Clinton K. LaJOIE, Petitioner-Appellant, v. S. Frank THOMPSON, Superintendent, Oregon State Penitentiary, Respondent-Appellee, 217 F.3d 663

Opinion by Judge TASHIMA; Dissent by Judge FERGUSON ORDER TASHIMA, Circuit Judge: The opinion and dissenting opinion filed on January 31, 2000, and reported at 201 F.3d 1166, are withdrawn and the amended opinion and amended dissenting opinion attached to this order shall be filed in their place. With the filing of the amended opinions, Judges B. Fletcher and Tashima vote to deny the petition for panel rehearing. Judge Ferguson votes to grant the petition for panel rehearing. Judge Tashi-ma votes to deny the petition for rehearing en banc and Judge B. Fletcher so recommends.

Judge Ferguson recommends that the petition for rehearing en banc be granted. The full court has been advised of the petition for rehearing en banc and no judge of the court has requested a vote on en banc rehearing. Fed. R.App. P. 35(b). The petition- for panel rehearing and the petition for rehearing en banc are denied. OPINION Oregon state prisoner Clinton K. LaJoie appeals the denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his conviction for rape, sodomy, and sexual abuse of a minor child, “VN”.

LaJoie contends that his Sixth and Fourteenth Amendment rights were violated when evidence of VN’s past sexual abuse by others was excluded, pursuant to Oregon’s rape shield law, Oregon Evidence Code, Rule 412 (“Rule 412”), for failure to give the required 15-day notice of intent to introduce such evidence. Because the exclusion of the evidence was an unreasonable' application of clearly established federal law, as determined by the United States Supreme Court, the district court erred in denying the petition. We therefore reverse and remand. I.

BACKGROUND LaJoie was accused of sexually abusing, orally sodomizing, and raping his housemate Jackie Williams’ niece, VN, when she was approximately seven and eight years old. VN resided with LaJoie and Williams at the time of the alleged sexual assaults. Uncontested evidence shows that VN had been sexually abused by several others and raped by one other man in unrelated incidents. In addition, the Children’s Services Division’s (“CSD”) case file on VN reveals other potential sources of sexual abuse. After several continuances, LaJoie’s trial was set to commence on October 31, 1989.

On October 24, LaJoie filed a notice of intent to offer evidence of past sexual abuse suffered by VN and also filed a motion to compel the production of evidence in the CSD case file pertaining to this abuse. LaJoie sought to introduce evidence of VN’s history of sexual abuse for three purposes: (1) to provide an alternate source of VN’s ability to explain sexual acts; (2) to offer an alternative explanation for the medical evidence of abuse that the prosecution would be offering; and (3) to support LaJoie’s argument that VN’s allegations were false and were invited by CSD caseworkers.

The State moved to strike this evidence based on LaJoie’s failure to give notice 15 days before the start of trial, as required under Rule 412. On October 31, 1989, the day the trial was scheduled to begin, the trial court conducted an in camera review of the CSD file. It concluded that the file contained evidence potentially admissible under Rule 412(2)(b)(B), because it was relevant to rebut or explain medical evidence offered by the State. It also determined that one piece of evidence was relevant to motive or bias of the alleged victim and thus was potentially admissible under Rule 412(2)(b)(A).

The court, nonetheless, excluded the evidence because LaJoie did not meet the 15-day notice requirement. LaJoie made an offer of proof of the excluded evidence to complete the record. Counsel stated that he would generally have relied on the evidence to offer “alternative explanations for the jury’s consideration of prolonged sexual contact.” The specific evidence from the CSD case file he intended to offer was that:

(1) Michael Patterson had raped VN’s brother and that he may have assaulted VN when she was two years old; (2) a boyfriend of VN’s mother, Mike Forrest, may have sexually assaulted VN;

(3) VN’s great-uncle Daniel Leuck had admitted to fondling her rectal and vaginal areas on several occasions;

(4) Brian Dayton, a teenager, had pulled down her pants on one occasion; and

(5) Russell Watkins, another of her mother’s boyfriends, had been convicted of raping and sexually abusing VN. Dr. Scott Halpert testified for the State that he had examined VN and found that she had scarring on her hymen consistent with penetration and sexual abuse. The only evidence the jury heard suggesting any source of sexual abuse other than La-joie was a stipulated statement that VN had reported that Leuck had put his hands down her shorts and touched her front, and that Dayton had pulled her pants down with his sister watching. No evidence was presented that Watkins had been convicted of raping VN.

