Moses v. Payne

555 F.3d 742, 2009 U.S. App. LEXIS 13107, 2009 WL 213070

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 30, 2009
• Docket: 07-35468
• Status: Published

Opinions

ORDER AND AMENDED OPINION

ORDER

The opinion and dissent filed September 15, 2008, 543 F.3d 1090, are hereby amended. A majority of the panel has voted to deny the petition for rehearing; Judge Gould votes to grant the petition for rehearing. The petition for rehearing en banc is still pending, pursuant to General Order 5.4(b). The parties may file new petitions for rehearing and rehearing en bane as to this amended opinion, in accordance with the Federal Rules of Appellate Procedure.

OPINION

IKUTA, Circuit Judge:

A Washington state jury convicted Jeffrey Moses of second degree murder for the shooting death of his wife, Jennifer Moses. In this appeal, we consider whether the district court erred in denying Jeffrey Moses’s petition for a writ of habeas corpus. Moses contends that his federal constitutional rights were violated by several evidentiary decisions made by the trial court, including the decision to preclude one of Moses’s experts from testifying. Moses maintains that he is entitled to ha-beas relief because the Washington appellate court’s decision to affirm his conviction was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). We disagree. The Washington appellate court’s decision passes muster under the “highly deferential standard for evaluating state-court rulings” in the habeas context. Woodford v. Visciotti, 537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam) (internal quotation marks omitted). We have jurisdiction under 28 U.S.C. §§ 1291, 2253, and we affirm.

I

For a summary of the preliminary facts, we rely on the state appellate court’s decision:¹

In the early morning of September 27, 2002, Moses’ mother, who lived in California, called the police to report that her daughter-in-law, Jennifer Moses was dead. The police found Moses on the street outside his house, drinking beer, and carrying his younger son on his back. Moses’ other son was asleep in the house. According to Moses, Jennifer shot herself and committed suicide. When the officers attempted to enter the house, he told them it was unnecessary because he had cleaned everything up. Police found Jennifer wrapped in a rug in the garage, along with a pile of bloody towels and sponges. Jennifer had a gunshot wound to her head, blunt force trauma to her lips and a cracked tooth. The .410 gauge derringer used in Jennifer’s death was found in the master bedroom. The derringer had been recently cleaned and was loaded with two unspent shells. When questioned, Moses told police Jennifer had been depressed and that she came downstairs that evening with the derringer, knelt down and shot herself in the head while Moses tried to get the gun away from her. Moses said he moved Jennifer’s body to the garage to prevent their sons from seeing her. He then backed his truck up to the garage to load her body into it and bury her in the woods, as she had requested. When the truck hit a post, Moses said he abandoned the attempt to move Jennifer’s body.

Following this incident, the state charged Moses with first degree murder and unlawful possession of a firearm. The state’s theory of the murder charge was that Moses intentionally shot Jennifer Moses during a domestic dispute. In support of this theory, the prosecution introduced testimony from several witnesses.

Among these witnesses was Dr. Richard Harruff, a medical examiner, who testified that Jennifer Moses had' died from a gunshot wound inflicted to the right side of her upper neck, behind the ear. Dr. Har-ruff explained that Jennifer Moses’s wound was a contact wound, that is, a wound indicating that the gun had been in contact with Jennifer Moses’s skin when it was fired. Dr. Harruff further testified that the gun was pointed upwards, “at about an 11 o’clock position,” when it was fired in the base of Jennifer Moses’s head. Dr. Harruff also stated that a toxicology screen performed during Jennifer Moses’s autopsy revealed a blood alcohol level of 0.15.

Over defense objections, the court also permitted Dr. Harruff to testify that in his opinion Jennifer Moses’s death was a “homicide.” When prompted, Dr. Harruff explained that his use of the word “homicide” was a mixed “medical/legal” standard, signifying the “likelihood of another person’s responsibility leading to [the] death.” According to Dr. Harruff, the principal reason a medical examiner would certify a death as a homicide would be for purposes of the death certificate. Dr. Harruff testified:

For example, I would classify something [as] homicide if the evidence that I see, based on my experience and my professional responsibility, indicates that this is a death that needs to be looked at for[the] potential of criminal activity. That’s my responsibility, and I certify death based on that. I’m of course not in a position, as the jury is, to render a final conclusion as to whether this represents a murder or not.

Dr. Harruff further clarified that his opinion did not bear on the issue of legal intent, and that his conclusion under the “likelihood” standard was not a determination beyond a reasonable doubt.

Dr. Harruff testified that he tried to limit himself to only “objective” and “unambiguous” factors in his cause-of-death analysis,' such as the nature and location of the wound. However, Dr. Harruff acknowledged that he also considered statements in Jennifer Moses’s diary.

During cross-examination, the defense elicited testimony from Dr. Harruff that “individuals who have difficulty with drugs and alcohol are probably at a higher risk of suicide than those who are not.” Additionally, Dr. Harruff testified that intoxication and access to firearms are both risk factors for suicide.

The government also called Evan Thompson, a ballistics examiner for the Washington State Patrol Crime Laboratory. Like Dr. Harruff, Thompson testified about the ballistics implications of Jennifer Moses’s wound. Basing his analysis on the same objective factors considered by Dr. Harruff, Thompson concluded that Jennifer Moses’s death was more likely a homicide than either a suicide or an accidental shooting during a struggle over the gun between Moses and Jennifer Moses. Like Dr. Harruff, Thompson concluded that Jennifer Moses’s death was likely the result of homicide.

The trial court also allowed testimony concerning a prior incident of domestic violence between Moses and Jennifer Moses that occurred on November 1, 2001, a little over ten months before Jennifer Moses died. This incident resulted in Jennifer Moses going to the hospital along with her children, and several witnesses affiliated with the hospital testified to the events that followed.

Dr. Warren Appleton, the emergency room physician, testified that he interviewed and examined Jennifer Moses in a medical exam room shortly after the November 2001 incident in order to provide treatment, and observed that Jennifer Moses displayed physical signs of fear and anxiety during the examination. In order to assess and understand her level of fear, Dr. Appleton asked Jennifer Moses what had happened. According to Dr. Appleton’s testimony, Jennifer Moses stated that Moses assaulted her and broke her jaw.

