
has disavowed petitioner’s expansive view of the Due Process Clause to
include a constitutional right to exclude unreliable expert evidence. The
Constitution “protects a defendant against a conviction based on evidence of
questionable reliability, not by prohibiting introduction of the evidence, but
by affording the defendant means to persuade the jury that the evidence
should be discounted as unworthy of credit.” Perry,
565 U.S. at 237
. But
that protection against unreliable expert testimony is primarily afforded
through express constitutional rights—like those inherent to the Sixth
Amendment. See
id.
Through counsel, for instance, defendants can “focus
the jury’s attention on the fallibility of [expert] testimony during opening
and closing arguments,” and even present competing expert testimony.
Id.
at 245–47; see Diaz v. United States,
602 U.S. 526, 541
(2024) (Jackson, J.,
concurring) (“[W]hen faced with flawed or faulty testimony” from experts,
“parties can utilize the traditional tools in a lawyer’s toolkit, like vigorous
cross-examination and careful refutation in closing argument.”). Counsel
can also request—and trial courts may then issue—limiting instructions to
juries that they will presumptively follow when assessing the reliability of
evidence. See Richardson,
481 U.S. at 210
; Perry,
565 U.S. at 246
; Diaz,
602 U.S. at 542
(Jackson, J., concurring).
None of this is to imply that the Due Process Clause places no limit on
the introduction of unreliable expert evidence. But it doesn’t do so by
gatekeeping the reliability of expert evidence case-by-case, as the rules of
evidence are intended to do. Instead, it “impedes convictions based on
dubious” evidence with the ultimate “constitutional requirement that the
government prove the defendant’s guilt beyond a reasonable doubt.” Perry,
565 U.S. at 247
. And, as discussed, it ensures a constitutionally fair trial by
backstopping irrelevant evidence “so extremely unfair that its admission
violates fundamental conceptions of justice.”
Id.
(quoting Dowling,
493 U.S.
at 352
). Otherwise, “the task of determining the reliability of the evidence
presented at trial” is left to the jury, to be guided by “state and federal
statutes and rules [that] ordinarily govern the admissibility of evidence.”
Id.
And because those nonconstitutional sources can both regulate use of
scientific expert testimony and preclude admission of expert evidence found
to be intrinsically unreliable, see Diaz, 602 U.S. at 541–42 (Jackson, J.,
concurring), the Supreme Court has never expressed a need for
“enlargement of the reach of due process” as an additional “constraint on the
admission of evidence” claimed to scientifically unreliable or technically
unhelpful. Perry, 565 U.S. at 244–45. Nor has the Supreme Court ever held
(as petitioner evidently presumes) that expert testimony which might fail the
reliability standards under applicable rules of evidence can—for that reason
alone—automatically violate federal due process. See id. at 245 (The
“potential unreliability of a type of evidence does not alone render its
introduction at the defendant’s trial fundamentally unfair.”).
With no governing Supreme Court precedent to the contrary, then, the
court of appeal could not have contradicted clearly established federal law
when it affirmed the admission of the CSAAS testimony. See Knowles v.
Mirzayance,
556 U.S. 111, 122
(2009); Wright v. Van Patten,
552 U.S. 120,
126
(2008) (per curiam). Nor could it have unreasonably applied clearly
established federal law. See Mitchell v. Esparza,
540 U.S. 12, 17
(2003) (per
curiam). If anything, the court of appeal reasonably relied on how the
Supreme Court itself has favorably treated similar expert evidence in Estelle.
There, as the court of appeal recognized, the Supreme Court found no due
process violation in the admission of “battered child syndrome” evidence.18

