N O T FO R PUB L ICAT IO N UNITED STATES C OUR T OF APPEALS FOR THE NINTH C IR C UIT

M ATTHEW

FLETC HER , Pe t i tione r-Appe lla

nt,
v. J. SOTO, W arde n,

R e sponde nt-Appe lle e . No. 13-56958 D.C . No. 2:09-c v-09115- JFW
M AN

M EM O R ANDUM *

JENNIFER FLETC HER ,

Pe t i tione r-Appe lla

nt,
v. VELDA DOB SON-DAVIS,

R e sponde nt-Appe lle e . No. 13-57054 DC No. 2:09-c v-09107- JFW
M AN

Appe a ls from

the Unite d

Sta t e s Distric t C ourt for the C e ntra l Distric t of C a lifornia John F. W a lte r, Distric t Judge , Pre siding Argue d a nd Subm itte d M a

rc h 8, 2017 Pa sa de n a , C a l ifornia 

# F IL ED
APR 04 2017 M OLLY C. DW Y ER, CLERK U

. S. CO URT O F APPEALS

* This disposition is not a ppropria te for public a t ion a

nd is not pre c e de nt e xc e pt a s provide d

by Ninth C irc uit R

ule 36-3.B e fore : R EINHAR DT, TASHIM A, a

nd NGUYEN, C i rc uit Judge s. M a tthe w a

nd Je nnife r Fle tc he r, husba nd a nd wife , a n d c o-de fe nda

nts be low,
a ppe a l from

the distric t c ourt’ s de nia l of the ir se p ara te 28 U.S.C
. § 2254 pe titions. Exe rc i sing our jurisdic tion pursua nt to 28 U.S.C . § 2253, we a ffirm
. M a tthe w a

nd Je n n ife r Fle tc he r we re jointly c onvic te d of m

urde ring Je nnife r’ s e x-husba

n d, Joe l Sha

nbrom
. Afte r unsuc c e ssful dire c t a ppe a ls a nd sta te ha be a s proc e e dings, M a tthe w a nd Je nnife r e a c h file d

a § 2254 pe t ition in fe de ra l distric t c o urt. The distric t c ourt de nie d the pe titions a nd the se a ppe a l s followe d. W ith re spe c t to M a tthe w’ s a ppe a l, this C ourt issue d a c e rtific a te of
a ppe a la bility (“ C O A” ) on a

single issue : “ whe the r the prose c u tor c om m itte d
m isc o nduc t by a sking De te c tive M c C artin whe the r he be lie v e d [M atthe w ] and Je nnife r Fle tc he r’ s story .” W e a lso issue d a C OA to Je nnife r on a

re late d issue :
nam e ly , “ whe the r [Je n nife r’ s] 28 U.S.C
. § 2254 pe t ition inc lude d a c la i m tha t the prose c utor c om

m itte d m i sc onduc t by

a sking De te c tive M c C a

rtin whe the r he

2be lie ve d [Je nnife r] and M a tthe w Fle tc he r’ s story , a nd if so, whe the r [Je nnife r] is
e ntitle d to re l ie f on this c la im .” 1 A distric t c o urt’ s de c ision to de ny a § 2254 ha

be a s pe tition is re vie we d de
novo. Se e Visc iotti v . Marte l , 839 F.3d 845, 856 (9th C ir. 2016). And, while this C ourt norm a lly

a ffords AEDPA de fe re n c e to sta t e c ourt judgm e nts, s e e

, e .g. , Se x ton v . C ozne r , 679 F.3d 1150, 1153 (9th C ir. 2012), whe re , a s he re , “ the sta te
c ourt ha s not de c ide d a

