Holley v. Yarborough

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JON ERIC HOLLEY,  No. 08-15104
Petitioner-Appellant, D.C. No.
v.  CV-02-00310-
MICHAEL YARBOROUGH, RRB/JFM
Respondent-Appellee.
 OPINION
Appeal from the United States District Court
for the Eastern District of California
Ralph R. Beistline, District Judge, Presiding
Argued and Submitted
April 13, 2009—San Francisco, California
Filed June 16, 2009
Before: Thomas G. Nelson, Andrew J. Kleinfeld and
Milan D. Smith, Jr., Circuit Judges.
Opinion by Judge Milan D. Smith, Jr.
7157
7160 HOLLEY v. YARBOROUGH
COUNSEL
Suzanne Adele Luban, Oakland, California, for the petitioner-
appellant.
Edmund G. Brown Jr., Dane R. Gillette, Michael P. Farrell,
Brian G. Smiley, and Tami M. Warwick, Office of the Cali-
fornia Attorney General, Sacramento, California, for the
respondent-appellee.
OPINION
MILAN D. SMITH, JR., Circuit Judge:
Petitioner-Appellant Jon Eric Holley appeals the district
court’s order denying his petition for a writ of habeas corpus.
Holley claims that he was denied his rights under the Sixth
and Fourteenth Amendments when the trial court precluded
the introduction of impeachment evidence and prevented his
cross-examination of the alleged victim about her prior state-
ments, including statements about sex and indications that
others had made sexual advances toward her. Holley also
claims that he was denied a fair trial, in violation of the Due
Process Clause of the Fourteenth Amendment, by the trial
court’s admission of evidence that he kept sexually explicit
materials in his home, that he owned weapons, and that he
HOLLEY v. YARBOROUGH 7161
battered a prior girlfriend. We have jurisdiction under 28
U.S.C. §§ 2253(a) and 1291. We reverse and remand for issu-
ance of the writ.
FACTUAL AND PROCEDURAL BACKGROUND
On August 2, 1998, Nicky Van Suydam asked Holley to
babysit her two children, Raina and Matthew, who were 11
and 10 years old, respectively, while she worked a double
shift at the Killer Chicken restaurant. Van Suydam had
become acquainted with Holley almost two years earlier when
they met at an Alcoholics Anonymous meeting, after which
the pair had a brief sexual relationship. Van Suydam’s chil-
dren had been around Holley six or seven times prior to the
day in question, and at his house three times. The children
liked Holley and at one point told him they wanted him to be
their father.
Holley agreed to babysit the children until Van Suydam
finished work. He picked the children up from the Killer
Chicken and took them to his home. They watched television,
played with Holley’s dog, and told jokes, one of which made
Raina laugh so hard she wet her pants. Holley spoke with Van
Suydam on the phone, and then drove Raina and Matthew to
their home so Raina could change her clothes.
Raina testified that on this trip, from Holley’s home to her
own home, she sat on Holley’s lap, steering the car while he
operated the pedals. She further testified that as she sat on his
lap, Holley rubbed her legs and breasts. Holley testified that
Raina did not sit on his lap, but rather sat on a towel on the
passenger seat (because she was wet) next to him, on his
right, and that the only time he touched her was to put his
hands on her shoulders when the car was stopped.
At her house, Raina changed from her pants into clean
shorts, and then they drove back to Holley’s house. Raina
again testified that she sat on Holley’s lap to steer the car, and
7162 HOLLEY v. YARBOROUGH
that Holley put his hands up the bottom of her shorts and
rubbed her legs and breasts. Holley denied touching Raina on
this trip as well, except to put his hands on her shoulders
when they were at stoplights.
Shortly after returning to Holley’s home, the three left
again to go to a liquor store, where Holley bought some pep-
permint schnapps for himself and candy and ice cream for the
children. Raina testified that on the way to the store, Raina sat
on Holley’s lap, steering the car, and Holley put his hands
under her shirt, touching her breasts, and under her shorts,
touching her buttocks. Holley denied touching Raina except
to put his hands on her shoulders at stoplights, so she would
believe she was driving the car.
After returning from the store, the children played while
Holley watched television, lying on the couch. Raina testified
that at one point, she came over to the couch and sat on Hol-
ley’s stomach. When she tried to get up he put his hands on
her legs and held her to him for about a minute, keeping her
from getting up. She testified that Holley sometime later
asked her to take off her clothes, and that she refused. In
response, she claims that Holley pulled his shorts to the side
and exposed his testicles to the children. Raina said that she
turned away from Holley at that point, but saw in a mirror,
which was placed behind a glass cabinet, the reflection of
Holley’s apparently erect penis coming out of the top of his
shorts. Raina also noticed an old gun and some knives in the
glass cabinet. Holley denied exposing himself to the children.
