FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL SLOVIK,  No. 06-55867

Petitioner-Appellant, D.C. No.

v.  CV-05-00193-BEN/

NLS JAMES A. YATES, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Southern District of California

Roger T. Benitez, District Judge, Presiding

Argued and Submitted

April 9, 2008—Pasadena, California

Filed October 6, 2008

Before: William C. Canby, Jr., Andrew J. Kleinfeld, and

Jay S. Bybee, Circuit Judges.

Opinion by Judge Bybee

14145
COUNSEL

Kurt David Hermansen, Law Office of Kurt David Hermansen, San Diego, California, for the petitioner-appellant. 

Garrett Beaumont, Deputy Attorney General of the State of

California, San Diego, California, for the respondent-appellee.

OPINION

BYBEE, Circuit Judge: 

California prisoner Michael D. Slovik petitions for a writ

of habeas corpus, contending that his confrontation rights

under the Sixth and Fourteenth Amendments to the United

States Constitution were violated when a California trial court

prevented him from asking questions on cross-examination

14148 SLOVIK v. YATES
that would establish that one of the prosecution’s key witnesses had likely lied under oath. The district court denied the

petition. For the reasons explained below, we agree that

Slovik was denied his confrontation rights and that the right

was clearly established; accordingly, we reverse.

I. FACTS AND PROCEEDINGS

This case arises out of a billiard ball fight—not a billiard

hall fight, although it certainly was that as well—but a fight

involving billiard balls. On the evening of November 20,

1998, Slovik was drinking at a bar named Gusser’s Carousel.

It is clear that a bar fight occurred that night, and that Slovik

was one of the main belligerents in that fight. After that, the

details get kind of hazy. The various witnesses and

participants—as the State points out, indisputably not picked

from a Sunday school choir—offered conflicting testimony.1

The prosecution relied largely on the eyewitness testimony

of the bartender, Katherine Buckley-Stoffel, and bar patrons

Mark Featherstone, Marilyn Woods, and Zachary Johnson.

The defense relied on the eyewitness testimony of bar patron

Bridgett Lewis. The trial error that is the subject of this appeal

occurred during Featherstone’s testimony. We are going to

relate the story as each of the witnesses recounted it. 

Buckley-Stoffel testified that at approximately 1:00 a.m.

she stopped serving Slovik alcohol because he was intoxicated and antagonistic. In response, Slovik threw a tip at

Buckley-Stoffel, yelled obscenities, and threatened to kill her

as he was escorted outside. After Slovik was removed from

the bar, Buckley-Stoffel attempted to shut and lock the door,

but Slovik grabbed it, pushed her back inside, and then

1Our recitation of the facts is drawn from the findings of fact in the

opinion of the California Court of Appeal, whose findings are presumed

correct unless rebutted by clear and convincing evidence. 28 U.S.C.

§ 2254(e)(1). Neither Slovik nor the State has challenged these findings.

SLOVIK v. YATES 14149
shoved her and punched her in the shoulder. She testified that

Slovik grabbed pool balls2 and threw one toward Lewis and

one toward her, which came within six inches of her head and

broke the Plexiglas wall covering behind her. Buckley-Stoffel

saw Slovik on the floor with Featherstone standing over him

and then saw Slovik chasing Featherstone. 

Featherstone testified that Buckley-Stoffel took Slovik’s

drink after Slovik did backflips through the bar. According to

Featherstone, when Buckley-Stoffel asked Slovik to leave,

Slovik yelled, cursed and shoved her. Buckley-Stoffel

screamed for Featherstone to call 911. Featherstone further

testified that as he attempted to shut the door, Slovik grabbed

it and reentered the bar, shoving both Featherstone and

Buckley-Stoffel against the wall. Slovik chased Lewis, and

then slipped on pool sticks he had knocked down earlier. Featherstone denied touching Slovik, but claimed that Slovik

chased him around the pool table, and threw two pool balls at

his face. When Featherstone ducked, the balls hit the wall,

and Slovik then threw a third ball. 

