Opinion
No. C 02-05832 CRB
August 27, 2003
MEMORANDUM AND ORDER
Petitioner James William Niebauer ("Niebauer") has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Niebauer was convicted by a jury for the first-degree murder of his wife, Abigail Niebauer ("Abigail"). He was sentenced to imprisonment for 27 years to life. The California Court of Appeal affirmed the judgment. Upon receipt of Niebauer's petition, the Court issued an order to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause, and petitioner filed a timely traverse.
FACTUAL BACKGROUND
On the evening of February 22, 1985, Niebauer shot and killed Abigail with a 12-gauge shotgun at their Palo Alto residence. Niebauer sought emergency assistance. He dialed 911 and explained to the responding officers that the shotgun discharged by accident. He explained that he did not know that the gun was loaded, and that the gun accidentally fired as he was cleaning it. He later added that Abigail was standing within two feet of the gun when it discharged as he was showing her the gun's serial numbers.
At the time of Abigail's death, the Niebauers' 27-year marriage was experiencing difficulties. In the two years prior to her death, Abigail had been living in separate quarters. Both husband and wife were romantically involved outside the marriage.
According to statements that Niebauer gave to authorities shortly after the shooting, Niebauer ate dinner alone on the evening of the fatal shooting. After dinner, he decided to work on a shotgun that he intended to give to his daughter Cara as a belated Christmas present. After a while, he retired to the living room, leaving the gun in two pieces on the kitchen counter. When Abigail returned from dinner around 9:30 p.m., Niebauer offered to show her the shotgun. Niebauer showed Abigail the gunsmith's workmanship and turned the gun upside-down to show her the serial numbers. The gun discharged, inflicting a fatal wound in Abigail's chest.
Niebauer told the police that a gunsmith in Port Angeles, Washington had examined the gun the summer prior to the shooting. According to Niebauer, the gunsmith test-fired the gun and opined that it was safe as long as it was not loaded with extra-powerful shells. The gunsmith also "reblued" the metal parts and advised Niebauer to write to the factory to determine the gun's age. Niebauer gave police officers a gun case, a rusty bolt from the gun, and a box containing 14 shotgun shells that he retrieved from the garage.
Testing by police criminologists revealed that eight and one-half pounds force were required to pull the shotgun's trigger. It was also determined that the expended shell casing in the chamber of the shotgun was similar to eleven of the fourteen shells in the box that Niebauer produced. Gunpowder residue was detected on both sleeves of Abigail's sweater, as well as on both of her lower arms above the wrists.
The district attorney decided not to prosecute Niebauer, and the case was closed in April 1985. Police then destroyed the clothes that Abigail was wearing when she was shot, along with the gun residue kits, blood samples collected from the scene and from the autopsy, the expended shell casing, and the rusty bolt from the gun. The gun itself was returned to Niebauer.
In the summer of 1986, Niebauer's daughter Cathy removed the gun from Niebauer's residence without his permission. The gun was stored in Cathy's friend's attic for several months.
Dissatisfied with the district attorney's decision not to prosecute the case, Abigail's brother, Lee Sansum, decided to investigate further. Toward that end, he hired a private investigator by the name of Moorehead. Moorehead obtained the gun from Cathy and turned it over to a firearms expert to test its susceptibility to accidental firing. Moorehead determined that the gun fired one of three times when it was cocked almost to the lock point before releasing the hammer; that it fired when the shotgun hammer was struck in at-rest or rebound position by a dead-blow hammer; and that it did not fire when dropped on the floor.
Sansum forwarded these findings to the attorney general in 1991 with a request that the district attorney's decision not to prosecute Niebauer be reviewed. The attorney general sent the gun to a criminalist to determine whether there had been any modifications since 1985 and whether the gun functioned in a normal manner. While noting that the gun's condition might allow accidental firing, the expert could not determine whether the gun had been modified in the time since it had last been in police custody.
In 1992, the attorney general's office concluded its investigation and declined to take further action. In a letter to Sansum, the attorney general noted that the case suffered from contradictory statements and lost evidence. In light of these problems, which the letter described in some detail, the attorney general concluded that it was not an abuse of the district attorney's discretion to decline to prosecute the case even though there were grounds to suspect that the shooting had been deliberate.
Notwithstanding the attorney general's letter, Sansum continued to press for further inquiry. One year later, a police agent in Palo Alto agreed to revive the investigation. Among other tests, the agent fired the shotgun into a mannequin to replicate the powder-staining patterns found on Abigail. He was able to obtain a close match by firing the gun from a distance of 14 inches with the mannequin's arms raised in a defensive position.
