ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS

SUSAN ILLSTON, United States District Judge.

INTRODUCTION

Jonathan Micah Gardner filed this pro se action for a writ of habeas corpus under 28 U.S.C. § 2254. The court issued an order to show cause why the writ should not be granted. Respondent has filed an answer and Gardner has filed a traverse. For the reasons below, the petition will be GRANTED on the Confrontation Clause claim.

BACKGROUND

Following a jury trial in Alameda County Superior Court, Jonathan Micah Gardner was convicted of forcible oral copulation and rape. On August 29, 2012, he was sentenced to 18 years consecutive to 25 years to life in prison. Gardner appealed to the California Court of Appeal and his conviction was affirmed in 2015. The California Supreme Court denied his petition for review in 2015.

The California Court of Appeal described the facts of this case as follows:

The case was retried in July 2012.

California Court of Appeal opinion inPeople v. Gardner, No. A136453, 2015 WL 433504 (Cal. Ct. App. Feb. 2, 2015) ("Cal. Ct. App. Opinion") at 2-7 (footnote omitted).

In his federal petition for writ of habeas corpus, Gardner contends that the trial court's exclusion of evidence of Jane Doe's multiple arrests and convictions for prostitution between the years 2004 and 2006 violated his Sixth Amendment right to confront a witness and Fourteenth Amendment right to due process. He also asserts that he did not receive the effective assistance of counsel guaranteed by the Sixth Amendment because his attorney did not object to the prosecutor's purported misstatement of critical evidence during rebuttal closing argument. Gardner finally asserts that the cumulative effect of these two errors denied him a fair trial.

JURISDICTION AND VENUE

This court has subject matter jurisdiction over this action for a writ of habeas corpus under 28 U.S.C. § 2254. 28 U.S.C. § 1331. This action is in the proper venue because the petition concerns the conviction and sentence of a person convicted in Alameda County, California, which is within this judicial district. 28 U.S.C. §§ 84, 2241(d).

STANDARD OF REVIEW

This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a).

The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") amended § 2254 to impose new restrictions on federal habeas review. A petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d).

"Under the `contrary to' clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decided a case differently than [the] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

"Under the `unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Id. at 413, 120 S.Ct. 1495. "[A] federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411, 120 S.Ct. 1495. "A federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was `objectively unreasonable.'" Id. at 409, 120 S.Ct. 1495.

DISCUSSION

A. Confrontation Clause Claim

Gardner claims that the exclusion of evidence of Jane Doe's arrests and convictions for prostitution violated his rights under the Confrontation Clause. The underlying facts were that, "[s]tarting in 2004, after Jane Doe turned 18, until October 2006, she worked as a prostitute. She was arrested 15 times for prostitution in California, Nevada, Arizona, Washington, New York, and Washington, D.C., and suffered six misdemeanor convictions. This included an arrest in 2005 that resulted in a conviction in 2006 for prostitution in Oakland, not far from where Jane Doe encountered defendant on January 15, 2002." Cal. Ct. App. Opinion at 9-10 (footnote omitted). To summarize the chronology: Jane Doe reported the rape in 2002; Jane Doe's prostitution activities and convictions occurred in 2004-2006; Gardner's DNA was matched in 2008 to semen found at the scene of the reported rape; and the trial was held in 2012. At an in limine hearing, the trial court ruled that the prostitution evidence and any cross-examination of Jane Doe about her prostitution activities and convictions would not be admissible.

The California Court of Appeal determined that the trial court did not err under California law or the Confrontation Clause in excluding the evidence. A state court's interpretation of state law, including one announced on direct appeal of the challenged conviction, binds a federal court sitting in habeas corpus. See Bradshaw v. Richey, 546 U.S. 74, 76, 126 S.Ct. 602, 163 L.Ed.2d 407 (2005); Hicks v. Feiock, 485 U.S. 624, 629, 108 S.Ct. 1423, 99 L.Ed.2d 721 (1988). The California Court of Appeal's determination that the evidence was properly admitted under state law is binding on this court on federal habeas review. It will aid the understanding of this court's Confrontation Clause analysis to first describe how the state courts resolved the state law evidence issues and how that impacted the state appellate court's resolution of the Confrontation Clause claim.

1. The State Courts' Evidentiary Rulings

The trial court ruled that, under California Evidence Code section 1103(c)(1), the evidence of Jane Doe's prostitution was inadmissible on the issue of her consent.1 Gardner did not challenge that ruling on appeal. Cal. Ct. App. Opinion at 8.