n issue , we re vie w tha

t que stion de novo.” S

tanle y v . 1 Pursua

nt to Ninth C ir. R . 22-1(e ), Appe l la nts re que st tha

t we e xpa nd the ir re spe c tive C OAs. First, both Je nnife r and M a tthe w a sk tha t we e xpa nd the ir C OAs to de c ide whe the r the tria l c ourt e rre d by ba rring the a dm ission of third-pa rty c ulpa bility e vide nc e . Se c ond, Je nnife r a sks tha t we de c ide whe the r the tria l c ourt’ s fa ilure to instruc t

on third-pa

rty c ulpa bility e v ide nc e wa s struc tura l e rror a nd, if not, whe the r the C a lifornia C o urt of Appe a l’ s ha

rm l e ss e rror a

na ly sis wa s unre a s ona

ble . Third, both Jen n ife r and M a tthe w re que st tha t we c onside r the tota lity of the ir prose c utoria l m isc onduc t c la im , ra the r tha n only the single a spe c t of tha t c l a im for whic h the ir C O As issue d
. W e c onc lude that ne ithe r pe titione r ha s m a de “ a substa

ntia l showing of the

de nia l of a

c onstitutiona

l right,” a s re q

uire d by 28 U.S.C . § 2253(c )(2). Se e Hiiv ala v . W o od , 195 F.3d 1098, 1104 (9th C ir. 1999). W e the re fore de ny

Appe l la nts’ re que sts to e xpa

nd the ir C OAs. R e ly ing on Holme

s v . South C

arolina , 547 U.S. 319 (2006), the pa rtia l disse nt would e xpa

nd the C OAs to inc lude third-pa rty c ulpa bility issue s. B ut this c a se is unlike Holme

s , whic h he ld tha

t e xc luding third-pa

rty guilt e vide n c e “ whe re the re is strong e vide nc e of a n a ppe l la nt’ s guilt,”wa s a c onstitutiona l viola tion. Id. a t 324 (quoting State

v . Holme s , 605 S.E.2d 19, 24 (S.C
. 2004)). The distric t c ourt e xpre s sly c onside re d

an d re je c te d a ny ana logy to H olme s be c a use he re , unlike in Holme s , the tria l c ourt e xc lude d the third-pa rty e v i de nc e , not be c a

use of a ny pe rc e ive d stre ngth of the prose c ution’ s e vide n c e , but ba se d on the probative va lue of the proffe re d e vide nc e . This wa s ne ithe r “ an unre a sona b l e a pplic a tion of” Holme s , nor “ an unre a sona

ble de te rm ination of thefa c ts.” 28 U.S.C . § 2254(d)(1) & (2). 3C

ulle n , 633 F.3d 852, 860 (9th C ir. 2011) (quoting Re y noso v . Giurbino , 462 F.3d 1099, 1109 (9th C ir. 2006)). The c e rtifie d issue c onc e rns the following e xc ha n ge during the prose c utor’ s
re -dire c t e xam ination of De te c tive M c C artin following M a tthe w’ s pro se c rosse xam ination: Q: W e ll, first of a ll, in ge ne ra l, [M a tthe w] sa id from tim e to tim e , would y ou te ll som e body

som e thing tha

t wa s not truthful – his word was “ lie ” – in orde r to ge t

inform a tion. Did y o u do tha t in this c a se ? A: Ye s.

. . . Q: At the tim e tha

t y ou we re doing tha

t, did y ou, in y our own m ind, ba se d upon y our e xpe rie nc e , ha ve re a son to be lie ve tha

t M r. Fle tc he r wa s not be ing c andid?

. . . A: Ye s. Ye s, we did. Q: And the sa

m e with Je nnife r? A: Ye s.

. . . Q: And y ou m e ntione d

som e thing tha

t the pe rc e ptions tha

t pe ople ha d of M a tthe w Fle tc h e r, the y

a lre a dy ha d be fore y ou ta lke d to the m . A: Absolute ly
. Q: C ould y ou e xpla in tha t, ple a se .