Niebauer was indicted for first-degree murder in April 1998, more than thirteen years after Abigail's death. Prior to trial, Niebauer filed a motion to dismiss the prosecution on grounds of preindictment delay. He claimed that by the time the indictment issued, he was suffering from deteriorating health and loss of memory. In the previous five years, he had suffered multiple strokes and a heart attack. He was also taking a medication called atenolol that, he said, affected his memory. The trial court denied the motion without prejudice, preferring to hear the evidence in the case before making a ruling.
Trial commenced in July 1998. The prosecutor argued that the shooting was intentional and premeditated, basing his arguments on forensic evidence as well as witness testimony concerning the state of the Niebauers' relationship. Ballistics experts opined that Abigail's arms were positioned defensively when the gun discharged, while forensic experts testified that the pattern of blood splatter was inconsistent with an accidental shooting. Numerous witnesses testified about threatening statements that Niebauer allegedly made to Abigail and her lover, as well as about Abigail's fear of her husband prior to her death. Others testified that Niebauer was stalking Abigail; that Abigail had received a bruise near her eye as the result of a scuffle with Niebauer one month before her death; and that Niebauer was upset that Abigail did not plan to share her $100,000 inheritance with him. Niebauer's son testified that he had told the attorney general's office that Niebauer had once threatened to "get" his daughter "like he had gotten her mother," and the attorney general was called to the stand to play an audio recording of that interview.
The jury found Niebauer guilty of first-degree murder. Post-verdict, Niebauer renewed his motion to dismiss and was granted an evidentiary hearing. At the hearing, Niebauer testified that he could not remember certain events and that he had difficulty recalling details about the incident or any of the comments he allegedly made concerning it. Counsel for Niebauer further argued that the preindictment delay was prejudicial in that physical evidence was destroyed prior to indictment and at least one key witness — Niebauer's second wife, Laurie Gelardi — had died four years earlier. Finding that Niebauer's alleged memory loss was "selective" and that the destroyed evidence was immaterial, the court denied the motion. Niebauer was sentenced in June 1999 to a term of 27 years to life.
Petitioner appealed his conviction to the California Court of Appeal, which affirmed in June 2001. He then appealed to the California Supreme Court, which denied his petition for review.
STANDARD OF REVIEW
This court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).
The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Id. § 2254(d).
"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 413 (2000). "Under the `reasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable."Id. at 410.
In our circuit, a state court decision may be disturbed as involving an "unreasonable application" of clearly established federal law only if the federal habeas court reviewing the state court decision is left with a "definite and firm conviction" that an error was committed-in other words, "that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1153-54 (9th Cir.), cert. denied, 531 U.S. 944 (2000).
DISCUSSION
I. Preindictment Delay
Niebauer purports to seek habeas relief on the grounds that the 13-year delay between the shooting and the indictment violated his constitutional right to due process. Niebauer's habeas brief, however, focuses primarily on his contention that the court of appeal applied the wrong standard of review to the trial court's denial of Niebauer's motion to dismiss on grounds of excessive delay. Absent more, however, the application of an improper standard of review by a state court of appeal is not grounds for federal habeas relief. See, e.g., Jenner v. Smith, 982 F.2d 329, 330 n. 3 (8th Cir. 1993) (claim that state appeals court applied wrong standard of review to issue of voluntariness of pre-Miranda statements "does not state an independent ground for federal habeas corpus relief). The test is whether "the state-court adjudication resulted in a decision that (1) `was contrary to clearly established Federal law' . . . or (2) `involved an unreasonable application of . . . clearly established Federal law.'"Williams, 529 U.S. at 412 (emphasis added). To be entitled to the writ he seeks, therefore, petitioner must establish that the state court's ruling was contrary to or an unreasonable application of federal law, not merely that the court applied an improper standard in arriving at its decision.
Niebauer argued to the court of appeal that the thirteen-year delay violated his due process rights by prejudicing his defense in three ways. First, he asserted that by the time of his indictment, he had difficulty recalling important events. Second, he claimed that a significant portion of the relevant evidence had either been altered or destroyed by the time he was indicted. Third, he noted that a purportedly key defense witness — Niebauer's second wife, Laurie Gelardi — had died.