The more difficult question, and the one that gives rise to the Confrontation Clause claim, was whether the evidence of the prostitution convictions was admissible to impeach Jane Doe's credibility.

Under California law, "`the rule barring evidence of a victim's sexual conduct with persons other than the defendant does not `make inadmissible any evidence offered to attack the credibility of the complaining witness as provided'" in California Evidence Code section 782. Cal. Ct. App. Opinion at 8 (quoting Cal. Evid. Code § 1103(c)(5)). Section 782(a)(4) requires the trial court to make two determinations. First, the trial court must determine that the evidence "regarding the sexual conduct of the complaining witness is relevant pursuant to [Evidence Code] Section 780," which pertains to witness credibility and allows consideration of a witness's "character for honesty or veracity or their opposites." Cal. Evid. Code § 780(e). Second, the trial court must determine that the evidence is not inadmissible under California Evidence Code section 352, which allows exclusion of evidence where "its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury." If the evidence clears those two hurdles, the trial "court may make an order stating what evidence may be introduced by the defendant, and the nature of the questions to be permitted." Cal. Evid. Code § 782(a)(4).

Here, the trial court noted that prostitution was a crime of moral turpitude and did relate to honesty, but was not as strongly related to honesty as some other crimes, such as theft and forgery. RT 127-128. The trial court concluded that the evidence was not "`particularly strong as it relates to the character trait of honesty or veracity, and particularly when you consider that its purpose would be to attack her credibility today, when she describes something that happened 10 years ago.'" Cal. Ct. App. Opinion at 10. The trial court pointed out that Jane Doe's basic allegations had not changed between her initial report of the incident in 2002 and the trial in 2012, that her credibility in 2004 and 2006 was not at issue, and that there was no evidence that she had done anything involving moral turpitude in the six years before the trial. Ultimately, the trial court concluded that exclusion was proper under California Evidence Code section 352 because the risk that the jury would consider the evidence for an improper purpose weighed against its admission. Id. at 11.2

The California Court of Appeal viewed "this to be a close case, but conclude[d] that the trial court acted within its discretion in excluding the evidence" under the California Evidence Code. Id. at 11.

Next, the California Court of Appeal addressed the Confrontation Clause claim. This was the entirety of the state appellate court's constitutional analysis:

Cal. Ct. App. Opinion at 16.

2. The California Court of Appeal's Decision Was Contrary To Clearly Established Federal Law

A state court's "mistakes in reasoning or in predicate decisions" such as using the wrong legal rule or framework "constitute error under the `contrary to' prong of § 2254(d)(1)." Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008) (en banc); see Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (decision by a state court is "contrary to" Supreme Court's clearly established law if it "applies a rule that contradicts the governing law set forth in [Supreme Court's] cases"); see, e.g., id. (if, for example, "a state court were to reject a prisoner's claim of ineffective assistance of counsel on the grounds that the prisoner had not established by a preponderance of the evidence that the result of his criminal proceeding would have been different, that decision would be `diametrically different,' `opposite in character or nature,' and `mutually opposed' to our clearly established precedent because we held in Strickland that the prisoner need only demonstrate a `reasonable probability that ... the result of the proceeding would have been different'"); Frantz, 533 F.3d at 734 (review of Faretta violation for harmlessness was contrary to Supreme Court holding that a Faretta violation is structural error).

