Sherman v. Gittere, No. 16-99000 (9th Cir. 2024)
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In the case of Donald Sherman, who was convicted of robbery, burglary, and first-degree murder in Nevada, the United States Court of Appeals for the Ninth Circuit affirmed the lower courts' decision to deny Sherman's habeas corpus petition. Sherman had argued that his constitutional right to present a defense was violated when the trial court excluded certain impeaching evidence about Dr. Bauer’s daughter, whom Sherman had dated.
Sherman claimed that this evidence would have countered the prosecution's narrative that Sherman had murdered Dr. Bauer out of spite for his daughter after their breakup. Instead, he argued, the evidence would have shown that he was manipulated into confronting Dr. Bauer.
The Ninth Circuit found that Sherman's argument was not presented to the district court and, in any case, the Antiterrorism and Effective Death Penalty Act’s (AEDPA) deferential standard of review was applicable because Sherman did not rebut the presumption that the Nevada Supreme Court adjudicated his federal constitutional claim on the merits.
On the merits, the Ninth Circuit held that Sherman did not show that the Nevada Supreme Court's denial of his right-to-present-a-complete-defense claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or was based on an unreasonable determination of the facts. The panel found that the Nevada Supreme Court's rulings on the exclusion of the evidence were not contrary to, or an unreasonable application of, clearly established federal law. The panel also concluded that the Nevada Supreme Court's alternative conclusion that any error was harmless was not unreasonable.
Court Description: Habeas Corpus / Death Penalty. The panel affirmed the district court’s denial of Donald Sherman’s 28 U.S.C. § 2254 habeas corpus petition challenging his Nevada conviction and death sentence for robbery, burglary, and the first-degree murder of Dr. Lester Bauer.
The district court granted a certificate of appealability on Sherman’s claim that the trial court violated Sherman’s constitutional right to present a defense by excluding certain impeaching evidence about Dr. Bauer’s daughter, whom Sherman had dated.
Sherman argued that de novo review, rather than the Antiterrorism and Effective Death Penalty Act’s deferential standard, applies to his right-to-present-a-complete-defense claim. The panel wrote that Sherman waived this issue by not presenting it to the district court and that AEDPA review applies in any event because Sherman did not rebut the presumption that the Nevada Supreme Court adjudicated his federal constitutional claim on the merits.
On the merits, the panel held that Sherman did not show that the Nevada Supreme Court’s denial of his right-to- present-a-complete-defense claim was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States, or was based on an unreasonable determination of the facts. The panel wrote the Nevada Supreme Court’s rulings on the exclusion of the evidence under Nev. Rev. Stat. § 50.085(3) (generally prohibiting the use of extrinsic evidence to prove specific instances of conduct to undermine a witness’s credibility) and Nev Rev.
Stat. § 48.035(1) (permitting the exclusion of evidence if its probative value is substantially outweighed by the danger of issue confusion or misleading the jury) were not contrary to, or an unreasonable application of, clearly established federal law. The panel concluded that the Nevada Supreme Court’s alternative conclusion that any error was harmless was not unreasonable.
In a concurrently filed memorandum disposition, the panel declined to expand the certificate of appealability to include other claims.
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