NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
XIAO YE BAI, No. 23-2216
Petitioner-Appellant, D.C. No. 2:20-cv-2042-KJD-NJK
v. MEMORANDUM* BRIAN WILLIAMS, et al.,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding
Submitted April 1, 2025** San Francisco, CA
Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.
Xiao Ye Bai (“Bai”) appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. Relief on a § 2254 habeas claim is not warranted unless:
adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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). “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (citation and internal quotation marks omitted). Reviewing “the denial of a
Section 2254 habeas corpus petition de novo and any underlying factual findings
for clear error,” we affirm. Patsalis v. Shinn, 47 F.4th 1092, 1097 (9th Cir.
2022) (citation omitted).1
In this appeal, Bai raises five claims alleging due process and fair trial
violations. First, Bai challenges the denial of his request for continuance to obtain
testimony from his father. Second, Bai claims that the trial court unreasonably
excluded certain expert testimony. Third, Bai challenges the admission of evidence
that he worked as a hitman and photographic evidence that Bai had dressed as a
video game character from a game titled “Hitman.” Fourth, Bai claims that the
prosecution committed misconduct by stating that Bai killed people for a living.
Fifth, Bai argues that the cumulative error from the violations rendered his trial
fundamentally unfair. We address each claim in turn.
1 Because the facts and procedural history are well known to the parties, we recount them only as needed to explain our decision.
2 1. The Nevada Supreme Court’s decision upholding the trial court’s denial
of Bai’s continuance request to secure his father’s testimony during the guilt phase
trial was not based on an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d)(2).
Bai received the benefit of nearly three years of continuances during which
he could have secured his father’s testimony. Before denying Bai’s final request
for a lengthy continuance, the trial court indicated a willingness to grant a four-
week continuance to permit Bai to obtain video testimony from his father, but Bai
declined. Further, Bai could and did present his desired defense through other
witnesses, and to the extent the father’s testimony bore on penalty, Bai was not
prejudiced because the jury declined to return a death sentence. In sum, the denial
of Bai’s trial continuance request for the guilt phase did not constitute an “extreme
malfunction[] in the state criminal justice system” so as to warrant habeas relief
now. Mays v. Hines, 592 U.S. 385, 391 (2021).
2. Bai’s claim that the exclusion of two improperly noticed experts was
unconstitutional fails under AEDPA’s deferential standard of review. See 28
U.S.C. § 2254(d).2
2 Respondents contend that the district court did not issue a certificate of appealability (“COA”) for Bai to appeal the exclusion of his expert witnesses at issue here. We disagree and address the merits of the claim. See Rhoades v. Henry, 598 F.3d 511, 518 (9th Cir. 2010) (“We are to resolve doubts about the propriety of a COA in the petitioner’s favor”).
3 “A defendant’s [constitutional] right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions,” such as evidentiary and
procedural rules. United States v. Scheffer, 523 U.S. 303, 308 (1998). The Supreme
Court has indicated its approval of “well-established rules of evidence [that] permit
trial judges to exclude evidence.” Holmes v. South Carolina, 547 U.S. 319, 326
(2006).
Nevada’s evidentiary rules require that parties disclose certain information
regarding proposed expert witness testimony prior to trial, including the subject
matter on which the witness is expected to testify and the substance of the
testimony. See NRS 174.234(2)(a). Bai did not comply with Nevada’s rules. As
such, the Nevada Supreme Court’s decision to uphold those rules was not based on
an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2); see Scheffer,
523 U.S. at 308.
Moreover, the Supreme Court cases on which Bai relies are inapposite. 28
U.S.C. § 2254(d)(1). Unlike those cases, the Nevada state law, NRS 174.234(2)(a),
does not exclude an entire category of witnesses, see Washington v. Texas, 388
U.S. 14, 22–23 (1967) (finding a state law prohibiting principles and accomplices
from testifying unconstitutional), nor an entire category of testimony, see e.g.
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (finding a state law prohibiting
a defendant from impeaching his own witness unconstitutional); Rock v. Arkansas,
4 483 U.S. 44, 45 (1987) (finding a state law prohibiting admission of hypnotically
refreshed testimony unconstitutional); Crane v. Kentucky, 476 U.S. 683, 691
(1986) (finding that the state court erred in foreclosing petitioner’s efforts to
introduce testimony simply because the topic of testimony was about the issue of
voluntariness).
3. Under AEDPA’s deferential standard of review, the Nevada Supreme
Court’s decision upholding the trial court’s ruling permitting the prosecution to
introduce evidence that Bai worked as a hitman was neither contrary to nor an
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 3 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
XIAO YE BAI, No. 23-2216
Petitioner-Appellant, D.C. No. 2:20-cv-2042-KJD-NJK
v. MEMORANDUM* BRIAN WILLIAMS, et al.,
Respondents-Appellees.
