                             UNITED STATES DISTRICT COURT
                             FOR THE DISTRICT OF COLUMBIA

 LISA LEWIS,

                        Plaintiff,

                        v.                            Case No. 1:16-cv-02437 (TNM)

 STEVEN T. MNUCHIN, in his official
 capacity as U.S. Secretary of the Treasury,

                        Defendant.

                                     MEMORANDUM OPINION

       Lisa Lewis works at the U.S. Department of the Treasury. In 2011, she and another

Treasury employee, Evin Gossin, applied for a promotion. He was selected; she was not. Ms.

Lewis now brings this case against Steven Mnuchin in his official capacity as Secretary of the

Treasury, alleging that the Department’s decision to promote Mr. Gossin and not her was based

on unlawful race and gender discrimination. The Court disagrees, finding that Mr. Gossin was

chosen because of his performance evaluations, qualifications, and superior application scores.

Because there are no genuine issues of material fact, and because he is entitled to judgment as a

matter of law, the Court will grant Secretary Mnuchin summary judgment.

                                                 I.

       Beginning in 2002, Ms. Lewis worked as a Personnel Security Technician in the Office

of the Comptroller of the Currency. Second Am. Compl. 2. She “performed her duties in a

satisfactory manner and received satisfactory performance evaluations.” Id. at 3. Her direct

supervisor was Ron Shelden, a Caucasian man. Id. She is African American.
        Mr. Shelden evaluated Ms. Lewis’s performance annually. These evaluations consisted

of numerical ratings of six “Skill Elements,” an overall summary score, and narrative comments.

See Def.’s Ex. 10, ECF No. 23-1 at 80-82. The Skill Elements assessed, among other things, an

employee’s teamwork, administrative knowledge, and organizational, technical, and

communication skills. Id. Each Element was assigned a rating ranging from one to four points,

with four being the best possible score. Overall performance was also rated on the four-point

scale. Id.

        In Fiscal Year 2010, Mr. Shelden assigned Ms. Lewis an overall score of three. Id. at 81.

She also received a score of three for each of the Skill Elements. Id. In his narrative remarks,

Mr. Shelden noted that Ms. Lewis “consistently demonstrated professionalism and established

effective working relationships with management, employees, peers, and external customers

. . . .” Id. at 82. He added that she “made solid contribution[s]” to the team, and he praised her

for “exhibit[ing] significant growth during this appraisal period.” Id.

        In Fiscal Year 2011, Mr. Shelden again assigned a rating of three to Ms. Lewis’s overall

performance. See Def.’s Ex. 3, ECF No. 23-1 at 31. 1 She scored a three on five of the Skill

Elements. Def.’s Ex. 12, ECF No. 23-1 at 104. For the sixth element, Communications and

Interpersonal Skills, she received the maximum score of four. Mr. Shelden described the year as

“very challenging” for the Office. Id. at 105. He stated that Ms. Lewis “met the many

challenges this year presented” and “perform[ed] her job in a productive manner . . . .” Id.

Another reviewer, Ron Bell, complimented her “pleasant and effective customer satisfaction

skills,” and described her as “conscientious in her work.” Id.

1
  Though Ms. Lewis’s performance evaluation for FY 2011 did not list her Summary Rating, Mr.
Shelden testified that he assigned her overall performance a score of three. Ms. Lewis does not contest
this testimony.

                                                    2
       Mr. Gossin, a Caucasian male, was also a Security Technician supervised by Mr.

Shelden. Second Am. Compl. 3. Like Ms. Lewis, in Fiscal Year 2010, Mr. Gossin received an

overall performance score of three. Def.’s Ex. 11, ECF No. 23-1 at 92. But unlike her, on all but

two of the Skill Elements, he received the maximum score of four. Id. In his narrative

comments, Mr. Shelden wrote that Mr. Gossin “continues to distinguish himself as an integral

part” of the team, adding that his “skill sets and initiative are invaluable.” Id. at 94. He also

described Mr. Gossin as “an outstanding contributing member” of the office. Id.

       For Fiscal Year 2011, Mr. Gossin received an overall performance score of four. Def.’s

Ex. 13, ECF No. 23-1 at 117. He also received fours on five out of the six Skill Elements. Id.

Mr. Shelden noted that Mr. Gossin was “instrumental” to the team’s success during a difficult

year, and that he “perform[ed] his job in a highly efficient and effective manner.” Id. at 118.

Mr. Bell added that Mr. Gossin was a “self-starter, quick study, and [was] always ready to

volunteer to take on additional tasks, particularly in an effort to learn a new skill or new

program.” Id.

       Mr. Gossin’s performance led Roger Mahach, Mr. Shelden’s supervisor, to explore the

possibility of promoting him. Mr. Mahach asked the human resources department (“HR”) to

“conduct a desk audit of Mr. Gossin,” who he believed “was doing work that was above his NB-

IV [pay] grade.” Def.’s Ex. 2, ECF No. 23-1 at 14. Noting that there were multiple employees

with Mr. Gossin’s job title and pay grade, HR recommended that “we should announce the

position to give all a fair chance for promotion.” Id.

       That position—Security Specialist with a higher NB-V pay grade—was then publicly

announced. See Def.’s Ex. 14, ECF No. 23-1 at 129. Both Ms. Lewis and Mr. Gossin applied.

HR certified that both candidates were “highly qualified” and sent their applications to Mr.

                                                  3
Mahach, the office’s designated “selecting official.” Pl.’s Ex. B, ECF. No. 26-1 at 35-36.

Because there were fewer than ten qualified applicants for the position, HR told Mr. Mahach that

he had three selection options: HR could rank the applicants, Subject Matter Experts (SMEs)

could rank the applicants, or Mr. Mahach could conduct interviews himself. Id. at 36. He chose

the second option. Id.

       So two SMEs, Mr. Shelden and D’Mona Boykin, participated in an application ranking

panel. Id. Ms. Boykin, an African-American female, was an IT Specialist in the Security and

Compliance Services unit. Def.’s Ex. 8, ECF No. 23-1 at 70. She and Mr. Shelden evaluated the

candidates’ resumes and their knowledge, skills, and abilities (“KSAs”). Id. at 71. These

materials were evaluated using assessment questions drawn from the job announcement. Id.

       Ms. Boykin awarded Ms. Lewis’s application a score of 12 out of 18. Id. She awarded

Mr. Gossin’s application the maximum possible score of 18. Id. at 72. One factor that “weighed

heavily” in his favor, she explained, was his training in Lean Six Sigma, a process improvement

methodology. Id. While Mr. Gossin was “working on his black belt,” Ms. Lewis had not yet

been awarded the lower “green belt” certification. Id. Ms. Boykin also noted that Mr. Gossin’s

resume “identified a number of accomplishments that he had achieved in his tenure with [the

office] and elsewhere.” Id. He “provided examples as to how he accomplished” these

achievements. Id. By contrast, Ms. Lewis “said that she did some things, but did not explain

how she accomplished them.” Id.

       Mr. Shelden also ranked Mr. Gossin higher. He awarded Ms. Lewis’s application a score

of ten and Mr. Gossin’s a score of 18. Def.’s Ex. 9, ECF No. 23-1 at 76. He noted that Mr.

Gossin “[s]howed evidence of fully meeting the requirements of each assessment question.” Id.

Ms. Lewis, however, “showed no evidence of emergency management program or information

                                                4
security program experience.” Id. He also highlighted her lack of a Lean Six Sigma “Greenbelt

or Blackbelt certification.” Id. Finally, he noted that she had not conducted any “highly

controversial personnel security adjudications.” Id.

        Based on the “wide difference” in the two applicant’s scores, HR certified Mr. Gossin as

the “Best Qualified” candidate and sent this information to Mr. Mahach. Pl.’s Ex. B, ECF No.

26-1 at 36. Mr. Mahach stated that he did not conduct any interviews or select anyone else for

the position because “only one name was referred to [him] by HR and that was . . . Evin Gossin.”

Def.’s Ex. 2, ECF No. 23-1 at 12-13.

        Shortly after being told that she did not receive a promotion, Ms. Lewis filed a complaint

alleging race- and sex-based discrimination with the Equal Employment Opportunity

Commission. Second Am. Compl. 1. The Commission ruled against her and denied her request

for reconsideration. Id. at 2. She then brought this case after exhausting the administrative

remedies available to her. 2

        Despite the SMEs’ unanimous conclusion that Mr. Gossin was the stronger applicant for

the promotion and two years of superior performance reviews in his favor, Ms. Lewis believes

his selection is attributable to invidious discrimination. She claims that her supervisors

“groomed” Mr. Gossin for the promotion, preferring him because of his race and sex in violation

of Title VII of the Civil Rights Act. Second Am. Compl. 10, 11. She contends that while he was

given permission to receive Lean Six Sigma training, she was denied it. Id. at 10. She also

suggests that Mr. Gossin was given “more face time with management” and “extra adjudication

assignments.” Id. Finally, she alleges that Mr. Mahach “asked Mr. Gossin for a list of his

2
  The Court has federal question jurisdiction to consider the merits of this case pursuant to 28 U.S.C. §
1331.

                                                     5
training and experience so [he] could tailor the qualifications” in the job posting to ensure that

Mr. Gossin would be selected. Id. at 11.

