NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JASON CAI, No. 22-16636
Petitioner-Appellant, D.C. No. 4:19-cv-03067-HSG v. MEMORANDUM*
NEIL MCDOWELL,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Haywood Gilliam, District Judge, Presiding
Argued and Submitted February 15, 2024 San Francisco, California
Before: MILLER, BADE, and VANDYKE, Circuit Judges.
Appellant Jason Cai appeals from the district court’s order denying his
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
A district court’s decision on a petition for writ of habeas corpus is reviewed
de novo. Kemp v. Ryan, 638 F.3d 1245, 1254 (9th Cir. 2011). The district court’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. findings of fact are reviewed for clear error. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a federal court cannot grant habeas relief unless the petitioner proves that the state
court’s ruling was “contrary to, or involved an unreasonable application of, clearly
established Federal law,” or “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).
AEDPA imposes a “highly deferential” standard that “demands that state-court
decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam). “The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007).
1. The state court’s rejection of Cai’s first claim—that the trial court’s
exclusion of third-party culpability evidence violated his constitutional rights—was
reasonable. “Incorrect state court evidentiary rulings cannot serve as a basis for
habeas relief unless federal constitutional rights are affected.” Whelchel v.
Washington, 232 F.3d 1197, 1211 (9th Cir. 2000). Cai bears the burden of showing
that the state court’s exclusion of third-party culpability evidence offends a
“fundamental principle of justice.” Montana v. Egelhoff, 518 U.S. 37, 43, 51 (1996).
2 He must show that it had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
States “have broad latitude … to establish rules excluding evidence from
criminal trials” provided that “they are not ‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’” United States v. Scheffer, 523 U.S. 303, 308
(1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). California law does “not
require that any evidence, however remote, must be admitted to show a third party’s
possible culpability.” People v. Hall, 718 P.2d 99, 104 (Cal. 1986). Instead, to be
admissible, “there must be direct or circumstantial evidence linking the third person
to the actual perpetration of the crime.” Id. Such rules “regulating the admission of
evidence … to show that someone else committed the crime” are “widely accepted.”
Holmes v. South Carolina, 547 U.S. 319, 327 (2006).
Here, Cai has not shown that the challenged ruling violated his constitutional
rights or resulted in prejudice. Cai offers little evidence to support his murder-for-
hire theory, making it purely speculative. Trial courts in California have a legitimate
interest in avoiding speculation and the “possibility of undue diversion of ... trial[s].”
Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983). Thus, the court’s exclusion
of evidence supporting Cai’s third-party culpability theory does not offend
fundamental principles of justice. And even assuming Cai’s rights were affected,
3 the exclusion did not result in prejudice because “the State’s evidence of guilt was,
if not overwhelming, certainly weighty.” Brecht, 507 U.S. at 639. The case against
Cai was substantial, and he has not shown that the omission affected the jury’s
verdict. For these reasons, the trial court’s exclusion of third-party culpability
evidence does not entitle him to habeas relief. See Davis v. Ayala, 576 U.S. 257,
267, 286 (2015).
2. The state court’s rejection of Cai’s second claim—that trial counsel was
ineffective for failing to present expert testimony—was also reasonable. To prevail
on a claim for ineffective assistance of counsel, Cai must show that trial counsel’s
performance “fell below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
688, 694 (1984).
Looking through to the Superior Court’s reasoned opinion below, see Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018), it was reasonable to conclude that Cai failed
to make “a showing that an independent expert’s testimony might reasonably have
made a difference in light of the totality of the evidence.” The probability that he
was prejudiced must be “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
4 Considering the overwhelming weight of the evidence against him, it was reasonable
for the state court to conclude that Cai had not “affirmatively prove[d]” that he was
prejudiced by defense counsel’s failure to retain an expert witness. Id. We reject
Cai’s argument that the Superior Court’s reasoning regarding prejudice was
untenable considering the record presented in subsequent state court petitions.