The California Court of Appeal treated the Confrontation Clause analysis as coextensive with the state law evidence question — determining that, because the trial court did not abuse its discretion in excluding the evidence under state evidence rules, "we necessarily find no violation of defendant's constitutional rights to confrontation and due process" — and that was contrary to clearly established law from the U.S. Supreme Court. It is true that the Supreme Court has said that compliance with state law rules of evidence generally does not offend the Confrontation Clause, but the Supreme Court has not said that compliance with state law rules of evidence necessarily means that the Confrontation Clause right has been satisfied. See generally Crawford v. Washington, 541 U.S. 36, 50-51, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (hearsay rules and Confrontation Clause have different focus; "[l]eaving the regulation of out-of-court statements to the law of evidence would render the Confrontation Clause powerless to prevent even the most flagrant inquisitorial practices"); Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 2272, 183 L.Ed.2d 89 (2012) (Kagan, J., dissenting) (Crawford "made clear that the Confrontation Clause's protections are not coterminous with rules of evidence"). Although the analysis of out-of-court statements under Crawford provides the most obvious illustration that state evidence rules and the Confrontation Clause do not have an identical reach, differences also exist for restrictions on cross-examination. For example, in Delaware v. Van Arsdall, 475 U.S. 673, 681, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986), the Supreme Court determined that a Confrontation Clause violation had occurred when Rule 403 (i.e., a provision similar to California Evidence Code section 352) was invoked to bar all cross-examination about an agreement the witness had with the prosecutor. The defense in Van Arsdall had wanted to impeach the witness with the evidence to show the witness' motive and bias. Had the state court's application of the state evidence rule (i.e., Rule 403) fully resolved the Confrontation Clause claim, Van Arsdall would have come out differently. Accord Slovik v. Yates, 556 F.3d 747, 753 & n.6 (9th Cir. 2009) (Confrontation Clause violation occurred when defense was not allowed to ask witness about being on probation; "California evidentiary law is irrelevant to the determination of Slovik's constitutional rights"); Childers v. Floyd, 736 F.3d 1331, 1335-36 (11th Cir. 2013) (en banc) (Wilson, J., dissenting) (defendant's "Sixth Amendment rights could be violated even if his cross-examination of Willie Junior was properly limited under Rule 403. Our per curiam opinion seems to suggest that Rule 403 and the Sixth Amendment right of confrontation go hand in hand with one another — if there is no Rule 403 violation, then it follows that there is no Sixth Amendment constitutional violation either. I cannot subscribe to that view.")

Even when a state evidence rule permits the exclusion of the evidence, a court conducting a Confrontation Clause analysis must go further and determine that the restriction on the defendant's right to confront the witness is not "arbitrary or disproportionate" to the purposes the state evidence rule was designed to serve. See Michigan v. Lucas, 500 U.S. 145, 151, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991).3 A trial judge's "`wide latitude'" to limit cross-examination "`based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant,'" must be done within reason. Fowler v. Sacramento Cnty. Sheriff's Dep't, 421 F.3d 1027, 1037 (9th Cir. 2005) (quoting Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431 ("reasonable limits" may be imposed)); see Olden v. Kentucky, 488 U.S. 227, 232, 109 S.Ct. 480, 102 L.Ed.2d 513 (1988) (trial court may impose reasonable limits, but the "limitation here was beyond reason. Speculation as to the effect of jurors' racial biases cannot justify exclusion of cross-examination with such strong potential to demonstrate the falsity of [complainant's] testimony").4 When the California Court of Appeal determined that, because there was no abuse of discretion in excluding the evidence, there "necessarily" was no Confrontation Clause violation, that court failed to recognize or apply this second aspect of the Confrontation Clause analysis. The California Court of Appeal's decision used the wrong test and therefore was contrary to clearly established law from the Supreme Court.

The case of Nevada v. Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1994, 186 L.Ed.2d 62 (2013), does not show the absence of clearly established law from the Supreme Court on point. There, the Supreme Court observed that it had "never held that the Confrontation Clause entitles a criminal defendant to introduce extrinsic evidence for impeachment purposes." Nevada v. Jackson, 133 S.Ct. at 1994 (criticizing Ninth Circuit for "elid[ing] the distinction between cross-examination and extrinsic evidence by characterizing the cases as recognizing a broad right to present `evidence bearing on [a witness'] credibility") (second alteration in original). In Nevada v. Jackson, the defense was precluded from introducing testimony and police reports showing that the rape victim previously reported that the defendant had assaulted her, that the police had been unable to substantiate those allegations, and that the police were skeptical of several of those earlier reports. "Although the trial court gave the defense wide latitude to cross-examine [the rape victim] about those prior incidents, it refused to admit the police reports or to allow the defense to call as witnesses the officers involved." Id. at 1991. Unlike in Nevada v. Jackson, the trial court here did not allow the defense to cross-examine Jane Doe about her 2004-2006 prostitution activities and convictions. The present case is not about limitations on only extrinsic evidence and instead includes preclusion of all cross-examination on the topic. Because Jane Doe's prostitution activities occurring more than two years after the reported rape were off limits entirely, this case does not run into the problem identified in Nevada v. Jackson, i.e., the absence of clearly established Supreme Court precedent on the right to present extrinsic evidence for impeachment purposes. Gardner's Confrontation Clause claim can be and is considered only in terms of the prohibition on cross-examination of Jane Doe about her prostitution activities and convictions. She had already testified about those activities at Gardner's preliminary hearing and the first trial.