       Secretary Mnuchin concedes that Mr. Mahach sought to promote Mr. Gossin. See Def.’s

Statement of Undisputed Material Facts, ECF No. 23 at 3. But he did so, the Secretary argues,

because of Mr. Gossin’s “superior qualifications and performance of duties.” Def.’s Mot. for

Summ. J., ECF No. 23 at 11 (“Def.’s Mot.”). The Secretary thus urges the Court to conclude

that this was a “legitimate, non-discriminatory reason” for not selecting Ms. Lewis. Id.

                                                  II.

       To prevail on a motion for summary judgment, a movant must show that “there is no

genuine dispute as to any material fact and the movant is entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).

A factual dispute is material if it could alter the outcome of the suit under the substantive

governing law. Anderson, 477 U.S. at 248. A dispute about a material fact is genuine “if the

evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. “[A]

party seeking summary judgment always bears the initial responsibility of informing the district

court of the basis for its motion, and identifying those portions of the pleadings, depositions,

answers to interrogatories, and admissions on file, together with the affidavits, if any, which it

believes demonstrate the absence of a genuine issue of material fact.” Celotex Corp v. Catrett,

477 U.S. 317, 323 (1986). Once the movant makes this showing, the non-moving party bears the

burden of setting forth “specific facts showing that there is a genuine issue for trial.” Anderson,

477 U.S. at 250.

                                                  6
       When ruling on a motion for summary judgment, a court must consider all facts and

inferences in the light most favorable to the non-moving party. McCready v. Nicholson, 465

F.3d 1, 7 (D.C. Cir. 2006).

                                                  III.

       Before considering the merits of Ms. Lewis’s claims, a preliminary matter warrants brief

discussion. Secretary Mnuchin suggests that “because the Plaintiff’s ‘Statement of Facts’ does

not comply with Local Civil Rule 7(h), the Court should assume that the facts identified in

Defendant’s [Statement of Undisputed Material Facts] are admitted . . . .” Def.’s Reply to Pl.’s

Opp. 3, ECF No. 27 (“Def.’s Rep.”).

       Local Rule 7(h) requires a party opposing a motion for summary judgment to submit a

statement enumerating all material facts the party contends are genuinely disputed and thus

require trial. See LCvR 7(h); see also Court’s Standing Order 6, ECF No. 20. This Rule “assists

the district court to maintain docket control and to decide motions for summary judgment

efficiently and effectively.” Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101

F.3d 145, 150 (D.C. Cir. 1996). A court may strike the non-movant’s statement for failure to

comply with the Rule. Id. at 154.

       Here, Ms. Lewis’s Statement of Facts does not explicitly admit or deny the material facts

identified by the Secretary. See Pl.’s Opp. to Def.’s Mot. for Summ. J. 2-14, ECF No. 26 (“Pl.’s

Opp.”). Instead, it is “[r]eplete with factual allegations not material to [Ms. Lewis’s] substantive

claims,” and it “repeatedly blend[s] factual assertions with legal argument.” Jackson, 101 F.3d

at 153. Treating Ms. Lewis’s Statement as compliant would “undermine the purposes of the rule

by improperly placing the burden on the [C]ourt, rather than on the opposing party or his

counsel, to winnow the wheat from the chaff.” Id. (cleaned up). Thus, to the extent that her

                                                 7
Statement does not explicitly deny or controvert a material fact contained within the Secretary’s

Statement, the Court will treat that fact as conceded. See id. at 154.

                                                  IV.

        Turning to the substance of the parties’ arguments, the Court finds that the Secretary has

proffered a legitimate, nondiscriminatory reason for the decision not to promote Ms. Lewis. And

she has failed to produce evidence that would allow a reasonable jury to conclude that this reason

was merely pretextual. So the Court concludes that the Secretary is entitled to summary

judgment.

        Title VII of the Civil Rights Act makes it unlawful for an employer to “discriminate

against any individual with respect to his compensation, terms, conditions, or privileges of

employment, because of such individual’s race, color, religion, sex, or national origin.” 42

U.S.C. § 2000e-2(a)(1). Title VII discrimination claims are evaluated under the McDonnell

Douglas framework. See McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). This

framework requires a plaintiff to establish a prima facie case of discrimination. Id. at 802. Once

this showing is made, the burden shifts to the employer to provide a legitimate,

nondiscriminatory reason for the adverse employment action. Id. If the employer meets that

burden, the plaintiff must then show that the employer’s proffered reason was merely pretextual.

Id. at 804.

        But, at the summary judgment stage, when “an employer has asserted a legitimate, non-

discriminatory reason for the decision, the district court need not-and should not-decide whether

the plaintiff actually made out a prima facie case under McDonnell Douglas.” Brady v. Office of

Sergeant at Arms, 520 F.3d 490, 494 (D.C. Cir. 2008) (emphasis in original). Rather, it need

only “resolve one central question: Has the employee produced sufficient evidence for a

                                                 8
reasonable jury to find that the employer’s asserted non-discriminatory reason was not the actual

reason and that the employer intentionally discriminated against the employee on the basis of

race, color, religion, sex, or national origin?” Id.

       Ms. Lewis has suffered an adverse employment action—she was not promoted. And her

employer has asserted a legitimate, nondiscriminatory reason for the decision. The Department

contends that “the eventual selectee had superior qualifications and his performance of his duties

was exemplary, superior to that of the Plaintiff.” Def.’s Mot. at 7. Many facts support this

assertion. Mr. Gossin received a higher overall performance score in 2011 and received higher

Skill Element scores in both 2010 and 2011. See Def.’s Ex. 10-13. His application for

promotion also received higher scores from both ranking panel members. See Def.’s Ex. 8, 9.

Thus, the only question to be resolved is whether a reasonable jury could “nonetheless find

discriminatory animus.” Paulk v. Architect of the Capitol, 79 F. Supp. 3d 82, 87 (D.D.C. 2015).

A reasonable jury could make no such finding.

       Ms. Lewis offers several allegations in support of her contention that the decision to

promote Mr. Gossin was in fact discriminatory. She claims, for example, that the Secretary

“relie[d] on subjective evaluations and comparisons of Ms. Lewis’s work performance with that

of Mr. Gossin,” and that “[g]iving Mr. Gossin a higher subjective evaluation fits the stereotype

of white males needing to advance in their careers at the expense of black females.” Pl.’s Opp.

at 3. She contends that “[a]fter Mr. Gossin joined the staff, management assigned adjudications

exclusively to [him],” thereby depriving Ms. Lewis of opportunities to gain necessary

experience. Id. at 5. She also claims that her supervisors offered Mr. Gossin Lean Six Sigma

training but never offered this training to her. Id. Finally, she suggests that “Mr. Mahach spent

more face time with Mr. Gossin than he did with her,” and that management was “grooming”

                                                   9
Mr. Gossin to move up in the organization. Id. at 6. Other employees, she argues, received no

such grooming. Id.

       These arguments are unavailing. The record shows that the evaluations of Mr. Gossin

and Ms. Lewis were objective. Two reviewers participated in the ranking panel—a Caucasian

male and an African-American female. Both thought that Mr. Gossin was better qualified. See

Def.’s Ex. 8, ECF No. 23-1 at 71-72; Def.’s Ex. 9, ECF No. 23-1 at 76. They arrived at this

conclusion after scoring each applicant across several KSAs. And they also considered each

applicant’s annual performance reviews, which again featured a blend of quantitative and

qualitative assessments. See Def.’s Ex. 10-13.

       Moreover, even if the reviewers relied on subjective criteria, Ms. Lewis fails to present

any evidence that her race or gender motivated their decisionmaking. Nothing in record suggests

that Ms. Boykin preferred or was instructed to prefer Mr. Gossin because he was a white male.

See, e.g., Def.’s Ex. 8 at 73 (Ms. Boykin’s uncontroverted sworn declaration that neither race nor

gender factored into her treatment of the applicants). Instead, Ms. Lewis tries to discredit Ms.

Boykin’s evaluation by suggesting that she “is not a subject matter expert in the work of the

security specialists at [Ms. Lewis’s office].” Second Am. Compl. at 9. But Ms. Boykin has

“worked in the security arena for more than 10 years,” was familiar with the work of Ms.

Lewis’s office, and had experience reviewing similar applications and vacancy announcements.

Def.’s Ex. 8, ECF No. 23-1 at 71.

       Similarly, nothing in the record suggests that Mr. Shelden’s evaluations were based on

racial or gender-based animus. Indeed, in his reviews of Ms. Lewis’s performance, he spoke

highly of her “solid contributions,” “significant growth,” and productivity. See Def.’s Ex. 10,

                                                 10
12. In scoring her application for a promotion, Mr. Shelden noted only that she lacked some of

the experience and training that Mr. Gossin’s application showed. Def.’s Ex. 9.

        More broadly, Ms. Lewis suggests that the “Defendant’s normal practice for selections is

to let the manager just select a candidate when there are ten (10) or fewer candidates rated as

qualified.” Pl.’s Opp. at 11. The office, she says, “normally does not use subject matter

experts.” Id. It was only after she was rated “as one of the best qualified” applicants that

“management elected to have SMEs conduct a new rating.” Id.