The hospital social worker, Tamara Muller, testified that she interviewed Jennifer Moses’s children while Jennifer Moses was under sedation, and then interviewed Jennifer Moses. One of the children said that he saw Moses kick Jennifer Moses. As a result of this statement, Muller contacted Child Protective Services (CPS). Muller subsequently interviewed Jennifer Moses, who identified Moses as the assailant who broke her jaw. At some point during the interview, Muller told Jennifer Moses that she had contacted CPS.

Muller also gave more general testimony based on her experiences as a domestic violence counselor. Specifically, she testified that she “very seldom” tells victims of domestic violence to leave their abusive situation immediately. The reason, according to Muller, was that “a victim is most likely to be killed ... when they leave.” This testimony pertained to the prosecution’s theory that Jennifer Moses was attempting to leave Moses on or around the night she died.

Finally, the court allowed the government to introduce evidence drawn from Jennifer Moses’s journals. Jennifer Moses used two journals, one that was handwritten and one that was posted online. The government principally relied on the online journal (rather than the handwritten journal) to establish the abusive relationship between Jennifer Moses and Moses. When the government sought to introduce evidence from the online journal, the defense countered that the trial court should also admit the handwritten journal, which included several statements indicating that Jennifer Moses was suffering from depression and had thoughts of suicide.

The trial court decided to include entries from both journals for the four months prior to Jennifer Moses’s death. However, the court did not admit all of the journal entries written during this four-month period. Concluding that there was an “overlap” between the two journals, the trial court decided to exclude some handwritten journal entries for days on which Jennifer Moses had also posted an online journal entry. The trial court explained its decision as follows:

The electronic journal, which covers a time, although it overlaps with the written journal, closer to the time of her death, at the beginning has a section in each entry which describes her state of mind that day or mood and some description of how she was feeling. I did find that it was relevant regarding her state of mind. The written journal didn’t necessarily have such statements as to her state of mind. And I believe the entire journal is cumbersome and that we do not need the entire journal admitted into evidence.

Moses objected to this decision, arguing that the court was excluding important evidence regarding Jennifer Moses’s state of mind and the nature of his relationship with his wife.

After the prosecution rested, the defense put on its case. The defense’s theory of the case was that Jennifer Moses had committed suicide. In support of this theory, the defense introduced evidence from several witnesses to show that Jennifer Moses suffered from depression and had thoughts of suicide in the months leading up to September 27, 2002.

The jury heard testimony from four of Jennifer Moses’s medical providers on the issue of her mental health. First, the defense called Dr. William Dickinson, a doctor associated with the Valley General Hospital where Jennifer Moses had been treated for substance abuse and depression. Dr. Dickinson testified that Jennifer Moses suffered from major depression, albeit without suicidal thoughts, as of March 2002. Second, the jury heard from Douglas S. Perry, a chemical-dependency professional who also worked for Valley General Hospital. Perry testified to Jennifer Moses’s depression, cocaine and alcohol abuse, and suicidal thoughts. Third, the defense called Barbara Alexander, a mental health counselor who treated Jennifer Moses from January 2002 through March 2002 at the Hall Health Center of the University of Washington. Alexander testified that she diagnosed Jennifer Moses with major depression. Alexander also testified that major depression can be a life-threatening illness and that people who suffer from major depression tend not to improve if they continue to abuse drugs and alcohol. Finally, the defense called Jacquie Griffin, a record custodian for the Virginia Mason Medical Center. Jennifer Moses received treatment at the Virginia Mason center from April 2002 to August 2002. Because Jennifer Moses’s treatment provider at Virginia Mason had died by the time of trial, Griffin was called to testify about the treatment provider’s notes. Griffin’s testimony indicated that Jennifer Moses continued to suffer from depression and abuse alcohol and cocaine during the spring and summer of 2002. The treatment provider’s notes also indicated that Jennifer Moses had experienced suicidal thoughts.

The defense then sought to introduce testimony from Dr. Lawrence Wilson, an expert on depression. In a preliminary evidentiary hearing outside the jury’s presence, Dr. Wilson explained that he was prepared to testify regarding the nature of Jennifer Moses’s depression and substance abuse, the unlikelihood that Jennifer Moses’s depression would have resolved itself before the date Jennifer Moses died, and the ability of a person who was severely depressed to appear normal to friends and co-workers. (This latter opinion was relevant insofar as it rebutted the government’s lay testimony that Jennifer Moses was not visibly depressed in the final months of her life.) Dr. Wilson was also prepared to testify that several risk factors, such as depression, substance abuse, and access to firearms, heighten the risk of suicide. Additionally, Dr. Wilson was prepared to testify that lay persons do not fully understand the implications of major depression and the connection between these various risk factors and suicide. Dr. Wilson explained to the court that he based his opinions on Jennifer Moses’s mental health records, diary, autopsy report, and interviews with Moses and one of Jennifer Moses’s friends. Although Dr. Wilson was not willing to opine that Jennifer Moses committed suicide, he was prepared to testify that Jennifer Moses fell “into a group of people with an extreme number of severe and significant risk factors for suicide” and that “she continued to suffer [from] major depression ... that continued to the time of her death.”

After hearing argument from both sides, the trial court decided to exclude Dr. Wilson’s testimony. The court gave several reasons for its conclusion. First, it stated that Dr. Wilson’s opinion that persons who suffer from depression, abuse drugs and alcohol, and have access to firearms experience a relatively higher risk of suicide was already within common knowledge of the jury. Second, it concluded that Dr. Wilson’s testimony was cumulative in light of the other evidence introduced by the defense establishing that Jennifer Moses was undergoing treatment for substance abuse, suffered from depression, experienced suicidal thoughts, and had a gun in the house. Third, the court concluded that Dr. Wilson’s remaining testimony-namely, “that 15 percent of those diagnosed with major depression will take their own life at some point in their life”-was not sufficiently probative to outweigh its prejudicial effects and potential to confuse the jury.

