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

Filing 80

Filed (ECF) Appellee Robert L. Ayers, Jr. petition for rehearing en banc (from 09/28/2012 opinion). Date of service: 10/10/2012. [8354189] (ASH)

08-99028
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
ARMENIA LEVI CUDJO, JR.,
Petitioner-Appellant,
v.
ROBERT AYERS, JR.,
Respondent-Appellee.
On Appeal from the United States District Court
for the Central District of California
No. CV 99-08089-JFW
The Honorable John F. Walter, Judge
PETITION FOR REHEARING EN BANC
KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
A. SCOTT HAYWARD
Deputy Attorney General
State Bar No. 172106
300 South Spring Street, Suite 1702
Los Angeles, CA 90013
Telephone: [phone]
Fax: [phone]
Email: [e-mail]
Attorneys for Respondent

TABLE OF CONTENTS
Page

Argument ....................................................................................................... 4
Rehearing should be granted because the panel majority
misunderstood the scope of Chambers and its progeny, in
regard to what constitutes “clearly established” law as
contemplated by 28 U.S.C. § 2254(d)(1) ............................................ 4
A.

Relevant background ...................................................... 4

B.

Chambers v. Mississippi, a case hardly “materially
indistinguishable” from this one, did not clearly
establish any rule that compelled the California
Supreme Court to engage in constitutional analysis
of Petitioner’s claim that evidence was improperly
excluded at trial ............................................................... 6

C.

The prejudice analysis included an impermissible
consideration of an allegation of prosecutorial
misconduct, never determined by any federal court
to be constitutional error ............................................... 13

Conclusion ................................................................................................... 17

i

TABLE OF AUTHORITIES
Page
CASES
Brecht. Bains v. Cambra
204 F.3d 964 (9th Cir. 2000) ............................................................. 13
Brecht v. Abrahamson
507 U.S. 619 (1993)..................................................................... 13, 14
Chambers v. Mississippi
410 U.S. 284 (1973).................................................................... passim
Darden v. Wainwright
477 U.S. 168 (1986)........................................................................... 15
Davis v. Zant
36 F.3d 1538 (11th Cir. 1994) ............................................................. 2
DiBenedetto v. Hall
272 F.3d 1 (1st Cir. 2001).................................................................... 1
DiBenedetto v. Spencer
122 S. Ct. 1622 (2002)......................................................................... 2
Donnelly v. DeChristoforo
416 U.S. 637 (1974)........................................................................... 15
Gardner v. Barnett
199 F.3d 915 (7th Cir. 1999) ............................................................... 2
Huffington v. Nuth
140 F.3d 572 (4th Cir. 1998) ............................................................... 2
Jones v. Goodwin
982 F.2d 464 (11th Cir. 1993) ............................................................. 2
Mackey v. Dutton
217 F.3d 399 (6th Cir. 2000) ............................................................... 2
ii

TABLE OF AUTHORITIES
(continued)

Page

Montana v. Egelhoff
518 U.S. 37 (1996)................................................................. 2, 4, 7, 11
Oregon v. Guzek
546 U.S. 517 (2006)........................................................................... 10
People v. Cudjo
6 Cal. 4th 585, 863 P.2d 635 (1999)........................................... passim
Sears v. Upton
130 S. Ct. 3259 (2010)....................................................................... 10
Turpin v. Kassulke
26 F.3d 1392 (6th Cir. 1994) ............................................................... 2
United States v. Begay
937 F.2d 515 (10th Cir. 1991) ............................................................. 2
United States v. DeVillio
983 F.2d 1185 (2d Cir. 1993) .............................................................. 2
United States v. Hall
165 F.3d 1095 (7th Cir. 1999) ............................................................. 2
United States v. North
910 F.2d 843 (D.C. Cir. 1990)............................................................. 2
United States v. Scheffer
523 U.S. 303 (1998)........................................................................... 10
United States v. Szur
289 F.3d 200 (2d Cir. 2002) ................................................................ 2
Williams v. Taylor
529 U.S. 362 (2000)............................................................................. 3

iii

TABLE OF AUTHORITIES
(continued)