The three then went outside and began roughhousing. At
one point, Holley picked Raina up and held her horizontally,
squeezing her in a way that made it hard for Raina, who has
a heart condition, to breath. The children told Holley to put
Raina down, and Matthew called Holley a “motherfucker.”
Holley got angry about the swearing and drove the children
back to the Killer Chicken. Raina testified that on the way
Holley said he wanted to kill them, although she interpreted
HOLLEY v. YARBOROUGH 7163
it as a figure of speech. Matthew testified that, although he
did not hear Holley threaten them, he was worried that Holley
would do something because he had called Holley a bad
name. Holley denied threatening the children.
Holley dropped the children off at the Killer Chicken.
Raina testified that she told her mother “a little bit” about
what happened, then the children went to Trudy’s Market to
buy some food and wait for Van Suydam’s break. Holley also
went to Trudy’s Market to buy some cigarettes. The children
hid from Holley and told the cashier that he had been mean
to them. The cashier also testified that the children told her
they were mad at Holley for not buying them a pizza, and that
they were going to “get even” with him. Holley told the cash-
ier that the children were “rotten little rats.”
Van Suydam left work early to drive the children home.
She testified that on the way home Raina told her that Holley
had fondled her under her clothes. Van Suydam called the
police.
Holley was charged with five felony counts of lewd and
lascivious acts on a child under 14 years of age, one felony
count of making terrorist threats, two felony counts of child
endangerment, two misdemeanor counts of molesting a child,
one misdemeanor count of contributing to the delinquency of
a minor, and one misdemeanor count of indecent exposure.
Following presentation of evidence at trial, the court granted
the prosecution’s motion to dismiss one count of lewd and
lascivious acts, both child endangerment counts, and the count
of contributing to the delinquency of a minor.
During the prosecution’s case-in-chief, the defense
objected to the presentation of evidence that Holley owned
guns and knives. The court ruled that evidence of weapons
found in areas where the children might have seen them while
at Holley’s home that evening was admissible. The defense
also objected to the admission of a lewd matchbook and sev-
7164 HOLLEY v. YARBOROUGH
eral sexually explicit magazines seized from Holley’s bed-
room, which were admitted into evidence after both sides had
rested their cases, and which were thereafter taken into the
jury room for examination by the jurors.
Holley sought to impeach Raina’s credibility by presenting
testimony of two neighborhood children, Scott and Christa
Westfall, that Raina had told them that she had done “weird
stuff” in a closet with her boyfriend, a term she also used to
describe what Holley had done in rubbing her legs and
breasts; that a neighborhood boy wanted to “hump her brains
out”; and that her brother Matthew had once tried to have sex
with her. The court ruled after a hearing to limit the wit-
nesses’ testimony to exclude any references to sex or sexual
conduct of others.
After thirteen and a half hours of deliberation, the jury con-
victed Holley of two counts of lewd and lascivious conduct,
two counts of child molestation, and one count of indecent
exposure. He was acquitted of the remaining counts of lewd
and lascivious conduct and the charge of terrorist threats. The
trial court sentenced Holley to a total term of eight years on
April 28, 1999.
Holley appealed his conviction, which was affirmed by the
California Court of Appeal, Third Appellate District, on Octo-
ber 31, 2000. The California Supreme Court denied Holley’s
petition for review on January 17, 2001. Holley then filed a
habeas petition with the federal district court on February 7,
2002. In September of 2007, the magistrate judge assigned to
Holley’s case recommended granting habeas relief on the
basis of Holley’s claims that the trial court had wrongfully
limited cross-examination and impeachment of Raina and
wrongfully admitted the matchbook and adult magazines. The
district court rejected the magistrate judge’s recommendation
and denied the petition on December 17, 2007. Holley, by
then released from prison but facing a lifetime status as a sex
offender, appealed to this court.
HOLLEY v. YARBOROUGH 7165
STANDARD OF REVIEW
Federal habeas corpus relief for most state prisoners was
established as a statutory remedy in 1867, enabling federal
courts to grant a writ of habeas corpus in cases where a person
is restrained in violation of the Constitution or federal law.