18 Similarly, while not expressed in constitutional terms, the Supreme Court recently
endorsed expert testimony admitted under the federal rules about “battered woman
syndrome” to address a “number of myths and misconceptions” about domestic violence
victims and to help jurors “better understand how those experiencing it respond to
502 U.S. at 68–69. Besides, the Supreme Court has rejected the idea that
admissibility of evidence whose “fallibility” has been exposed or its
“importance” questioned by current scientific research must be subjected to
a “broadly applicable due process check.” Perry,
565 U.S. at 245
(discussing
studies doubting reliability of eyewitness identification testimony). That
expansion, the Court explained, would impermissibly and needlessly
“enlarge the domain of due process” over the jury’s traditional province to
assess the “reliability of evidence.”
Id.
In view of all these countervailing principles undermining petitioner’s
arguments, fairminded jurists could readily agree with the court of appeal
that the use of CSAAS expert testimony to assist the jury here posed no
federal due process concerns. See Sims v. Rowland,
414 F.3d 1148, 1151
(9th Cir. 2005); see also Parker v. Matthews,
567 U.S. 37, 44
(2012) (federal
habeas courts cannot override the jury’s role in weighing and crediting
expert testimony); Moses v. Payne,
555 F.3d 742, 761
(9th Cir. 2009)
(finding no legal support for “proposition that the Constitution is violated by
the admission of expert testimony concerning an ultimate issue to be
resolved by the trier of fact”). And, again, the correctness of the trial court’s
discretionary decision to admit that evidence under the state’s evidence code
is unassailable on federal collateral review. See Estelle, 502 U.S. at 67–68.
In any case, were there any remaining doubt about the objective
reasonableness of the decision to affirm the trial court’s evidentiary ruling on
the CSAAS testimony, the Ninth Circuit eliminated it in Brodit.
There, on federal habeas review, the Ninth Circuit held that CSAAS
testimony did not violate the defendant’s due process rights based on a
combination of circumstances also present here: it was offered only to
explain the victims’ delayed disclosures or sometimes contradictory
behaviors; the expert testified without knowledge of that defendant’s
particular case; and the jury received cautionary instructions.
350 F.3d at
991
. That is a near mirror image of petitioner’s prosecution: the trial court
permitted CSAAS evidence to help the jury understand the victims’ self-
impeaching conduct including delayed disclosures (1 RT 6–7); the CSAAS
expert interviewed none of the witnesses or knew any specific facts about the
case (1 RT 193, 220); and the trial court instructed the jury that the
testimony could not be used to decide that the victims had been abused,
much less that petitioner was the one who abused them (CT 208). Thus,
given that Brodit—and similar recent federal habeas cases, see, e.g., Amaya
v. Frauenheim,
823 F. App’x 503
, 505–06 (9th Cir. 2020); Darbouze v.
Kibler,
2021 WL 6618675
, at *15 (C.D. Cal. Nov. 17, 2021)—have rebuffed
federal due process attacks on the use of CSAAS evidence, fairminded jurists
could readily agree with the court of appeal’s decision to do the same here.19

19 As a result, there is no need to address the court’s holding—as reasonable as it was—
that even if the CSAAS testimony were erroneously admitted, it was harmless because
there was no reasonable probability of a different result. Nor is any extended discussion
needed to dispose of petitioner’s “cumulative error” claim. (Pet. at 31–32). The court of
appeal, having “assumed” (not even found) one evidentiary error at most, dispatched that
claim since by definition it requires at least two evidentiary errors to be accumulated.
(LD 5 at 37–38). See Lopez v. Allen,
47 F.4th 1040, 1053
(9th Cir. 2022) (Where state
courts found one trial error that was “reasonably deemed to be harmless,” petitioner
“failed to establish multiple errors of constitutional magnitude . . . amounting to a denial
of due process.”); McGill v. Shinn,
16 F.4th 666, 685
(9th Cir. 2021) (“If there are no
errors, there is no need to consider their cumulative effect.”); Hayes v. Ayers,
632 F.3d
500, 524
(9th Cir. 2011) (“Because we conclude that no error of constitutional magnitude
occurred, no cumulative prejudice is possible.”). For the same reason, even if there were
clearly established federal law permitting cumulative error claims in habeas proceedings,
contra, e.g., Montana v. Egelhoff,
518 U.S. 37, 53
(1996); Sanchez v. McDowell,
648 F.
Supp. 3d 1241
, 1276 (S.D. Cal. 2023), it was reasonable for the court of appeal to deny
petitioner’s claim since it reasonably found no individual evidentiary errors under the
Due Process Clause. See Brodit,
350 F.3d at 992
(Where “California Court of Appeal
reasonably concluded that the premise—that there were errors—is absent,” it was
reasonable to conclude that no cumulative error occurred.); Dancy v. Asuncion,
2016 WL
11759110
, at *10 (C.D. Cal. July 8, 2016) (Where “California courts did not rule contrary
to, or unreasonably apply, clearly-established federal law in rejecting” petitioner’s
“individual claims of error,” they could not have unreasonably applied Chambers v.
Mississippi,
410 U.S. 284
(1949)). And despite petitioner’s apparent assumption,
F. The Denial of Petitioner’s Insufficiency of Evidence Claims Was Not an
Unreasonable Application of Clearly Established Federal Law
Finally, just as he had argued on appeal, petitioner contends that the
evidence was insufficient to support the sexual penetration conviction and
two of the five lewd act convictions involving victim Z.R. The Supreme
Court’s decision in Jackson v. Virginia,
443 U.S. 307
(1979), clearly
establishes the federal standard governing appellate review of insufficient
evidence claims. Under Jackson, “the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.”
Id. at 319
. In short, the court of appeal’s only
job under Jackson was not to decide “whether the trier of fact made the
correct guilt . . . determination, but rather whether it made a rational
decision to convict.” Herrera v. Collins,
506 U.S. 390, 402
(1993); see
People v. Mumin,
534 P.3d 1
, 15 (Cal. 2023) (State “appellate court
retrospectively inquires whether a rational trier of fact could have found the
defendant guilty beyond a reasonable doubt, based on all the evidence when
viewed in the light most favorable to the prosecution.”).
What’s more, insufficient evidence claims “face a high bar in federal
habeas proceedings because they are subject to two layers of judicial
deference.” Coleman v. Johnson,
566 U.S. 650, 651
(2012) (per curiam).
The first is the deferential Jackson standard of review itself,
443 U.S. at 319
,
which makes it “the responsibility of the jury—not the court—to decide what
conclusions should be drawn from evidence admitted at trial.” Cavazos,
565
U.S. at 2
. The “additional layer of deference” comes from AEDPA. Juan H.