Page

STATUTES
28 U.S.C. § 2254(d)(1) ......................................................................... 1, 4
Cal. Evid. Code § 352 ........................................................................... 4, 5
Cal. Evid. Code § 1230 ............................................................................. 4
COURT RULES
Fed. R. App. P. 35 ..................................................................................... 1
Fed. R. App. P. 40 ..................................................................................... 1

iv

TO THE HONORABLE JUDGES OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT:
Respondent-Appellee (“Respondent”) hereby petitions this Court for
rehearing en banc pursuant to Rule 35 of the Federal Rules of Appellate
Procedure.
Rehearing en banc should be granted because the September 28, 2012
published opinion (attached), critically misinterprets the United States
Supreme Court’s decision in Chambers v. Mississippi, 410 U.S. 284 (1973),
and then compounds that error by determining that this case is “materially
indistinguishable” from Chambers, rendering the California Supreme
Court’s rejection of the claim in issue contrary to clearly established law,
within the meaning of 28 U.S.C. § 2254(d)(1). This issue—whether
Chambers actually stands for any universally applicable rule of
constitutional law—is also one of exceptional importance, as the federal
appellate courts across the county have demonstrated great difficulty in
consistently explaining exactly what rule, if any, is “clearly established” by
Chambers.1 Fed. R. App. P. 35, 40. In fact, the Supreme Court itself has
1

The federal appellate courts have variously said: that Chambers
holds that the exclusion of evidence in extreme circumstances violates due
process, DiBenedetto v. Hall, 272 F.3d 1, 7 (1st Cir. 2001), cert. denied sub
(continued…)
1

characterized Chambers as nothing more than “an exercise in highly casespecific error correction” and questioned whether any holding could be
“discerned from such a fact-intensive case.” Montana v. Egelhoff, 518 U.S.
37, 52 (1996) (plurality opinion of Scalia, J.). In light of the manner in
which Chambers has been described by the high court, the “clearly
established” rule extracted from that case by the panel majority is simply
(…continued)
nom., DiBenedetto v. Spencer, 122 S. Ct. 1622 (2002); that Chambers
announced a three-part test for trustworthiness requiring admission of
statements that (a) are made spontaneously to close friends shortly after the
event, (b) are corroborated by other evidence, and (c) are self-incriminating
and unquestionably against penal interest, United States v. DeVillio, 983
F.2d 1185, 1190 (2d Cir. 1993); that Chambers requires admission of
exculpatory confessions by third parties, Huffington v. Nuth, 140 F.3d 572,
584 (4th Cir. 1998); that Chambers requires the admission of critical,
exculpatory, and trustworthy evidence, Turpin v. Kassulke, 26 F.3d 1392,
1396 (6th Cir. 1994); that Chambers requires admission of reliable thirdparty confessions, despite the hearsay rule, where necessary to separate the
guilty from the innocent, United States v. Hall, 165 F.3d 1095, 1113 (7th
Cir. 1999); that Chambers requires admission of evidence that is highly
relevant to a critical issue and has adequate indicia of reliability, Davis v.
Zant, 36 F.3d 1538, 1544 (11th Cir. 1994); and that Chambers holds that,
where constitutional rights affecting ascertainment of guilt are implicated,
hearsay rules may not be applied mechanically, United States v. North, 910
F.2d 843, 907 (D.C. Cir. 1990). Courts have also cited Chambers when
enforcing the right to present witnesses, Gardner v. Barnett, 199 F.3d 915,
919 (7th Cir. 1999), the right to present a defense, United States v. Szur, 289
F.3d 200, 217 (2d Cir. 2002), and the right to confront and cross-examine
witnesses, Mackey v. Dutton, 217 F.3d 399, 407 (6th Cir. 2000); Jones v.
Goodwin, 982 F.2d 464, 469 (11th Cir. 1993); United States v. Begay, 937
F.2d 515, 520 (10th Cir. 1991).

2

untenable. And even if the rule was as the panel majority believes, the
conclusion that this case is “materially indistinguishable” from Chambers
simply ignores quite obvious and significant differences.2
Finally, in determining that the exclusion of evidence deemed
unreliable and incredible—by the state trial court, the California Supreme
Court, and the United States District Court—was nevertheless somehow
prejudicial to the point relief was warranted, the panel majority improperly
considered a racial comment made by the prosecutor at closing arguments.
In so holding, the panel majority overlooked the California Supreme Court’s
determination that the comment was harmless beyond a reasonable doubt,
and that no federal court ever determined the comment to be error. Because
of the importance of these issues, en banc review is warranted.

