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

Filing 83

Filed (ECF) Appellee Robert L. Ayers, Jr. Motion to stay the mandate. Date of service: 11/07/2012. [8391591] (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
MOTION FOR STAY OF MANDATE
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
JAMES WILLIAM BILDERBACK II
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-Appellee

On November 5, 2012, this Court denied Respondent-Appellee’s
Petition For Rehearing En Banc in the above-entitled case. Pursuant to Rule
41 of the Federal Rules of Appellate Procedure, Respondent-Appellee
hereby requests a stay of the issuance of the mandate in this case for ninety
days, to allow Respondent-Appellee to determine whether to file, and to
potentially prepare and file, a petition for writ of certiorari in the United
States Supreme Court. This motion is made for good cause, as set forth
below.
In the view of Respondent-Appellee’s counsel, the Court’s published
opinion filed on September 28, 2012, presents a substantial question as
required by Federal Rule of Appellate Procedure 41(d). In the opinion, the
majority held that the California Supreme Court acted contrary to clearly
established United States Supreme Court authority, within the meaning of 28
U.S.C. § 2254(d)(1), in concluding that the exclusion of unreliable and
incredible hearsay evidence did not violate the federal Constitution. This
Court’s holding was dictated because, in the majority’s view, “[i]n
Chambers v. Mississippi, 410 U.S. 284 (1973), the United States Supreme
Court clearly established that the exclusion of trustworthy and necessary

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exculpatory testimony at trial violates a defendant’s due process right to
present a defense.” Slip op. at 11869.
The majority opinion presents at least one issue potentially worthy of
certiorari, namely: whether Chambers v. Mississippi, 410 U.S. 284 (1973),
clearly established the rule relied upon by the panel majority, despite the fact
that the Chambers Court explicitly held that “no new principles of
constitutional law” were being established, and that the holding related to
“the facts and circumstances” of the specific case,1 and where the Supreme
Court has subsequently explained that Chambers was nothing other than “an
exercise in highly case-specific error correction” and questioned whether
any holding, let alone a clearly established rule of constitutional law, could
be “discerned from such a fact-intensive case.” Montana v. Egelhoff, 518
U.S. 37, 52 (1996) (plurality opinion of Scalia, J.).
Thus, a petition for writ of certiorari may be appropriate in this case
because there is at least one “important question of federal law that has not
been, but should be, settled by [the Supreme] Court.” See S. Ct. R. 10(c).
Moreover, certiorari may be appropriate because there is wide diversity
amongst the federal circuits as to what rule Chambers v. Mississippi actually
1

Id. at 302-03.
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established.2 See S. Ct. R. 10(a). For these reasons, Respondent-Appellee
requests that this Court stay the issuance of the mandate in this case for
ninety days to allow Respondent-Appellee to determine whether to file, and

2

In addition to the rule held to be clearly established by the majority
in this case, 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); 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).
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to potentially prepare and file, a petition for writ of certiorari in the United
States Supreme Court.
Dated: November 5, 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
JAMES WILLIAM BILDERBACK II
Supervising Deputy Attorney General
S/ A. SCOTT HAYWARD

A. SCOTT HAYWARD
Deputy Attorney General
Attorneys for Respondent-Appellee
ASH:sf
LA2008504207
60883071

4

CERTIFICATE OF SERVICE
Case Name:

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

No.

08-99028

I hereby certify that on November 7, 2012, I electronically filed the following documents with
the Clerk of the Court by using the CM/ECF system:
MOTION FOR STAY OF MANDATE
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 November 7, 2012, at Los Angeles,
California.

Sandra Fan
Declarant
60884893

s/ Sandra Fan
Signature