Act of Feb. 5, 1867, Ch. 28, § 1, 14 Stat. 385. Since that time,
the power to grant the writ has been adjusted by various con-
gressional acts, although the general requirements for relief
have remained the same. Williams v. Taylor, 529 U.S. 362,
375 (2000). The underlying principle is that, while not all
constitutional errors are sufficient to entitle the petitioner to
a remedy, “errors that undermine confidence in the fundamen-
tal fairness of the state adjudication certainly justify the issu-
ance of the federal writ.” Id.Congress has most recently limited the federal court’s
power to issue the writ through the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (AEDPA). Pub. L. No. 104-
132 §§ 101-108, 110 Stat. 1214, 1217-26 (codified as
amended at 28 U.S.C. §§ 2241-55, 2261-66). AEDPA limits
federal habeas corpus relief for any claim decided on the mer-
its in state court proceedings to those cases in which 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 unrea-
sonable determination of the facts in light of the evi-
dence presented in the State court proceeding.
28 U.S.C. § 2254(d). Because Holley’s petition for relief was
filed after AEDPA’s enactment, AEDPA controls this case.
Fulfilling AEDPA’s requirements is the most serious hur-
dle for any federal habeas petitioner. AEDPA narrows the
7166 HOLLEY v. YARBOROUGH
possible bases for a successful habeas claim to constitutional
violations of “clearly established Federal law,” defined as
“the governing legal principle or principles set forth by the
Supreme Court at the time the state court renders its deci-
sion.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Circuit
precedent may not serve to create established federal law on
an issue the Supreme Court has not yet addressed. Carey v.
Musladin, 549 U.S. 70, 76-77 (2006).
A state court decision is “contrary to” established federal
law if it “applies a rule that contradicts the governing law set
forth in [Supreme Court] cases” or “confronts a set of facts
that are materially indistinguishable from a decision of [the]
Court and nevertheless arrives at a result different from
[Supreme Court] precedent.” Williams, 529 U.S. at 405-06(O’Connor, J., concurring). The state court’s decision is “an
unreasonable application” if “the state court identifies the cor-
rect governing legal principle” but applies the principle unrea-
sonably to the prisoner’s factual situation. Id. at 413. State
court decisions are not subject to federal habeas relief if they
are merely erroneous, and not unreasonable. Early v. Packer,
537 U.S. 3, 11 (2002) (per curiam). When there is no clearly
established federal law on an issue, a state court cannot be
said to have unreasonably applied the law as to that issue.
Musladin, 549 U.S. at 77.
We review the district court’s denial of a writ of habeas
corpus de novo, and we may affirm on any ground supported
by the record. Martinez-Villareal v. Lewis, 80 F.3d 1301,
1305 (9th Cir. 1996). We review the state court’s decision
denying a habeas claim by looking to the state’s “last rea-
soned decision,” in this case, the opinion handed down by the
California Court of Appeal. Avila v. Galaza, 297 F.3d 911,
918 (9th Cir. 2002).
HOLLEY v. YARBOROUGH 7167
DISCUSSION
A. Sixth Amendment Confrontation Clause
[1] Holley claims that the trial court’s exclusion of testi-
mony attesting to Raina’s statements regarding certain sexual
acts or the desires others felt for her violated his Sixth
Amendment right to confront and cross-examine witnesses
against him, and that the state court’s decision on this issue
was unreasonable. The Sixth Amendment guarantees a defen-
dant in criminal proceedings the right “to be confronted with
the witnesses against him.” U.S. CONST. amend VI. The
Supreme Court has indicated that “ ‘[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) (quoting 5 J. WIGMORE, EVIDENCE
§ 1395, at 123 (3d ed. 1940)). The right to cross-examination
is thus constitutionally protected. A criminal defendant can
prove a violation of his Sixth Amendment rights 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, and thereby ‘to expose to the
jury the facts from which jurors . . . could appropriately draw
inferences relating to the reliability of the witness.’ ” Dela-
ware v. Van Arsdall, 475 U.S. 673, 680 (1986) (quoting
Davis, 415 U.S. at 318).
[2] However, “[i]t does not follow, of course, that the Con-
frontation Clause of the Sixth Amendment prevents a trial
judge from imposing any limits on defense counsel’s inquiry
into the potential bias of a prosecution witness.” Id. at 679.