The incident that is the basis for Slovik’s habeas petition

occurred during Featherstone’s cross-examination. Featherstone was asked whether he was currently on probation. He

answered “no.” Slovik’s counsel apparently had a form establishing that Featherstone had been placed on five-years’ pro2At oral argument, counsel for both sides indicated that cue balls were

thrown. We are fairly confident that not everyone was throwing cue balls,

although the record doesn’t reveal whether one side was stripes and the

other solids. Given that there seems to have been only one pool table at

the bar, there would only have been a single cue ball. Therefore, if Slovik

threw multiple balls they must have been pool balls and not cue balls. In

addition to the difference in color (the cue ball is, of course, white), on

coin-operated tables the owners use slightly larger and heavier cue balls,

or occasionally magnetic cue balls in order to ensure that the cue ball is

returned to the game after a scratch. See EWA MATAYA LAURANCE &

THOMAS C. SHAW, THE COMPLETE IDIOT’S GUIDE TO POOL & BILLIARDS 90

(1998). 

14150 SLOVIK v. YATES
bation for driving under the influence of alcohol, and he

wished to impeach Featherstone with this evidence. After an

unreported side-bar discussion, the trial court apparently sustained a prosecution objection under California Evidence

Code § 352 to any further questioning of Featherstone about

his probationary status, ruling the inquiry would be too time

consuming. Although, due to the unrecorded side-bar, the

written record is ambiguous as to what exactly Slovik’s counsel was attempting to introduce, at oral argument the State

conceded that Slovik’s counsel was not permitted to show

Featherstone the document and ask him an “isn’t it true that”

question. 

Woods testified that Johnson jumped on Slovik and they

began scuffling. Woods also testified that after Johnson and

Slovik scuffled, others unsuccessfully tried to remove Slovik

from the bar. Featherstone called 911 and Johnson ran out the

back door. Woods confirmed that Slovik shoved BuckleyStoffel and hit Buckley-Stoffel’s arm. She testified that while

Featherstone was on the other side of the pool table egging

him on, Slovik grabbed two pool balls and threw one of them.

Johnson testified that he went to assist in the effort to

remove Slovik from the bar. According to Johnson, Slovik

swung at Buckley-Stoffel and missed, and when Johnson

stepped in the way, Slovik swung at him instead, and they

began fighting. Johnson hit Slovik twice in the back of the

head and they fell. 

The defense relied principally on the testimony of Lewis,

another customer at the bar that night. According to Lewis,

Slovik was intoxicated and belligerent and refused to leave

until Buckley-Stoffel accompanied him to the door. When

Lewis heard a disturbance, she went outside and witnessed

Johnson holding Slovik in a chokehold against a car, as Johnson’s sister screamed to “let him go!” Lewis testified that

Slovik followed Johnson back into the bar, and when Lewis

and Buckley-Stoffel attempted to shut the door, Slovik pushed

SLOVIK v. YATES 14151
Buckley-Stoffel aside and entered the bar. Lewis then kicked

Slovik; he threatened her, and she ran outside. Lewis witnessed Featherstone pushing Slovik, and then kicking and

pushing him back down when he tried to get up. Lewis testified that after Slovik got up he angrily threw pool balls in an

erratic fashion “not to pinpoint anybody out. He was just

throwing them to throw them.” On cross-examination Lewis

testified that she was unsure what he was trying to hit: “I

guess people. I don’t know how.” She further testified that as

Slovik moved toward the door, Featherstone threw a ball in

that direction.3

As a result of the bar fight, Slovik was charged with assault

with a deadly weapon (the pool balls) and by means of force

likely to produce great bodily injury upon Buckley-Stoffel

(count one), and upon Featherstone (count two) in violation

of California Penal Code § 245(a)(1); and battery upon Featherstone (count three) and Buckley-Stoffel (count four) in

violation of California Penal Code § 242. A jury found Slovik

guilty of counts two and four as charged, guilty of the lesser

included offense of simple assault for count one, and not

guilty of count three. On June 28, 1999, the trial court sentenced Slovik to 40 years to life as a result of the California

three-strikes law and other sentencing enhancements. 