LaJoie was convicted of rape, sodomy, and sexual abuse, all in the first degree. He was sentenced to consecutive terms totaling 45 years with a mandatory minimum sentence of 10 years. LaJoie appealed his conviction, contending that the trial court’s ruling under the notice provision of Rule 412 denied him his Sixth and Fourteenth Amendment rights. The Oregon Court of Appeals summarily affirmed the trial court’s judgment. See State v. Lajoie, 105 Or.App. 226, 804 P.2d 1230 (1991). On discretionary review, the Oregon Supreme Court affirmed in a divided, 4 — 3, decision. See State v.

Lajoie, 316 Or. 63, 849 P.2d 479 (1993). On December 31, 1996, Lajoie filed this petition for a writ of habeas corpus pursuant to 28 U.S.C. §§ 2241 and 2254. He alleges that the trial court’s exclusion of evidence offered under Rule 412 violated his Sixth Amendment rights of confrontation and compulsory process and his Fourteenth Amendment right to due process. The district court denied LaJoie’s petition. LaJoie filed a timely notice of appeal, and the district court issued a certificate of appealability. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. II.

STANDARDS OF REVIEW We review de novo a district court’s decision to grant or deny a § 2254 habeas petition. See Eslaminia v. White, 136 F.3d 1234, 1236 (9th Cir.1998). The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 1996 U.S.C.C.A.N. (110 Stat.) 1214, applies to LaJoie’s petition because he filed it after the AEDPA’s effective date, April 24, 1996. See Jeffries v. Wood, 114 F.3d 1484, 1499 (9th Cir.) (en banc), cert. denied, 522 U.S. 1008, 118 S.Ct. 586, 139 L.Ed.2d 423 (1997).

Under the AEDPA, “a federal court may grant a writ of habeas corpus if the relevant state-court decision was either (1) ‘contrary to ... clearly established Federal law, as determined by the Supreme Court of the United States,’ or (2) ‘involved an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.’ ” Williams v. Taylor, - U.S. -, 120 S.Ct. 1495, 1519, 146 L.Ed.2d 389 (2000) (quoting 28 U.S.C. § 2254(d)(1)) (emphases and alterations in the original). In Tran v.

Lindsey, 212 F.3d 1143 (9th Cir.2000), we noted the “distinct meanings” of “contrary to” and “unreasonable application of,” as elucidated by Justice O’Connor in Williams: A state court’s decision can be “contrary to” federal law either 1) if it fails to apply the correct controlling authority, or 2) if it applies the controlling authority to a case involving facts “materially indistinguishable” from those in a controlling case, but nonetheless reaches a different result.

A state court’s decision can involve an unreasonable application of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonably.

Id. at 1149-50 (citing Williams, 120 S.Ct. at 1519-20). “We review the determination of what is ‘clearly established Federal law, as determined by the Supreme Court of the United States,’ under 28 U.S.C. § 2254(d)(1), as a question of law which we must decide de novo.” Canales v. Roe, 151 F.3d 1226, 1228-29 (9th Cir.1998). III. DISCUSSION “Whether rooted directly in the Due Process Clause of the Fourteenth Amendment, or in the Compulsory Process or Confrontation clauses of the Sixth Amendment,!] the Constitution guarantees criminal defendants ‘a meaningful opportunity to present a complete defense.’ ” Crane v.

Kentucky, 476 U.S. 683, 690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986) (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984)) (citations omitted). In discussing the Compulsory Process Clause, the Supreme Court has held that “[o]ur cases establish, at a minimum, that criminal defendants have the right to the government’s assistance in compelling the attendance of favorable witnesses at trial and the right to put before a jury evidence that might influence the determination of guilt.” Pennsylvania v.