3. The state court’s rejection of Cai’s third claim—challenging the trial
court’s jury instructions—was similarly reasonable. A defendant is entitled to
habeas relief when there is “a reasonable likelihood that the jury understood [an]
instruction[] to allow conviction based on proof insufficient to” establish guilt
beyond a reasonable doubt, as required by the Due Process Clause. Victor v.
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS MAR 5 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
JASON CAI, No. 22-16636
Petitioner-Appellant, D.C. No. 4:19-cv-03067-HSG v. MEMORANDUM*
NEIL MCDOWELL,
Respondent-Appellee.
Appeal from the United States District Court for the Northern District of California Haywood Gilliam, District Judge, Presiding
Argued and Submitted February 15, 2024 San Francisco, California
Before: MILLER, BADE, and VANDYKE, Circuit Judges.
Appellant Jason Cai appeals from the district court’s order denying his
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. § 2253,
and we affirm.
A district court’s decision on a petition for writ of habeas corpus is reviewed
de novo. Kemp v. Ryan, 638 F.3d 1245, 1254 (9th Cir. 2011). The district court’s
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. findings of fact are reviewed for clear error. Lopez v. Thompson, 202 F.3d 1110,
1116 (9th Cir. 2000) (en banc).
Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),
a federal court cannot grant habeas relief unless the petitioner proves that the state
court’s ruling was “contrary to, or involved an unreasonable application of, clearly
established Federal law,” or “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).
AEDPA imposes a “highly deferential” standard that “demands that state-court
decisions be given the benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24
(2002) (per curiam). “The question under AEDPA is not whether a federal court
believes the state court’s determination was incorrect but whether that determination
was unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550
U.S. 465, 473 (2007).
1. The state court’s rejection of Cai’s first claim—that the trial court’s
exclusion of third-party culpability evidence violated his constitutional rights—was
reasonable. “Incorrect state court evidentiary rulings cannot serve as a basis for
habeas relief unless federal constitutional rights are affected.” Whelchel v.
Washington, 232 F.3d 1197, 1211 (9th Cir. 2000). Cai bears the burden of showing
that the state court’s exclusion of third-party culpability evidence offends a
“fundamental principle of justice.” Montana v. Egelhoff, 518 U.S. 37, 43, 51 (1996).
2 He must show that it had a “substantial and injurious effect or influence in
determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)
(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)).
States “have broad latitude … to establish rules excluding evidence from
criminal trials” provided that “they are not ‘arbitrary’ or ‘disproportionate to the
purposes they are designed to serve.’” United States v. Scheffer, 523 U.S. 303, 308
(1998) (quoting Rock v. Arkansas, 483 U.S. 44, 56 (1987)). California law does “not
require that any evidence, however remote, must be admitted to show a third party’s
possible culpability.” People v. Hall, 718 P.2d 99, 104 (Cal. 1986). Instead, to be
admissible, “there must be direct or circumstantial evidence linking the third person
to the actual perpetration of the crime.” Id. Such rules “regulating the admission of
evidence … to show that someone else committed the crime” are “widely accepted.”
Holmes v. South Carolina, 547 U.S. 319, 327 (2006).
Here, Cai has not shown that the challenged ruling violated his constitutional
rights or resulted in prejudice. Cai offers little evidence to support his murder-for-
hire theory, making it purely speculative. Trial courts in California have a legitimate
interest in avoiding speculation and the “possibility of undue diversion of ... trial[s].”
Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983). Thus, the court’s exclusion
of evidence supporting Cai’s third-party culpability theory does not offend
fundamental principles of justice. And even assuming Cai’s rights were affected,
3 the exclusion did not result in prejudice because “the State’s evidence of guilt was,
if not overwhelming, certainly weighty.” Brecht, 507 U.S. at 639. The case against
Cai was substantial, and he has not shown that the omission affected the jury’s
verdict. For these reasons, the trial court’s exclusion of third-party culpability
evidence does not entitle him to habeas relief. See Davis v. Ayala, 576 U.S. 257,
267, 286 (2015).