After conducting an evidentiary hearing with respect to Niebauer's purported lapses of memory, the trial court denied his motion to dismiss. The court found that Niebauer's memory loss was "selective," and noted that Niebauer's version of events was adequately captured in statements he gave to police at the time of the shooting. Accordingly, the court found that the purported memory loss was not prejudicial. The court further held that Niebauer suffered no prejudice as a result of the unavailability of missing or destroyed physical evidence, or the death of Ms. Gelardi.
Reviewing the trial court's ruling under the substantial-evidence standard, the court of appeal affirmed. The court noted that the trial judge's inquiry into Niebauer's purported memory loss was "a classic factual conflict that is ` to be won or lost at the trial level'" Slip Op. at 14 (quoting People v. Hill, 37 Cal.3d 491, 499 (1984)). It further held that the trial court's "implicit" finding that none of the missing evidence was material was supported by substantial evidence.
On habeas review, this Court is restricted to considering whether the court of appeal's ruling constituted an unreasonable application of clearly established federal law. While acknowledging that memories and evidence may be compromised by the passage of time, the Supreme Court has made it clear that "[t]o prosecute following an investigative delay does not deprive one of due process rights, even if his defense might have been somewhat prejudiced by the lapse of time." United States v. Lovasco, 431 U.S. 783, 796 (1977). Still, under certain circumstances preindictment delay may violate "fundamental conceptions of justice which lie at the base of our civil and political institutions." Id. at 790 (quoting Mooney v. Holohan, 294 U.S. 103, 112 (1935)). To rise to this level, the delay must involve "some culpability on the government's part either in the form of intentional misconduct or negligence." United States v. Mays, 549 F.2d 670, 678 (9th Cir. 1977): see also United States v. Mills, 641 F.2d 785, 789 n. 2 (9th Cir. 1981) (defendant must show intentional or reckless delay "to gain a tactical advantage"). These principles aside, the Supreme Court has emphasized that there are no talismanic criteria for "determin[ing] in the abstract the circumstances in which preaccusation delay would require dismissing prosecutions." Lovasco, 431 U.S. at 796.
In the Ninth Circuit, determining whether preindictment delay violates due process is a two-step inquiry. First, "there must be some demonstration of actual prejudice resulting from the delay."Mays, 549 F.2d at 677. As the Ninth Circuit has noted, "[s]uch prejudice will inevitably be either the loss of witnesses and/or physical evidence or the impairment of their use." Id. Accordingly, the petitioner must show not only that a witness and/or evidence was lost, but also "demonstrate how that loss is prejudicial to him." Id. This demonstration must be "definite and not speculative"; the mere "`assertion that a missing witness might have been useful'" will not suffice. Id. (quoting United States v. Galardi, 476 F.2d 1072, 1075 (9th Cir. 1973)). Petitioner is not required, however, to show that he would not have been convicted but for the delay. Rather, a defendant suffers actual prejudice when the effect of a delay is to "unfairly impair [his] ability to defend himself."United States v. Pallan, 571 F.2d 497, 500 (9th Cir. 1978): see also United States v. Marion, 404 U.S. 307, 324 (1971) ("Actual prejudice to the defense of a criminal case may result from the shortest and most necessary delay. . . .").
If a defendant can establish prejudice, the second step is to balance that prejudice against other factors such as the justification for and the length of the delay. See Mays, 549 F.2d at 678. Since the California Court of Appeal affirmed the trial court's determination that Niebauer suffered no prejudice as a result of the delay, it did not consider whether the delay was justified.
A. Loss of Memory
With respect to Niebauer's purported memory loss, it has long been recognized that trial courts are in the best position to assess witness credibility. See Marshall v. Lonberger, 459 U.S. 422, 434 (federal habeas courts have "no license to redetermine credibility of witnesses whose demeanor has been observed by the state trial court, but not by them"). The court of appeal's ruling on this subject was based on the trial court's evaluation of Niebauer's testimony regarding his inability to recall events. Giving due deference to the trial court's findings in this regard, this Court agrees with the court of appeal that Niebauer's purported memory loss was not prejudicial.
Niebauer argues in his habeas petition that the delay was prejudicial due not only to his own memory loss, but also the memory loss of other witnesses. Niebauer did not raise the issue of other witnesses' memories in the state court, and in any event there is no evidence in the record concerning the effect of the delay on other witnesses' recollections. Accordingly, the Court will consider this claim only insofar as it relates to Niebauer's own purported memory problems.