Having determined that the state appellate court's decision was contrary to clearly established federal law from the Supreme Court, the federal court does not automatically grant habeas relief; rather, the federal court must do a de novo review of the constitutional issue raised. Frantz v. Hazey, 533 F.3d at 735. This court now turns to that task.

3. A Confrontation Clause Violation Occurred

The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with the witnesses against him." U.S. Const. amend. VI. The federal confrontation right applies to the states through the Fourteenth Amendment. Pointer v. Texas, 380 U.S. 400, 403, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). The ultimate goal of the Confrontation Clause is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. Crawford v. Washington, 541 U.S. 36, 61, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). It commands, not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. Id.

Davis v. Alaska, 415 U.S. 308, 316-17, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (quoting Greene v. McElroy, 360 U.S. 474, 79 S.Ct. 1400, 3 L.Ed.2d 1377 (1959)).

"[A] criminal defendant states a violation of the Confrontation Clause by showing that he was prohibited from engaging in otherwise appropriate cross-examination designed to show a prototypical form of bias on the part of the witness, and thereby `to expose to the jury the facts from which jurors ... could appropriately draw inferences relating to the reliability of the witness.'" Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431 (quoting Davis, 415 U.S. at 318, 94 S.Ct. 1105) (omission in original). It is not necessary that the cross-examination would have been certain to affect the jury's assessment of the witness' reliability or credibility; rather, "it is sufficient that a jury `might reasonably' have questioned the witness's reliability or credibility in light of the cross-examination." Fowler, 421 F.3d at 1036 (citing Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, Davis, 415 U.S. at 319, 94 S.Ct. 1105, and Olden, 488 U.S. at 232, 109 S.Ct. 480).

The right to cross-examine is not limitless. Fowler, 421 F.3d at 1036. Trial judges "retain wide latitude" to "impose reasonable limits on such cross-examination based on concerns about, among other things, harassment, prejudice, confusion of the issues, the witness' safety, or interrogation that is repetitive or only marginally relevant." Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431. "Rather significantly, however, these restrictions must be `reasonable,' and `may not be arbitrary or disproportionate to the purposes they are designed to serve.'" Fowler, 421 F.3d at 1037 (quoting Van Arsdall, 475 U.S. at 679, 106 S.Ct. 1431, and Lucas, 500 U.S. at 151, 111 S.Ct. 1743).

Gardner's Sixth Amendment right to be confronted with the witness against him was violated because a reasonable jury might have received a "significantly different impression," Davis, 415 U.S. at 318, 94 S.Ct. 1105, of Jane Doe's credibility if defense counsel had been permitted to confront Jane Doe with her prostitution convictions. Had defense counsel been permitted to ask Jane Doe about her criminal record, the jury would have been able to use the criminal conduct to evaluate Jane Doe's testimony. The jury likely would have been instructed that "[t]he fact that a witness may have committed a crime or other misconduct does not necessarily destroy or impair a witness's credibility. It is up to you to decide the weight of that fact and whether that fact makes the witness less believable." CALCRIM No. 316. The jury might have found her less credible (or not credible at all), based on the fact that she had been convicted many times of crimes of moral turpitude. If the jury learned that Jane Doe had been convicted six times for prostitution, the jury might have found her denial of being a prostitute on the night of the reported rape to be unconvincing and then rejected many other parts of her testimony. If the jury also learned that Jane Doe had been arrested for prostitution in 2005 in the same general area as the reported rape in 2002, the jury might have found her denial of being a prostitute on the night of the reported rape to be unconvincing and then rejected many other parts of her testimony. Her testimony had some details that appeared somewhat inconsistent with being a prostitute, e.g., that she was only in the rough neighborhood to meet some friends to go to a movie elsewhere in town, that she was on the phone to get a ride home after failing to connect with her friends, and that she did not attempt to flee or ask for help when she was with Gardner on a municipal bus or when she was separated from Gardner in a liquor store. Once Jane Doe's credibility was impeached with her prostitution record, the jury might have chosen to believe Gardner over Jane Doe, as his version was that she was a prostitute and her motivation to accuse him of rape was to get even because he had refused to pay for services rendered. The importance of the prostitution evidence was not to show that she consented or deserved to be sexually assaulted for the very reason that she was a prostitute; rather, it would have been to make her testimony as to what occurred that night less believable.