        But this deviation from the office’s routine practice was laudable, not suspicious. Indeed,

as Ms. Lewis herself notes, Mr. Mahach testified that the process chosen “may result in

identification of one applicant as being clearly better qualified than any other, making the

selection unbiased and defensible.” Id. (citing the deposition testimony of Mr. Mahach). Mr.

Mahach could have promoted Mr. Gossin unilaterally, but he surrendered his prerogative to a

neutral gender- and racially-mixed panel. Ms. Lewis seeks, in effect, to portray Mr. Mahach’s

efforts to rid the review process of the appearance of any bias as an indication of his supposed

bias.

        This argument lacks merit. Had Mr. Mahach simply chosen Mr. Gossin despite the

existence of another qualified candidate, he would face many of the same claims Ms. Lewis now

brings. Seeking to ensure that a promotion decision is free from bias or the appearance thereof

cannot fairly be treated as evidence of that bias. This is particularly true when, as here, there is

no evidence of bad faith, ulterior motive, or pretext. In short, the record would not permit a

reasonable jury to find that the process used to evaluate Mr. Gossin and Ms. Lewis was

discriminatory.

                                                 11
       Ms. Lewis’s contention that she was deprived of vital experiences and face time with

management because of her race and gender fares no better. She admits, for instance, that the

“higher scores that [Mr. Gossin] received” in his annual performance evaluations “might have

made a difference in the amount of . . . face time with management and types of assignments that

Mr. Gossin was given.” Def.’s Ex. 3, ECF No. 23-1 at 30. She further admits that, while her

office has a system to appeal performance evaluations, she did not appeal either her FY 2010 or

FY 2011 scores. Id. at 31-32. She also acknowledges that it was reasonable for her supervisors

to treat a “better performing employee” differently. Id. at 21. And she offers only

unsubstantiated allegations to support her contention that Mr. Gossin was given preferential

treatment because he is a white male. See, e.g., id. at 24-25 (describing her supervisors as “good

old boys . . . a group of white men who stick together and who want to advance one another).

This is not enough. See Royall v. Nat’l Ass’n of Letter Carriers, AFL-CIO, 507 F. Supp. 2d 93,

110 (D.D.C. 2007) (“[T]he plaintiff has provided no evidence at all that [the decision] was

motivated by his employer’s discriminatory intent, and that is the question that the Court must

answer.”).

       Ms. Lewis also attributes considerable significance to the Lean Six Sigma training she

alleges her supervisors denied her. She contends that, other than Mr. Gossin, neither she nor

“any other employees” in the office were offered the opportunity to earn a Lean Six Sigma

“Green Belt” certification. Pl.’s Opp. at 5. But during a deposition, she acknowledged that

requests for training in her office were made through the “TLMS system,” and that she never

“fill[ed] out a TLMS form requesting Greenbelt training.” Def.’s Ex. 3, ECF No. 23-1 at 40.

She also acknowledged that Juan Mestre, a Latino male, participated in a Green Belt training

program in 2012. Id. at 41-42.

                                                12
       Ms. Lewis suggests that she did not formally request this training because “we were told

there only could be one and that person had already been chosen.” Id. She adds that

management restricted access to the trainings because of “budget cuts.” Pl.’s Opp. at 6. And she

claims that, by the time Mr. Mestre’s training request was approved, her office was under new

management. Def.’s Ex. 3, ECF No. 23-1 at 42.

       Taking all these explanations as true, Ms. Lewis still fails to demonstrate that she was

denied access to the trainings she sought because of her race or gender. Nothing in the record,

for instance, permits an inference that her employers used budget cuts and restraints as a pretext

for discrimination. And employers are, of course, free to allocate limited resources in the

manner that they deem appropriate, so long as this allocation is not discriminatory. No

reasonable jury could conclude that management’s decisions about training constituted racial or

sex-based animus.

       Finally, Ms. Lewis contends that Mr. Gossin was “groomed” for a promotion, that the

new job was created for him, and that the vacancy announcement was tailored to match his skills

and experiences. Pl.’s Opp. at 6, 8-10. Perhaps. But there is nothing improper with a supervisor

identifying and rewarding a superior employee. And even if these decisions were improvident or

unfair to Ms. Lewis given her long tenure at Treasury, they are not, without more, legally

actionable.

       Title VII “does not authorize a court to become a super-personnel department that

reexamines an entity’s business decisions.” Barbour v. Browner, 181 F.3d 1342, 1346 (D.C. Cir.

1999). And “charges of unfairness, no matter how well-founded, do not by themselves prove

unlawful discrimination.” Paulk, 79 F. Supp. 3d at 87. Put simply, Ms. Lewis does not rebut the

Secretary’s evidence that any decisions to accelerate Mr. Gossin’s career rather than hers were

                                                13
taken because Mr. Gossin is a high-achieving employee rather than a white male. Her claims

thus fail.

                                               V.

        For these reasons, the Defendant’s Motion for Summary Judgment will be granted. A

separate order will issue.

                                                                     2019.01.07
                                                                     14:37:03 -05'00'
Dated: January 7, 2019                              TREVOR N. McFADDEN, U.S.D.J.

                                             14


                    NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                               File Name: 15a0443n.06

                                                  No. 13-5414
                                                                                FILED
                              UNITED STATES COURT OF APPEALS                                   Jun 12, 2015
                                   FOR THE SIXTH CIRCUIT                                   DEBORAH S. HUNT, Clerk

HOWARD WALTER THOMAS,                                              )
                                                                   )
        Petitioner-Appellant,                                      )
                                                                   )
v.                                                                 )       ON APPEAL FROM THE
                                                                   )       UNITED STATES DISTRICT
STANTON HEIDLE,                                                    )       COURT FOR THE EASTERN
                                                                   )       DISTRICT OF TENNESSEE
        Respondent-Appellee.                                       )
                                                                   )
                                                                   )

        BEFORE:           GIBBONS and COOK, Circuit Judges; GWIN, District Judge.*

     GIBBONS, J., delivered the opinion of the court in which COOK, J., joined in full, and
GWIN, D.J., joined except for Part IV.C.

        JULIA SMITH GIBBONS, Circuit Judge. Howard Walter Thomas appeals the district

court’s denial of his petition for a writ of habeas corpus seeking relief from his convictions in

Tennessee for murder, attempted murder, robbery, and kidnapping.                         This court granted a

certificate of appealability as to a single issue: whether the state court erred when it excluded the

testimony of a defense expert who planned to testify to some of the potential flaws—and the

scientific bases of the flaws—in an eyewitness’s identification of Thomas as the perpetrator. In

excluding the expert evidence, the trial court relied on then-existing state precedent—since

overruled—that effectively made expert testimony on eyewitness identification per se

        *
           The Honorable James S. Gwin, United States District Judge, United States District Court for the Northern
District of Ohio, sitting by designation.
No. 13-5414
Thomas v. Heidle

inadmissible. Thomas challenges the exclusion as a violation of his rights under the Due Process

Clause of the Fourteenth Amendment, and/or the Compulsory Process or Confrontation clauses

of the Sixth Amendment, pursuant to Chambers v. Mississippi, 410 U.S. 284, 302 (1973), and its

progeny. We hold that the exclusion did not amount to a violation of clearly established federal

law. Even if it had, any error would have been harmless. We therefore affirm.

                                                         I.

        John and Yvonne Cook were driving their van from Wisconsin to vacation in North

Carolina on the morning of March 23, 1991.1 Yvonne was asleep on a bedroll in the back of the

van. She woke up when John pulled off the interstate in Knoxville, Tennessee. It was morning

and was raining heavily. Once the van was stationary, John turned on the map light and reached

for the atlas on the dashboard. Yvonne heard him say, “Oh my God,” followed by an explosion

and a “pop.” He slumped toward her in the seat and she noticed that he was bleeding heavily,

mostly from his ear.

        The assailant broke the window and opened the driver-side door, causing the van’s dome

lights to switch on. He began pushing John out of the driver’s seat. Yvonne, sitting on the floor

almost between the two front seats, unlatched John’s seatbelt. The assailant pushed John into

Yvonne’s arms and took his place in the driver’s seat. Yvonne had a “full facial view” of the

man as he got into the driver’s seat. Now sitting mere inches from the front seat, she noticed that

the man had laid a gun across his lap with the barrel pointing at her head.

        1
           Except where otherwise indicated, the facts presented here are those set forth by the Court of Criminal
Appeals of Tennessee in Thomas v. State, 298 S.W.3d 610 (Tenn. Crim. App. 2009), which cross-refers to that
court’s previous decision in State v. Thomas, No. E2003-02090-CCA-R3-CD, 2005 WL 735040 (Tenn. Crim. App.
Mar. 30, 2005). This court “accept[s] the state court’s determination of a factual issue unless the petitioner upsets
the presumption by clear and convincing evidence.” Jackson v. Bradshaw, 681 F.3d 753, 759 (6th Cir. 2012).
Thomas does not challenge the state court’s factual findings in this appeal.

