Jeremy J. Godwin v. David Davey, Warden

Prior to a second trial on molestation charges involving his daughter, Petitioner offered to stipulate to the existence of a 1998 sex offense also involving his daughter, but requested that the court follow the previous trial court’s ruling and exclude evidence of the facts underlying the conviction because they were unduly remote, highly inflammatory, and more prejudicial than probative. The trial court rejected Petitioner’s request, finding the evidence was highly relevant to show the defendant had a propensity to molest his daughter and was not unduly remote or prejudicial. In addition, the police detective twice testified that Petitioner fit the “profile” of a child molester. Denying the defense motion for mistrial, the trial judge instructed the jury to disregard and struck the statement from the record. The Federal District Judge determined under 28.U.S.C. § 2254 that relief was unavailable to the defendant because the California Appellate Court’s decision upholding the conviction was not contrary to or did not involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court. The District Judge also denied the Petitioner a Certificate of Appeal. Upon review, the Ninth Circuit did the same. THE QUESTION PRESENTED IS: Was the decision of the Ninth Circuit to deny a Certificate of Appeal pursuant to 28 U.S.C. § 2253(c) under the standards set forth in Miller -El v. Cockrell , 537 U.S. 322 (2003) and Slack v. McDaniel , 529 U.S. 473 (2000) unreasonable because 1) the defendant made