4A: The pe rc e ption tha t m ost of the se – I sa

y 99 pe rc e nt of witne sse s tha t we inte rvie we d – a

nd I’ ve inte rvie we d ove r 100-plus, 150 witne sse s in this c a se . . . the pe rc e p t ion tha

t m ost of the pe ople have – not a ll of the m – is tha t M a tthe w Fle tc h e r wa s a

c on m an a

nd he would – he ’ s a

good sa le sm an a

nd he would bring them

in, suc k the m into this busine ss he wa s in, a nd the n le a ve the m ha

n ging a nd not ta ke c are of the ir ne e ds whe n the y would c a ll for he lp; or if the y

ha d a m e e ting to go to, he

would not show up; m

one y s tha t we re owe d, he would not pa y the m and, a s a re sult, the y

a ll fe lt he wa s a c rook. Assum ing, without de c iding, tha t we are not ba

rre d from re vie w ing this que stion by

any proc e dura l ba

r, se e Lambrix

v . Single tary

520 U.S. 518, 525 (1997) (noting tha

t a proc e dura l ba

r issue ne e d

not a lwa y s be re solve d first), we
re je c t Appe lla

nts’ argum e nt on the m e rits. “ A ha b e a s pe tition will be

gran te d for prose c utoria l m isc onduc t o n ly whe n the m isc onduc t

‘ s o infe c te d the tria l with unfa irne ss a s to m a k e the re sulting c onvic tion a de nia l of due proc e s s.’ ” Sassounian v

. Roe , 230 F.3d 1097, 1106 (9th C ir. 2000) (quoting Darde n v . W ainw right , 477 U.S. 168, 181 (1986)). He re , Appe lla

nts’ c e rtifie d c l a im

re sts
e ntire l y on the prose c utor’ s que stioning of a single witne ss, De t e c tive M c C artin. The c ha lle n ge d e xc ha

nge arose only a fte r M atthe w, a c ting a s his own c ounse l during c ross-e xam ination, ope ne d the door for the gove rnm e nt to solic it De t e c tive M c C artin’ s vie ws a s to the ve ra c ity of the individua ls he inte rvie we d during his inve stiga tion, inc luding both witne sse s to a nd ta rge ts of tha

t inve stiga

tion. Se e Unite d State s v . Garc ia-Guizar , 160 F.3d 511, 522 (9th C ir. 1998) (“ W e have
5e m

pha siz e d tha

t [w] he re the de fe nda

nt ope ns the door to a

n a rgum e nt, it is fa ir
a dvoc a c y for the prose c ution to e nte r.” (c ita tions a nd inte rna l quota

tion m arks
om i tte d)). Ac c ordingly , Appe lla

nts ha ve fa ile d to c arry the ir burde n to show tha

t a
c onstitutiona

l viola t ion oc c urre d. W e the re fore re je c t the ir c la im

of prose c utoria l
m isc o nduc t a

nd a ffirm the distric t c ourt’ s de n ia l of the ir § 2254 pe t itions. In both a ppe a ls, the judgm e nt of the distric t c ourt is AFFIRM E D.

6Fletcher v. Soto , 13
- 56958

Fletcher v. Dobson

- Davis , 13
- 57054 Reinhardt, Circuit Judge, dissenting in part: While I agree with my colleagues that the petitioners failed to establish that a constitutional violation occurred with respect to the certified claim , although not necessarily for the reason given , I dissent from the decision not to expand petitioners’ certificates of appealability to include the denial of their right to present a complete defense. In Holmes v. South Carolina , the Supr eme Court established that criminal defendants have a right to present evidence of third

- party guilt as long as that evidence has more than “ only a very weak logical connection to the central issues” at trial. 547 U.S. 319, 330 (2006). If a state’s third

- party evidence rule, or that rule’s application in a particular case, prevents criminal defendants from putting on evidence central to their defense, the application is “arbitrary” and “violates a criminal defendant’s right to have ‘a meaningful opportuni ty to present a complete defense.’” Id. at 331 (quoting Crane v. Kentucky , 476 U.S. 683, 690 (1986)). The a pplication of California’s third