2

The significance of the panel majority’s determination that this case
is “materially distinguishable” from Chambers is that “[a] state-court
decision will also be contrary to [the Supreme Court’s] clearly established
precedent if the state court confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme Court] and nevertheless
arrives at a result different from [Supreme Court] precedent.” Williams v.
Taylor, 529 U.S. 362, 405-06 (2000).
3

ARGUMENT
REHEARING SHOULD BE GRANTED BECAUSE THE PANEL MAJORITY
MISUNDERSTOOD THE SCOPE OF CHAMBERS AND ITS PROGENY, IN
REGARD TO WHAT CONSTITUTES “CLEARLY ESTABLISHED” LAW AS
CONTEMPLATED BY 28 U.S.C. § 2254(d)(1)
The majority opinion fatally derails in its very first sentence: “In
Chambers v. Mississippi, 410 U.S. 284 (1973), the United States Supreme
Court clearly established that the exclusion of trustworthy and necessary
exculpatory testimony at trial violates a defendant’s due process right to
present a defense.” Slip op. at 11869. Such a rule is never expressed in
Chambers itself, is never expressed in any subsequent Supreme Court case,
and is instead flatly contradicted by the Supreme Court in Montana v.
Egelhoff, which described Chambers as “an exercise in highly case-specific
error correction.” 518 U.S. at 52 (Scalia, J., plurality opinion). Given the
panel’s misinterpretation of Chambers, en banc review is warranted.
A.

Relevant Background

The claim in issue is that the trial court erroneously excluded John
Culver’s testimony about an inculpatory statement made by Gregory Cudjo
while the two were in custody together. After a hearing, the trial court
exercised its discretion to exclude the evidence under California Evidence
Code sections 1230 (statement against penal interest) and 352 (more

4

prejudicial than probative). In essence, the trial court determined Culver’s
proposed testimony to be “unreliable and untrustworthy,” thus rendering it
excludable under state law. People v. Cudjo, 6 Cal. 4th 585, 606, 863 P.2d
635 (1999).
On appeal, the California Supreme Court held that the trial court had
improperly excluded the evidence, but in doing so had only violated state
law, and not the federal Constitution. Specifically, the California Supreme
Court concluded that the statement satisfied the declaration-against-penalinterest exception to state hearsay law, and that Culver’s inherent
untrustworthiness was not a valid consideration in determining
inadmissibility pursuant to California Evidence Code section 352. Id. at
607-11. But the California Supreme Court held that the error did not
implicate the federal Constitution, since it was mere trial error in the
application of state evidentiary rules. Citing Chambers and its progeny, the
California Supreme Court observed that the United States Supreme Court
had never held that a state trial court’s exclusion of a defense witness on
unreliability grounds amounts to an error of constitutional magnitude. Id. at
651-52.
The panel majority disagrees with the California Supreme Court’s
assessment of what Chambers commands, in terms of what might constitute
5

an unconstitutional exclusion of evidence at trial. But in light of what
Chambers expressly holds, and the way the United States Supreme Court
has since specifically characterized Chambers, the panel majority’s
interpretation of the Chambers “clearly established” rule is unsupportable.
B.

Chambers v. Mississippi, A Case Hardly “Materially
Indistinguishable” From This One, Did Not Clearly
Establish Any Rule That Compelled The California
Supreme Court To Engage In Constitutional Analysis Of
Petitioner’s Claim That Evidence Was Improperly
Excluded At Trial

The panel majority held that Chambers v. Mississippi is controlling
Supreme Court precedent, and “clearly established” the following rule:
“[T]he exclusion of trustworthy and necessary exculpatory testimony at trial
violates a defendant’s due process right to present a defense.” Slip op. at
11869. Neither Chambers nor any other United States Supreme Court case
remotely establishes or elevates such a proposition to the level of “clearly
established” law. Further, and contrary to the conclusion of the panel
majority, this case is not “materially indistinguishable” from Chambers for
purposes of deciding whether the state court’s denial of this claim was
contrary to clearly established Supreme Court precedent. Rather, there are
significant differences, overlooked or ignored by the panel majority, that
belie its conclusion in this regard.
6

The constitutional significance of the holding of Chambers has been
the subject of debate and misunderstanding for decades. The precise holding
of Chambers expressly disavows the creation of any particular rule of
constitutional law:
We conclude that the exclusion of this critical evidence, coupled with
the State’s refusal to permit Chambers to cross-examine McDonald,
denied him a trial in accord with traditional and fundamental
standards of due process. In reaching this judgment, we establish no
new principles of constitutional law. Nor does our holding signal any
diminution in the respect traditionally accorded to the States in the
establishment and implementation of their own criminal trial rules and
procedures. Rather, we hold quite simply that under the facts and
circumstances of this case the rulings of the trial court deprived
Chambers of a fair trial.
Chambers v. Mississippi, 410 U.S. at 302-03 (italics added).
Consonant with the true holding in Chambers, in Montana v. Egelhoff,
a plurality of the Supreme Court characterized Chambers as “an exercise in
highly case-specific error correction.” 518 U.S. at 52 (Scalia, J., plurality
opinion). And, as explained above (see n.1., supra), the federal courts of
appeals have distilled various and conflicting versions of the Chambers
“rule.” Nevertheless, the panel majority in this case discerned that (1)
Chambers “clearly established” a constitutional rule requiring admission of
evidence that is “trustworthy, necessary and exculpatory,” and (2) this case
is “materially indistinguishable” from Chambers. In light of these serious
7

