Fry

dissenting.

I respectfully dissent from that portion of the disposition concluding that the exclusion of Pamela Maples’ testimony was harmless error under Brecht v. Abramson, 507 U.S. 619 , 113 S.Ct. 1710 , 123 L.Ed.2d 353 (1993).

Using the Brecht analysis, constitutional error is harmless unless it has a “substantial and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 638 , 113 S.Ct. 1710 .

*625 In performing the Brecht analysis, “we consider the record as a whole,” including the strength of the State’s case. Id.

In my view, the record as a whole militates in favor of a conclusion that exclusion of Ms. Maples’ testimony substantially and injuriously affected the jury’s verdict in this case.

As the district court noted, this was John Fry’s third trial, with the two prior juries having failed to reach a verdict. In this third trial, even in the absence of Ms. Maples’ exculpating testimony, the jury deliberated for five weeks before convicting Fry.

Ms. Maples was the only unbiased witness presented by either side. She also implicated her cousin in the murder for which Fry was on trial. Such testimony is generally recognized as having a…

MEMORANDUM *

After two mistrials on account of hung juries, John Fry was convicted of two counts of first degree murder in California Superior Court. 1 His conviction was affirmed by the California Court of Appeal and the California Supreme Court. Fry’s petition for federal writ of habeas corpus *624 under 28 U.S.C. § 2254 was denied by the district court. We have jurisdiction under 28 U.S.C. § 2253 (a) and we affirm.

The exclusion of Pamela Maples’ testimony involved an unreasonable application of clearly established federal law, because her testimony was “material and would have substantially bolstered [Fry’s] claims of innocence.” Chia v. Cambra, 360 F.3d 997, 1003 (9th Cir.2004). Maples did overhear large portions of a conversation involving her cousin, Anthony Hurtz, in which Hurtz indicated that he had committed a double homicide. Because Maples did hear large portions of this conversation — and because the portions of the conversation Maples did hear involved idiosyncratic facts exactly matching the facts surrounding the murder of Cynthia and James Bell, the victims in this case — we find her testimony to be sufficiently reliable. However, even assuming constitutional…