                                                        -2-
No. 13-5414
Thomas v. Heidle

       The man drove onto the interstate and drove speedily for fifteen to twenty minutes. He

refused Yvonne’s request to release them so that she could find medical help for John. By

keeping pressure on John’s neck, she hoped to keep him alive. Despite her efforts, she felt his

heart stop beating after around ten minutes. When she again begged the assailant to stop, he

said, “[D]on’t look at me. I’m going to kill you, too.” He exited the interstate onto a two-lane

rural road before pulling over on the side of the road and demanding cash from Yvonne. She

reached into her purse and retrieved an assortment of ten- and twenty-dollar bills from John’s

wallet, totaling somewhere between five hundred and a thousand dollars. She handed the money

over to the assailant, her hands covered with her husband’s blood.

       The driver ordered Yvonne to exit the car. He got out of the driver’s seat, walked around

to the back of the van, and dumped John’s then-lifeless body onto the ground. “It was beginning

to get light” outside by this time. Yvonne stood up right next to the assailant. He ordered her

not to look at him and to get down on her hands and knees. He tried to load his gun while

pointing it at her head. He struggled to do so because he was wearing gloves. When Yvonne

begged for her life, he told her, “I’m not going to rot in some fucking prison because you can

identify me.” At that time, another car came down the road, its lights shining on Yvonne. This

caused the assailant to flee in the van.

       She described these events to Knoxville Police Department (KPD) officers who soon

arrived on the scene. Yvonne also tried to retrace the scene while riding with them. Later, at the

police station, she gave a detailed description of the attacker. She said that he was very young,

no older than twenty-two and perhaps younger than seventeen. She believed he was around five

feet, five inches tall. He had a “bandanna-type cloth” over his head, down to his nose, and had

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Thomas v. Heidle

medium brown hair with around three inches hanging down at the back. Police found the van the

same day but did not recover any fingerprints and did not locate a suspect.

        After Yvonne returned home to Wisconsin, a psychiatrist suggested that she undergo

hypnosis. She did so in order to “help do something to solve the case.” She explained that the

hypnosis put her in a state of “deep concentration and relaxation,” but that it did not change her

mental image of the assailant. After the hypnosis, a police sketch artist drew a composite of the

suspect based on Yvonne’s description. She concluded that the sketch did not “look exactly like

the person,” rating it seven out of ten for its likeness to the assailant, but “believed it was the best

that we could do.” During the year after John’s death, she also viewed several photographic and

video lineups, none of which contained Thomas’s picture. She noted some similarities in

appearance, but did not positively identify anyone.

        In 2000, KPD officers interviewed a resident of Atlanta, Georgia, by the name of Mary

Storm. She provided the names of two suspects in Knoxville: Howard Walter Thomas and

Ernest Salyer. Officers spoke to Salyer and, based on his statement, arrested Thomas and

charged him with felony-murder. In May 2000, the KPD told Yvonne they had arrested a

suspect. A friend then sent her a report from a Knoxville newspaper of the arrest. Directly

beneath a picture of John was a picture of Thomas as he appeared in 2000.

        Thomas was indicted in Tennessee state court for first-degree premeditated murder, first-

degree felony murder, especially aggravated robbery, especially aggravated kidnapping, and

attempted first-degree murder. The state filed notice of intent to seek the death penalty.

        Before trial, Thomas moved to suppress Yvonne’s identification testimony on the bases

that it was influenced by hypnosis and that it was the product of an overly suggestive

identification.   The court denied the motion after an evidentiary hearing but permitted an

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Thomas v. Heidle

interlocutory appeal. But the Tennessee Court of Criminal Appeals denied the application for

interlocutory appeal and the Tennessee Supreme Court declined to review the case.

       Thomas also gave pre-trial notice of his intent to introduce testimony from Dr. Elizabeth

Loftus, an expert in eyewitness identification. After Loftus furnished a report and testified at a

hearing, the court excluded her testimony, holding that it was inadmissible under Tennessee law.

Specifically, then-existing state precedent—subsequently overruled—held that expert testimony

on the subject of eyewitness identification was per se inadmissible under the state’s rules of

evidence. The court denied Thomas’s motion for reconsideration and refused permission to take

an interlocutory appeal.

       Thomas was tried in late April and early May 2003. When asked to identify the assailant

in the courtroom, Yvonne walked toward Thomas, without objection, said, “You’re the person

that murdered my husband,” and pointed at him. When asked if she had any reason to identify

the wrong person, she replied, “Of course not.” She maintained that Thomas’s picture in the

newspaper report had no impact on her identification, which was based solely “on the incident.”

She noted that Thomas’s hair “seem[ed] a little darker” at the time of trial than the assailant’s

was at the time of the crimes and that Thomas had facial hair at trial. But she explained that

these differences had no impact because “[t]he profile and the facial features are all the same.”

She also identified a picture of Thomas as he looked in 1990, around eight months before the

incident, in which he had brown hair and no facial hair.            On cross examination, she

acknowledged that another photograph—taken three weeks before the killing—also depicted

Thomas, even though he then had black hair and facial hair.

       Yvonne testified that, while in the van with the assailant, she focused largely on her

husband and on the gun pointed in her direction. Nonetheless, she maintained that she looked at

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Thomas v. Heidle

the person in the driver’s seat because she had significant interaction with him while trying to

convince him to stop the van. She mostly saw him in profile because of her position relative to

his while he was driving. Although she had not seen any profile shots in the photo arrays, she

had seen the profile of potential suspects in a video lineup. On that occasion, she identified

“number four”—who was not Thomas—as having the same profile and body language as the

assailant. Thinking he was a very strong possibility, she requested a sample of his voice but

never received it.

       Ernest Salyer testified that he and Thomas were “[b]est friends, like brothers,” and that he

had known Thomas since Ernest was fourteen or fifteen years old. Early in the morning of

March 23, 1991, Thomas called him and asked for a ride from a car wash. When Ernest arrived,

Thomas was wearing a bandana around his head. He had blood on his jacket and jeans and was

carrying a rifle wrapped in a blanket or a sheet. According to Ernest, Thomas told him he had

“killed somebody,” and later elaborated, saying that “he [ran] across the interstate and shot in a

vehicle, jumped in it and drove them to Norris Freeway.” Once there, Thomas apparently said

that he “got the woman out and he was going to shoot her and started reloading his gun and it got

jammed and a car come and scared him and he took off.” Ernest testified that they then returned

to his mother’s house, where his mother washed Thomas’s bloodstained clothes, believing he

had been in a fight. They next went to Ernest’s grandmother’s house, where they hid the rifle, a

“.22 semi-automatic.” On their return to his mother’s house, Ernest testified that Thomas gave

Ernest’s sister, Sammie, a blood-stained twenty-dollar bill and told her to buy something for her

son.

       Joyce Salyer, Ernest’s mother, also testified. She said that Thomas called her house early

in the morning on March 23, 1991, asking for Ernest. When Ernest returned with Thomas, she

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Thomas v. Heidle

testified that she washed Thomas’s clothes because they were stained with blood and that he said

he had been in a fight. She also corroborated that Thomas gave Sammie a twenty-dollar bill that

“had red on it” and “looked like blood.” Joyce later became suspicious about the story she had

been told. After she watched the news report on the murder and asked Ernest, he told her what

Thomas had done. When she learned about the gun, she asked Ernest to retrieve it from her

mother’s house because her mother “didn’t need to be involved in this.” Joyce testified that she

put Thomas’s clothes in a plastic bag and gave them to her mother to burn.

       Joyce’s mother, Goldie Storm, testified that Ernest and Thomas went to her house with a

.22 rifle at around 11:00 a.m. on March 23. She agreed to keep the gun, and it remained in a

closet at her house until two days later, when the two men came back and removed it. She also

testified that Joyce gave her Thomas’s clothes and that she burned them with the garbage.

Sammie testified that Thomas gave her a twenty-dollar bill with a red mark on it but said that she

did not know what the mark was and did not see Thomas with an entire pile of bills.

       Sandy Buckner, the defendant’s friend, testified that she was working at a twenty-four-

hour convenience store on the morning of March 23. Thomas came into the store early in the

morning and, at around 5:00 a.m., she gave him a ride home. She remembered that he was

wearing boots, blue jeans, and a leather jacket, and that he had a bandana in his pocket or on his

head. When he returned to the store a few days later, Buckner noticed that he was dressed

differently than usual and that his hair was now black. He told her that he had changed his hair

color because he was “afraid that he would . . . look like the guy in the newspaper.”

       Loretta Strange also testified. Strange was dating Thomas in March 1993. Between that

time and the time of trial, however, she married and divorced Ernest Salyer. Strange said that

she and Thomas were watching television around two weeks after the crimes and that Thomas

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Thomas v. Heidle

said, “I’m glad there’s not cops like [those on the television] here [or] I’d already be arrested.”

Asked to explain, he apparently said, “The guy on the interstate, I did that, and if there were cops

like that here, I’d already be arrested.” Later in 1991, she and Thomas were walking in the

woods and—when they reached a freeway exit close to Thomas’s house—he said, “This is where

I killed that guy . . . . [T]his is where I did it. I sat up here. I shot at cars, and I hit somebody.”