Finally, the defense sought to introduce a photograph of Jennifer Moses’s unclothed and emaciated body taken prior to her autopsy in order to show that Jennifer Moses experienced weight loss as a result of an eating disorder. The court ruled the photo inadmissible, concluding that the probative value of the photograph was outweighed by its prejudicial effect on the jury. Moreover, other evidence of Jennifer Moses’s weight loss, including testimony and photos, had been provided to the jury.

The jury convicted Moses of second-degree murder.² The trial court then sentenced Moses to 420 months of incarceration. Moses appealed his conviction and sentence to the Washington Court of Appeals. On September 19, 2005, the appellate court affirmed Moses’s conviction in a reasoned opinion, but vacated his sentence and remanded for resentencing. Moses then appealed his conviction to the Supreme Court of Washington. On May 31, 2006, the Supreme Court of Washington summarily denied Moses’s petition for review.

Moses filed his petition for a writ of habeas corpus in federal court on August 11, 2006. On January 9, 2007, the magistrate judge recommended denying Moses’s petition, and on April 10, 2007, the district court adopted the magistrate judge’s recommendation and denied Moses’s habeas petition. Moses timely filed a notice of appeal on May 10, 2007, and on June 8, 2007, the district court granted Moses a certificate of appealability on all issues.

On appeal, Moses contends that the district court erred in denying his habeas petition. Moses maintains that the state court’s evidentiary decisions deprived him of rights secured by the Constitution, and that the state appellate court’s adjudication of his appeal “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Specifically, Moses claims that: (1) the admission of out-of-court statements made to Dr. Appleton and Tamara Muller violated Moses’s Sixth Amendment right to confrontation; (2) the exclusion of Dr. Wilson’s testimony, the autopsy photograph of Jennifer Moses’s unclothed body, and the select portions of Jennifer Moses’s handwritten journal denied Moses his constitutional right to present his defense; and (3) the admission of opinion testimony from Dr. Harruff, Evan Thompson, and Tamara Muller improperly intruded upon the jury’s constitutionally mandated role, thereby depriving Moses of a fair trial.

II

“[W]e review de novo the district court’s decision to grant or deny a petition for a writ of habeas corpus.” Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir.2004). Because Moses filed his habeas petition after April 24, 1996, his petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). See id. at 965. AEDPA establishes a “highly deferential standard for evaluating state-court rulings.” Visciotti, 537 U.S. at 24, 123 S.Ct. 357 (internal quotation marks omitted). We must deny habeas relief with respect to any claim adjudicated on the merits in a state court proceeding unless the proceeding “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 “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)(1), (2).

The “contrary to” and “unreasonable application of’ clauses in § 2254(d)(1) are distinct and have separate meanings. See Lockyer v. Andrade, 538 U.S. 63, 73-75,123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). “A state court decision is ‘contrary to’ clearly established Supreme Court precedent if the state court applies a rule that contradicts the governing law set forth in Supreme Court cases or if the state court confronts a set of facts materially indistinguishable from those at issue in a decision of the Supreme Court and, nevertheless, arrives at a result different from its precedent.” Lambert, 393 F.3d at 974. “[U]nder 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.” Andrade, 538 U.S. at 75, 123 S.Ct. 1166 (internal quotation marks and alterations omitted). “The ‘unreasonable application’ clause requires the state court decision to be more than incorrect or erroneous. The state court’s application of clearly established law must be objectively unreasonable.” Id. (citations omitted).

“[Cjlearly established Federal law under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Id. at 71-72, 123 S.Ct. 1166 (internal quotation marks omitted). In a series of recent cases, the Supreme Court has provided additional guidance regarding when its precedent constitutes the “correct governing legal principle,” An-drade, 538 U.S. at 75, 123 S.Ct. 1166, for the case before the state court, and thus is “clearly established federal law” for purposes of § 2254(d)(1).

In Panetti v. Quarterman, the Supreme Court determined that a previously established legal principle extended to the facts before the state court, even though the facts were not identical to those of the underlying Supreme Court decision. See 551 U.S. 930, 127 S.Ct. 2842, 2858, 168 L.Ed.2d 662 (2007). The Court considered the habeas petition of a death row inmate who challenged his execution on the ground that he was mentally incompetent. Id. The petitioner requested a competency hearing that would meet the requirements of Ford v. Wainwright, 477 U.S. 399, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986), but the state court rejected his request. The federal district court denied the petitioner’s habeas petition, and the Fifth Circuit affirmed the decision of the district court. The Supreme Court held that Justice Powell’s concurring, opinion in Ford “constitute[d] clearly established law for purposes of § 2254,” Panetti, 127 S.Ct. at 2856 (internal quotation marks omitted), and that it established the following legal principle: “Once a prisoner seeking a stay of execution has made ‘a substantial threshold showing of insanity,’ the protection afforded by procedural due process includes a ‘fair hearing’ in accord with fundamental fairness.” Id. Although Justice Powell did not specify the procedures required by the Constitution, they included certain “basic requirements” of due process. Id.

The Court held that the legal principle established by Ford was applicable to the situation in Panetti even though the facts in that case were not identical to those in Ford:

AEDPA does not require state and federal courts to wait for some nearly identical factual pattern before a legal rule must be applied. Nor does AEDPA prohibit a federal court from finding an application of a principle unreasonable when it involves a set of facts different from those of the case in which the principle was announced. The statute recognizes, to the contrary, that even a general standard may be applied in an unreasonable manner.

Id. at 2858 (internal quotation marks and citations omitted). The Court concluded that under a reasonable application of the Ford standard, the petitioner in Panetti was entitled to the procedural protections enunciated in Ford. The Court further concluded that the state court had adopted procedures that did not meet this standard. Due to the state court’s unreasonable application of Ford, the Court held that AEDPA deference was not applicable. Id. at 2859.

In Panetti, the legal principle established by Ford was directly applicable to the habeas petitioner’s case, and therefore the state court was bound to apply it, regardless of the difference in factual patterns between Ford and Panetti. However, in other cases, the Court has instructed that a legal principle established by a Supreme Court decision is not the “correct governing legal principle,” Andrade, 538 U.S. at 75, 123 S.Ct. 1166, for the case before the state court, and thus not clearly established precedent for purposes of § 2254(d)(1), if a court must modify that principle in order to apply it to a case. See Wright v. Van Patten, — U.S.-, 128 S.Ct. 743, 746-47, 169 L.Ed.2d 583 (2008); see also Carey v. Musladin, 549 U.S. 70, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). In Musladin, a habeas petitioner argued that the conduct of the murder victim’s family, who wore buttons with a photo of the victim during the defendant’s trial, deprived him of his Sixth Amendment right to a fair trial. The state court rejected this argument. On appeal to this court, we held that the state court unreasonably applied clearly established Supreme Court precedent. Musladin v. Lamarque, 427 F.3d 653, 659-60 (9th Cir.2005), rev’d by Carey v. Musladin, 549 U.S. 70, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006). In reaching this determination, we relied on Estelle v. Williams, 425 U.S. 501, 512, 96 S.Ct. 1691, 48 L.Ed.2d 126 (1976), which held that “the State cannot, consistently with the Fourteenth Amendment, compel an accused to stand trial before a jury while dressed in identifiable prison clothes,” and Holbrook v. Flynn, 475 U.S. 560, 571, 106 S.Ct. 1340, 89 L.Ed.2d 525 (1986), which held that the presence of four uniformed state troopers sitting behind the defendants at trial “was not so inherently prejudicial that it denied the defendant a fair trial.” We held that these cases clearly established the legal principle that “certain practices attendant to the conduct of a trial can create such an unacceptable risk of impermissible factors coming into play, as to be inherently prejudicial to a criminal defendant,” and held that the family members’ buttons had created such inherent prejudice. Musladin, 427 F.3d at 656 (internal quotation marks omitted).

The Supreme Court rejected our reasoning because “[b]oth Williams and Flynn dealt with government-sponsored practices,” and “the effect on a defendant’s fair-trial rights of the spectator conduct to which Musladin objects is an open question in our jurisprudence.” Musladin, 549 U.S. at 76, 127 S.Ct. 649. As the Court later explained, the “inherent prejudice test [from Williams and Flynn ], which we thus far have applied only in cases involving government-sponsored conduct, did not clearly extend to the conduct of independently acting courtroom spectators.” Van Patten, 128 S.Ct. at 745 (explaining Musla-din) (internal citations, alterations, and quotation marks omitted). Accordingly, the Court concluded that the state court’s rejection of Musladin’s claim “was not contrary to or an unreasonable application of clearly established federal law.” Musladin, 549 U.S. at 77, 127 S.Ct. 649.

Van Patten, the most recent Supreme Court case on this issue, followed the reasoning in Musladin. In Van Patten, a defendant claimed a violation of his Sixth Amendment right to effective assistance of counsel .because his counsel had participated in a plea hearing by conference call, rather than in person. The state court rejected this argument because the attorney’s performance had been neither deficient nor prejudicial under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Seventh Circuit, however, held that the state court erred in applying Strickland, and that it should have instead applied United States v. Cronic, 466 U.S. 648, 104 S.Ct. 2039, 80 L.Ed.2d 657 (1984), which established the rule that “a presumption of prejudice is appropriate without inquiry into the actual conduct of the trial” in circumstances where there was only a small “likelihood that any lawyer, even a fully competent one, could provide effective assistance.” Van Patten, 128 S.Ct. at 746 (internal quotation marks omitted). Because the Seventh Circuit concluded that Cronic was applicable instead of Strickland, the state court’s failure to apply Cronic was contrary to clearly established federal law. But the Supreme Court reversed, explaining: “No decision of this Court ... squarely addresses the issue in this case ... or clearly establishes that Cronic should replace Strickland in this novel factual context. Our precedents do not clearly hold that counsel’s participation by speaker phone should be treated as a complete denial of counsel, on par with total absence.” Id. at 746 (internal quotation marks omitted). The Court concluded that “[bjecause our cases give no clear answer to the question presented, let alone one in Van Patten’s favor, it cannot be said that the state court ‘unreasonably applied clearly established Federal law.’ ” Id. at 747 (quoting Musladin, 549 U.S. at 77, 127 S.Ct. 649) (alterations omitted).

This series of cases tells us that in order to determine whether a state court failed to apply “clearly established Federal law, as determined by the Supreme Court” for purposes of § 2254(d)(1), wé must distinguish between situations where a legal principle established by a Supreme Court decision clearly extends to a new factual context (as in Panetti) and where it does not (as in Musladin and Van Patten). When engaging in this line-drawing exercise, we have noted that a state court must apply legal principles established by a Supreme Court decision when the case “falls squarely within” those principles, but not in cases where there is a “structural difference” between the prior precedent and the case at issue, or when the prior precedent requires “tailoring or modification” to apply to the new situation. Smith v. Patrick, 508 F.3d 1256, 1259-60 (9th Cir.2007). We have acknowledged that this series of Supreme Court cases “underscores that § 2254(d)(1) tightly circumscribes the granting of habeas relief.” Crater v. Galaza, 491 F.3d 1119, 1123 (9th Cir.2007).

In light of Musladin, Panetti, and Van Patten, we conclude that when a Supreme Court decision does not “squarely address[] the issue in th[e] case” or establish a legal principle that “clearly extend[s]” to a new context to the extent required by the Supreme Court in these recent decisions, Van Patten, 128 S.Ct. at 746, 745, it cannot be said, under AEDPA, there is “clearly established” Supreme Court precedent addressing the issue before us, and so we must defer to the state court’s decision. If the Court’s decisions do provide a “controlling legal standard,” Panetti 127 S.Ct. at 2858, that is applicable to the claims raised by a habeas petitioner without “tailoring or modification” of the standard, Patrick, 508 F.3d' at 1260, the question is then whether the application of that standard was objectively unreasonable, even if the facts of the case at issue are not identical to the Supreme Court precedent. See Panetti, 127 S.Ct. at 2858. It is from this starting point that we address Moses’s petition for habeas relief.

Ill

Moses first contends that the admission of out-of-court statements made by Jennifer Moses and her son to Dr. Appleton and Tamara Muller regarding the November 2001 incident of domestic violence violated his Sixth Amendment right to confront the witnesses against him. The state court rejected this claim, holding that the statements made to Dr. Appleton and Tamara Muller were not testimonial under Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), and therefore did not implicate the Confrontation Clause.