B. Missing Witness
Petitioner also asserts that the death of Laurie Gelardi was prejudicial because she would have testified that, contrary to evidence presented by the government, petitioner was not stalking Abigail. It is well established, however, that "protection from lost testimony generally falls solely within the ambit of the statute of limitations." United States v. Moran, 759 F.2d777, 782 (9th Cir. 1985) (citingPallan, 571 F.2d 497 (9th Cir. 1978)). Moreover, there is no evidence to support petitioner's contention that Gelardi would have supplied exculpatory testimony except for petitioner's own speculative and self-serving representations. Cf. Mills, 641 F.2d at 789 (finding such evidence insufficient); Mays, 549 F.2d at 679 (same). Without knowing what Gelardi would actually have said, it is impossible to evaluate accurately whether the absence of her testimony was prejudicial to Niebauer. See Mills, 641 F.2d at 789;Mays, 549 F.2d at 679-80. Accordingly, petitioner's unsubstantiated "claim that the missing witness might have been useful does not show actual prejudice." Mills, 641 F.2d at 789.
C. Destruction of Physical Evidence
Turning to the absence of physical evidence, the court of appeal found no prejudice because none of the unavailable evidence — viz., Abigail's clothing, the gun residue kits, blood samples, the expended shell casing, and the rusty bolt from the gun-was material to Niebauer's defense. Put differently, the court of appeal concluded that the availability of that evidence would not have assisted Niebauer in establishing that the shooting was accidental.
Although Niebauer also complained about the absence of Abigail's personal possessions — in particular, her diary — the record indicates that these items have been missing since the day after Abigail was shot. As such, the delay had no effect on the availability of that evidence.
The court of appeal's conclusion to this effect appears to have been at odds with the views of the California Attorney General's office. Responding to a request from Lee Sansum, Abigail's brother, to review the district attorney's decision not to prosecute Mr. Niebauer, a deputy attorney general wrote a letter to Mr. Sansum in January 1992 in which he catalogued the "significant evidentiary problems" in the state's case against Niebauer. See Pet. Ex. 3, at 2. Among these problems was the failure to preserve various items of physical evidence. With respect to the shotgun ammunition, for instance, the attorney general noted that "a thorough examination of the primer would have been helpful . . . in determining the likelihood of an accidental discharge."Id. at 3. Similarly, with respect to Abigail's clothing, the letter commented that "use of a photograph [of the clothing] alone makes any subsequent test firings for comparison purposes less credible."Id. In the opinion of the deputy, these concerns supported the district attorney's decision not to prosecute Mr. Niebauer.
Although the fact that the attorney general's office had concerns about the quality of the evidence against petitioner is not directly relevant to this Court's consideration of his habeas petition, the evidentiary deficiencies identified in the deputy's letter were no less problematic at the time of petitioner's trial in 1998 than they were in 1992. For example, because the shotgun shells were destroyed prior to indictment, petitioner never had the opportunity to examine them for signs that the gun discharged accidentally. Similarly, because Abigail's clothing was destroyed, petitioner could not could not meaningfully challenge the opinion of the government's expert that the pattern of powder stains on Abigail's sleeves indicated that her arms were raised in a defensive position.
The California Court of Appeal did not address the implications of petitioner's inability to examine the shotgun shells for evidence of accidental discharge. With respect to Abigail's clothing, the court of appeal found that its absence was not prejudicial to petitioner's defense because Abigail's positioning was "not in material dispute." Slip Op. at 16. Petitioner's theory at trial, however, was that the gun discharged accidentally while petitioner was showing Abigail the serial numbers on its underside. Insofar as a defensive posture was inconsistent with this theory, the position of Abigail's hands was indeed in dispute, and petitioner's inability to conduct independent testing on the clothing plainly limited the strength of his defense.
In light of these considerations, the Court finds that the court of appeal's finding that no prejudice flowed from the destruction of physical evidence was based on an unreasonable determination of the facts in light of the evidence presented to the trial court. See 28 U.S.C. § 2254(d)(2). The court of appeal's rationale — to wit, that none of the destroyed evidence was material to petitioner's defense — cannot be squared with the evidence presented by the government at trial or with the defense that petitioner sought to present. To the contrary, the absence of at least some of this evidence materially impaired petitioner's ability to refute the government's case and mount his own defense.
Having shown actual prejudice as a result of the preindictment delay, petitioner would be entitled to a writ of habeas corpus if the state were unable to present adequate reasons for the delay. See United States v. Sherlock, 962 F.2d 1349, 1354-55 (9th Cir. 1989). To date, the state has not had the opportunity to explain the reasons for the delay or to argue that a writ should not issue notwithstanding any prejudice that petitioner suffered. Accordingly, the Court will hold an evidentiary hearing limited to the issue of whether the government had legitimate reasons for the preindictment delay. If the state is unable to supply such reasons, the Court may grant habeas relief.
