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)

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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: (213) 894-7520 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

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