3Lewis testified that when the police asked them to write statements,

they discussed the events among themselves, and Featherstone indicated

that they should not mention that he had pushed or kicked Slovik.

Although she wrote that Slovik hit Buckley-Stoffel, she testified that she

meant that he pushed Buckley-Stoffel when being escorted out of the bar.

She explained that she did not mention the parking lot fight in her statement because the police told them to write about the incident in the bar.

Lewis also failed to note in her written statement that Featherstone had

thrown a pool ball, but she testified that she decided to tell the truth when

she learned that Slovik would receive a long sentence. 

A defense investigator testified that when he interviewed Lewis she

never mentioned anyone besides Slovik throwing pool balls, but she did

state that Featherstone pushed Slovik to the ground and then kicked him,

and that Buckley-Stoffel and Featherstone did not plan to inform the

police about either that or the parking lot fight. 

14152 SLOVIK v. YATES
Slovik appealed his conviction on numerous grounds. The

California Court of Appeal affirmed Slovik’s conviction on

the merits, but struck some of the sentencing enhancements in

an unpublished decision. The California Supreme Court

denied Slovik’s petition for review. In September 2001,

Slovik was resentenced to 35 years to life, which the California Court of Appeal affirmed in another unpublished decision.

Slovik then filed a state habeas corpus petition, which was

denied by the Superior Court, the state appellate court, and the

California Supreme Court. 

In February 2005, Slovik filed a 28 U.S.C. § 2254 petition

for writ of habeas corpus in federal district court. Magistrate

Judge Stiven recommended that the habeas petition be denied,

and Judge Benitez adopted that recommendation and denied

the petition on May 1, 2006. Slovik timely appealed.

II. DISCUSSION

This case is governed by the Antiterrorism and Effective

Death Penalty Act (“AEDPA”), 28 U.S.C. § 2254(d). See

Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under AEDPA,

we may not grant Slovik habeas relief unless the last reasoned

state court adjudication, here the California Court of Appeal’s

first unpublished decision addressing the merits of his case,

“(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.” 28 U.S.C. § 2254(d). We

review de novo a district court’s decision to deny a habeas

petition. Campbell v. Rice, 408 F.3d 1166, 1169 (9th Cir.

2005) (en banc). 

We granted a certificate of appealability on two questions:

(1) whether Slovik’s constitutional rights were violated by the

trial court’s exclusion of evidence that would have impeached

SLOVIK v. YATES 14153
Featherstone; and (2) whether Slovik’s right to present a

defense was violated by the assault instruction given to the

jury. Because we find the limitation on use of impeachment

evidence for cross-examination adequate to grant the petition,

we do not reach the jury instruction issue. 

A. Confrontation Clause Violation

[1] The Confrontation Clause of the Sixth Amendment

guarantees a criminal defendant the right “to be confronted

with the witnesses against him.” U.S. CONST. amend. VI. The

Supreme Court has explained that the right of confrontation

“means more than being allowed to confront the witness

physically,” but rather “[t]he main and essential purpose of

confrontation is to secure for the opponent the opportunity of

cross-examination.” Davis v. Alaska, 415 U.S. 308, 315-16

(1974) (internal quotation marks and citation omitted). The

Confrontation Clause does not prevent a trial judge from

imposing “reasonable limits on such cross-examination based

on concerns about, among other things, harassment, prejudice,

confusion of the issues, the witness’ safety, or interrogation

that is repetitive or only marginally relevant.” Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986). Nevertheless, the

Court has held that a defendant’s Confrontation Clause rights

have been violated when he is “prohibited from engaging in

otherwise appropriate cross-examination . . . and thereby ‘to

expose to the jury the facts from which jurors . . . could

appropriately draw inferences relating to the reliability of the

witness.’ ” Id. at 680 (quoting Davis, 415 U.S. at 318). “[A]

criminal defendant states a violation of the Confrontation

Clause by showing that he was prohibited from engaging in

otherwise appropriate cross-examination designed to show a

prototypical form of bias on the part of the witness.” Id.

