Opinion
No. 11–99011.
04-29-2016
Raynard Paul CUMMINGS, Petitioner–Appellant, v. Michael MARTEL, Warden, California State Prison at San Quentin, Respondent–Appellee.
K. Elizabeth Dahlstrom, Deputy Federal Public Defender, FPDCA–Federal Public Defender's Office, Santa Ana, CA, Elizabeth Richardson–Royer, Deputy Federal Public Defender, FPDCA–Federal Public Defender's Office, Statia Peakheart, Los Angeles, CA, for Petitioner–Appellant. Lance Winters, AGCA–Office of the California Attorney General, Los Angeles, CA, for Respondent–Appellee.
K. Elizabeth Dahlstrom, Deputy Federal Public Defender, FPDCA–Federal Public Defender's Office, Santa Ana, CA, Elizabeth Richardson–Royer, Deputy Federal Public Defender, FPDCA–Federal Public Defender's Office, Statia Peakheart, Los Angeles, CA, for Petitioner–Appellant.
Lance Winters, AGCA–Office of the California Attorney General, Los Angeles, CA, for Respondent–Appellee.
Before: SIDNEY R. THOMAS, Chief Judge, and DIARMUID F. O'SCANNLAIN and M. MARGARET McKEOWN, Circuit Judges.
ORDER
The opinion filed on August 11, 2015, slip op. 11–99011, and appearing at 796 F.3d 1135 (9th Cir.2015), is amended as follows. At op. page 1142–43 n. 2, replace the current footnote with the following footnote text:
Chief Judge Thomas's dissent sidesteps AEDPA and reviews Turner 's special relationship prong de novo because, in his view, the California Supreme Court improperly layered a prejudice-balancing test on top of the Turner inquiry. See Thomas Partial Dissent at 1153–54. A close look at the record reveals the source of this misapprehension of the court's opinion. In the state trial court, Cummings asserted a claim under California Evidence Code § 352, and on direct appeal before the California Supreme Court, he repeatedly asserted he was prejudiced by La Casella's testimony. At the outset of its analysis, presumably in response to Cummings's arguments relating to prejudice, the California Supreme Court noted its agreement with the trial court that “the probative value of [La Casella's] testimony outweighed any prejudice to Cummings.” 4 Cal.4th 1233, 18 Cal.Rptr.2d 796, 850 P.2d at 37. Significantly, however, the California Supreme Court continued on to frame the inquiry as one of due process, not a mere evidentiary issue governed by a prejudice-balancing test; quoted extensively the relevant standards from Gonzalez and Beto ; and carefully distinguished Cummings's case with respect to both prongs of Turner. Id. 18 Cal.Rptr.2d 796, 850 P.2d at 37–38. The California Supreme Court squarely held: “Neither defendant's right to a fair trial, nor his right to a jury trial was undermined by the admission of LaCasella's testimony.” Id. 18 Cal.Rptr.2d 796, 850 P.2d at 38.
With these amendments, Judges O'Scannlain and McKeown have voted to deny the petition for panel rehearing and rehearing en banc. Chief Judge Thomas has voted to grant the petition for panel rehearing and rehearing en banc.
The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35.
The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted.