Raynard Paul Cummings v. MICHAEL MARTEL, Warden, California State Prison at San Quentin

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RAYNARD PAUL CUMMINGS,
Petitioner-Appellant,
v.
MICHAEL MARTEL, Warden,
California State Prison at San
Quentin,
Respondent-Appellee.
No. 11-99011
D.C. No.
2:95-cv-07118-
CBM
ORDER
Filed April 29, 2016
Before: Sidney R. Thomas, Chief Judge, and Diarmuid F.
O’Scannlain and M. Margaret McKeown, Circuit Judges.
ORDER
The opinion filed on August 11, 2015, slip op. 11-99011,
and appearing at 796 F.3d 1135 (9th Cir. 2015), is amended
as follows. At slip op. page 16–17 n.2, replace the current
footnote with the following footnote text:
Chief Judge Thomas’s dissent sidesteps
AEDPA and reviews Turner’s special
relationship prong de novo because, in his
view, the California Supreme Court
improperly layered a prejudice-balancing test

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CUMMINGS V. MARTEL 2
on top of the Turner inquiry. See Thomas
Partial Dissent at 6–7. A close look at the
record reveals the source of this
misapprehension of the court’s opinion. In
the state trial court, Cummings asserted a
claim under California Evidence Code § 352,
and on direct appeal before the California
Supreme Court, he repeatedly asserted he was
prejudiced by La Casella’s testimony. At the
outset of its analysis, presumably in response
to Cummings’s arguments relating to
prejudice, the California Supreme Court noted
its agreement with the trial court that “the
probative value of [La Casella’s] testimony
outweighed any prejudice to Cummings.”
850 P.2d at 37. Significantly, however, the
California Supreme Court continued on to
frame the inquiry as one of due process, not a
mere evidentiary issue governed by a
prejudice-balancing test; quoted extensively
the relevant standards from Gonzalez and
Beto; and carefully distinguished Cummings’s
case with respect to both prongs of Turner.
Id. at 37–38. The California Supreme Court
squarely held: “Neither defendant’s right to a
fair trial, nor his right to a jury trial was
undermined by the admission of LaCasella’s
testimony.” Id. at 38.
With these amendments, Judges O’Scannlain and
McKeown have voted to deny the petition for panel rehearing
and rehearing en banc. Chief Judge Thomas has voted to
grant the petition for panel rehearing and rehearing en banc.

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CUMMINGS V. MARTEL 3
The full court has been advised of the petition for
rehearing and rehearing en banc and no judge has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for en banc or
panel rehearing shall be permitted.

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