The Sixth Amendment’s Confrontation Clause provides that, “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” In Crawford, the Supreme Court held that the Confrontation Clause gives criminal defendants the right to confront witnesses who make testimonial statements at trial, unless the witness was unavailable to testify and the defendant had a prior opportunity for cross examination. 541 U.S. at 53-54, 124 S.Ct. 1354. In contrast, non-testimonial statements do not implicate the Confrontation Clause. See Whorton v. Bockting, 549 U.S. 406, 127 S.Ct. 1173, 1183, 167 L.Ed.2d 1 (2007) (explaining Crawford).

Although Crawford did not offer a precise definition of testimonial evidence, the Court offered various formulations of the core class of testimonial statements, noting that “[wjhatever else the term covers, it applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or a former trial; and to police interrogations.” 541 U.S. at 51-52, 68, 124 S.Ct. 1354; see also Davis v. Washington, 547 U.S. 813, 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006) (refining Crawford’s analysis of when statements made during a police interrogation are testimonial for purposes of the Sixth Amendment). Crawford’s holding regarding the difference between testimonial and non-testimonial out-of-court statements constitutes “clearly established Federal law” under 28 U.S.C. § 2254(d)(1) for purposes of our AEDPA review of the state appellate court’s decision. See An-drade, 538 U.S. at 71-72, 123 S.Ct. 1166.

The state court applied Crawford, the correct legal rule. Because the court did not arrive at a result different from the result reached by the Supreme Court in an indistinguishable case, we conclude that the state appellate court’s decision was not “contrary to” clearly established Supreme Court precedent under 28 U.S.C. § 2254(d)(1). See Andrade, 538 U.S. at 73, 123 S.Ct. 1166. Nor did the state appellate court’s adjudication of Moses’s Confrontation Clause claim involve an “unreasonable application of’ Crawford.³ 28 U.S.C. § 2254(d)(1). In considering Dr. Appleton’s testimony regarding Jennifer Moses’s out-of-court statements, the state appellate court correctly noted that although Crawford did not provide a “precise articulation” or comprehensive definition of testimony, it did provide the appropriate legal framework for analyzing whether statements were testimonial. Applying state-law precedents interpreting Crawford, the state appellate court concluded that Jennifer Moses’s statements to Dr. Appleton were non-testimonial because they were made for purposes of diagnosis and treatment, rather than to inculpate Moses. We conclude this is not an unreasonable application of the legal principle established by Crawford.

The state appellate court next determined that Jennifer Moses’s statements to Tamara Muller for purposes of treatment were not testimonial under Crawford until Muller informed Jennifer Moses that she had contacted the CPS. The court concluded that because Muller’s statement notified Jennifer Moses of possible legal consequences to her discussion of the domestic violence incident, Jennifer Moses’s subsequent remarks were testimonial and the trial court erred in admitting them. Nonetheless, the state appellate court concluded that this error was harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), because of other, untainted evidence identifying Moses as the assailant in the November 2001 assault.

Assuming (without deciding) that the state appellate court was correct in concluding that the trial court committed constitutional error in admitting Jennifer Moses’s statements after Muller informed her that CPS had been contacted, we must consider whether such constitutional error had a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (internal quotation marks omitted); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 2328, 168 L.Ed.2d 16 (2007). We conclude that there was no such substantial and injurious effect. There was overwhelming evidence that Moses caused Jennifer Moses’s injuries during the November 2001 incident, including the testimony of Dr. Appleton and the testimony of Brian Green, Jennifer Moses’s stepfather, who read into evidence a statement handwritten by Moses admitting to the assault. Therefore, because any constitutional error involved in admitting Muller’s testimony lacked the requisite “prejudicial impact,” habeas relief is unavailable to Moses for this claim. Fry, 127 S.Ct. at 2327.

Finally, the state appellate court considered the admission of Jennifer Moses’s son’s out-of-court statements to Muller. These statements were introduced at trial when the prosecutor asked Muller why she had contacted CPS. Muller explained that because Jennifer Moses’s son had told her that his father had kicked his mother, Muller had a mandatory duty under state law to notify CPS. The state appellate court concluded that the government did not introduce this testimony to prove the truth of the matter asserted (whether Moses kicked Jennifer Moses), but rather to explain a separate relevant issue: why Muller contacted the CPS. In Crawford, the Court noted that the Confrontation Clause “does not bar the use of testimonial statements for purposes other than establishing the truth of the matter asserted.” 541 U.S. at 59 n. 9, 124 S.Ct. 1354 (citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985)). Therefore, the state appellate court’s analysis is consistent with Crawford and does not meet the criteria for habeas relief under 28 U.S.C. § 2254(d)(1).

IV

Moses next maintains that he is entitled to habeas relief because the trial court denied him the opportunity to present evidence on his own behalf. In particular, Moses points to the trial court’s decisions to exclude: (1) Dr. Wilson’s testimony; (2) portions of Jennifer Moses’s handwritten journal; and (3) Jennifer Moses’s autopsy photograph.⁴

A

The state appellate court upheld the trial court’s decision to exclude Dr. Wilson’s testimony because it was cumulative and because the non-cumulative portion of his proposed testimony was not sufficiently probative to outweigh its likely prejudicial and confusing effects on the jury. This analysis was undertaken under the governing Washington evidentiary rule, Rule 702, which admits expert testimony “if it will assist the trier of fact to understand the evidence or a fact in issue.” State v. Farr-Lenzini, 93 Wash.App. 453, 970 P.2d 313, 318 (1999) (internal quotation marks omitted) (explaining that Rule 702 requires that (1) the witness be qualified as an expert and (2) the testimony be helpful to the trier of fact).⁵ Under Rule 702, expert testimony is helpful to the jury if it concerns matters beyond the common knowledge of the average layperson and is not misleading. See id. at 319.

Moses asserts that the state appellate court’s decision is contrary to the Supreme Court’s precedents holding that defendants have a constitutional right to present relevant evidence in their own defense. See Crane v. Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (“[T]he Constitution guarantees criminal defendants a meaningful opportunity to present a complete defense.”) (internal quotation marks omitted). The Supreme Court has indicated that a defendant’s right to present a defense stems both from the right to due process provided by the Fourteenth Amendment, see Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973), and from the right “to have compulsory process for obtaining witnesses in his favor” provided by the Sixth Amendment, see Washington v. Texas, 388 U.S. 14, 23, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967) (explaining that the right to compulsory process would be meaningless if the defendant lacked the right to use the witnesses whose presence he compelled).

However, “[a] defendant’s 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, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998). In fact, “state and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal trials,” id., and the Supreme Court has indicated its approval of “well-established rules of evidence [that] permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury,” Holmes v. South Carolina, 547 U.S. 319, 326, 126 S.Ct. 1727, 164 L.Ed.2d 503 (2006). Evi-dentiary rules do not violate a defendant’s constitutional rights unless they “infringfe] upon a weighty interest of the accused and are arbitrary or disproportionate to the purposes they are designed to serve.” Id. at 324, 126 S.Ct. 1727 (alteration in original) (internal quotation marks omitted); see also Scheffer, 523 U.S. at 315, 118 S.Ct. 1261 (explaining that the exclusion of evidence pursuant to a state evidentiary rule is unconstitutional only where it “significantly undermined fundamental elements of the accused’s defense”). In general, it has taken “unusually compelling circumstances ... to outweigh the strong state interest in administration of its trials.” Perry v. Rushen, 713 F.2d 1447, 1452 (9th Cir.1983).

The Supreme Court has explained these principles in cases where defendants have argued that state evidentiary rules, by their own terms, impinge upon their constitutional right to present a complete defense. Thus, in Holmes, the Court concluded that a defendant’s constitutional rights were violated by an evidentiary rule that prevented the defendant from presenting evidence that a third party had committed the crime if the judge determined that the prosecutor’s case was strong. 547 U.S. at 328-31, 126 S.Ct. 1727. The Court determined that this ev-identiary rule did not “rationally serve” the goal of “excluding evidence that has only a very weak logical connection to the central issues.” Id. at 330, 126 S.Ct. 1727. In Rock v. Arkansas, 483 U.S. 44, 61, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987), the Court reached the same conclusion about an evidentiary rule that limited the defendant’s testimony to matters she remembered before her memory had been hypnotically refreshed because it was “an arbitrary restriction on the right to testify in the absence of clear evidence by the State repudiating the validity of all pos-thypnosis recollections.” Finally, in Washington v. Texas, the Court rejected an evidentiary rule that precluded an alleged accomplice of the defendant from testifying on the defendant’s behalf (though he could testify for the government) because it could not “even be defended on the ground that it rationally sets apart a group of persons who are particularly likely to commit perjury.” 388 U.S. at 22, 87 S.Ct. 1920; see also Crane, 476 U.S. at 690-92, 106 S.Ct. 2142 (identifying a constitutional violation where a state evidentiary rule precluded a defendant from introducing any evidence relating to the unreliability of his own confession); Chambers, 410 U.S. at 302, 93 S.Ct. 1038 (concluding that a defendant’s fair trial rights were violated when the combined effect of two state rules of evidence precluded him from effectively impeaching a witness whom he alleged was the actual culprit). On the other hand, the Supreme Court has upheld an evidentiary rule that excluded polygraph evidence in military trials because it did not “implicate any significant interest of the accused” and because it “serve[d] several legitimate interests in the criminal trial process.” Scheffer, 523 U.S. at 309, 316-17, 118 S.Ct. 1261.

The Supreme Court has not squarely addressed the question whether Rule 702, the rule of evidence relied upon by the state appellate court in this case, or an analogous evidentiary rule requiring a trial court to balance factors and exercise its discretion, “infring[es] upon a weighty interest of the accused” and is “arbitrary or disproportionate to the purposes [it is] designed to serve.” Scheffer, 523 U.S. at 308, 118 S.Ct. 1261 (internal quotation marks omitted). Rather, as a “well-established rule[] of evidence” that permits a court to exercise its discretion in admitting expert testimony when relevant, Rule 702 is more analogous to those evidentiary rules described with approval in Holmes. See 547 U.S. at 326, 126 S.Ct. 1727 (“While the Constitution ... prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury.”).

Indeed, Rule 702 is different in kind from the rules in Washington, Crane, Chambers, Rock, and Holmes. The evi-dentiary rules in those cases, by their terms, required the trial court to exclude crucial evidence that had a critical effect on the trial, with little or no rational justification. In general, the rules precluded a defendant from testifying, excluded testimony from key percipient witnesses, or excluded the introduction of all evidence relating to a crucial defense. In contrast, Rule 702 does not require a trial court to exclude evidence. Rather, it authorizes a court to admit expert testimony “if it will assist the trier of fact to understand the evidence or a fact in issue.” Farr-Lenzini, 970 P.2d at 318 (internal quotation marks omitted). Accordingly, a decision that Rule 702 itself is constitutional would be consistent with Supreme Court precedent.

Because Moses could not successfully argue that Rule 702 by its terms infringed his constitutional right to present a complete defense, Moses’s argument is best interpreted as challenging the trial court’s exercise of discretion in this case to exclude expert testimony. As noted above, the Supreme Court’s cases have focused only on whether an evidentiary rule, by its own terms, violated a defendant’s right to present evidence. These cases do not squarely address whether a court’s exercise of discretion to exclude expert testimony violates a criminal defendant’s constitutional right to present relevant evidence. See Van Patten, 128 S.Ct. at 746. Nor do they clearly establish “a controlling legal standard” for evaluating discretionary decisions to exclude the kind of evidence at issue here. See Panetti 127 S.Ct. at 2858. Therefore, the state appellate court’s determination that the trial court’s exercise of discretion to exclude expert testimony under Rule 702 did not violate Moses’s constitutional rights cannot be contrary to or an unreasonable application of clearly established Supreme Court precedent. See Van Patten, 128 S.Ct. at 746-47; Panetti, 127 S.Ct. at 2858; Musladin, 549 U.S. at 76, 127 S.Ct. 649; cf. Patrick, 508 F.3d at 1260.