On another occasion, he said that he “accidentally” hit somebody while shooting at cars. Strange

asked what happened after he shot the person. According to her testimony, Thomas then

explained:

        He got in the van. He made the woman hold her husband as he drove her around.
        I don’t know exactly where he drove her to. He’d had a conversation with her
        saying that he was going to have to kill her because he wasn’t going to prison and
        that she was the only witness. He was actually going to kill her. He had her
        outside of a van fixing to shoot her. A car came along; scared him. He got in the
        van and left.

        He threatened to kill Strange if she ever told anyone. When Thomas first told her about

the crimes, she thought he was “just talking to be talking,” given his tendency to exaggerate and

“[t]alk tough.” She also noticed that Thomas would only talk about the incident when he was

drunk. She later came to believe him, however, “after he showed me the trail and it was

something that he had said on more than one occasion.” Strange’s testimony about how she

learned of the killing conflicted with her earlier account: when she initially spoke to the police,

she claimed that she was at Joyce’s house when Thomas called and asked Salyer to pick him up

at the car wash.

        Strange also testified that, shortly after March 23, Thomas said that his “black denim

jacket” with “beads and leather patches on it” had “gone.” He also dyed his hair black, “so that

it looked blue in the light.” Before March, she explained, he had “cut his hair and became kind

of clean cut looking for a little while.”

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Thomas v. Heidle

       By stipulation, the court admitted the testimony of Dr. Francis Jones, a retired pathologist

who performed John Cook’s autopsy. He concluded that the cause of death was “two small

caliber-.22 gunshot wounds to the head.” The state also elicited testimony from four witnesses

who had been involved in the investigation as officers with the KPD and the Knox County

Sheriff’s Department.

       After the state rested, Thomas elected not to put on any evidence. The jury acquitted

Thomas on the felony murder count and returned guilty verdicts as to all other charges. Based

on Yvonne’s wishes, the state withdrew its notice of intent to seek the death penalty. At a

separate sentencing hearing, the court sentenced Thomas to life in prison for premeditated

murder, twenty-two years for especially aggravated robbery, and twenty-two years for especially

aggravated kidnapping, all to be served concurrently with the life sentence. The court also

sentenced Thomas to twenty-five years for attempted first-degree murder, to be served

consecutively to the other sentences.

       On direct appeal, the Tennessee Court of Criminal Appeals affirmed Thomas’s

convictions but reduced his sentences for attempted first-degree murder, especially aggravated

robbery, and especially aggravated kidnapping. State v. Thomas, No. E2003-02090-CCA-R3-

CD, 2005 WL 735040, at *1 (Tenn. Crim. App. Mar. 30 2005). The Tennessee Supreme Court

denied permission to appeal. The United States Supreme Court denied Thomas’s petition for

certiorari. Thomas v. Tennessee, 126 S. Ct. 1475 (2006). Thomas next sought state post-

conviction relief. The trial court denied the petition, the Tennessee Court of Criminal Appeals

affirmed the denial, and the Tennessee Supreme Court denied permission to appeal.

       Thomas’s writ of habeas corpus followed, seeking relief on multiple grounds. The

district court denied the petition and also denied a certificate of appealability.     Thomas v.

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Thomas v. Heidle

Carlton, No. 3:10-cv-22, 2013 WL 1249601, at *20 (E.D. Tenn. Mar. 26, 2013). Thomas filed a

notice of appeal and requested a certificate of appealability from this court. This court granted

the application “as to [Thomas’s] claim that his rights were violated by a per se rule barring

expert proof on the unreliability of eyewitness identification.”

                                                 II.

       The single question at issue in this case is whether Thomas is entitled to habeas relief

based on the state court’s per se rule barring expert testimony on the unreliability of eyewitness

identification. The answer must begin with a detailed review of the rule at issue and its

application in Thomas’s case.

       Rule 702 of the Tennessee Rules of Evidence provides: “If scientific, technical, or other

specialized knowledge will substantially assist the trier of fact to understand the evidence or to

determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience,

training, or education may testify in the form of an opinion or otherwise.” In State v. Coley, 32

S.W.3d 831 (Tenn. 2000), a 3-2 majority of the Tennessee Supreme Court read Rule 702 as

essentially precluding expert testimony on the reliability of eyewitness identification.      The

majority concluded that “[e]yewitness testimony has no scientific or technical underpinnings

which would be outside the common understanding of the jury; therefore, expert testimony is not

necessary to help jurors ‘understand’ the eyewitness’s testimony.” Id. at 833–34. The court also

noted that a defendant can adequately test an eyewitness’s memory with cross-examination, that

jury instructions can guide the jury in its consideration of credibility, and that the proposed

expert testimony could confuse or mislead the jury or cause the jury to abandon its role as the

finder of fact. Id. at 836–37. Thus, the court held that “general and unparticularized expert

testimony concerning the reliability of eyewitness testimony, which is not specific to the witness

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Thomas v. Heidle

whose testimony is in question, does not substantially assist the trier of fact.” Id. at 838. The

type of “general and unparticularized testimony” at issue in Coley was similar to the type of

evidence that Thomas sought to admit through his expert, Loftus. The expert in Coley planned to

discuss:

       1. the process of eyewitness identification; 2. the relationship between stress and
       memory of an event; 3. cross-racial identification; 4. the confidence the witnesses
       have in the accuracy of their identifications and the actual accuracy of their
       identifications; 5. the effect of time on the accuracy of memory; and 6. the
       suggestibility of the photographic line-up used in this case.

Id. at 833. In the present case, Loftus explained that her scientific expertise did not enable her to

opine on “whether [Yvonne Cook’s identification] is accurate or not.” Nonetheless, she planned

to apply the general principles from the field to the specific circumstances of the case. She

reviewed police reports, Yvonne’s interview from the day of the killing, the composite sketch of

the assailant, and the newspaper article that Yvonne saw soon after Thomas’s arrest. She

identified “factors present in the current case that are known to create problems for accurate

eyewitness testimony.”      These included extreme stress and fright, “weapon focus,” an

“extraordinarily long retention interval,” and identification based on a “highly suggestive

newspaper article.” Loftus stated that hypnosis can increase a witness’s confidence. She further

explained that confidence is malleable—meaning it is influenced by suggestive information—

and is “only weakly related to accuracy.” She explained, moreover, that “[m]any of the factors”

she planned to discuss “are not clearly understood by jurors, and some are even in conflict with

misconceptions that jurors have about the workings of memory.” Although she could not

comment specifically on the accuracy of the identification in the case, she could “correct some of

the misperceptions” some jurors have about memory, giving the jury a scientific basis to “make

its own decision.”

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Thomas v. Heidle

       After the evidentiary hearing, the trial court found as follows:

       The proffered testimony of Dr. Loftus is remarkably similar to the testimony
       considered in the Coley case. Specifically, Dr. Loftus’ opinion included
       information regarding the process of identification, the relationship of stress to
       memory, the difference between confidence in identification and actual accuracy
       of identification, the effect of passage of time on the identification and the
       suggestibility of photograph[s] presented to the witness in this case. The only
       significant difference between the testimony proffered in this case and that of
       Coley is that there is no cross-racial consideration presented in this case. The
       court did not find anything in Dr. Loftus’ testimony to be of a more specific
       nature than that addressed in Coley. Therefore, the court finds that the evidence is
       per se inadmissible.

       The Tennessee Court of Criminal Appeals rejected Thomas’s claim that the exclusion of

Loftus’s testimony violated his due-process rights. In particular, the court held that the proposed

testimony was not critical to his defense. Thomas, 2005 WL 735040, at *25. We consider below

whether that state-court decision entitles Thomas to habeas relief.

       The language of both the Coley court and the trial court in Thomas’s case suggests,

perhaps, that there would be room for expert testimony on eyewitness identification in some

circumstances, provided it is not “general and unparticularized.” See Coley, 32 S.W.3d at 838.

In practice, however, the rule has functioned as a flat bar on expert testimony in this area.

Indeed, in a subsequent case, the Tennessee Supreme Court characterized the holding of Coley as

establishing a rule that “no one, regardless of credentials or experience and no matter how

questionable the evidence, can provide testimony on the issue of eyewitness identification.”

State v. Copeland, 226 S.W.3d 287, 300–01 (Tenn. 2007).

       But four years after Thomas’s trial, the Tennessee Supreme Court reversed course,

explicitly overruling Coley in its unanimous opinion in Copeland, 226 S.W.3d 287.                It

acknowledged “the educational training of the experts and the empirical science behind the

reliability of eyewitness testimony.” Id. at 299. The court also recognized “that neither cross-

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Thomas v. Heidle

examination nor jury instructions on the issue are sufficient to educate the jury on the problems

with eyewitness identification.” Id. at 300. Rather than maintaining the per se exclusion, the

court gave trial courts discretion to assess the reliability of eyewitness-identification testimony as

they would assess any other expert evidence under Rule 702. Id. at 300 (citing McDaniel v. CSX

Transp., Inc., 955 S.W.2d 257 (Tenn. 1997)). Tennessee courts now admit expert testimony on

eyewitness identification if it appears that the expert’s opinion is “based on relevant scientific

methods, processes, and data, and not upon an expert’s mere speculation.” Id. at 301 (quoting

McDaniel, 955 S.W.2d at 265).

                                                  III.