Ritchie, 480 U.S. 39, 56, 107 S.Ct. 989, 94 L.Ed.2d 40 (1987) (footnote omitted). “The defendant’s right to compulsory process is itself designed to vindicate the principle that the ‘ends of criminal justice would be defeated if judgments were to be founded on a partial or speculative presentation of the facts.’ ” Taylor v. Illinois, 484 U.S. 400, 411, 108 S.Ct. 646, 98 L.Ed.2d 798 (1988) (quoting United States v. Nixon, 418 U.S. 683, 709, 94 S.Ct. 3090, 41 L.Ed.2d 1039 (1974)).

The main purpose of the Confrontation Clause is to ensure a criminal defendant the opportunity to cross-examine witnesses testifying against him. See Delaware v. Van Arsdall, 475 U.S. 673, 678-79, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986). In Michigan v. Lucas, 500 U.S. 145, 111 S.Ct. 1743, 114 L.Ed.2d 205 (1991), the Court reversed the Michigan Court of Appeals’ per se rule that the notice requirement in Michigan’s rape shield law violated the Sixth Amendment in all cases where it was used to preclude evidence of past sexual conduct between a rape victim and a criminal defendant.

See id. at 146, 149-53, 111 S.Ct. 1743. The Court recognized that the Sixth Amendment right to present relevant testimony “may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process.” Id. at 149, 111 S.Ct. 1743 (quoting Rock v. Arkansas, 483 U.S. 44, 55, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987) (quoting Chambers v. Mississippi, 410 U.S. 284, 295, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973))) (internal quotation marks omitted).

The Court emphasized, however, that restrictions on a criminal defendant’s right to confront witnesses and to present relevant evidence “‘may not be arbitrary or disproportionate to the purposes they are designed to serve.’ ” Id. at 151, 111 S.Ct. 1743 (quoting Rock, 483 U.S. at 56, 107 S.Ct. 2704); see also United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998) (citing Rock and Lucas for the proposition).

Although the Court concluded that failure to comply with a rape shield law’s notice requirement “may in some cases justify even the severe sanction of preclusion,” Lucas, 500 U.S. at 153, 111 S.Ct. 1743, “[t]his does not mean, of course, that all notice requirements pass constitutional muster,” id. at 151, 111 S.Ct. 1743. The Court did not reach the issue of whether preclusion was justified in the particular case before it, however, leaving it to the Michigan courts to address “whether, on the facts of this case, preclusion violated Lucas’ rights under the Sixth Amendment.” Id. at 153, 111 S.Ct. 1743.

The Supreme Court, therefore, made clear that whether preclusion is a constitutional sanction must be evaluated on a case-by-case basis. See also Taylor, 484 U.S. at 414-15 & 415 n. 19, 108 S.Ct. 646 (embracing a balancing approach for determining whether preclusion of evidence as a sanction for violating discovery notice requirements violated a criminal defendant’s Sixth Amendment rights). Numerous courts have read Lucas as requiring case-by-case balancing. See, e.g., Wood v.

Alaska, 957 F.2d 1544, 1551-54 (9th Cir.1992) (balancing the rationales underlying Alaska’s rape shield statute and unfair prejudice against the probativeness of the excluded evidence in determining whether a Sixth Amendment violation occurred); Agard v. Portuondo, 117 F.3d 696, 703 (2d Cir.1997) (examining whether New York’s rape shield law, applied to bar cross-examination of victim regarding sexual history, was facially and as applied arbitrary or disproportionate to the purposes it was designed to serve), rev’d on other grounds, — U.S. -, 120 S.Ct. 1119, 146 L.Ed.2d 47 (2000); Stephens v.

Miller, 13 F.3d 998, 1001 (7th Cir.1994) (en banc) (holding that “although the principle of rape shield statutes has been held constitutional, both by this court and the Supreme Court in Michigan v. Lucas, ... the constitutionality of the law as applied remains subject to examination on a case by case basis”); State v.

Cuni, 159 N.J. 584, 733 A.2d 414, 422 (1999) (holding that, under Lucas, the court should not preclude evidence under the rape shield law for procedural non-compliance “if the court finds that under the facts of the specific case preclusion violates the defendant’s right to confront witnesses”); State v. Johnson, 123 N.M. 640, 944 P.2d 869, 876-78 (1997) (holding that trial courts must balance defendant’s right to present a full and fair defense with the state’s interests in each case to determine whether exclusion of evidence under rape shield law is unconstitutional); People v.