Elsewhere in his petition, Niebauer argues that his right to a jury trial was infringed because the decay in the quality of evidence over time impaired the jury's ability to render a fair verdict, and that his right to testify was compromised by time's toll on his memory. Because these claims collapse into his claim that excessive preindictment delay deprived him of due process, they will not be addressed separately.
II. Right to Jury Trial
Petitioner contends that the trial court's ruling on his motion to dismiss infringed on his Sixth Amendment right to have the issue of prejudicial delay determined by a jury. Whether preindictment delay warrants dismissal of the charges against a criminal defendant, however, is a legal issue to be decided by the court. Since Niebauer was never entitled to present that argument to a jury, the fact that the court decided it does not afford a basis for habeas relief.
III. Evidentiary Rulings
A. Prior Act of Domestic Violence
At trial, the government sought to adduce testimony from Abigail's lover, Greg Hall, about statements that Abigail allegedly made to Hall concerning a scuffle during which Niebauer allegedly broke Abigail's glasses and bruised her eye. Defense counsel objected to the testimony as hearsay, as well as on the grounds that Niebauer's character was not in issue and that the evidence was more prejudicial than probative. The trial court admitted the evidence over the hearsay objection as a spontaneous utterance. The court also found that the evidence was probative of Niebauer's abusive nature, and that Niebauer had opened the door to the evidence by examining Niebauer's children on that topic.
Niebauer challenged the admission of this evidence on appeal. The court of appeal upheld the trial court's ruling. It found that Abigail's statements to Hall qualified as excited utterances. The court further found that whether or not Niebauer "opened the door" to the character evidence, the evidence was "plainly admissible" under section 1109 of the California Evidence Code, which permits "evidence of the defendant's commission of other domestic violence" when the defendant is accused of an offense involving domestic violence. See Slip. Op. at 25.
Section 1109 was not part of the California Evidence Code at the time Niebauer committed the offense of conviction. Accordingly, petitioner now argues that admission of Hall's testimony under section 1109 ran afoul of the Constitution's ex post facto clause, which forbids retroactive legislation that "changes the legal consequences of acts completed before its effective date." Weaver v. Graham, 450 U.S. 24, 31 (1981); see also United States v. Stogner, 123 S.Ct. 2446, 2449 (2003).
Section 1109 created an exception to the California Evidence Code's general ban on "evidence of character to prove conduct." Cal. Evid. Code § 1101. As such, it rendered admissible certain evidence that might not have been admissible prior to its enactment in 1996. Had Niebauer been tried prior to 1996, the court of appeal could not have relied on section 1109 as a basis for upholding the trial court's decision to admit the testimony at issue.
This fact alone, however, does not indicate that Niebauer's constitutional rights were violated. Changes to rules of evidence constitute ex post facto violations only when they decrease the "quantum" of evidence required to convict a defendant. Carmell v. Texas, 529 U.S. 513, 530 (2000) (citing Calder v. Bull, 3 U.S. 386, 390 (1798)). In Carmell, the Supreme Court considered a change to a state evidentiary rule that abolished the need for a prosecutor to introduce corroborative evidence of a victim's allegations of sexual assault. Finding that the new rule reduced the quantum of evidence required to convict, the Court struck down the law. See id. at 530. By contrast, the Court noted that changes to rules of evidence that "simply permit evidence to be admitted at trial" do not pose an ex post facto problem. See id. at 533 n. 23.
The effect of section 1109 was merely to permit the introduction of a type of evidence that was previously inadmissible. Because it did not lessen the quantum of evidence required to convict, the court of appeal's reliance on section 1109 is not a basis for habeas relief.
B. Threat
Niebauer also challenges the admission of testimony concerning a statement that Niebauer allegedly made to his daughter Cathy in 1989. Specifically, he argues that his rights to due process and to confront adverse witnesses were infringed by the admission of hearsay testimony from Niebauer's son, James, Jr., to the effect that Niebauer told Cathy that "she should stop what she's doing or he'll get her too like he had gotten her mother, or something to that effect." RT 882-83.