        The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) provides that a

federal court may not grant a writ of habeas corpus after a state court has adjudicated the case on

the merits unless the state court’s decision:

        (1) resulted in a decision that was contrary to, or involved an unreasonable
        application of, clearly established Federal law, as determined by the Supreme
        Court of the United States; or (2) resulted in a decision that was based on an
        unreasonable determination of the facts in light of the evidence presented in the
        State court proceeding.

28 U.S.C. § 2254(d).

        A decision is “contrary to” clearly established law if “the state court applies a rule that

contradicts the governing law set forth in [the Supreme Court’s] cases,” or if “the state court

confronts a set of facts that are materially indistinguishable” from a Supreme Court decision and

nevertheless arrives at a different result. Williams v. Taylor, 529 U.S. 362, 405–06 (2000). An

“unreasonable application” of clearly established federal law occurs “if the state court identifies

the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably

applies that principle to the facts of the [petitioner’s] case.” Id. at 413.

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Thomas v. Heidle

       “Even a general standard may be applied in an unreasonable manner.”             Panetti v.

Quarterman, 551 U.S. 930, 953 (2007). A federal court need not therefore “‘wait for some

nearly identical factual pattern before a legal rule must be applied.’” Id. (quoting Carey v.

Musladin, 549 U.S. 70, 81 (2006) (Kennedy, J., concurring in judgment)). Rather, a federal

court may hold that a general principle was applied unreasonably on facts “‘different from those

of the case in which the principle announced.’” Id. (quoting Lockyer v. Andrade, 538 U.S. 63, 76

(2003)). But habeas relief may only be granted “in cases where there is no possibility fairminded

jurists could disagree that the state court’s decision conflicts with [the Supreme] Court’s

precedents.” Harrington v. Richter, 131 S. Ct. 770, 786 (2011). “Put another way, ‘a state

prisoner must show that the state court’s ruling on the claim being presented in federal court was

so lacking in justification that there was an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.’” Abby v. Howe, 742 F.3d 221, 226

(6th Cir. 2014) (quoting Harrington, 131 S. Ct. at 786–87).

       When reviewing the district court’s denial of a habeas petition, this court reviews the

district court’s legal conclusions de novo and its factual findings for clear error. Jackson v.

Bradshaw, 681 F.3d 753, 759 (6th Cir. 2012).

                                               IV.

       “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 (1986) (citations omitted) (quoting California v.

Trombetta, 467 U.S. 479, 485 (1984)). The Supreme Court recognizes that “[f]ew rights are

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Thomas v. Heidle

more fundamental than that of an accused to present witnesses in his own defense.” Taylor v.

Illinois, 484 U.S. 400, 408 (1988) (citing Chambers v. Mississippi, 410 U.S. 284, 302 (1973)).

       But even this fundamental interest may “‘bow to accommodate other legitimate interests

in the criminal trial process.’” Rock v. Arkansas, 483 U.S. 44, 55 (1987) (quoting Chambers,

410 U.S. at 295)). The Constitution allows states “broad latitude” to implement rules excluding

evidence from criminal trials. United States v. Scheffer, 523 U.S. 303, 308 (1998). These rules

only violate a defendant’s right to present a defense if they are “arbitrary” or “disproportionate to

the purposes they are designed to serve.” Rock, 484 U.S. at 56. The Supreme Court has held

that the exclusion of evidence is arbitrary or disproportionate “only where it has infringed upon a

weighty interest of the accused.” Scheffer, 523 U.S. at 308 (citing Rock, 484 U.S. at 58;

Chambers, 410 U.S. at 302; Washington v. Texas, 388 U.S. 14, 22–23 (1967)). Even if the

exclusion of evidence has infringed upon a weighty interest of the accused in an arbitrary or

disproportionate manner, the consequent constitutional error must be reviewed for harmlessness

pursuant to Brecht v. Abrahamson, 507 U.S. 619 (1993). See Ferensic v. Birkett, 501 F.3d 469,

472 (6th Cir. 2007).

       This case therefore presents three sub-issues. First, did the exclusion of the expert

testimony on eyewitness identification infringe upon Thomas’s weighty interest based on clearly

established Supreme Court law? Second, if so, did it do so in a way that was—again according

to clearly established law—arbitrary or disproportionate to the purpose the exclusion was

designed to serve? Finally, if it did, was the error harmless?

                                                 A.

       We have previously held, applying clearly established law announced by the Supreme

Court, that a criminal defendant has a “weighty” interest in having an expert on eyewitness

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Thomas v. Heidle

identification testify in a case in which the prosecution relied on eyewitness evidence. See

Ferensic, 501 F.3d at 478 (citing Scheffer, 523 U.S. at 308). The clearly established law to be

considered under AEDPA only extends to law that the Supreme Court—not this court—has

announced. 28 U.S.C. § 2254(d); see also Renico v. Lett, 559 U.S. 766, 778–79 (2010); Carey v.

Musladin, 549 U.S. 70, 72–78 (2006); Coles v. Smith, 577 F. App’x 502, 507–08 (6th Cir. 2014)

(discussing the impact of Renico). But we are bound by our prior precedents when they have

determined—based on Supreme Court case law—that a particular law is clearly established.

Smith v. Stegall, 385 F.3d 993, 998 (6th Cir. 2004) (“We are . . . bound by any prior Sixth Circuit

decisions concluding that federal law on a particular issue has been ‘clearly established’ by

certain holdings of the Supreme Court.”).         Here, we are bound by the Ferensic court’s

determination that the relevant interest was weighty because, as we will explain, that case and

the present case involve the same material circumstances and the same clearly established

Supreme Court law.

       In Ferensic, the state trial court ruled that the defense expert on eyewitness identification

could testify provided the defendant furnished a copy of the expert’s report to the state at least

two months before trial. Id. at 471. But the defendant turned over the report only eleven days

before trial. Id. The trial court excluded the expert evidence because it was too late for the

prosecution to retain its own expert in the field without delaying trial. Id. This court affirmed

the district court’s grant of habeas relief. Id. at 484. It reasoned that the exclusion of the expert

testimony—an exclusion that infringed the defendant’s weighty interest—was both arbitrary and

disproportionate because lesser sanctions were available and the government was not prejudiced

by the late production of the expert report. See id. at 478. Finally, the court held that the state

court’s error—in light of all the circumstances of the case—was not harmless. See id. at 480–84.

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Thomas v. Heidle

         Two aspects of the Ferensic court’s analysis can be distinguished from the present case.

First, the fact that the exclusion in Ferensic was arbitrary and disproportionate has little bearing

on whether the exclusion of Loftus’s testimony was either arbitrary or disproportionate. The trial

court in Ferensic excluded the evidence based on a mere discovery violation, while Loftus’s

testimony was excluded for evidentiary reasons. Second, the harmless-error review in Ferensic

necessarily surveyed all of the other evidence presented in that case. The present case requires a

similarly fact-intensive inquiry.

         Despite these differences, Ferensic binds this court as to the importance of the accused’s

interest because Thomas’s interest in having Loftus testify at trial was materially

indistinguishable from the defendant’s interest in having his expert testify in Ferensic.2 The

identity of the perpetrator was the central issue in both trials, see id. at 471, the prosecution in

both trials relied upon an eyewitness, see id. at 470, and both defendants sought the admission of

expert testimony on the impact of relevant, case-specific factors on an eyewitness’s recollection,

see id. at 471–72.

         The Ferensic court held that the petitioner had a weighty interest in introducing expert

testimony on eyewitness identification within the meaning of clearly established law as

determined by the Supreme Court. Id. at 478. The Ferensic panel explained: “[E]yewitness

misidentification accounts for more false convictions in the United States than any other factor.”

Id. The court also reasoned that “the current near-universal acceptance of the reliability of expert

testimony regarding eyewitness identification” distinguishes the per se exclusion of this

testimony from the per se exclusion of polygraph evidence that the Supreme Court upheld in

         2
           The Ferensic court explicitly limited its holding “to the situation here where the record reflects the doubts
of the jury itself as to the identification of the perpetrator.” 501 F.3d at 484. But this appears to limit the holding
only as it applies to the harmless-error analysis because the jury’s doubts are relevant to prejudice but not to the
weight of the defendant’s interest. Also, the court explained that it was limiting its holding in order to preserve
consistency with other holdings that were germane only as to harmlessness. See id. at 483–84.

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Thomas v. Heidle

Scheffer. Id. (citing Scheffer, 523 U.S. at 309). These factors made the admission of the expert

testimony a matter of fundamental importance to the defendant. Id.

       Given Thomas’s weighty interest in the presentation of Loftus’s testimony, we must next

consider whether the exclusion of that testimony was arbitrary and disproportionate in a

constitutional sense.

                                                 B.

       The Supreme Court has made clear that, even when a state’s evidentiary rules impinge on

a defendant’s weighty interest, those rules are unconstitutional only if—in the specific

circumstances of the case—they are “arbitrary” or “disproportionate to the purposes they are

designed to serve.” Rock, 483 U.S. at 56; see also Michigan v. Lucas, 500 U.S. 145, 151 (1991).

In considering whether the exclusion was arbitrary or disproportionate, the Court has considered

the potential prejudice that the State and the adversary system would suffer if the evidence were

admitted. See Taylor v. Illinois, 484 U.S. 400, 410–15 (1988).