On the contrary, the right to cross-examination “ ‘may, in
appropriate cases, bow to accommodate other legitimate inter-
ests in the criminal trial process.’ ” Michigan v. Lucas, 500
U.S. 145, 149 (1991) (quoting Rock v. Arkansas, 483 U.S. 44,
55 (1987)). “ ‘[T]rial judges retain wide latitude’ to limit rea-
sonably a criminal defendant’s right to cross-examine a wit-
ness ‘based on concerns about, among other things,
7168 HOLLEY v. YARBOROUGH
harassment, prejudice, confusion of the issues, the witness’
safety, or interrogation that is repetitive or only marginally
relevant.’ ” Id. (quoting Van Arsdall, 475 U.S. at 679). How-
ever, “[r]estrictions on a criminal defendant’s rights to con-
front adverse witnesses and to present evidence ‘may not be
arbitrary or disproportionate to the purposes they are designed
to serve.’ ” Id. at 151 (quoting Rock, 483 U.S. at 56).
The California Court of Appeal affirmed the trial court’s
ruling on the grounds that evidence of Raina’s statements was
“of questionable, if any, relevance, had the potential for being
unduly prejudicial, and [was] not sufficiently probative of any
issue in the trial to warrant the consumption of time.” In
determining that the statements were not relevant, the state
court reasoned that there was “no evidence of the falsity of
Raina’s statements, no indication the statements were
intended as accusations, and significant dissimilarities
between the type of ‘accusations’ made to Scott and Christa
and those made against [Holley].” However, the federal mag-
istrate judge hearing Holley’s habeas petition found that the
state court’s conclusion that Raina’s statements were irrele-
vant was unreasonable in light of established federal law, as
was the state court’s conclusion that the statements were
unduly prejudicial and insufficiently probative to warrant the
consumption of time.
[3] Holley’s cross-examination of Raina and introduction
of evidence that she had made prior claims of her own sexual
appeal was clearly relevant to impeach Raina, and thus allow
the jury to evaluate the credibility of her allegations. Van Ars-
dall, 475 U.S. at 680. Discrediting the accuracy and reliability
of Raina’s testimony could have shown a tendency to exag-
gerate or overstate, if not outright fabricate. See Davis, 415
U.S. at 315-16; Fowler v. Sacramento County Sheriff’s Dep’t,
421 F.3d 1027, 1035 (9th Cir. 2005) (“ ‘[T]he right to cross-
examine includes the opportunity to show [not only] that a
witness is biased, [but also] that the testimony is exaggerated
or [otherwise] unbelievable.’ ” (alteration in original) (quoting
HOLLEY v. YARBOROUGH 7169
Pennsylvania v. Ritchie, 480 U.S. 39, 51-52 (1987))). In mak-
ing a Sixth Amendment claim that he was denied appropriate
cross-examination, Holley did not need to show that the
excluded statements were consciously or maliciously fabri-
cated. Fowler, 421 F.3d at 1036 (citing Van Arsdall, 475 U.S.
at 680; Davis, 415 U.S. at 311). Evidence that Raina had a
highly active sexual imagination or that she had a familiarity
with sexual activities was relevant to counter the prosecu-
tion’s theory of the case, as emphasized during closing argu-
ment, that a little girl like Raina would not fabricate things of
a sexual nature.
[4] The state court’s determination that the evidence was
unduly prejudicial was also unreasonable. The Supreme Court
has established that a trial judge may limit the defendant’s
right to cross-examination to avoid harassing the witness,
prejudicing the jury against the witness, and confusing the
issues. Lucas, 500 U.S. at 149. However, these limits must be
reasonable and proportionate to the purpose they are intended
to serve. Id. at 151. The trial court’s decision to completely
limit Raina’s cross-examination to exclude any testimony
regarding her references to sex, in order to avoid prejudice,
was both unreasonable and disproportionate. See Davis, 415
U.S. at 319-20 (concluding that whatever “temporary embar-
rassment” the witness might have suffered was “outweighed
by [the defendant’s] right” to probe the witness’ credibility);
Fowler, 421 F.3d at 1040-41 (explaining that “embarrassment
cannot serve as the basis to preclude relevant cross-
examination” when the evidence is highly probative). Any
prejudice the jury might have developed as a result of Raina’s
cross-examination would have been to discredit her claims
due to her active sexual imagination, the very type of
impeachment that Holley was entitled to engage in under the
Confrontation Clause. Furthermore, Raina testified exten-
sively regarding Holley’s alleged misconduct. If the trial court
was concerned about the cross-examination becoming too
lengthy or Raina’s being harassed, the court could have lim-
7170 HOLLEY v. YARBOROUGH
ited the time allotted to discussion of the sexual references,
rather than excluding all discussion.