errors, and the nationwide confusion about what, if anything, Chambers
constitutionally requires, en banc review should be granted.
The defendant in Chambers, tried for being the sole killer of a police
officer, attempted to show that McDonald had committed the murder
instead. 410 U.S. at 285-89. He called McDonald to testify as a witness in
the defense case. Id. at 291. On the stand, McDonald denied committing
the murder, and recanted a previous sworn statement in which he had
confessed to the murder. Id. at 291. Chambers attempted to question
McDonald about his refutation and three statements he had made to friends,
shortly after the murder and before the sworn statement, in which McDonald
also had admitted being the shooter. Id. at 291-92. But the trial judge
disallowed the examination under a State law “voucher rule” prohibiting the
impeachment of one’s own witness. Id. at 291-92, 295. This is the first
critical distinguishing feature of Chambers ignored or overlooked by the
panel majority. Chambers had involved an antiquated state evidentiary rule
that automatically excluded evidence, regardless of reliability, because
impeaching one’s own witness was impermissible. Chambers, 410 U.S. at
297-98. No similar rule operates here.
Chambers also attempted to call McDonald’s three friends to testify
about the other statements McDonald had made to them acknowledging his
8

guilt. Id. at 292. The trial court excluded this evidence too, because the
proposed testimony was hearsay and the state law exception for statements
against interest was limited to statements against pecuniary interest. Id. at
292-93, 299. Here is the second critical distinguishing feature between
Chambers and this case. Mississippi’s antiquated statement-against-interest
exception to the hearsay rule at the time automatically and “mechanistically”
excluded all such statements unless related to a financial interest, regardless
of reliability. Chambers, 410 U.S. at 302. No such rule is at issue in this
case. The panel majority ignored or overlooked this critical distinguishing
feature.
The Supreme Court held that the trial judge’s enforcement of the
State’s voucher rule infringed the defendant’s right to present a defense. 410
U.S. at 298. The Court noted that the State’s proof excluded the theory that
there was more than one shooter. Id. at 297. Also, the Court determined,
McDonald’s testimony refuting his confession was “seriously adverse” to
the defendant. Id.
But the high court did not decide whether that error alone warranted
reversal because the claimed violation of due process rested on that error “in
conjunction with” the trial court’s refusal to permit the defendant to call
other witnesses. Id. at 298. Here is the third distinguishing feature between
9

this case and Chambers. In Chambers, the due process violation resulted
from a combination of two, uncompromising state rules of evidence that
arbitrarily excluded otherwise trustworthy evidence. Here, only one
discretionary state law error resulted in relief being granted.
The Court concluded, therefore, that the State’s hearsay rule had been
applied “mechanistically” under the circumstances. Id. The automatic
exclusion of critical evidence, coupled with the State’s irrational and
mechanistic refusal to permit Chambers to cross-examine McDonald, had
denied the defendant his right to due process. Id.
In deciding Chambers, however, the Supreme Court took care to
explain that it was not announcing any new rule of law, let alone “clearly
establishing” one for courts throughout the nation to follow. The Court
explained that “no new principles of constitutional law” were being
established, and that the holding related to “the facts and circumstances” of
the specific case. 410 U.S. at 302-03.
That the focus of Chambers was on specific facts and the automatic
and “mechanistic” exclusion of multiple pieces of evidence by application of
uncompromising rules, has been emphasized by the Supreme Court many
times. Sears v. Upton, 130 S. Ct. 3259, 3263 n.6 (2010); Oregon v. Guzek,
546 U.S. 517, 526 (2006); United States v. Scheffer, 523 U.S. 303, 316
10