Lucas, 193 Mich.App. 298, 484 N.W.2d 685, 687 (1992) (“It is clear from the United States Supreme Court decision in Lucas ... that a determination whether the notice requirement violated a defendant’s right of confrontation must be made case by case.”). In line with the overwhelming majority of decisions interpreting Lucas, including this court’s, at the time the Oregon Supreme Court rendered its decision in LaJoie’s direct appeal, clearly established Supreme Court law mandated a case-by-case balancing approach for determining whether evidence may be precluded under a rape shield law.

The Oregon Supreme Court applied Michigan v. Lucas in LaJoie’s case and concluded that preclusion • of the evidence of VN’s past sexual abuse for LaJoie’s failure to give 15 days’ notice comported with the United States Constitution. See Lajoie, 849 P.2d at 487-90. LaJoie correctly contends, however, that the. court misapplied Lucas in finding that preclusion of the evidence did not violate LaJoie’s constitutional rights.

The' court correctly noted Lucas ’ holding that preclusion of evidence for violation of notice requirements of rape shield laws does not violate the Sixth Amendment, if such a sanction is neither arbitrary nor disproportionate to the purposes of the notice requirement. See id. at 489 (citing Lucas, 500 U.S. at 151, 111 S.Ct. 1743). The court then proceeded, however, to examine in the abstract whether the purposes of Oregon’s rape shield law and its notice requirement justified preclusion as a sanction for non-compliance with the notice provision. See id. at 489-90.

The court noted that the notice requirement was designed to prevent surprise to the prosecution and the alleged victim, avoid undue trial delay, and protect the alleged victim from needless anxiety concerning the scope of the evidence to be produced at trial. See id. at 489. It concluded that the notice requirement was not arbitrary or disproportionate with respect to these intended purposes. See id. at 489-90. .

It never considered or balanced the interests in LaJoie’s particular case, concluding instead that the balancing of the rights of defendants generally with the other legitimate interests was inherent in the rule itself. See id. at 487, 489-90. Because the Oregon Supreme Court did not balance the interests in LaJoie’s particular case, as required by Lucas, the district court erred in concluding that the state court decision was not an unreasonable application of clearly established federal law, as determined by the United States Supreme Court.

Had the Oregon Supreme Court weighed the interests in LaJoie’s particular case, it reasonably could have concluded only that the preclusion of the evidence of VN’s past sexual abuse violated La-Joie’s Sixth Amendment rights. The trial judge correctly found that some of the evidence was relevant to provide an alternate explanation of the medical evidence and therefore fit within one of the exceptions to the general prohibition of sexual behavior evidence. See Rule 412(2)(b)(B).

The prosecution relied on medical evidence of injuries to VN’s hymen, thus inviting the inference that LaJoie must have caused those injuries. Watkins, however, had been convicted of raping VN, a crime that LaJoie correctly points out requires proof of penetration. See Or.Rev.Stat. § 163.305 (providing that “‘sexual intercourse’ has its ordinary meaning and occurs upon any penetration, however slight”); § 163.375 (defining rape in part as sexual intercourse with a person under age 12). Indeed, at oral argument, the State conceded that this evidence was relevant.

Further, LaJoie could have probed the evidence of other sexual abuse to ascertain whether the hymenal injuries could have stemmed from that abuse as well. See United States v. Begay, 937 F.2d 515, 523 (10th Cir.1991)- (finding that evidence of prior rape should not have been excluded under federal rape shield law because prosecutor relied heavily on medical evidence of enlarged hymen in attempting to establish defendant’s guilt). The evidence of VN’s rape by Watkins was also relevant to show that VN could have learned about sexual acts and male genitalia other than through rape by La-Joie. See State v.

Budis, 125 N.J. 519, 593 A.2d 784, 791-92 (1991) (evidence of prior abuse of child victim was relevant to rebut inference that child acquired the knowledge to describe sexual matters from her experience with defendant); State v. Pulizzano, 155 Wis.2d 633, 456 N.W.2d 325, 335 (1990) (rape shield law barring evidence that child victim had alternate source of sexual knowledge was unconstitutional as applied); State v.