At trial, the government sought to show that Niebauer had made this statement to Cathy over the telephone. Although James, Jr. did not participate in the phone conversation, he testified that he was present in Cathy's dorm room at Stanford while she was on the phone with their father. When defense counsel raised a hearsay objection to the prosecutor's efforts to introduce the challenged statement through James, Jr., the prosecutor argued that what Niebauer told Cathy was admissible as an admission, and that what Cathy told James, Jr. was admissible as an excited utterance. Once the prosecutor laid a satisfactory foundation for the excited utterance, the trial court permitted the statement to come into evidence. Later in the trial, the court allowed the prosecution to introduce a tape recording of the interview during which James, Jr. told the attorney general's office that his father had made the statement. Although defense counsel objected to the admission of the recording into evidence, the court reasoned that it was admissible to impeach James, Jr.'s purportedly "equivocal" testimony about the statement.See RT 2428.
Niebauer did not repeat the hearsay argument on appeal, nor does he raise that issue in his habeas petition. Rather, his only argument for habeas relief is that the admission into evidence of his alleged statement to Cathy was "extremely unfair, highly prejudicial, and a violation of [his] right to confront and cross-examine the witnesses against him pursuant to the Sixth Amendment and to a fair trial in conformity with the standards of due process of law." Pet. at 39-40.
A state court's evidentiary ruling is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process.See Pulley v. Harris, 465 U.S. 37, 41 (1984);Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir. 1991). A federal court cannot disturb on due process grounds a state court's decision to admit evidence unless the admission of the evidence was so prejudicial that it rendered the trial fundamentally unfair.See Walters v. Maass, 45 F.3d 1355, 1357 (9th Cir. 1995); Colley v. Sumner, 784 F.2d 984, 990 (9th Cir. 1986).
In order to obtain habeas relief on the basis of evidentiary error, petitioner must show that the error was one of constitutional dimension and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). The court must find that the error had "`a substantial and injurious effect' on the verdict." Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quotingBrecht, 507 U.S. at 623).
The California Court of Appeal found that the trial court's admission of the threat was an implicit ruling that the probative value of the evidence was not substantially outweighed by its prejudicial effect.See Cal. Evid. Code § 352. The court of appeal affirmed that ruling, noting that Niebauer had not shown how admission of the evidence would create a substantial danger of prejudice above and beyond the prejudice inherent in any such admission of culpability. See Slip Op. at 32; accord Vorse v. Sarasy, 53 Cal.App.4th 998, 1008-09 (1997) ("The `prejudice' referred to in Evidence Code section 352 applies to evidence which uniquely tends to evoke an emotional bias against the defendant as an individual and which has very little effect on the issues. In applying section 352, `prejudicial' is not synonymous with `damaging.'") (citations omitted).
Although Niebauer insists that admitting the evidence violated his constitutional rights, the record does not support the conclusion that the introduction of Niebauer's statement, either through James, Jr. or by way of the tape recording, fatally infected the trial's fundamental fairness. Although the statement was indisputably damaging to Niebauer's defense, that fact alone does not render its admission unfair. The statement was neither "macabre" nor "particularly inflammatory,"Ortiz-Sandoval, 81 F.3d at 898, and there is no reason to believe that it rendered the jury incapable of rational thought.See United States v. Johnson, 820 F.2d 1065, 1069 (9th Cir. 1987) (evidence is unfairly prejudicial if it "makes a conviction more likely because it provokes an emotional response in the jury or otherwise tends to affect adversely the jury's attitude toward the defendant wholly apart from its judgment as to his guilt or innocence of the crime charged") (emphasis added) (citation omitted). Moreover, defense counsel had ample opportunity to cross-examine James, Jr. concerning the truth of his report to the attorney general. Cf. United States v. Rosa, 705 F.2d 1375, 1378 (1st Cir. 1983). Under these circumstances, the trial court's decision to allow the jury to decide what weight to attach to Niebauer's statement was not inconsistent with the court's duty to preserve the trial's fundamental fairness. Accordingly, petitioner is not entitled to habeas relief on this basis.
CONCLUSION
For the reasons stated above, the Court rejects all of petitioner's asserted grounds for habeas relief with the exception of his claim that the excessive preindictment delay violated his right to due process. With respect to this claim, the Court finds that the state court's holding that petitioner suffered no actual prejudice from the unavailability of destroyed evidence was based on an unreasonable determination of the facts. Accordingly, the parties are directed to appear on October 23, 2003 at 2:30 PM for an evidentiary hearing on the issue of the state's reasons for the preindictment delay. The state shall file any briefing on this subject on or before September 25, 2003. Petitioner may respond on or before October 9, 2003, and any reply shall be filed no later than October 16, 2003.
IT IS SO ORDERED.