Accordingly, the defendant has met his burden when he has

shown that “[a] reasonable jury might have received a significantly different impression of [a witness’] credibility had . . .

counsel been permitted to pursue his proposed line of crossexamination.” Id. 

14154 SLOVIK v. YATES
[2] Slovik’s Sixth Amendment right to be confronted with

the witnesses against him was violated because a reasonable

jury might have received a “significantly different impression” of Featherstone’s credibility had Slovik been permitted

to confront Featherstone with the record of probation and

cross-examine him concerning his apparent lie under oath.

See id. During his cross-examination of Featherstone,

Slovik’s counsel asked “You’re currently on probation right

now?” to which Featherstone responded “No.” When, during

cross-examination, Slovik’s counsel attempted to approach

Featherstone with evidence that Featherstone was in fact on

probation, the trial court denied permission to approach the

witness with that evidence. Had Slovik’s counsel been permitted to ask Featherstone something along the lines of “isn’t it

true that you are currently on probation for driving under the

influence of alcohol?” Slovik might have shown that Featherstone’s prior statement, made under oath, that he was not on

probation was a lie.4

[3] The evidence that Featherstone was placed on fiveyears’ probation for driving under the influence was not being

proffered to establish that Featherstone was unreliable

because he was on probation, but rather to establish that Featherstone was unreliable because he had lied about being on

probation. It is clear to us that the jurors might have formed

a significantly different impression of Featherstone’s credibility if they had heard cross-examination showing that Featherstone was willing to lie under oath.5

 Therefore, the trial

4At oral argument the State suggested that Featherstone was not necessarily lying because he may not have known that he was on probation.

Whether Featherstone might have been innocently mistaken in telling

what he thought to be the truth when he spoke falsely was a question to

be argued by counsel and resolved by the jury. 

5Slovik also argues that if Featherstone was on probation, he would

have had an added motive for lying about whether he attacked Slovik first,

because an assault or battery charge would have violated the terms of his

probation. The State argues in response that Slovik never advised the trial

SLOVIK v. YATES 14155
court’s refusal to allow Slovik to present such evidence violated Slovik’s constitutional rights under the Sixth Amendment, so clearly set forth in Van Arsdall and Davis.

The State concedes that the exclusion of the proffered

impeachment cross-examination would violate Slovik’s Sixth

Amendment confrontation rights if the excluded testimony

would have produced a significantly different impression of

the witness’ credibility, but it contends that exclusion of

cross-examination with the record of Featherstone’s probation

did not significantly alter the jurors’ impression of Featherstone’s credibility. Inexplicably, the State argues that “[j]urors

could reasonably infer from defense counsel’s crossexamination question and Featherstone’s answer that Featherstone committed an offense resulting in a prior placement on

probation.” The entire exchange proceeded as follows:

Slovik’s counsel asked Featherstone, “You’re currently on

probation right now?” to which Featherstone responded “No.”

It is baffling how jurors could reasonably infer from this

exchange that Featherstone committed an offense resulting in

a prior placement on probation. The only conclusion that a

juror could reasonably draw is that Slovik’s counsel was

attempting to impeach Featherstone’s credibility, but failed.