Carver, 37 Wash.App. 122, 678 P.2d 842, 843-44 (1984) (evidence of past sexual abuse of minors should have been admitted to rebut the inference that they would not know about such sexual acts unless they had experienced them with defendant). The jury did not hear of the situations from which VN could have gained knowledge about what a sexually-aroused man looks like, or what vaginal penetration was. If this evidence had been admitted, the jury could have concluded that VN knew this from her abuse by Watkins.

Weighing LaJoie’s interest in presenting this evidence against other countervailing interests, we conclude that none of the interests justifying the notice requirement of Rule 412 in the abstract would have been abridged had Lajoie been allowed to use the evidence. The Oregon Supreme Court determined that the 15-day notice period permitted time for the evidence to be carefully screened to determine whether it was relevant or whether its probative value outweighed its prejudicial effect, and guarded against undue trial delay.

In La-Joie’s case, however, the trial court was able to screen the CSD case file within the time available and to decide which portions of the file were relevant. Moreover, the prosecutor had arguments prepared two days later for the hearing on why the evidence should be excluded. Surely, it would not have taken the trial court much longer to take the final step of determining whether the relevant evidence was overly prejudicial and setting the boundaries regarding its admissibility.

In light of the fact that the trial had not begun when LaJoie first gave notice of his intent to rely on the evidence, even granting a short continuance of a few days, assuming one would have been required, would not have upset the proceedings, or otherwise injured the interest of the State, in any significant manner. Nor was the interest in preventing unfair surprise to the prosecution implicated here. The prosecutor in LaJoie’s case had just finished trying the rape case of Watkins, in which the CSD case file was identical. Thus, she was familiar with all the details of VN’s past sexual abuse.

Further, there was no evidence that the failure to give the 15 days’ notice was willful or strategic, rather than neglectful, on the part of LaJoie’s counsel. See Taylor, 484 U.S. at 417, 108 S.Ct. 646 (finding that counsel’s willful misconduct in violating discovery rules justified harsh sanction of preclusion).

The Oregon Supreme Court determined that Rule 412’s notice period also provided protection against harassment of the alleged victim by giving the victim fair warning about what evidence of her past sexual activity would be introduced and by allowing a victim to cease worrying 15 days before trial about what evidence of her past sexual activity would be introduced. See Lajoie, 849 P.2d at 487, 489. We recognize that, at least in some cases, “a State’s interest in the protection of minor victims of sex crimes from further trauma and embarrassment is a compelling one.... ” Maryland v.

Craig, 497 U.S. 836, 852, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990). In this case, however, because the alleged victim was a 10-year old at the time of trial, we conclude that the interest of the victim in eight extra days of repose is far outweighed by the probativeness of the excluded evidence. Even if the purpose of the rape shield statute is disproportionately outweighed by the probativeness of the evidence in a particular case, the evidence may still be constitutionally excluded if it is unduly prejudicial.

See Wood, 957 F.2d at 1551-54 (9th Cir.1992) (holding that no Sixth Amendment violation occurred where the prejudicial effect of the evidence excluded under the rape shield statute outweighed its probative value). Admitting the excluded evidence in this case, however, would not create undue prejudice. The evidence is distinguishable from evidence of an adult or sexually-mature minor’s sexual history which could be improperly used by the jury in deciding whether she was raped.

Rather, the evidence in this case concerned non-consensual sexual abuse of a young child; thus, the jury was unlikely to draw an unfavorable and unwarranted impression of the alleged victim. We conclude that the interests of the State and VN do not outweigh LaJoie’s interest in introducing relevant evidence of the past sexual abuse VN had suffered. LaJoie’s Sixth Amendment rights were violated, because the sanction of preclusion of this evidence in this case was “arbitrary and disproportionate” to the purposes of the 15-day notice requirement.

Therefore, even under a proper application of the Lucas test, the decision of the Oregon Supreme Court to preclude the evidence would still amount to “an unreasonable application of ... clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). In a federal habeas proceeding, “the standard for determining whether habeas relief must be granted is whether ... the error ‘had substantial and injurious effect or influence in determining the jury’s verdict.’ ” Brecht v. Abrahamson, 507 U.S. 619, 623, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (quoting Kotteakos v.