insufficiency of evidence cannot be a trial “error” added to create cumulative error. See
Abdul-Malik v. Evans,
2011 WL 4899917
, at *16 (C.D. Cal. Aug. 5, 2011). Legal
sufficiency of a verdict must be determined even with erroneously admitted evidence
construed in favor of that verdict. See McDaniel v. Brown,
558 U.S. 120, 131
(2010) (per
v. Allen,
408 F.3d 1262, 1274
(9th Cir. 2005). That means “a federal court
may not overturn a state court decision rejecting a sufficiency of the evidence
challenge simply because the federal court disagrees with the state court.”
Cavazos,
565 U.S. at 2
(cleaned up). “The federal court instead may do so
only if the state court decision was ‘objectively unreasonable.’”
Id.
To make
that showing, of course, petitioner must convince a federal habeas court that
not one “fairminded jurist,” Davenport,
596 U.S. at 135
, could agree with
the court of appeal’s decision that “any rational trier of fact” could have
believed the prosecution’s version of events over petitioner’s defenses.
Jackson,
443 U.S. at 319
. Unsurprisingly, this “double dose of deference . . .
can rarely be surmounted.” Boyer v. Belleque,
659 F.3d 957, 964
(9th Cir.
2011). This case is no exception.
To start, the court of appeal applied the state-law equivalent of the
Jackson federal standard. (LD 5 at 9 (quoting People v. Albillar,
244 P.3d
1062
, 1070–71 (Cal. 2010)). So its denial of petitioner’s claims could not
have been contrary to Jackson. See Early,
537 U.S. at 8
. To obtain de novo
review of his claims, then, petitioner must prove that the court of appeal
unreasonably applied the Jackson standard. See Maquiz,
907 F.3d at 1217
;
Emery, 604 F.3d at 1113–14. Yet by petitioner’s reckoning, the court of
appeal would have had to do everything prohibited by Jackson to overturn
his challenged convictions: reweigh the trial evidence, draw inferences in his
favor, second-guess the credibility of witnesses, and resolve conflicting
evidence against the prosecution. See United States v. Hubbard,
96 F.3d
1223, 1226
(9th Cir. 1996); Walters v. Maass,
45 F.3d 1355, 1358
(9th Cir.
1995). And not only that, petitioner never approaches the court of appeal’s
decision in correct AEDPA terms, which requires that a federal habeas court
defer to the state court’s finding of sufficient evidence for a conviction so
long as any fairminded jurist could find the same.20 That oversight alone is
fatal to petitioner’s claim under § 2254(d)(1), for “the unreasonableness
question” under § 2254(d) is not “a test of [the court’s] confidence in the
result it would reach under de novo review.” Shinn,
592 U.S. at 119
.
In any case, none of petitioner’s arguments shows that the court of
appeal incorrectly—much less unreasonably—applied Jackson when it
rejected his insufficient evidence claims on direct review. Start with his
challenge to the sexual penetration conviction. By petitioner’s account, Z.R.
“testified that she did not know if [the alleged penetration] happened,” only
that “she believes it did.” (ECF 10 at 1). That was not enough, according to
petitioner, for the jury to find him guilty of sexual penetration. (Pet. at 11–
13). Looking at the same portion of the victim’s trial testimony (1 RT at
120–23), though, the court of appeal found that if Z.R. was equivocating at