Appeal from the United States District Court for the District of Nevada Kent J. Dawson, District Judge, Presiding
Submitted April 1, 2025** San Francisco, CA
Before: HURWITZ, KOH, and JOHNSTONE, Circuit Judges.
Xiao Ye Bai (“Bai”) appeals the district court’s denial of his 28 U.S.C.
§ 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253. Relief on a § 2254 habeas claim is not warranted unless:
adjudication of the claim (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). 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). “A state court’s determination that a claim lacks merit
precludes federal habeas relief so long as fairminded jurists could disagree on the
correctness of the state court’s decision.” Harrington v. Richter, 562 U.S. 86, 101
(2011) (citation and internal quotation marks omitted). Reviewing “the denial of a
Section 2254 habeas corpus petition de novo and any underlying factual findings
for clear error,” we affirm. Patsalis v. Shinn, 47 F.4th 1092, 1097 (9th Cir.
2022) (citation omitted).1
In this appeal, Bai raises five claims alleging due process and fair trial
violations. First, Bai challenges the denial of his request for continuance to obtain
testimony from his father. Second, Bai claims that the trial court unreasonably
excluded certain expert testimony. Third, Bai challenges the admission of evidence
that he worked as a hitman and photographic evidence that Bai had dressed as a
video game character from a game titled “Hitman.” Fourth, Bai claims that the
prosecution committed misconduct by stating that Bai killed people for a living.
Fifth, Bai argues that the cumulative error from the violations rendered his trial
fundamentally unfair. We address each claim in turn.
1 Because the facts and procedural history are well known to the parties, we recount them only as needed to explain our decision.
2 1. The Nevada Supreme Court’s decision upholding the trial court’s denial
of Bai’s continuance request to secure his father’s testimony during the guilt phase
trial was not based on an unreasonable determination of the facts. See 28 U.S.C.
§ 2254(d)(2).
Bai received the benefit of nearly three years of continuances during which
he could have secured his father’s testimony. Before denying Bai’s final request
for a lengthy continuance, the trial court indicated a willingness to grant a four-
week continuance to permit Bai to obtain video testimony from his father, but Bai
declined. Further, Bai could and did present his desired defense through other
witnesses, and to the extent the father’s testimony bore on penalty, Bai was not
prejudiced because the jury declined to return a death sentence. In sum, the denial
of Bai’s trial continuance request for the guilt phase did not constitute an “extreme
malfunction[] in the state criminal justice system” so as to warrant habeas relief
now. Mays v. Hines, 592 U.S. 385, 391 (2021).
2. Bai’s claim that the exclusion of two improperly noticed experts was
unconstitutional fails under AEDPA’s deferential standard of review. See 28
U.S.C. § 2254(d).2
2 Respondents contend that the district court did not issue a certificate of appealability (“COA”) for Bai to appeal the exclusion of his expert witnesses at issue here. We disagree and address the merits of the claim. See Rhoades v. Henry, 598 F.3d 511, 518 (9th Cir. 2010) (“We are to resolve doubts about the propriety of a COA in the petitioner’s favor”).
3 “A defendant’s [constitutional] right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions,” such as evidentiary and
procedural rules. United States v. Scheffer, 523 U.S. 303, 308 (1998). The Supreme
Court has indicated its approval of “well-established rules of evidence [that] permit
trial judges to exclude evidence.” Holmes v. South Carolina, 547 U.S. 319, 326
(2006).
Nevada’s evidentiary rules require that parties disclose certain information
regarding proposed expert witness testimony prior to trial, including the subject
matter on which the witness is expected to testify and the substance of the
testimony. See NRS 174.234(2)(a). Bai did not comply with Nevada’s rules. As
such, the Nevada Supreme Court’s decision to uphold those rules was not based on
an unreasonable determination of the facts. 28 U.S.C. § 2254(d)(2); see Scheffer,
523 U.S. at 308.
Moreover, the Supreme Court cases on which Bai relies are inapposite. 28
U.S.C. § 2254(d)(1). Unlike those cases, the Nevada state law, NRS 174.234(2)(a),
does not exclude an entire category of witnesses, see Washington v. Texas, 388
U.S. 14, 22–23 (1967) (finding a state law prohibiting principles and accomplices
from testifying unconstitutional), nor an entire category of testimony, see e.g.
Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (finding a state law prohibiting
a defendant from impeaching his own witness unconstitutional); Rock v. Arkansas,
4 483 U.S. 44, 45 (1987) (finding a state law prohibiting admission of hypnotically
refreshed testimony unconstitutional); Crane v. Kentucky, 476 U.S. 683, 691
(1986) (finding that the state court erred in foreclosing petitioner’s efforts to
introduce testimony simply because the topic of testimony was about the issue of
voluntariness).