- party guilt rule in the Fletchers’ criminal trial clearly violated the defendants’ right to put on evidence cent ral to their defense, and thus constituted an unreasonable application of well

- established Supreme Court law . Under California law, “evidence of mere motive or opportunity to commit the crime
. . . without more, will not suffice to raise a reasonable doub t 

# FILED
APR 4 2017 MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL Sabout the defendant’s guilt: there must be direct or circumstantial evidence linking the

third person to the actual perpetration of the crime.” People v. Hall , 41 718 P.2d 99, 104 (Cal. 1986). We need not consider whether that statute is on its face
co nstitutional because in the present case, the California court excluded evidence that was central to the Fletchers’ defense and had a strong logical connection to that defense. The exclusion of that evidence, therefore, constituted an unreasonable applica tion of well

- established Supreme Court law. See Holmes , 547 U.S. at 330
- 31; Crane , 476 U.S. at 690. The Fletchers provided direct evidence of both motive and opportunity of a third party to commit the crime in question, as well as strong circumstantial e vidence linking that person

– Donald Moffett

– to the crime. The Fletchers were prepared to present evidence from eight to ten witnesses at trial consistent with the ir version of the facts that Moffett and his uncle entered the Shanbrom home for the purpose of committing a robbery and shot Joel Shanbrom when they encountered him. This evidence included testimony that Moffett and his uncle were on the Shanbroms ’ street that afternoon purportedly installing a security system in a neighbor hood home; that Moffett and his uncle were members of the East Coast Crips, a gang that was committing home robberies around the time of the shooting ; that some of these robberies were committed by Crip members pretending to be security or police officers by wearing clothing that said “Police” or “Security” on it, and that Moffett had been seen in the Shanbrom neighborhood on the evening of the shooting wearing a shirt with “Security Tech” printed on it ; that Moffett’s uncle inparticular was using his secu rity company as an excuse to “scope out” homes for

burglaries and robberies ; that members of the East Coast Crips had been committing burglaries specifically by pouring water into security systems to disarm them and that the gang members were carrying weap ons during these crimes; that Moffett lied to police about leaving the neighborhood at 5:30 p.m. while actually he was aggressively approaching people to ask for cigarettes and otherwise acting strangely as late as at least 7:30 p.m.; that asking for cigar ettes was a technique sometimes used by gang members as a pretext to approach people to rob them or even gain entry into a person’s home; that the Shanbrom s ’ neighbor heard her two dog s beg i n barking towards the Shanbrom house at around 8:30 p.m., and that this was something the dog s did if they heard or saw somebody wandering around outside the house ; and that a different neighbor heard someone try to break into his home around 9 p.m. that night. All of this would have substantiated Jennifer Fletcher’s statements, made immediately after the shooting, that she was upstairs giving her child a bath w hen she heard her husband say “I’m a cop,” followed by a shot, and then the voice of a black man say ing “What did you do dat for?” A gang expert would have testified that the use of “dat” instead of “that” was consistent with the particular speech pattern of someone from South Central Los Angeles, most often a gang member . That same gang expert would also have testified that using two diffe rent types or brands of ammunition in a shotgun , as t he shooter of Joel Shanbrom did, was a practice “particularly unique” to gang crimes. Because the Fletchers maintained theirinnocence at trial yet were denied the opportunity to present evidence corrob orating

their version of the facts

– that a black man and an accomplice were in the Shanbroms’ home to commit a burglary and instead murder ed Joel Shanbrom when surprised by him

– I believe the petitioners have sufficiently presented “a substantial showing of a denial of a constitutional right
. ” Hiivala v. Wood , 195 F.3d 1098, 1104 (9th Cir. 1999). At the least , petitioners have shown that “jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutiona l right.” Slack v. McDaniel , 529 U.S. 473, 484 (2000). Therefore, in my view, the petitioners are entitled to a certificate of appealability on the issue of third

- party guilt
.