The prostitution evidence was relevant, as the state courts found. Although viewing the evidence as "not `particularly strong on the issue of [Jane Doe's] honesty or veracity today,'" the trial court excluded it under California Evidence Code section 352, and that necessarily includes a determination that the evidence is relevant. See Fowler, 421 F.3d at 1039 n.8. The California Court of Appeal described "the evidence that Jane Doe was arrested in 2005 several blocks from where she encountered defendant in 2002" as "certainly relevant on the issue of her credibility." Cal. Ct. App. Opinion at 15.

The countervailing policy concern articulated by the state court for excluding the evidence was that the jury might consider it for an improper purpose. That concern about issue confusion was not sufficient to completely exclude the prostitution evidence, especially when the jury could have been given limiting instructions about the use of the evidence. The evidence was not so complex that its proper use was beyond the grasp of a properly instructed jury. Cf. Fowler, 421 F.3d at 1040 (since federal and state evidence rules allow jurors to consider prior bad acts of defendants as propensity evidence, jurors should be competent to understand the proffered cross-examination on the witness' prior accusations against other men). If the evidence of Jane Doe's prostitution was thought so likely to be used for an improper purpose that improper use could not be avoided with pointed jury instructions, the trial court could have at least allowed cross-examination about her convictions with the crime being labelled "a crime of moral turpitude" rather than "prostitution." Asking her whether she had been convicted on six occasions of a crime of moral turpitude might not have been ideal, but it would have allowed some evidence on a matter that might lead jurors to doubt her credibility rather than to completely foreclose inquiry on the topic. The precluded cross-examination sufficiently bore on Jane Doe's credibility such that a jury might reasonably have questioned her credibility upon hearing it. The trial court's concerns about potential misuse of the evidence were not "sufficiently well-founded to justify precluding rather than limiting the cross-examination." Fowler, 421 F.3d at 1041. See, e.g., Holley v. Yarborough, 568 F.3d 1091, 1098-99 (9th Cir. 2009) (state court's exclusion of evidence that the child-victim of a reported rape had a highly active sexual imagination and was familiar with sexual activities was unreasonable and disproportionate to the purpose of the rule allowing limitations on cross-examination based on concerns about harassment, prejudice, and issue-confusion); Slovik v. Yates, 556 F.3d 747, 753 (9th Cir. 2009) (Confrontation Clause violation occurred when defense was not allowed to ask witness about being on probation; evidence was not being proffered to establish that the witness was unreliable simply because he was on probation, but rather to establish that he was unreliable because he lied about being on probation and to establish he had an ulterior motive to place the blame on defendant, i.e., to avoid admitting violation of his own probation). Gardner's Sixth Amendment right to confront the witness was violated.

4. The Error Warrants Relief Because It Was Not Harmless

The Confrontation Clause error will warrant habeas relief only if the error was not harmless. The "inquiry is whether, assuming that the damaging potential of the cross-examination were fully realized," the error was harmless. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431. As this is a federal habeas proceeding, the error is harmless unless it had "`substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 638, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Relevant factors to consider include the importance of the witness' testimony, whether the excluded testimony was cumulative, the presence of evidence corroborating or contradicting the testimony on material points, the extent of cross-examination otherwise permitted, and the overall strength of the prosecution's case. Van Arsdall, 475 U.S. at 684, 106 S.Ct. 1431; Fowler, 421 F.3d at 1041-42.

Jane Doe was the complainant and was an indispensable witness. Without her testimony, there would not have been a trial. The evidence about her prostitution convictions was not cumulative of any other evidence at trial. There was some evidence corroborating her testimony on some material points (e.g., the DNA evidence and Gardner's testimony corroborated that Jane Doe and Gardner had a sexual encounter at the reported location), but on the focal question of whether it was rape or consensual sex, there was only the rape exam evidence and that was not definitive. Cross-examination of Jane Doe was not otherwise limited. The prosecution's case was not weak, but was certainly not overwhelming — and it rested very heavily on Jane Doe's testimony.