       Here, the exclusion was not arbitrary or disproportionate in a constitutional sense, let

alone a violation or unreasonable application of clearly established constitutional law. It was not

arbitrary or disproportionate for the court to reach the conclusion that testimony like Loftus’s

would not “substantially assist the trier of fact.” See Tenn. R. Evid. 702. Though the Tennessee

courts later reversed course on admitting expert evidence on eyewitness identification, this does

not mean that the trial court’s exclusion of Loftus’s testimony was arbitrary or disproportionate

to the interests it was designed to serve. It was within the province of the trial court to determine

that admitting the evidence was likely to cause juror confusion, encroach upon the jury’s role of

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Thomas v. Heidle

determining witness credibility, and lend no significant help to the jury. We therefore hold that

there was no constitutional violation.3

        Even if Thomas could show a potential violation—the kind of constitutional error that we

could correct on direct appeal—this would not be sufficient to obtain relief under AEDPA

because there is no violation of, or unreasonable application of, clearly established law as

determined by the Supreme Court. See 28 U.S.C. § 2254(d). The Supreme Court has not

directly spoken on the law applicable to the circumstances of this case. And we can grant relief

only if we conclude that the exclusion of Loftus’s testimony in this particular case was “so

lacking in justification that there was an error well understood and comprehended in existing law

beyond any possibility for fairminded disagreement.”                  Harrington, 131 S. Ct. at 786–87.

Present-day case law demonstrates that fair-minded jurists still disagree on the exclusion of

expert testimony on eyewitness identification, even when it is effectively excluded on a blanket

basis. The Eleventh Circuit has “‘consistently looked unfavorably on’ expert testimony about

eyewitness reliability and held that ‘a district court does not abuse its discretion when it excludes

expert testimony on eyewitness identification.’” United States v. Owens, 445 F. App’x 209, 216

(11th Cir. 2011) (per curiam) (quoting United States v. Smith, 122 F.3d 1355, 1357, 1359 (11th

Cir. 1997)). Though that decision is based on the Federal Rules of Evidence rather than the

Constitution, it would be inconsistent for the Eleventh Circuit to sustain its position on direct

appeal while also viewing a per se exclusion rule as unconstitutional. Similarly, many states—

including several that maintain per se exclusions—would resolve the question the same way

today, suggesting that the Supreme Court’s precedents have not led all fairminded jurists to

adopt Thomas’s preferred view. See, e.g., State v. Young, 35 So. 3d 1042, 1046–50 (La. 2010);

        3
          We reached the same conclusion in Buell v. Mitchell, 274 F.3d 337, 359 (6th Cir. 2001), and Moore v.
Tate, 882 F.2d 1107, 1110 (6th Cir. 1989) (per curiam).

                                                      -19-
No. 13-5414
Thomas v. Heidle

State v. George, 645 N.W.2d 777, 790 (Neb. 2002); State v. Goldsby, 650 P.2d 952, 954 (Or. Ct.

App. 1982). See generally George Vallas, A Survey of Federal and State Standards for the

Admission of Expert Testimony on the Reliability of Eyewitnesses, 39 Am. J. Crim. L. 97, app. B

(2011) (summarizing the various ways in which state courts address the admission of expert

testimony on eyewitness identification). The retention of this position by fairminded jurists is

instructive. And while we are not bound to follow this position, the Supreme Court has not

announced any clearly established law that would license us to grant habeas relief here even if

we detected the kind of error that would merit reversal on direct appeal.

         There was no violation of, or unreasonable application of, clearly established law as

determined by the Supreme Court. AEDPA relief is unwarranted.

                                                          C.

         Finally, even if we were convinced that Thomas’s clearly established rights had been

violated, Thomas would not be entitled to relief because the claimed error was harmless.4 A

constitutional error is not harmless for the purposes of habeas review if the error “had substantial

and injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623

(quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). To resolve this issue, the court

should not use a mere sufficiency inquiry. See Ferensic, 501 F.3d at 483 (citing Kotteakos, 328

U.S. at 765). Rather, the relevant question is “‘Do I, the judge, think that the error substantially

influenced the jury’s decision?’” Id. at 481 (quoting O’Neal v. McAninch, 513 U.S. 432, 436–37

(1995)). If a judge has “grave doubt” about the potentially substantial and injurious effect of the

         4
            Thomas argues that the warden waived her harmless-error argument by failing to raise it before the
district court. We disagree. The warden argued in this district court that “a wealth of other evidence independent of
the [eyewitness] victim was presented to establish the petitioner’s identity as the perpetrator of this offense.” Even
if we believed this was insufficient to preserve the argument, we would still exercise our discretion to reach the issue
because it is plainly apparent from the record that the error almost certainly had no substantial influence on the
outcome. See Gover v. Perry, 698 F.3d 295, 300 (6th Cir. 2012) (discussing the factors that we consider in deciding
whether to exercise our discretion and reach a harmless-error issue that has been waived).

                                                         -20-
No. 13-5414
Thomas v. Heidle

error, the error is not harmless “[a]nd the petitioner must win.” O’Neal, 513 at 436. In other

words, “[u]ncertainty in answering this question . . . militates in favor of the habeas petitioner.”

Ferensic, 501 F.3d at 481.

       Even if we believed that the state trial court’s exclusion of Loftus’s testimony was

erroneous, we would not be left with grave doubt. Assuming that the trial court had permitted

Loftus to testify—and even assuming further that her testimony had led the jury to believe that

deficiencies existed in Yvonne’s testimony—a substantial volume of additional evidence still

indicated Thomas’s guilt. Ernest Salyer admitted helping Thomas hide the gun. Joyce Salyer

and Goldie Storm corroborated his account. Joyce further testified that she washed blood from

Thomas’s clothes on the morning of March 23. There was evidence that Thomas gave Sammie

Salyer cash with red marks on it.       According to Ernest, Thomas admitted that he “killed

somebody,” and gave further information about the crime. Loretta Strange also recounted first-

hand details that Thomas told her about John Cook’s murder. In its closing argument, the

prosecution relied heavily on this entire web of incriminating evidence.         It pointed to the

eyewitness identification as just one of several pieces of strong, materially consistent evidence

indicating Thomas’s guilt.

       Thomas argues that we should have grave doubt in this case, just as the Ferensic panel’s

grave doubt led it to grant the petitioner relief. But Ferensic is plainly distinguishable. There,

“[t]he entirety of the evidence against [the defendant] was based upon eyewitness identifications

made by the victimized couple.” Id. at 470; see also id. at 481–84 (applying the harmless-error

test). The court also placed great weight on the fact that a note from the jury to the trial judge

during deliberations indicated that the jury had doubts about the strength of the case against the

defendant and, in particular, questioned evidence related to the eyewitness identification. Id. at

                                               -21-
No. 13-5414
Thomas v. Heidle

483–84. Indeed, the panel explicitly limited its holding “to the situation here where the record

reflects the doubts of the jury itself as to the identification of the perpetrator.” Id. at 484.

        Here, viewing all of the evidence together, we do not believe that the exclusion of the

expert testimony had a substantial and injurious effect on the jury’s verdict. We therefore

believe that the exclusion was harmless and would not merit relief even if we believed it was

erroneous.

                                                   V.

        For the foregoing reasons, we affirm the district court’s denial of habeas relief.

