Armenia Cudjo, Jr. v. Robert Ayers, Jr.

Filing 47

Filed (ECF) Appellant Armenia Levi Cudjo, Jr. citation of supplemental authorities. Date of service: 01/31/2011. [7631141] (MRD)

FEDERAL PUBLIC DEFENDER
CENTRAL DISTRICT OF CALIFORNIA
321 EAST 2nd STREET
LOS ANGELES, CALIFORNIA 90012-4202
213-894-2854
213-894-0081 FAX
SEAN K. KENNEDY
Federal Public Defender

MARK R. DROZDOWSKI
Supervising Attorney
Capital Habeas Unit
Direct Dial: [phone]

January 31, 2011

Molly Dwyer, Clerk of the Court
Office of the Clerk
U.S. Court of Appeals for the Ninth Circuit
P.O. Box 193939
San Francisco, CA 94119-3939
Re:

Cudjo v. Wong, Case No. 08-99028
Letter pursuant to Fed. R. App. P. 28(j) and Ninth Circuit Rule 28-6

Dear Ms. Dwyer:
Armenia Cudjo submits this letter to advise the Court of Lunbery v.
Hornbeak, 605 F.3d 754 (9th Cir.), cert. denied, 131 S. Ct. 798 (2010), an opinion
that supports his argument that he is entitled to a COA and relief on his claim that
his constitutional rights were violated by the exclusion of John Culver’s testimony
that Cudjo’s brother, Gregory, admitted to him that he had killed the victim.
Appellant’s Opening Brief (“AOB”) at 44-64.
Lunbery granted relief under AEDPA. It held that the California state court
unreasonably applied Chambers v. Mississippi, 410 U.S. 284 (1973), when it
concluded that murder defendant Kristi Lunbery’s due process rights were not
prejudicially violated by the exclusion of “Rory Keim’s testimony that Henry
Garza, dead at the time of Kristi’s trial, had admitted that his partners had
murdered” the victim. 605 F.3d at 761. This Court reasoned that, as in Chambers,
Garza’s statement was against his penal interest, was made shortly after the
murder, albeit not to a close acquaintance, “‘bore persuasive assurances of
trustworthiness’ and ‘was critical to Kristi’s defense.’” Id. at 761-62; compare
AOB at 45 (California Supreme Court states that Gregory Cudjo “confessed to the

M. Dwyer
January 31, 2010
Page 2 of 2
murder within hours after the crime was committed and under circumstances
providing substantial assurances that the confession was trustworthy.”); id. at 46
(Gregory’s confession “raised the requisite reasonable doubt of defendant’s
guilt”).
Prejudice was shown and relief required even though Lunbery had
confessed. 605 F.3d at 762; compare AOB at 16, 21 (Armenia Cudjo never
admitted guilt). This Court explained:
Because [Lunbery] was prevented from presenting
this evidence, she was prevented from offering any
alternate theory as to who might have committed the
crime. The jury would not have been confused by such
evidence. It would probably have been led to a state of
reasonable doubt.
Id.; compare AOB at 48-49 (Justice Kennard states in dissent that “[e]vidence that
Gregory had confessed to the murder would have filled a major gap in the defense
case, and would have greatly increased the likelihood of the jury’s entertaining a
reasonable doubt of defendant’s guilt”).
Respectfully,
/s/ Mark R. Drozdowski
Mark R. Drozdowski
Deputy Federal Public Defender
Attorneys for Appellant
Armenia Cudjo

CERTIFICATE OF SERVICE
I hereby certify that on January 31, 2011, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.

/s/ Mark R. Drozdowski
MARK R. DROZDOWSKI