This case was largely a credibility contest between Jane Doe and Gardner. Without the prostitution-conviction evidence, there was little reason to discount her testimony, other than a few inconsistencies — mostly in her description of the sex acts — that the prosecutor shrugged off as owing to the passage of ten years between crime and trial. No lay witnesses corroborated the testimony of Jane Doe or Gardner. The rape exam evidence was open to conflicting interpretations. The rape exam done at the hospital hours after she reported the rape showed some injury to Jane Doe's genital area. RT 494. The physician's assistant who examined Jane Doe believed that it was more likely injuries would be found after nonconsensual intercourse, but acknowledged that "there is no way to say whether this injury ... can only be from sexual assault versus consensual intercourse." RT 475, 491. On the other hand, the defense expert said that the results of the rape exam did not show any evidence of sexual assault, and that it was impossible to discern from the photos whether the signs of possible abrasion or rubbing resulted from consensual sex, non-consensual sex, or something other than sexual contact. RT 579, 583, 585. The other physical evidence was limited. A police officer had noticed an "area of minor swelling" on Jane Doe's face, RT 303, but the physician's assistant conducting the rape exam did not note any bruising or swelling on Jane Doe's face, RT 492. A photo taken the night of the reported rape was unhelpful because Jane Doe's hair covered the eye she stated had been hit by Gardner. RT 226.

The fact that the success of the prosecution hinged on the jury believing Jane Doe's testimony, "strongly supports a finding that the error was not harmless" when the defense was not allowed to cross-examine her to impeach her credibility with the prostitution evidence. Fowler, 421 F.3d at 1042 (collecting cases). Without the prostitution evidence being brought forth on cross-examination, the jury was left without a possible explanation for why Jane Doe might have a motive to falsely accuse Gardner of rape. And without the prostitution evidence being brought forth on cross-examination, the jury was left with little basis on which to doubt Jane Doe's veracity generally. With so little clear evidence as to whether it was rape or a dispute arising from nonpayment for a prostitute, other than the sharply opposing testimony of the complaining witness and defendant, the refusal to allow cross-examination of the complaining witness about her prostitution activities and convictions had a substantial and injurious effect in determining the jury's verdict. Gardner is entitled to the writ on this claim.

B. Ineffective Assistance of Counsel Claim

1. Background

Gardner claims that his attorney provided ineffective assistance when he failed to object to misconduct committed by the prosecutor during his rebuttal closing argument. Gardner asserts that the prosecutor misrepresented critical evidence, and that defense counsel's failure to object to that misrepresentation deprived him of the effective assistance of counsel.

Both parties put forth expert medical testimony at trial to shed light on the possible causes of Jane Doe's injuries. Martin Moran, a physician's assistant who was part of the hospital's sexual assault response team, examined Jane Doe hours after the reported rape. See Cal. Ct. App. Opinion at 17. Moran testified that there was injury to Jane Doe's posterior four-chette, an area commonly injured during sexual assault. See id. Moran further testified that although injury to the posterior fourchette is statistically more common in sexual assault than consensual sexual intercourse, it could not be determined with scientific certainty whether the injury was the result of sexual assault or consensual intercourse. See id. Gardner's expert witness, a medical doctor, had not examined Jane Doe but testified that he could not tell from the photographs of the examination whether the injury was caused by consensual or nonconsensual sexual contact. See id.

During his rebuttal closing argument, the prosecutor argued to the jury that, "[i]f there was consensual sex, we wouldn't expect to see injuries, but there just happens to be injuries that corroborate her story." RT 699. Gardner claims that this statement should have been objected to by counsel because it misrepresented critical evidence.

The California Court of Appeal rejected Gardner's claim:

Cal. Ct. App. Opinion at 18 (footnote omitted). The state appellate court found "no prosecutorial misconduct, and therefore no ineffective assistance." Id. at 17.

2. Analysis

The Sixth Amendment's right to counsel guarantees not only assistance, but effective assistance, of counsel. Strickland v. Washington, 466 U.S. 668, 686, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The benchmark for judging any claim of ineffectiveness is whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result. Id. In order to prevail on a Sixth Amendment ineffective assistance of counsel claim, a petitioner must establish two things. First, he must demonstrate that counsel's performance was deficient and fell below an "objective standard of reasonableness" under prevailing professional norms. Id. at 687-88, 104 S.Ct. 2052. Second, he must establish that he was prejudiced by counsel's deficient performance, i.e., that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. 2052. A reasonable probability is a probability sufficient to undermine confidence in the outcome. Id.

A "doubly" deferential judicial review is appropriate in analyzing ineffective assistance of counsel claims under § 2254. See Cullen v. Pinholster, 563 U.S. 170, 202, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011). The "question is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011).