United States, 328 U.S. 750, 776, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946)). LaJoie correctly contends that the jury convicted him without the benefit of the evidence of the past sexual abuse which, in several ways, tended to make it less likely that LaJoie had raped and sexually abused VN.

The evidence the jury heard tending to refute the credibility of VN, including that from a doctor who testified that VN told him that LaJoie never penetrated her, and that from two of VN’s teachers who averred that VN was not an honest child, was not sufficient to mitigate the “substantial and injurious” effect of excluding the evidence of past sexual abuse of VN.

Specifically, the excluded evidence could have allowed the jury to: (1) determine that the scarring on VN’s hymenal ring and on the posterior formix of her vagina might not have been caused by LaJoie; and (2) provide an alternative explanation of VN’s familiarity with sexual acts. In sum, LaJoie’s defense was seriously undermined because the jury heard only that part of the story that implicated him and was not permitted to hear highly probative evidence which the jury could have determined was exculpatory.

The preclusion of this evidence had a substantial and injurious effect on the verdict; thus, the district court erred in denying LaJoie’s petition for writ of habeas corpus. IV.

CONCLUSION The district court erred in concluding that the Oregon Supreme Court’s decision was not an unreasonable application of clearly established United States Supreme Court precedent, because: (1) the Oregon Supreme Court did not examine the interests present in LaJoie’s particular case, as required by Lucas; and (2) preclusion of the evidence of VN’s past sexual abuse as a sanction for LaJoie’s failure strictly to comply with Rule 412’s notice requirement was arbitrary and disproportionate to the aims of the rape shield law’s notice provision.

We therefore reverse the judgment of the district court and remand with directions to issue a conditional writ of habe-as corpus releasing LaJoie from custody, unless he is retried within a reasonable period of time to be determined by the district court. REVERSED and REMANDED. . We use the initials “VN” to protect the identity of the minor victim. . LaJoie also contends that his trial attorney provided ineffective assistance of counsel in failing to comply with the 15-day notice requirement. Because we grant habeas relief on LaJoie's Sixth and Fourteenth Amendment claims, we do not reach this argument. .

Rule 412 provides in relevant part:

(1) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, ... reputation or opinion evidence of the past sexual behavior of an alleged victim of such crime is not admissible.

(2) Notwithstanding any other provision of law, in a prosecution for a crime described in ORS 163.355 to 163.427, ... evidence of a victim's past sexual behavior other than reputation or opinion evidence is also not admissible, unless such evidence other than reputation or opinion evidence: (a)Is admitted in accordance with subsection (3)(

a) and (

b) of this section; and (b)Is evidence that: (

A) Relates to the motive or bias of the alleged victim; or (

B) Is necessary to rebut or explain scientific or medical evidence offered by the state; or (

C) Is otherwise constitutionally required to be admitted. (3)(

a) If the person accused of committing rape, sodomy or sexual abuse ... intends to offer under subsection (2) of this

section evidence of specific instances of the alleged victim’s past sexual behavior, the accused shall make a written motion to offer such evidence not later than 15 days before the date on which the trial in which such evidence is to be offered is scheduled to begin, except that the court may allow the motion to be made at a later date, including during trial, if the court determines either that the evidence is newly discovered and could not have been obtained earlier through the exercise of due diligence or that the issue to which such evidence relates has newly arisen in the case.

Any motion made under this paragraph shall be served on all other parties, and on the alleged victim through the office of the prosecutor. (

b) The motion described in paragraph (

a) of this subsection shall be accompanied by a written offer of proof. If the court determines that the offer of proof contains evidence described in subsection (2) of this section, the court shall order a hearing in camera to determine if such evidence is admissible .... (

c) If the court determines on the basis of the hearing described in paragraph (

b) of this subsection that the evidence the accused seeks to offer is relevant and that the probative value of such evidence outweighs the danger of unfair prejudice, such evidence shall be admissible in the trial to the extent an order made by the court specifies evidence that may be offered and areas with respect to which the alleged victim may be examined or cross-examined. An order admitting evidence under this subsection may be appealed by the government before trial. Or. Evid.Code, Rule 412. “Past sexual behavior” under Rule 412 generally applies to child sexual abuse. See State v.