2. The state court’s rejection of Cai’s second claim—that trial counsel was
ineffective for failing to present expert testimony—was also reasonable. To prevail
on a claim for ineffective assistance of counsel, Cai must show that trial counsel’s
performance “fell below an objective standard of reasonableness” and that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668,
688, 694 (1984).
Looking through to the Superior Court’s reasoned opinion below, see Wilson
v. Sellers, 138 S. Ct. 1188, 1192 (2018), it was reasonable to conclude that Cai failed
to make “a showing that an independent expert’s testimony might reasonably have
made a difference in light of the totality of the evidence.” The probability that he
was prejudiced must be “sufficient to undermine confidence in the outcome.”
Strickland, 466 U.S. at 694. “It is not enough for the defendant to show that the
errors had some conceivable effect on the outcome of the proceeding.” Id. at 693.
4 Considering the overwhelming weight of the evidence against him, it was reasonable
for the state court to conclude that Cai had not “affirmatively prove[d]” that he was
prejudiced by defense counsel’s failure to retain an expert witness. Id. We reject
Cai’s argument that the Superior Court’s reasoning regarding prejudice was
untenable considering the record presented in subsequent state court petitions.
3. The state court’s rejection of Cai’s third claim—challenging the trial
court’s jury instructions—was similarly reasonable. A defendant is entitled to
habeas relief when there is “a reasonable likelihood that the jury understood [an]
instruction[] to allow conviction based on proof insufficient to” establish guilt
beyond a reasonable doubt, as required by the Due Process Clause. Victor v.
Nebraska, 511 U.S. 1, 6 (1994); Fiore v. White, 531 U.S. 225, 228–29 (2001) (per
curiam).
Courts use a “reasonable likelihood” standard to determine whether jury
instructions “subject to an erroneous interpretation” violated a defendant’s
constitutional rights. Boyde v. California, 494 U.S. 370, 380 (1990). The “proper
inquiry is not whether the instruction ‘could have’ been applied in an
unconstitutional manner, but whether there is a reasonable likelihood that the jury
did so apply it.” Victor, 511 U.S. at 6 (quoting Estelle v. McGuire, 502 U.S. 62, 72
n.4 (1991)). Habeas relief is not appropriate if “[a]t best, petitioner has demonstrated
only that there exists a slight possibility that the jury” misapplied the instruction.
5 Weeks v. Angelone, 528 U.S. 225, 236 (2000). Courts approach instructions “in the
same way that the jury would,” Johnson v. Texas, 509 U.S. 350, 368 (1993), with a
“commonsense understanding” and “in the light of all that has taken place at the
trial.” Boyde, 494 U.S. at 380–81.
Cai has not shown a reasonable likelihood that the jury improperly applied
CALCRIM No. 359 in this case. The challenged instruction in this case simply states
the rule in California that identity may be proven by a defendant’s statements alone,
not that it must. Cai is correct that his statements alone were insufficient to establish
his guilt beyond a reasonable doubt. But he offers no evidence that the jury
misunderstood CALCRIM No. 359 and came to its verdict based on his statements
alone. Cai’s contention that the jury was “impermissibly inhibited by the instruction
… amounts to no more than speculation.” Boyde, 494 U.S. at 380.
And even assuming that an error did occur, it was harmless. See Chapman v.
California, 386 U.S. 18, 21–24 (1967). Considering the weight of the evidence
against Cai, it was reasonable to conclude that any error caused by CALCRIM No.
359 did not “necessarily render [the] trial fundamentally unfair.” Neder v. United
States, 527 U.S. 1, 8 (1999) (quoting Rose v. Clark, 478 U.S. 570, 577 (1986)).
Therefore, Cai is not entitled to habeas relief on this ground.
AFFIRMED.