(1998). And Egelhoff seemingly would have removed all doubt, thus
prohibiting the panel majority from resolving this case as it did. The
Egelhoff plurality found the Montana Supreme Court erroneously concluded
Chambers required admission of all relevant, reliable and helpful evidence.
518 U.S. at 52. Rather, even if Chambers established a rule (despite the
Court’s statement that it did not) the rule was simply that the application of
state rules of evidence that automatically and arbitrarily operate to exclude
otherwise reliable evidence can combine to violate due process. The plain
language in Chambers, combined with the discussion in Egelhoff,
demonstrates that the panel majority’s understanding of what Chambers
stands for, in terms of “clearly established” law, is simply wrong.3
3

It is noteworthy that the four dissenters in Egelhoff—Justices
O’Connor, Stevens, Souter and Breyer—took no issue with the plurality’s
description of Chambers:
The plurality’s characterization of Chambers as “case specific
error correction,” . . . cannot diminish its force as a prohibition
on enforcement of state evidentiary rules that lead, without
sufficient justification, to the establishment of guilt by
suppression of evidence supporting the defendant’s case.
Egelhoff, 518 U.S. at 62-63 (O’Connor, J., dissenting). Thus, it appears that
at least eight justices agreed that Chambers does not stand for the “clearly
established” rule adopted by the panel majority. The dissenting Justices
simply felt that the state rule in issue in Egelhoff operated to categorically
exclude evidence, like the state evidentiary rules in Chambers. Of course,
the state evidentiary rules at issue in this case do not operate that way at all.
11

Finally, Chambers and this case are clearly different in a materially
distinguishable way. Chambers involved the application of multiple
arbitrary rules to exclude otherwise reliable evidence; this case involved a
single error in the exercise of discretion by a trial judge applying perfectly
reasonable and valid evidentiary rules. The grave errors in the panel
majority’s opinion warrant en banc review.4

4

The panel majority, in attempting to find meaningful similarity
between this case and Chambers, mischaracterizes the California Supreme
Court as concluding that Gregory Cudjo’s statement to John Culver as
“probably true.” See Slip op. at 11888. What the California Supreme Court
actually said was only that “the trial court had the discretion to conclude . . .
it was probably true.” People v. Cudjo, 6 Cal. 4th at 607. This observation,
that the trial court would not have abused its discretion in reaching a
particular conclusion, is a far cry from the characterization of the panel
majority, which is that the state court had actually concluded Gregory’s
statement was “probably true.” Contrary to the panel majority’s belief, at no
point did the California Supreme Court ever indicate that it believed that the
statement was, as a matter of actuality, “probably true,” or even credible.
Quite the opposite: when explaining why exclusion of the evidence was
harmless, the California Supreme Court clearly held that “as the trial court
surmised, both Culver’s testimony and the hearsay confession it recounted,
had obvious indicia of unreliability.” Id. at 613 (emphasis added). The state
court then went on to explain how Gregory’s statement to Culver was
contradicted by the physical evidence, and Gregory’s own earlier denials of
culpability. Id. The panel majority’s erroneous reliance upon the state
supreme court’s purported characterization of Gregory’s statement as
“probably true” is another significant error.
12

C.

The Prejudice Analysis Included An Impermissible
Consideration Of An Allegation Of Prosecutorial
Misconduct, Never Determined By Any Federal Court To
Be Constitutional Error

Even assuming that the panel majority’s “contrary to” holding was
somehow supportable, the prejudice analysis fails. After concluding that the
exclusion of the Culver evidence was contrary to some clearly established
rule, the panel majority applied the test in Brecht to determine prejudice.
Under Brecht, relief must still be denied if the alleged error did not have a
substantial and injurious effect or influence in determining the jury’s verdict.
Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993). This Court has
previously correctly acknowledged that the California standard for state law
harmless error analysis is the equivalent of Brecht. Bains v. Cambra, 204
F.3d 964, 971 n.2 (9th Cir. 2000).
The California Supreme Court applied the state law standard for
harmless error and found the exclusion of the Culver evidence nonprejudicial. In doing so, the state court emphasized the following facts: all
physical and testimonial evidence supported a conclusion that there was only
one intruder; the semen found at the scene excluded all suspects except
Petitioner; Petitioner’s version of events—that he traded the victim drugs for
sex—was not supported by any evidence at all (no drugs in the victim’s
13