Although the Supreme Court has not addressed this issue, several of our prior decisions considered whether a trial court’s discretionary determination to exclude evidence violated a defendant’s constitutional rights. In Perry v. Rushen, 713 F.2d 1447, 1450 (9th Cir.1983), we derived a balancing test to determine when a trial court’s exercise of discretion to exclude evidence under an otherwise valid eviden-tiary rule might violate a defendant’s rights. We refined this test in Miller v. Stagner, 757 F.2d 988 (9th Cir.1985), amended on other grounds, 768 F.2d 1090 (9th Cir.1985), and held that,

In a habeas proceeding, determining whether the exclusion of evidence in the trial court violated petitioner’s due process rights involves a balancing test. In weighing the importance of evidence offered by a defendant against the state’s interest in exclusion, the court should consider [1] the probative value of the evidence on the central issue; [2] its reliability; [3] whether it is capable of evaluation by the trier of fact; [4] whether it is the sole evidence on the issue or merely cumulative; and [5] whether it constitutes a major part of the attempted defense.

Id. at 994; accord Chia v. Cambra, 360 F.3d 997, 1003-04 (9th Cir.2004); Alcala v. Woodford, 334 F.3d 862, 877 (9th Cir.2003).

The dissent relies on this balancing test as part of its AEDPA analysis of the state appellate court’s decision to affirm the exclusion of Dr. Wilson’s testimony. See dis. op. at 768-69. For purposes of AEDPA analysis, however,

[T]he only definitive source of clearly established federal law under AEDPA is the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. While circuit law may be “persuasive authority” for purposes of determining whether a state court decision is an unreasonable application of Supreme Court law, only the Supreme Court’s holdings are binding on the state courts and only those holdings need be reasonably applied.

Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir.2003) (internal citations omitted); see also Crater, 491 F.3d at 1126 (“[Section] 2254(d)(1) renders decisions by lower courts nondispositive for habeas appeals.”); Brewer v. Hall, 378 F.3d 952, 957 (9th Cir.2004). Nor can we conclude that Miller merely “illuminates the application of clearly established federal law as determined by the United States Supreme Court.” Crater, 491 F.3d at 1126 n. 8. Unlike Washington and its progeny, Miller is not concerned with the question whether a given rule of evidence, by its own terms, impinges on defendants’ constitutional rights; rather, the Miller balancing test evaluates whether the trial court used its discretion to unconstitutionally apply an otherwise valid rule. Thus, because the Miller balancing test is a creation of circuit law, rather than a Supreme Court holding, we cannot fault the state appellate court for not employing it, so long as the state’s ultimate disposition of Moses’s appeal is not contrary to or an unreasonable application of the Supreme Court precedent that Miller interpreted. See Casey v. Moore, 386 F.3d 896, 907 (9th Cir.2004).

The dissent concludes otherwise, noting that we have applied the Miller balancing test in the context of AEDPA review. See Chia, 360 F.3d at 1003-04. We did so, however, before the Supreme Court provided further clarification of the bounds of an appellate court’s AEDPA analysis in Musladin, Panetti and Van Patten. As discussed above, these precedents clarified that in the absence of a Supreme Court decision that “squarely addresses the issue” in the case before the state court, Van Patten, 128 S.Ct. at 746, or establishes an applicable general principle that “clearly extends” to the case before us to the extent required by the Supreme Court in its recent decisions, Van Patten, 128 S.Ct. at 745; see also Panetti, 127 S.Ct. at 2858; Musladin, 549 U.S. at 76, 127 S.Ct. 649, we cannot conclude that a state court’s adjudication of that issue resulted in a decision contrary to, or an unreasonable application of, clearly established Supreme Court precedent. Van Patten, 128 S.Ct. at 747. By necessity, Van Patten and Musladin impose limits on the relevance of circuit precedent; they are “clearly irreconcilable,” Miller v. Gammie, 335 F.3d 889, 893 (9th Cir.2003), with the conclusion that circuit law may be used to fill “open question[s]” in the Supreme Court’s holdings for purposes of AEDPA analysis. Musladin, 549 U.S. at 76, 127 S.Ct. 649; see also Crater, 491 F.3d at 1126 & n. 8 (explaining that, in Musladin, the Supreme Court “discussed and accepted” the principle that § 2254(d)(1) imposes “limits on the relevance of circuit precedent”).

Because the Supreme Court’s precedents do not establish a principle for evaluating discretionary decisions to exclude the kind of evidence at issue here, AEDPA does not permit us to rely on our balancing test to conclude that a state trial court’s exclusion of evidence under Rule 702 violated clearly established Supreme Court precedent. Therefore, we cannot agree with the dissent’s argument that Miller is applicable here.

B

Moses next contends that he is entitled to habeas relief because the trial court excluded some portions of Jennifer Moses’s handwritten diary. The trial court admitted medical provider testimony and documentary evidence establishing that Jennifer Moses suffered from depression and experienced suicidal thoughts before her death. The trial court also admitted multiple journal entries indicating that Jennifer Moses was depressed and contemplated suicide. The state appellate court concluded that the trial court abused its discretion in excluding certain handwritten journal entries, but that any error involved was harmless. In light of the evidence admitted by the trial court, even assuming that the trial court’s exclusion of evidence was a constitutional error, we agree that it did not have “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (internal quotation marks omitted).

C

Moses also maintains that the state appellate court’s affirmance of the trial court’s decision to exclude Jennifer Moses’s autopsy photograph was contrary to Supreme Court precedent. We disagree. The state appellate court noted that the autopsy photograph was cumulative because the trial court had already admitted other photographs showing Jennifer Moses’s emaciated body and because multiple witnesses had testified that Jennifer Moses had lost weight in the months prior to her death. The state appellate court concluded that the photograph was properly excluded because it was cumulative and because its probative value was outweighed by its likely prejudicial effects on the jury. This decision was not contrary to, or an unreasonable application of, controlling Supreme Court precedent, see Scheffer, 523 U.S. at 308, 118 S.Ct. 1261, and it therefore does not provide the basis for granting Moses’ habeas petition under our deferential AEDPA standard of review.