20 For the first time in his traverse, petitioner asserts—with no analysis—that the rejection
of his insufficient evidence claims was unreasonable under § 2254(d)(2). (ECF 10 at 3).
Never mind that, as noted, such claims (if not waived) are reviewed under § 2254(d)(1).
Just “tacking on a perfunctory statement at the end of [his] analysis asserting that the
state court’s decision was unreasonable,” as petitioner does here, cannot satisfy his
burden under any part of § 2254(d). Sexton v. Beaudreaux,
585 U.S. 961, 968
(2018).
Besides, even if § 2254(d)(2) could apply to insufficient evidence claims, the “role of a
federal habeas court is . . . not to apply de novo review of factual findings and to
substitute its own opinions for the determination made” by the state court. Ayala, 576
U.S. at 276. As with decisions reviewed under § 2254(d)(1), fact determinations reviewed
under § 2254(d)(2) are not unreasonable if any fairminded jurist could agree with them.
See Andrews v. Davis,
944 F.3d 1092, 1107
(9th Cir. 2019) (en banc) (The “same
standard of unreasonableness under § 2254(d)(1) applies under § 2254(d)(2).”). So,
contrary to petitioner’s premise, a state court factual determination is not unreasonable
merely because a federal habeas court could reach a different conclusion if reviewing on a
blank slate. See Wood v. Allen,
558 U.S. 290, 301
(2010). If reasonable minds reviewing
the record might disagree about the factual finding in question, that reasonable
disagreement requires deference to the state court’s determination. See
id.
What’s more,
even on de novo review, underlying findings of fact in the state courts are generally
presumed correct unless petitioner rebuts that presumption by clear and convincing
evidence. See
28 U.S.C. § 2254
(e)(1); Stevens v. Davis,
25 F.4th 1141
, 1165–66 (9th Cir.
2022); Kirkpatrick v. Chappell,
950 F.3d 1118, 1131
(9th Cir. 2020). In short, even if it
could apply to petitioner’s insufficient evidence claims, § 2254(d)(2) opens no path to
all, the jury could have thought it was only about which movie she had
attended with petitioner, not whether the penetration had happened. (LD 5
at 10). That was hardly an unreasonable conclusion to draw given that the
jury acquitted petitioner of the second charged count of sexual penetration—
which required the jury to believe the prosecution’s theory about a second
sexual penetration occurring at a different movie theater. If nothing else, the
jury’s decision to find insufficient evidence of a second penetration suggests
that there was no reason for the court of appeal to doubt that the jurors had
carefully heard, considered, and weighed Z.R.’s testimony. See, e.g., Villery
v. Holland,
607 F. App’x 700, 701
(9th Cir. 2015) (“The jury took
dispassionate care in assessing the evidence, as its split verdict
demonstrates.”).
But even if petitioner’s interpretation of her testimony were right—Z.R.
could only say she “believe[d]” the first sexual penetration happened—the
jury was entitled to credit the victim’s belief. See, e.g., Bruce v. Terhune,
376 F.3d 950, 957
(9th Cir. 2004) (credibility contest between victim and
defendant over sexual molestation is exclusively for jury to resolve); People
of the Territory of Guam v. McGravey,
14 F.3d 1344
, 1346–47 (9th Cir.
1994) (upholding conviction for sexual molestation based entirely on
uncorroborated testimony of victim). The jury could have perceived any
equivocation by Z.R. not as uncertainty about what she had experienced but
the natural reticence of a victim (still 16 years old) testifying in open court
about explicit sexual matters. (1 RT 129–30, 148, 151). See, e.g., Robertson
v. Cates,
2020 WL 8680088
, at *6 (C.D. Cal. Nov. 13, 2020) (jury could have
inferred that equivocal trial and preliminary hearing testimony resulted
from victim’s fears over testifying). As far as the court of appeal was
concerned, any of these plausible credibility determinations by the jury were
“entitled to near-total deference under Jackson.” Bruce,
376 F.3d at 957
;
see Schlup v. Delo,
513 U.S. 298, 330
(1995) (“[U]nder Jackson, the
assessment of the credibility of witnesses is generally beyond the scope of
review.”). When viewed with AEDPA deference on top, the court’s decision
to respect the jury’s province over witness credibility was the furthest
possible thing from wrong, let alone unreasonable. See Marshall,
459 U.S.
at 434
(Section 2254 “gives federal habeas courts no license to re-determine
credibility of witnesses whose demeanor has been observed by the state trial
court, but not by them.”); Kansas v. Ventris,
556 U.S. 586
, 594 n.* (2009)
(“Our legal system, however, is built on the premise that it is the province of
the jury to weigh the credibility of competing witnesses.”); accord Aiken v.
Blodgett,
921 F.2d 214, 217
(9th Cir. 1990).
Petitioner’s attack on two of his five lewd act convictions involving Z.R.
fares no better. By his reckoning, Z.R.’s testimony was too generic to
support any more than three lewd act convictions because she couldn’t
identify any more than three—by exact number. (Pet. at 14). But as the
court of appeal recognized, and petitioner does not seriously dispute, Z.R.’s
testimony established the kinds of acts committed (petitioner touched her
near her vagina), and the general period in which most of the acts occurred
(consecutive summers from 2013 to 2016). (1 RT 126–33). And Z.R.
described the frequency of the acts with adequate specificity when she said
that petitioner committed the lewd acts “repeatedly” and “frequently” in a
hot tub at petitioner’s home during four consecutive summer trips there with
her adoptive family.21 (Id. at 129–31, 133, 254–58). Under California law,