The California Court of Appeal's rejection of the ineffective assistance of counsel argument was not an unreasonable application of clearly established Supreme Court precedent. The California Court of Appeal reasonably determined that counsel's performance did not fall below an objective standard of reasonableness because the prosecutor's remark during his rebuttal closing was a fair comment on the evidence. "Prosecutors must have reasonable latitude to fashion closing arguments, and thus can argue reasonable inferences based on the evidence." United States v. Necoechea, 986 F.2d 1273, 1276 (9th Cir. 1993).

Gardner contends the prosecutor made a "crucial misrepresentation of critical evidence" because the medical experts testified that they were not able to determine with scientific certainty whether the injury to Jane Doe's posterior fourchette was caused by sexual assault or consensual sex. Petition at 47. However, the prosecution's medical expert had opined that, statistically speaking, the type of injury seen was more commonly a result of sexual assault. This evidence provided a sufficient basis for the prosecutor to argue the reasonable inference that injuries had been found that corroborated Jane Doe's account of the events. Because the prosecutor's comment was a fair comment on the evidence, the state appellate court reasonably could conclude that the defense attorney did not engage in deficient performance by not objecting to the evidence. A lawyer need not file a motion or make an objection that he knows to be meritless on the facts and the law. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) ("to show prejudice under Strickland from failure to file a motion, [a petitioner] must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him"); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance).

Additionally, because the challenged remark was a fair comment on the evidence (as the California Court of Appeal determined), the California Court of Appeal also reasonably could determine that any objection to it would not have been sustained, so there was no reasonable probability that the result of the proceeding would have been different.

Applying the "`highly deferential' look at counsel's performance," through § 2254(d)'s already "`deferential lens,'" Cullen v. Pinholster, 563 U.S. at 190, 131 S.Ct. 1388, it cannot be said that the California Court of Appeal's rejection of Gardner's ineffective assistance of counsel claim was contrary to or an unreasonable application of Strickland. The state appellate court's analysis presents a "reasonable argument that counsel satisfied Strickland's deferential standard," and that is sufficient to bar relief under § 2254(d). See Harrington v. Richter, 562 U.S. at 105, 131 S.Ct. 770. Gardner is not entitled to the writ on this claim.

C. Cumulative Error Claim

Gardner contends that the cumulative effect of several errors warrants reversal. In some cases, although no single trial error is sufficiently prejudicial to warrant reversal, the cumulative effect of several errors may still prejudice a defendant so much that his conviction must be overturned. See Alcala v. Woodford, 334 F.3d 862, 893-95 (9th Cir. 2003) (reversing conviction where multiple constitutional errors hindered defendant's efforts to challenge every important element of proof offered by prosecution). "[T]he fundamental question in determining whether the combined effect of trial errors violated a defendant's due process rights is whether the errors rendered the criminal defense `far less persuasive,' Chambers [v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973)], and thereby had a `substantial and injurious effect or influence' on the jury's verdict, Brecht, 507 U.S. at 637, 113 S.Ct. 1710." Parle v. Runnels, 505 F.3d 922, 928 (9th Cir. 2007). Here, there were not multiple trial errors to accumulate. Gardner therefore is not entitled to relief under the cumulative error doctrine.

D. Certificate of Appealability

Respondent does not need a certificate of appealability to appeal the order insofar as it grants relief on the Confrontation Clause claim. However, if respondent takes an appeal on that claim, Gardner would need a certificate of appealability if Gardner wanted to cross-appeal on the two claims as to which relief was denied. See Rios v. Garcia, 390 F.3d 1082, 1087-88 (9th Cir. 2004).

A certificate of appealability will not issue on the claims of ineffective assistance of counsel and cumulative error. See 28 U.S.C. § 2253(c). This is not a case in which "reasonable jurists would find the district court's assessment of [those] constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). Accordingly, a certificate of appealability is DENIED on the claims of ineffective assistance of counsel and cumulative error.

CONCLUSION

For the foregoing reasons, the petition for writ of habeas corpus is GRANTED because Gardner's rights under the Confrontation Clause were violated at his trial. Respondent shall release Gardner unless the State of California commences proceedings to retry him within ninety days of the date of this order.

Gardner's motion to file a long traverse is GRANTED. (Docket No. 21.)

The clerk shall send a copy of this order to the Alameda County Public Defender's Office at Suite 400, 1401 Lakeside Drive, Oakland, CA 94612. The court requests that the Alameda County Public Defender obtain representation for Gardner if he meets the eligibility requirements.

IT IS SO ORDERED.