[5] Finally, the state court was unreasonable in concluding
that the evidence Holley sought to present would not be suffi-
ciently probative to warrant the consumption of time. First, it
is unlikely that the presentation would have significantly
lengthened the trial, since the trial court had already permitted
one of the Westfall children to testify as well as the children’s
mother, albeit limiting the scope of their testimony to reflect
the scope of Raina’s cross-examination. As noted above, the
court could have also taken reasonable steps to ensure that
neither the testimony nor the cross-examination would last
longer than necessary to adequately present the evidence. Sec-
ond, the cross-examination Holley sought to present was suf-
ficiently probative under established federal law; even if the
cross-examination was “not certain to affect the jury’s assess-
ment of the witness’s reliability or credibility[,] . . . it is suffi-
cient that a jury ‘might reasonably’ have questioned the
witness’s reliability or credibility in light of the cross-
examination.” Fowler, 421 F.3d at 1036 (quoting Van Arsdall,
475 U.S. at 679); see also Davis, 415 U.S. at 317 (holding
that a court need not “speculate as to whether the jury, as sole
judge of the credibility of a witness, would have accepted [the
petitioner’s] line of reasoning had counsel been permitted to
fully present it”). Had the jury known of Raina’s precocious-
ness in sexual matters, as demonstrated by the comments she
made to others, it might reasonably have questioned her state-
ments, especially in light of the evidence that she and her
brother had vowed to “get even” with Holley.
A showing of constitutional error under the Sixth Amend-
ment only merits grant of the petition for habeas corpus if the
error was not harmless, that is, if it had a “substantial and
injurious effect or influence in determining the jury’s ver-
dict.” Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). The
trial court’s error was not harmless, given the importance of
Raina’s testimony to the prosecution.
HOLLEY v. YARBOROUGH 7171
[6] Precluding cross-examination of a “central, indeed cru-
cial” witness to the prosecution’s case is not harmless error.
Olden v. Kentucky, 488 U.S. 227, 232-33 (1988) (per curiam);
see also Davis, 415 U.S. at 317-18. In this case, the prosecu-
tion had no physical evidence of the alleged sexual abuse, nor
any corroboration of her testimony aside from the weak testi-
mony offered by Matthew.1 The State’s case depended upon
the jury believing Raina, as the prosecutor conceded during
closing argument: “[T]here is no middle ground in this case.
If the kids are telling the truth, Mr. Holley’s guilty. If you
believe they’re lying, you should acquit.”
[7] The prosecution needed to characterize Raina as a child
who could be relied on to tell the whole truth, and not exag-
gerate or fantasize about sexual issues, and this characteriza-
tion might reasonably have been put into question by the
evidence of her prior statements. In his closing argument, the
prosecutor characterized Raina as a “truthful little girl,” “hon-
est little girl,” and a “good little girl” who is “trying to find
the good in everybody.” Because Raina’s “accuracy and truth-
fulness” were key elements of the State’s case, the jury might
have received a “significantly different impression” of her
credibility had Holley been allowed to introduce evidence of
Raina’s past statements and cross-examine her about them.
Van Arsdall, 475 U.S. at 679; Davis, 415 U.S. at 319; see
Fowler, 421 F.3d at 1041. The exclusion of evidence demon-
strating Raina’s propensity to fabricate therefore had a sub-
stantial and injurious effect or influence in Holley’s guilty
verdict. Put simply, Holley was denied a fair trial, and is
therefore entitled to the writ of habeas corpus. See Williams,
529 U.S. at 375.
1
Although Matthew supported most of Raina’s claims, his testimony
contradicted hers in places, and at all times was based on his view from
the backseat of the car. Further, the record indicates that he had to be
prompted and reminded of his testimony by a video recording made
shortly after conferring with his sister. The record also shows that Mat-
thew was very protective of his sister and eager to please her.
7172 HOLLEY v. YARBOROUGH
B. Due Process
[8] Each of Holley’s remaining claims deal with admission
of evidence, an issue of state law. Simple errors of state law
do not warrant federal habeas relief. Estelle v. McGuire, 502
U.S. 62, 67 (1991). “The issue for us, always, is whether the
state proceedings satisfied due process; the presence or
absence of a state law violation is largely beside the point.”
Jammal v. Van de Kamp, 926 F.2d 918, 919-20 (9th Cir.