21 And even if the jury were arbitrarily limited to finding only one lewd act for each of four
summers, there was evidence of another lewd incident that Z.R. said happened once at
church. To be sure, Z.R. denied this incident on cross-examination at trial, but there was
still corroboration of the incident by the police investigator who had heard Z.R. closer in
time to the alleged lewd act. (1 RT 182–83). Thus, fairminded jurists could debate
whether the jury could believe that the church incident was a separate (fifth) lewd act that
“nothing more is required” for a jury to reasonably determine the number of
abuse incidents with adequate specificity. People v. Matute,
127 Cal. Rptr.
2d 472, 479
(Cal. Ct. App. 2002); see Jones, 792 P.2d at 656–57. To
conclude otherwise, as petitioner maintains, would mean that the court of
appeal was compelled to find that no rational jury could have counted more
than three lewd acts based on Z.R.’s testimony. But that would not only
“unduly impinge[] on the jury’s role as factfinder,” it would require a “fine-
grained factual parsing” of her trial testimony that is inappropriate under
Jackson. Coleman,
566 U.S. at 655
. Besides, “the only question under
Jackson” that matters is whether the jury’s finding of five instead of three
lewd acts was “so insupportable as to fall below the threshold of bare
rationality.”
Id. at 656
. It was neither incorrect nor unreasonable for the
court of appeal to find that constitutional minimum threshold met under an
objective view of Z.R.’s testimony.22
In the end, contrary to petitioner’s implication, the court of appeal was
under no “affirmative duty to rule out every hypothesis except that of guilt
beyond a reasonable doubt” when deciding petitioner’s sufficiency of
evidence claims. Jackson,
443 U.S. at 326
. Perhaps some very generous

counted despite any apparent conflicts in Z.R.’s account. See Jackson,
443 U.S. at 326
(A
reviewing court “faced with a record of historical facts that supports conflicting inferences
must presume—even if it does not affirmatively appear in the record—that the trier of fact
resolved any such conflicts in favor of the prosecution.”).

22 That is assuming anyway that the jury’s finding had to be relegated to the snippets of
Z.R.’s testimony that petitioner spotlights. It doesn’t account for the highly
incriminating—and unchallenged—Instagram messages he exchanged with Z.R., which
convincingly corroborated her testimony. And if anything, the cellphone and prior crimes
evidence could only have reinforced rather than undermined the jury’s findings. It
doesn’t matter that petitioner contested the admission of that evidence—a reviewing
court assessing sufficiency of evidence under Jackson still “must consider all of the
evidence admitted by the trial court, regardless of whether that evidence was admitted
fairminded jurists could agree with his view that Z.R.’s testimony was too
equivocal or generic to support the challenged convictions. But because not
every fairminded jurist must agree with that perspective, petitioner cannot
show that the court of appeal unreasonably applied the (already deferential)
Jackson standard when rejecting his insufficient evidence claims by that
court’s own fairminded assessment. See Cavazos,
565 U.S. at 2
; Davenport,
596 U.S. at 136
; Mays,
592 U.S. at 392
; Balbuena,
980 F.3d at 633
.
III.
CONCLUSION
For all these reasons, it is recommended that the petition under
28
U.S.C. § 2254
be denied and that this action be dismissed with prejudice.
See
28 U.S.C. § 636
; G.O. 05-07.

Dated: March 21, 2025 /s/ ____
STEVE KIM
United States Magistrate Judge

Michael Ray Bredemier v. Theresa Cisneros

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