Indeed, because use of the evidence was prohibited, it would

have been improper for the jurors to read anything else into

court, pursuant to California Evidence Code § 354(a), that he intended to

pursue evidence of Featherstone’s current probation status to show Featherstone had a motive for testifying falsely. Although California evidentiary law is irrelevant to the determination of whether Slovik’s

constitutional rights were violated, the State’s position may be construed

as an argument that Slovik forfeited the motive argument by failing to

exhaust it before the California Court of Appeal. See Picard v. Connor,

404 U.S. 270, 276 (1971) (explaining that a state prisoner seeking habeas

review is required “to present the state courts with the same claim he urges

upon the federal courts.”) We need not decide whether Slovik’s motive

argument is exhausted because the excluded cross-examination is crucial

to establish that Featherstone had lied under oath regardless of whether it

also establishes a motive for Featherstone to lie. 

14156 SLOVIK v. YATES
the exchange. The State has not offered any reason why the

jury would suspect that Featherstone was lying when he

answered “No.” The jurors were left to assume that Slovik’s

counsel was fishing and that Featherstone testified honestly.

The State also contends that the trial court’s ruling did not

significantly alter the jury’s impression of Featherstone’s

credibility because Slovik’s trial counsel had already established that some of the prosecution’s witnesses were regular

bar patrons, and some were on probation, and that this “sufficed to dispel any lingering illusions that the prosecutor

picked his witnesses from a Sunday school choir.” This argument fails to recognize the effect that cross-examination

might have had on the jurors’ perception of the individual witness. Although we will consider this argument again in our

harmless error analysis, the fact that defense counsel

impeached other witnesses bears no relevance in the confrontation right analysis, which asks whether impeaching Featherstone would have produced a significantly different

impression of Featherstone’s credibility. Featherstone was an

important witness. He was in the middle of the dust-up and,

if his testimony was believed, was a victim of Slovik’s

billiard-ball assault. The Supreme Court has emphasized that

“the focus of the Confrontation Clause is on individual witnesses” and thus “the focus of the prejudice inquiry in determining whether the confrontation right has been violated must

be on the particular witness, not on the outcome of the entire

trial.” Van Arsdall, 475 U.S. at 680. That defense counsel was

able to impeach other witnesses is irrelevant to whether the

trial court’s limit on Slovik’s ability to cross-examine Featherstone violated the Confrontation Clause. 

[4] The California Court of Appeal analyzed Slovik’s claim

as an evidentiary issue governed by state law, rather than a

confrontation question governed by the Sixth Amendment.

The California Court of Appeal approved the trial court’s ruling under California Evidence Code § 352, which states:

SLOVIK v. YATES 14157
The court in its discretion may 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. 

Applying a California evidentiary standard of review, the

Court of Appeal concluded that “[a]bsent a clear showing of

abuse, the trial court’s exercise of discretion under this section

will not be reversed.” See People v. Avila, 133 P.3d 1076,

1137 (Cal. 2006) (“We review for abuse of discretion a trial

court’s rulings on relevance and the exclusion of evidence

under Evidence Code section 352.”). AEDPA gives us no

basis here for questioning a California court’s decision applying its own evidentiary rules. By treating the issue exclusively

as an evidentiary question, rather than a constitutional question, however, the Court of Appeal simply applied the wrong

standard; had the Court of Appeal applied Van Arsdall and

Davis, we believe it would have come to a different conclusion. In this regard, the California Court of Appeal’s decision

was contrary to or involved an unreasonable application of

clearly established Supreme Court precedent regarding the

Confrontation Clause. 

B. Harmless Error Analysis 

[5] Confrontation Clause errors are subject to harmlesserror analysis. “The correct inquiry is whether, assuming that

the damaging potential of the cross-examination were fully

realized, a reviewing court might nonetheless say that the

error was harmless beyond a reasonable doubt.” Van Arsdall,

475 U.S. at 684. In any particular case the relevant factors

include “the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the

presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent

14158 SLOVIK v. YATES
of cross-examination otherwise permitted, and, of course, the

overall strength of the prosecution’s case.” Id.