system; victim never seen using drugs by her husband; no money ever
unaccounted for); it was unlikely the victim would have had sex with a
“stranger” in her living room while her son was present; Culver’s testimony
and the hearsay confession of Gregory “had obvious indicia of unreliability,”
as Culver was a friend to Petitioner and the confession attributed to Gregory
was contradicted by physical details of the crime and Gregory’s previous
statements consistently denying involvement in the murder. People v.
Cudjo, 6 Cal. 4th at 652-54.
The panel majority seemingly found this prejudice analysis
unsatisfactory, and instead adopted Justice Kennard’s dissenting analysis.
Slip op. at 11893-94. Given the equivalent nature of the tests used to discern
prejudice, even where no official deference is owed, this is yet another
example of a federal reviewing court simply replacing the judgment of a
state court with its own. But the more significant problem is the panel
majority’s impermissible consideration of another error found harmless
beyond a reasonable doubt by the California Supreme Court in determining
the evidentiary error to be prejudicial under Brecht.
During closing argument, the prosecutor referenced Petitioner’s race
while emphasizing why Petitioner’s ridiculous sex-for-drugs story was
simply incredible. The California Supreme Court found that the prosecutor
14

thereby erred, but was persuaded “beyond a reasonable doubt that the
prosecutor’s racial reference in argument did not affect the outcome.”
People v. Cudjo, 6 Cal. 4th at 626.
No federal court ever determined the prosecutor’s racial reference to
be constitutional error at all, including the panel majority. Granting relief on
account of that event is unsupportable, given the daunting standard
applicable on federal habeas corpus review. A prosecutor’s actions
constitute unconstitutional misconduct only if they “so infected the trial with
unfairness as to make the resulting conviction a denial of due process.”
Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 643 (1974)). No reasonable jurist could
resolve that the Darden standard was satisfied here. At the very least, a
reasonable jurist could surely conclude that it was not. And the California
Supreme Court’s determination of harmlessness beyond a reasonable doubt
is something a federal reviewing court must defer to. See Slip op. at 11892
(citing authority and acknowledging AEDPA deference owed to such a
determination by a state court). Thus, because any error was harmless
beyond a reasonable doubt, the assertion that its occurrence would “weigh
heavily” in an overall prejudice assessment makes no sense at all. Slip op. at
11894 (Panel majority proclaiming that “[t]he prosecutor’s reference to
15

Petitioner’s race during closing argument also weighs heavily on our
prejudice analysis.”). Any weighing of that factor was utterly
impermissible.
In fact, the errors do not even impact the fairness of a trial in a way
where cumulative error assessment is logical. As the California Supreme
Court recognized, the danger in this type of prosecutorial misconduct is that
the jury’s impartiality might be compromised. People v. Cudjo, 6 Cal. 4th at
625-26. But the exclusion of the Culver testimony impacted the quality of
the evidence, not the jury’s ability to fairly and impartially evaluate the
evidence. Even assuming error in both instances, it was improper to let the
race issue inform the prejudice analysis as to evidentiary error at all, let
alone to let it “weigh[] heavily.” Thus, en banc review is warranted in this
case.

16

CONCLUSION
Given the confusion as to what Chambers and its progeny stand for, a
confusion shared by the panel majority, and for the additional reasons
explained in this petition, this Court should grant en banc review.
Dated: October 10, 2012

Respectfully Submitted,
KAMALA D. HARRIS
Attorney General of California
DANE R. GILLETTE
Chief Assistant Attorney General
LANCE E. WINTERS
Senior Assistant Attorney General
KEITH H. BORJON
Supervising Deputy Attorney General
S/ A. SCOTT HAYWARD

A. SCOTT HAYWARD
Deputy Attorney General
Attorneys for Respondent
ASH:sf
LA2008504207
60864129

17

CERTIFICATE OF COMPLIANCE
PURSUANT TO CIRCUIT RULES 35-4 AND 40-1
FOR 08-99028
I certify that pursuant to Circuit Rule 35-4 or 40-1, the attached petition for rehearing en
banc is: (check (x) applicable option)
Proportionately spaced, has a typeface of 14 points or more and contains 3,578

X words (petitions and answers must not exceed 4,200 words).

or

In compliance with Fed.R.App.P. 32(c) and does not exceed 15 pages.

10/10/12

Dated

s/ A. Scott Hayward

A. Scott Hayward
Deputy Attorney General

CERTIFICATE OF SERVICE
Case Name:

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

No.

08-99028

I hereby certify that on October 10, 2012, I electronically filed the following documents with the
Clerk of the Court by using the CM/ECF system:
PETITION FOR REHEARING EN BANC
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the CM/ECF system.
I declare under penalty of perjury under the laws of the State of California the foregoing is true
and correct and that this declaration was executed on October 10, 2012, at Los Angeles,
California.

Sandra Fan
Declarant
60868645

s/ Sandra Fan
Signature