LIMITED TO QUESTION 3 PRESENTED BY THE PETITION.Question Presented:
1. Can a trial court's unconstitutional exclusion of reliable evidence of third party guilt be deemed harmless error?
2. This Court's decisions in Holmes v. South Carolina __U.S.___, 164 L.Ed.2d 503, 126 S.Ct. 1727 (2006), and House v. Bell, __U.S.__, 2006 U.S. Lexis 4675 (2006), were handed down after the decision of the Ninth Circuit below. Should this Court issue a GVR order in this case, directing the Ninth Circuit to reconsider its decision that the unconstitutional exclusion of reliable evidence of third party guilt can be harmless, in light of Holmes and House?
3. If constitutional error in a state trial is not recognized by the judiciary until the case ends up in federal court under 28 U.S.C. § 2254, is the prejudicial impact of the error assessed under the standard set forth in Chapman v. California, 386 U.S. 18 (1967), or that enunciated in Brecht v. Abrahamson, 507 U.S. 619 (1993)?
Does it matter which harmless error standard is employed?
And, if the Brecht standard applies, does the petitioner or the State bear the burden of persuasion on the question of prejudice?Question:
1) What standard for determining harmless error applies to habeas cases where the constitutional error is not recognized until the case is appealed to federal court? 2) If the Brecht standard applies, does the defense or the prosecution bear the burden of persuasion on the question of injurious influence?