1991). “The admission of evidence does not provide a basis
for habeas relief unless it rendered the trial fundamentally
unfair in violation of due process.” Johnson v. Sublett, 63
F.3d 926, 930 (9th Cir. 1995) (citing Estelle, 502 U.S. at 67-
68).
Under AEDPA, even clearly erroneous admissions of evi-
dence that render a trial fundamentally unfair may not permit
the grant of federal habeas corpus relief if not forbidden by
“clearly established Federal law,” as laid out by the Supreme
Court. 28 U.S.C. § 2254(d). In cases where the Supreme
Court has not adequately addressed a claim, this court cannot
use its own precedent to find a state court ruling unreason-
able. Musladin, 549 U.S. at 77.
[9] The Supreme Court has made very few rulings regard-
ing the admission of evidence as a violation of due process.
Although the Court has been clear that a writ should be issued
when constitutional errors have rendered the trial fundamen-
tally unfair, see Williams, 529 U.S. at 375, it has not yet made
a clear ruling that admission of irrelevant or overtly prejudi-
cial evidence constitutes a due process violation sufficient to
warrant issuance of the writ. Absent such “clearly established
Federal law,” we cannot conclude that the state court’s ruling
was an “unreasonable application.” Musladin, 549 U.S. at 77.
Under the strict standards of AEDPA, we are therefore with-
HOLLEY v. YARBOROUGH 7173
out power to issue the writ on the basis of Holley’s additional
claims.2
2
We note that, in spite of the lack of Supreme Court precedent on the
issue, the trial court’s admission of the pornographic materials resulted in
a trial that was fundamentally unfair and would warrant issuance of the
writ under this court’s precedent. See People of the Territory of Guam v.
Shymanovitz, 157 F.3d 1154, 1158-59 (9th Cir. 1998) (holding that the
trial court erred in admitting evidence that the defendant kept sexually
explicit gay adult magazines in his home, since that fact was irrelevant to
the factual question of whether the defendant had physically and sexually
abused a group of children under his supervision); McKinney v. Rees, 993
F.2d 1378, 1384 (9th Cir. 1993) (admission of evidence that defendant
owned a knife collection was erroneous when there was no link between
the collection and the crime). But see United States v. Curtin, 489 F.3d
935, 950-51 (9th Cir. 2007) (en banc) (evidence that the defendant was
carrying stories about illicit relationships between older men and girls was
relevant to the allegations against him that he intended to engage in a sex-
ual act with a minor).
The trial court in this case admitted evidence of sexually explicit mate-
rials taken from Holley’s bedroom over Holley’s objection, including a
matchbook cover titled “When I was a Year Old,” which depicted a baby
boy with unnaturally large genitals, and three pornographic magazines
entitled “Barely Legal,” “Baby Face,” and “Barely 18.” The magazines
contained only images of adult women, no children. The jury could have
drawn no permissible inferences from either the matchbook or the maga-
zines. The matchbook, far from reflecting a sexual interest in prepubescent
girls, reflects, if anything, an off-color sense of humor, as it “at best
expressed a joke about a man’s endowment.” The magazines are similarly
irrelevant, as they depict adult women, not prepubescent girls. The only
inference to be made from these magazines is that Holley had a sexual
interest in young-looking adult women.
Particularly in the absence of a limiting instruction, the likely influence
of this evidence on the jurors was to persuade them that Holley had a dirty
mind because he engaged in off-color humor and bought pornographic,
and likely offensive, magazines. Holley was denied a fair trial as a result,
because the evidence presented was both irrelevant and highly likely to be
prejudicial, with a substantial and injurious effect on the jury’s verdict.
Brecht, 507 U.S. at 638.
7174 HOLLEY v. YARBOROUGH
CONCLUSION
[10] Clearly established federal law, as set forth by the
Supreme Court in Davis, Van Arsdall, and Lucas, indicates
that the trial court committed constitutional error by denying
Holley the right to meaningful cross-examination of the pros-
ecution’s leading witness. As a consequence, the facts indi-
cate that Holley was denied a fair trial. Holley was convicted
and sentenced to eight years in prison, a sentence he has
already served. Although habeas petitions are typically
granted as a means of releasing the petitioner from custody,
the federal habeas statute “does not limit the relief that may
be granted to discharge of the applicant from physical custo-
dy.” Carafas v. LaVallee, 391 U.S. 234, 238-39 (1968).
Accordingly, we reverse and remand for issuance of the writ.
REVERSED and REMANDED.
Costs are awarded to Holley.