Wright, 97 Or.App. 401, 776 P.2d 1294, 1298 (1989). . The dissent concludes from Dr. Halpert’s testimony that "VN's medical condition was consistent with repetitive sexual injuries.” Dissent at 677-78. The only opinion, however, that Dr. Halpert rendered "to a reasonable degree of medical certainty” was that VN's "exam was consistent with a child sexual abuse, and that there's been trauma to her hymen and probable penetration of that area.” Later, when asked whether VN's injury “may have been a repetitive injury,” the doctor responded, “I guess my thoughts are much more toward repetitive injury ...

I think if you ask most people who are experts in this area, most of us feel this is more of a sign of repetitive injury.” (Emphasis added.) Thus, Dr. Halpert did not render any opinion to a reasonable degree of medical certainty, contrary to the dissent’s assertion, that VN's injury was "consistent with repetitive injury.” Moreover, and contrary to the dissent’s assertion, see Dissent at 678, as part of LaJoie’s offer of proof, Dr. Halpert testified that he could not rule out Watkins’ rape as the cause of VN's injuries. .

The Sixth Amendment provides in part: "In all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him [and] to have compulsory process for obtaining witnesses in his favor....” U.S. Const, amend. VI. . It is appropriate to look to lower court decisions to determine what law has been "clearly established” by the Supreme Court and the reasonableness of a particular application of that law. See Duhaime v.

Ducharme, 200 F.3d 597, 598 (9th Cir.2000) ("This [the requirement of § 2254(d)(1) ] does not mean that Ninth Circuit caselaw is never relevant to a habeas case after AEDPA. Our cases may be persuasive authority for purposes of determining whether a particular state court decision is an ‘unreasonable application’ of Supreme Court law, and also may help us determine what law is 'clearly established.' ”) (citing MacFarlane v. Walter, 179 F.3d 1131, 1139 (9th Cir.1999) (in turn, citing O’Brien v. Dubois, 145 F.3d 16, 25 (1st Cir.1998))).

See also Tran, 212 F.3d at 1153-54 (post-Williams case continuing to cite and rely on Duhaime). . The Supreme Court's 1991 decision in Lucas was announced in the interim between LaJoie's trial and the Oregon Supreme Court's consideration of his appeal. We look to the decision of the highest state court to address the merits, here the Oregon Supreme Court, in determining whether the state court’s decision is contrary to clearly established federal law.

See Jeffries, 114 F.3d at 1501 (finding that "because the Washington Supreme Court’s decision was based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings and was contrary to clearly established federal law, the Act if applied would not preclude the issuance of a writ of habeas corpus") (emphasis added); Green v.

French, 143 F.3d 865, 880 (4th Cir.1998), cert. denied, 525 U.S. 1090, 119 S.Ct. 844, 142 L.Ed.2d 698 (1999) (focusing inquiry on habeas review on whether the North Carolina Supreme Court’s decision rejecting defendant's allocution claim was contrary to clearly established Supreme Court law). Therefore, it follows that we look to the state of the law at the time the Oregon Supreme Court considered La-Joie’s case, meaning that we include Lucas in the body of law constituting our benchmark of "clearly established Federal law.” .

The dissent catalogs at length all of the "valid reasons” the State had to exclude the evidence in this case. See Dissent at 680. None of those reasons, however, was relied on by the Oregon Supreme Court in upholding exclusion of the evidence, notwithstanding its assertion that it would examine the "specific facts” of this case. Lajoie, 849 P.2d at 481.

As set forth above, without weighing either the reasons in favor of exclusion, as set forth by the dissent, or the reasons in favor of admitting the evidence in this case, the Oregon Supreme Court excluded the evidence solely because of LaJoie’s failure to comply with the notice requirement of Rule 412. See id. at 489-90 ("[W]e conclude that the process required by OEC 412 for the admission of evidence of past sexual behavior of an alleged victim of a sexual crime is neither arbitrary nor disproportionate to the purposes that it is intended to serve.