V

Finally, Moses urges this court to grant the writ because the trial court’s decision to admit the opinion testimony of Dr. Har-ruff, Evan Thompson, and Tamara Muller violated Moses’s constitutional rights.⁶ In support of this claim, Moses relies on Supreme Court decisions establishing that it is the sole province of the jury to determine questions of credibility and to weigh the evidence adduced at trial. See Goldman v. United States, 245 U.S. 474, 477, 38 5.Ct. 166, 62 L.Ed. 410 (1918); see also United States v. Young, 470 U.S. 1, 18-19, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985) (prosecutor erred by expressing a personal view that the defendant was guilty).

These cases do not support Moses’s contention that the opinion testimony of Dr. Harruff, Evan Thompson, and Tamara Muller improperly intruded upon the province of the jury and thereby deprived Moses of a fair trial. Neither of these cases, nor any other that we have found, supports the general proposition that the Constitution is violated by the admission of expert testimony concerning an ultimate issue to be resolved by the trier of fact. Accordingly, under AEDPA, we must reject Moses’s claims to the contrary. See 28 U.S.C. § 2254(d); Van Patten, 128 S.Ct. at 746-47; Panetti, 127 S.Ct. at 2858; Musladin, 549 U.S. at 76, 127 S.Ct. 649.

That the Supreme Court has not announced such a holding is not surprising, since it is “well-established ... that expert testimony concerning an ultimate issue is not per se improper.” Hangarter v. Provident Life & Accident Ins. Co., 373 F.3d 998, 1016 (9th Cir.2004) (internal quotation marks omitted) (alterations in original). Although “[a] witness is not permitted to give a direct opinion about the defendant’s guilt or innocence .... an expert may otherwise testify regarding even an ultimate issue to be resolved by the trier of fact.” United States v. Lockett, 919 F.2d 585, 590 (9th Cir.1990); see also Fed. R.Evid. 704(a).

Here, Dr. Harruff testified to his opinion as a medical examiner that Jennifer Moses died as a result of a homicide. Dr. Harruff did not testify that Moses murdered Jennifer Moses. Similarly, Thompson did not testify on the ultimate issue; rather, he testified that he classified the death as a homicide based on his expertise as a ballistics expert and his assessment of Jennifer Moses’s wound. Finally, Muller testified that, in her experience, victims of domestic violence are most likely to be killed when they attempt to leave their domestic situation. Like Dr. Harruff and Thompson, Muller did not express an opinion as to whether Moses murdered Jennifer Moses. Thus, our own precedent ratifies the state court’s decision to admit the testimony of Dr. Harruff, Thompson, and Muller. See Lockett, 919 F.2d at 590.

Ultimately, however, for purposes of our AEDPA review, it suffices to determine that the constitutionality of such testimony is “an open question in [the Supreme Court’s] jurisprudence.” Musladin, 549 U.S. at 76, 127 S.Ct. 649. We conclude that the state appellate court’s decision to affirm the trial court’s decision to admit the opinion testimony of Dr. Harruff, Thompson, and Muller was not contrary to or an unreasonable application of Supreme Court precedent.

VI

In sum, AEDPA’s “highly deferential standard for evaluating state-court rulings” directs the conclusion that Moses’s habeas petition must be denied. Visciotti, 537 U.S. at 24, 123 S.Ct. 357 (internal quotation marks omitted). The Supreme Court’s cases do not squarely address any of the three issues Moses identifies in support of his petition for the writ, nor do any of the legal principles established in the cases identified by Moses “clearly extend” to the facts of this case. Van Patten, 128 S.Ct. at 745. AEDPA tethers our habeas review to Supreme Court holdings alone. See 28 U.S.C. § 2254(d); see also Crater, 491 F.3d at 1126 & n. 8. Because the state appellate court’s disposition of Moses’s appeal was not contrary to or an unreasonable application of apposite Supreme Court precedent, we cannot grant the writ.

Where the state appellate court itself identified constitutional error, we conclude that the identified error did not have a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623, 113 S.Ct. 1710 (internal quotation marks omitted); see also Fry, 127 S.Ct. at 2328.

PETITION DENIED.

1 . Because this initial statement of facts is drawn from the state appellate court’s decision, it is afforded a presumption of correctness that may be rebutted only by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1); Hernandez v. Small, 282 F.3d 1132, 1135 n. 1 (9th Cir.2002). Moses does not allege that these preliminary facts are erroneous.

2 . Moses was also convicted on the unlawful possession of a firearm charge following a bench trial.

3 . The government maintains that we should decide this question by holding that Moses forfeited his Confrontation Clause rights by killing Jennifer Moses and thus making her unavailable to testify at trial. We need not reach this argument, as we deny the petition on other grounds.

4 . Moses also contends that the trial court’s evidentiary rulings, when analyzed cumulatively, favored the government because they excluded more defense evidence than prosecution evidence. He argues these rulings deprived him of his due process right to rebut arguments presented by the state and therefore deprived him of his right to a fair trial. Even if Moses had exhausted this issue, he has not explained how the state appellate court’s rejection of these constitutional claims would be "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). Most of the cases Moses cites in support of his argument are inapposite because they pertain to the unique context of capital sentencing proceedings. See Simmons v. South Carolina, 512 U.S. 154, 114 S.Ct. 2187, 129 L.Ed.2d 133 (1994); Skipper v. South Carolina, 476 U.S. 1, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); Gardner v. Florida, 430 U.S. 349, 97 S.Ct. 1197, 51 L.Ed.2d 393 (1977). The remaining case, Ake v. Oklahoma, 470 U.S. 68, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985), is not applicable because it concerns a question not raised in this case, "whether the Constitution requires that an indigent defendant have access to the psychiatric examination and assistance necessary to prepare an effective defense based on his mental condition, when his sanity at the time of the offense is seriously in question.” Id. at 70, 105 S.Ct. 1087.

5 . Rule 702 of the Washington Rules of Evidence states: “If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

6 . We disagree with the state’s contention that this issue was not properly exhausted. The district court correctly concluded that Moses argued this issue to the state appellate court in a manner sufficient to satisfy the requirements of AEDPA’s exhaustion doctrine. See Davis v. Silva, 511 F.3d 1005, 1008-09 (9th Cir.2008).