Applying these factors, we cannot say that the trial court’s

limit on Slovik’s ability to cross-examine Featherstone was

harmless beyond a reasonable doubt. Assuming, as we must,

that the damaging potential of Featherstone’s crossexamination was fully realized, the jury could have concluded

that Featherstone was willing to lie under oath and could have

discounted his testimony. 

[6] The conviction at issue in Slovik’s habeas petition is

count two, assault with a deadly weapon, for throwing pool

balls at Featherstone. Featherstone’s testimony is critical to

that conviction because Featherstone testified plainly that

Slovik threw one or more pool balls at him. The only other

witness who testified that Slovik may have thrown a pool ball

at Featherstone is Woods. According to the California Court

of Appeal, Woods testified that “while Featherstone was on

the other side of the pool table egging him on, [Slovik] threw

one of the balls.” Given that Slovik’s defense was based on

self defense, and he argued that Featherstone was the aggressor, it is far from clear beyond a reasonable doubt that

Woods’ testimony—that Slovik “threw one of the balls” while

Featherstone was egging him on—would suffice for a jury to

convict Slovik of assault with a deadly weapon. Woods’ testimony did not even indicate that Slovik was aiming at Featherstone, as opposed to just throwing a ball aimlessly. Moreover,

Woods only testified that Slovik threw one ball and does not

indicate the target of that ball, whereas Featherstone contended that Slovik threw three balls at him. Other witnesses

testified either that Slovik threw pool balls haphazardly, or

that he threw them at others. Lewis, for example, testified that

Slovik “was just throwing [pool balls] to throw them” and

was not trying “to pinpoint anybody.” Featherstone’s testimony thus appears crucial to the prosecution’s case and is not

cumulative. We cannot conclude that the prosecution’s case

was so strong that the trial court’s decision to exclude crossSLOVIK v. YATES 14159
examination on evidence discrediting Featherstone was harmless error beyond a reasonable doubt. 

The State does not attempt to argue that its case was particularly strong, or that Featherstone was inconsequential to its

conviction. Rather, the State alleges that even if the state court

committed constitutional error, “the state court trial jurors

knew that none of the trial witnesses led a purely law-abiding

life.” We are not sure what we should take from this admission. This argument is presumably an attempt to show that the

testimony was cumulative, but it merely serves to emphasize

that the State’s case rested on the testimony of shaky witnesses and reminds us that if these witnesses were further

contradicted, the jury might not have returned a conviction. 

[7] The California Court of Appeal found “harmless error

in the court’s excluding evidence a witness was on probation

when the witness testified to the contrary.” People v. Slovik,

No. SCE193584, at 2 (Cal. Ct. App. filed Mar. 2, 2001). The

court provided no reasoning to support that statement. The

court’s analysis is limited to another conclusory statement that

“there is no reasonable probability of a different result had the

court allowed questioning of Featherstone’s probationary status.” Id. at 13. The court fails to explain why there is no reasonable probability of a different result, in light of any of the

factors provided by the Supreme Court to guide the harmless

error inquiry. Instead, the court just concludes for a third time

that “[t]he fact [that] the defense was not allowed to question

Featherstone further about whether he was on probation did

not result in a miscarriage of justice.” Id. Although it is

unclear whether the California Court of Appeal simply failed

to conduct a harmless error analysis, or whether it misapplied

that analysis, its conclusion that the trial court’s exclusion of

the evidence of Featherstone’s probation was harmless error

either contradicted or unreasonably applied established federal law as determined by Supreme Court precedent. See Van

Arsdall, 475 U.S. at 684. 

14160 SLOVIK v. YATES
III. CONCLUSION

[8] We reverse the denial of the petition, and direct the district court to issue an order stating that a writ of habeas corpus

will be issued with regard to Slovik’s assault conviction

unless he is retried or resentenced within a reasonable period

of time to be determined by the district court.

REVERSED AND REMANDED. 

SLOVIK v. YATES 14161