The process established by OEC 412 is a reasonable condition on the defendant’s exercise of the right to present evidence.... We therefore hold that preclusion of evidence of the complaining witness’ prior sexual behavior under OEC 412 does not violate defendant’s rights under the Sixth Amendment.”). The dissent mistakenly analyzes this case as if the issue were the validity of the substantive purposes served by the rape shield rule. The only issue in this case, however, is whether the purposes served by the notice provision of the rule required exclusion.

Thus, the dissent's reliance on the supposed fact that, in Lucas, "the Supreme Court noted the same reasons I do when it analyzed the constitutionality of applying the notice provision of Michigan's rape shield rule to preclude evidence,” Dissent at 6805 n. 8, is both mistaken and misplaced. The Court clearly did not "analyze the constitutionality of applying the notice provision,” as the dissent contends.

See Lucas, 500 U.S. at 153, 111 S.Ct. 1743 ("We express no opinion as to whether or not preclusion was justified in this case.”) The Court expressly remanded the case "to the Michigan courts to address in the first instance whether Michigan's rape-shield statute authorizes preclusion and whether, on the facts of this case, preclusion violated Lucas' rights under the Sixth Amendment.” Id. . The dissent’s reliance on United States v. Payne, 944 F.2d 1458 (9th Cir.1991), to support a contrary assertion, see Dissent at 6798-99, is misplaced.

In Payne, the prosecution expert testified that sexual intercourse caused the injury at issue. See id. at 1469-70. The proffered other evidence was "heavy petting” which might have involved digital penetration, as to which the prosecution’s expert stated that "Dh]e. wouldn’t expect it to change the size of the vaginal canal” of the 12-year old victim. Id. at 1470. The defendant’s expert did not contest this assertion. Thus, the evidence of the alleged other incident was correctly excluded as having only "minimal, if any, probative value.” Id.

Here, there is no question of the highly probative value of the other acts evidence which involved sexual penetration (rape) of VN by Watkins. Additionally, the prosecution’s expert could not say whether Watkins’ actions caused VN’s injury. Thus, Payne is unhelpful, much less controlling. . The dissent contends that this "is not correct.” Dissent at 676 n. 4.

Although, in response to the court’s question whether the Watkins conviction "[sjhould ... not have been allowed," counsel for the Stale first responded "I think it may have been allowed [and] the trial court reached the merits of the 412 analysis," counsel tiren immediately added, "the trial court could probably could have without using its discretion have decided that that [the Watkins conviction] was relevant in this case.” If the court "could have” decided it was relevant, it obviously was relevant. .

The dissent contends that "our Court rejected the same argument on indistinguishable facts in United States v. Torres, 937 F.2d 1469, 1474 (9th Cir.1991).” Dissent at 676. In Torres, however, the alleged other act of abuse occurred “approximately six months after the acts” that were at issue in the case— and well after the victim had reported the abuse at issue. Id. at 1471. Moreover, nothing in the record indicates that the subsequent, other act involved any form of penetration. See id.

Here, none of the evidence of alleged other acts of abuse admitted at LaJoie's trial involved penetration, although Watkins had been convicted of previously raping VN during the same time period as the incidents with which LaJoie was charged. Finally, VN was familiar with the male anatomy as displayed on an anatomically correct doll and stated “he tried to make it fit but it just wouldn't fit.” The admission of Watkins’ conviction for raping VN would have placed before the jury evidence that VN was familiar with the act of penetration from events other than those allegedly involving LaJoie.

Again, the case is unhelpful, much less controlling. . As it turned out, the trial did not start as scheduled on October 31, 1989, but was continued until November 3. . Although it is conceivable that the same state court error may fall under both the "contrary to" and the "unreasonable application of” prongs of § 2254(d)(1), see Tran, 212 F.3d at 1149-50, because we have concluded that the Oregon Supreme Court’s application of Lucas was an unreasonable application of clearly established federal law, we need not examine whether it was also "contrary to” clearly established federal law. .

This case is unlike Tague v. Richards, 3 F.3d 1133 (7th Cir.1993), on which the dissent relies. See Dissent at 682-83. We simply do not find "overwhelming evidence against LaJoie.”