3. Under AEDPA’s deferential standard of review, the Nevada Supreme
Court’s decision upholding the trial court’s ruling permitting the prosecution to
introduce evidence that Bai worked as a hitman was neither contrary to nor an
unreasonable application of clearly established law, nor based on an unreasonable
determination of the facts. 28 U.S.C. § 2254(d).
The introduction of evidence that is so unduly prejudicial that it renders the
trial fundamentally unfair violates the Due Process Clause. See Andrew v. White,
145 S.Ct. 75, 80 (2025) (per curiam) (citing Payne v. Tennessee, 501 U. S. 808,
825 (1991)). However, “nothing in the Due Process Clause of the Fourteenth
Amendment requires the State to refrain from introducing relevant evidence.”
Estelle v. McGuire, 502 U.S. 62, 70 (1991).
A “fairminded jurist” could conclude that evidence that Bai worked as a
hitman and the photographic evidence were relevant to his motive. Richter, 562
U.S. at 101; see Spencer v. State of Tex., 385 U.S. 554, 560 (1967) (holding that
evidence of prior crimes does not violate due process “when it is particularly
5 probative in showing such things as intent . . . [or] motive”). Thus, the Nevada
Supreme Court’s decision upholding their admission was not contrary to, or
involved in an unreasonable application, of clearly established law. 28 U.S.C.
§ 2254(d)(1).
Furthermore, the Nevada Supreme Court reasonably determined that the
evidence of Bai’s guilt and requisite mens rea in this case was so overwhelming
that the hitman evidence was not substantial enough that its exclusion would have
changed the jury’s verdict. 28 U.S.C. § 2254(d)(2); see Fry v. Pliler, 551 U.S. 112,
119 (2007) (“[W]hen a state court determines that a constitutional violation is
harmless, a federal court may not award habeas relief under § 2254 unless the
harmlessness determination itself was unreasonable.”).
4. Even assuming that the Nevada Supreme Court’s decision regarding Bai’s
claim of prosecutorial misconduct during the penalty phase trial’s closing
argument is not entitled to AEDPA deference,3 Bai’s claim still fails under de novo
review. See Berghuis v. Thompkins, 560 U.S. 370, 372 (2010) (“Courts can . . .
3 As the district court explained, the Nevada Supreme Court incorrectly relied upon the “overwhelming” guilt phase evidence to find harmless error regarding the prosecutor’s penalty phase closing argument comment. By the penalty phase trial, guilt had already been determined. Because the Nevada Supreme Court unreasonably conflated the guilt phase and the penalty phase, the district court concluded that the Nevada Supreme Court is not entitled to AEDPA deference.
6 deny writs of habeas corpus under § 2254 by engaging in de novo review when it is
unclear whether AEDPA deference applies.”).
Under de novo review, whether a prosecutor’s comment denies a petitioner
due process turns on whether the comment “infected the trial with unfairness.”
Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). The petitioner is not entitled
to habeas relief unless the “error had substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 622–23
(1993) (citation and internal quotation marks omitted).
During the penalty phase trial’s closing arguments, the prosecution stated
that Bai has killed people “for a living.” Even if the prosecutor’s comment was
impermissible, the trial court’s jury instructions cured any potential issue of
prejudice. Darden v. Wainwright, 477 U.S. 168, 181–82 (1986) (concluding that a
factor of Donnelly’s fairness analysis is whether the trial court gave curative
instruction); see Penry v. Johnson, 532 U.S. 782, 799 (2001) (concluding if a
cautionary instruction is given by the trial court, the jury is presumed to follow it).
Moreover, the prosecutor’s comment did not substantially and injuriously
influence the jury’s verdict. Brecht, 507 U.S. at 622–23. Even after hearing the
prosecutor’s comment, the jury rejected the prosecution’s arguments for the death
penalty and sentenced Bai to life without parole.
7 5. Finally, Bai claims that the cumulative effects of the trial court’s rulings
and prosecutorial misconduct resulted in the denial of Bai’s constitutional rights.
Cumulative error warrants habeas relief only where the errors have so
infected the trial with unfairness as to make the resulting conviction a denial of due
process. Chambers, 410 U.S. at 290, 298, 302–03. Infection to that effect only
“occurs where the combined effect of the errors had a ‘substantial and injurious
effect or influence on the jury’s verdict.’” Parle v. Runnels, 505 F.3d 922, 927 (9th
Cir. 2007) (citing Brecht, 507 U.S. at 637).
Given that we find no error, this claim fails.
AFFIRMED.