Moses

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 *746 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

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…

dissenting:

On September 27, 2002, Jeffrey Moses’s wife, Jennifer, tragically died of a gunshot wound to her head. When police responded to a 911 call from Moses’s mother, Moses claimed that Jennifer had committed suicide. Moses said that Jennifer had been depressed and had come downstairs with a gun, knelt down, and shot herself in the head while Moses tried to take the gun away from her. Moses was tried by jury for premeditated, first degree murder of his wife, and for unlawful possession of a firearm. At Moses’s trial the prosecution argued that Moses had intentionally shot his wife in the back of the head, while Moses countered that Jennifer had committed suicide because of severe depression and drug and alcohol abuse, and that his attempt that night to stop her had failed. Among the prosecution’s evidence was testimony from a medical examiner and a ballistics expert who each concluded, after an examination of forensic factors, that Jennifer’s wounds were likely not self-inflicted, though the evidence permitted the conclusion that suicide had occurred. The prosecution also presented evidence of a prior incident of domestic violence between Moses and his wife. Moses, by…

John Henry Browne, Seattle, WA, for the petitioner-appellant.

Alex A. Kostin, Assistant Attorney General, Olympia, WA, for the respondent-appellee.

Before: RAYMOND C. FISHER, RONALD M. GOULD, and SANDRA S. IKUTA, Circuit Judges.

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 banc as to this amended opinion, in accordance with the Federal Rules of Appellate Procedure.

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…