                                                  -22-


949 P.2d 358 (1998)
134 Wash.2d 176
STATE of Washington, Respondent,
v.
Ronald TALLEY, Petitioner.
No. 64893-0.
Supreme Court of Washington, En Banc.
Argued September 24, 1997.
Decided January 8, 1998.
*359 Nielsen, Broman & Associates, James Dixon, Eric Nielsen, Seattle, for petitioner.
Norm Maleng, King County Prosecutor, Erin Riley, Deputy Conty Prosecutor, Seattle, for respondent.
ALEXANDER, Justice.
The primary issue presented by this appeal is whether a prosecutor who enters into a plea agreement that requires the State to recommend a standard range sentence, upon the defendant's plea of guilty, breaches that agreement by participating in a court *360 ordered evidentiary sentencing hearing. We hold that the prosecutor's participation, by itself, does not undercut such a plea bargain and thereby violate the plea agreement. Consequently, we affirm the Court of Appeals' decision to remand this case for an evidentiary hearing and resentencing before a judge other than the one who earlier imposed an exceptional sentence on Talley.
Ronald Talley was charged in King County Superior Court with one count of second degree rape. RCW 9A.44.050(1). The charge arose out of an incident at the now defunct Oz nightclub in Seattle, which culminated in D.T. complaining to the Seattle Police Department that Talley forcibly raped her. Talley admitted hitting the woman but claimed that the sexual relations were consensual. The case proceeded to a jury trial, but the trial judge declared a mistrial when the jury indicated that it could not reach a verdict. Thereafter, a deputy prosecutor and Talley entered into a plea bargain agreement in which the deputy agreed, on behalf of the State, to amend the charge against Talley to third degree rape in return for Talley's guilty plea to the amended charge. RCW 9A.44.060. Talley then entered a so-called Alford plea of guilty to the amended charge of third degree rape.[1] In his statement on plea of guilty, Talley indicated he was giving "the court ... permission to review the certification for determination of probable cause and [the] police reports for this plea...." Clerk's Papers at 71.
Following Talley's entry of a guilty plea, a sentencing hearing was conducted before a superior court judge who had not presided at Talley's earlier trial. The victim and Talley, as well as family and friends of both, and members of a rape victims support group, testified at this hearing. Consistent with the terms of the plea agreement the deputy prosecutor recommended a sentence of 12 months, the high end of the standard range. The sentencing judge was also presented with a report from a community correction officer who recommended an exceptional sentence of 24 months. Talley's counsel recommended a sentence within the standard range, but expressed concern at this hearing that the sentencing judge might rely upon facts not stipulated to by Talley, including the allegations contained in the certification for determination of probable cause, and impose an exceptional sentence. The sentencing judge responded, "I am giving an exceptional sentence, and I'll give you a time for an evidentiary hearing." Verbatim Report of Proceedings (Aug. 11, 1995) at 15. The judge then adjourned the hearing and scheduled an evidentiary hearing for a later date.
At an intervening hearing held at Talley's request, Talley's counsel again objected to the sentencing court's consideration of the certification for determination of probable cause, and any other facts not stipulated to, as a basis for imposing an enhanced sentence. Talley's counsel argued that because Talley had entered an Alford plea and there had been no evidentiary hearing, there were no facts before the court upon which it could base an exceptional sentence. Counsel asserted further that there could be no "real facts" hearing because the prosecutor's participation at any such hearing would undermine the plea agreement with Talley. In response, the sentencing judge announced that she was canceling the evidentiary hearing, indicating that she "understood [the defense was] asking for an evidentiary hearing. But if [it is] not asking for an evidentiary hearing, I'm not going to hold one." Verbatim Report of Proceedings (Aug. 24, 1995) at 6.
At a later sentencing hearing, the deputy prosecutor again recommended a standard range sentence. Defense counsel reiterated her recommendation for a standard range sentence, noting that she had submitted a presentence memorandum and transcripts of testimony from the aborted trial for the sentencing judge's consideration. After reviewing police reports and the State's certification for determination of probable cause, among other items, the sentencing court imposed an exceptional sentence of 24 months, citing deliberate cruelty, multiple incidents of intercourse, and the negative impact the rape would have on the rape victim as the aggravating *361 circumstances justifying an exceptional sentence.[2] In support of the exceptional sentence the sentencing court entered findings of facts, as follows:
1. On July 30, 1994, while at the Oz nightclub in Seattle, King County, Washington, the defendant approached [D.T.] under the pretext of asking her to dance.
2. The defendant had no intention of dancing with [D.T.], but instead intended to take her to an isolated, dark stairwell within the nightclub.
3. The defendant had been to that stairwell earlier in the evening and knew it was dark and isolated.
4. Once in the stairwell, the defendant demanded oral sex from [D.T.], which she performed without her consent.
5. After the oral rape, the defendant had penile-vaginal intercourse with [D.T.] without her consent.
6. [D.T.] clearly expressed her lack of consent to the defendant, including telling him that she was a virgin.
7. As a result of the vaginal rape, and consistent with her lack of prior sexual intercourse, [D.T.] suffered tears to her vagina.
8. During the course of the rapes, the defendant hit [D.T.] in the head repeatedly and bit her on the chest.
9. During the course of, and after, the rapes, the defendant referred to [D.T.] as a "bitch" and a "whore".
10. After raping [D.T.], the defendant left her in the stairwell nude, hysterical, and bleeding from her vagina.
11. The defendant exhibited an extreme indifference to [D.T.'s] well-being.
12. The defendant's actions were deliberately cruel, exceeding that which was necessary to commit rape.
13. As a result of the rapes, [D.T.] and her family have been extremely traumatized.
14. [D.T.] has lost her ability to trust others, is very fearful, suffers from nightmares, and has required long-term therapy.
15. [D.T.] has found it difficult to impossible to commence a romantic relationship with a man as a result of the rapes.
Clerk's Papers at 80-81.
Talley appealed the exceptional sentence to Division One of the Court of Appeals. He urged the Court of Appeals to reverse the sentence and remand with instructions to impose a standard range sentence. The Court of Appeals reversed the sentence, concluding that the sentencing court had violated the Sentencing Reform Act of 1981[3] by relying on facts that were not acknowledged or admitted by Talley or proven by a preponderance of the evidence at an evidentiary hearing, and consequently "may have prejudged the matter." State v. Talley, 83 Wash.App. 750, 763, 923 P.2d 721 (1996), review granted, 131 Wash.2d 1023, 937 P.2d 1102 (1997). It remanded for an evidentiary hearing and sentencing before a different judge. In addition, it rejected Talley's contention that the State's participation in an evidentiary hearing would constitute a breach of the plea agreement. Finally, it held that deliberate cruelty or multiple acts of rape, if proven at the evidentiary hearing, could form the basis of an exceptional sentence. Talley, 83 Wash.App. 750, 923 P.2d 721.[4]
*362 Talley sought review here, claiming that the Court of Appeals erred in concluding that: (1) the State would not violate the plea bargain agreement by participating in an evidentiary hearing; and (2) on resentencing, the sentencing court could consider deliberate cruelty and multiple acts as potential justification for an exceptional sentence. We granted review.
When Talley and the State entered into their plea bargain agreement they formed a contract. State v. Wakefield, 130 Wash.2d 464, 925 P.2d 183 (1996); State v. Arko, 52 Wash.App. 130, 758 P.2d 522 (1988). Pursuant to that agreement, Talley agreed to give up his right to a trial and plead guilty in exchange for the State's agreement to reduce the charge to third degree rape and recommend a standard sentencing range of 6-12 months.[5] Talley kept his end of the bargain by pleading guilty to the amended charge. However, by entering a so-called Alford plea to the charge he did not admit the allegations contained in the certification for probable cause, notwithstanding his stipulation that the plea judge could consider it in determining the validity of the guilty plea. State v. Young, 51 Wash.App. 517, 754 P.2d 147 (1988).
The State is also obligated to adhere to the terms of a plea agreement by recommending the agreed upon sentence. State v. Coppin, 57 Wash.App. 866, 791 P.2d 228, review denied, 115 Wash.2d 1011, 797 P.2d 512 (1990). Although the recommendation need not be made enthusiastically, the prosecutor is obliged to act in good faith, participate in the sentencing proceedings, answer the court's questions candidly in accordance with RPC 3.3 and, consistent with RCW 9.94A.460, not hold back relevant information regarding the plea agreement.[6]State v. Sledge, 133 Wash.2d 828, 947 P.2d 1199 (1997). Although the State does not breach the agreement by not advocating for the sentence beyond making the bargained for recommendation, it has an obligation not to undercut a plea bargain with a defendant. In re Palodichuk, 22 Wash.App. 107, 110, 589 P.2d 269 (1978).
Talley does not suggest that the State has failed to comply with the plea bargain up to this time. He contends, rather, that the State's participation in an evidentiary hearing to present evidence that may support factual findings justifying imposition of an exceptional sentence would undercut the plea bargain. Whether or not that is the case is the central issue before us. It is an issue that has not been previously confronted by this court.
At the outset, we note that we are in agreement with the view expressed by the Court of Appeals in Palodichuk that prosecutorial conduct is very important to the integrity of the plea bargaining process, and that a prosecutor must adhere to the terms of the plea agreement and avoid tainting the sentencing process. Palodichuk, 22 Wash. App. at 109-11, 589 P.2d 269. Talley suggests that under the holding in Palodichuk, which he cites as support for his position, the State is barred from participating in a "real facts" hearing because in doing so it would undercut the plea agreement.
The facts in Palodichuk were that the State had entered into a plea bargain with the defendant which required the State to recommend a suspended sentence and four years probation. The deputy prosecutor fulfilled that promise by making the agreed upon recommendation to the sentencing judge. He did not stop there, however, but went on to express reservations about the agreement, indicating that the State had received new information about the defendant's *363 past record as a probationer. This information, the deputy prosecutor indicated, had caused him to have "second thoughts about that recommendation." Palodichuk, 22 Wash.App. at 109, 589 P.2d 269. On review, the Court of Appeals concluded that by expressing reservations about its recommendation to the sentencing judge, the State had undercut the agreed upon terms of the plea bargain and thereby breached the plea agreement.
The State responds that the instant case is more analogous to Coppin, and asserts that it supports its contention that a prosecutor does not undercut a plea agreement by merely participating in an evidentiary hearing. In Coppin, consistent with the plea agreement, a deputy prosecutor recommended a sentence at the high end of the standard range. At the same time the deputy submitted a California probate report to the sentencing court which described the defendant's prior convictions and his lack of amenability to treatment. After reviewing the report, the sentencing judge asked the deputy prosecutor to explain why he was not seeking an exceptional sentence. In response to the judge's inquiry, the deputy prosecutor stated, "Number one, your honor, it was not decided that an exceptional sentence could be qualified. The children involved had considerable difficulty isolating the specific events. That was one reason. Second was to save the children from having to go through a trial." Coppin, 57 Wash.App. at 869, 791 P.2d 228. The sentencing judge then asked the deputy prosecutor whether he believed an exceptional sentence was not legally justified, or whether he was merely adhering to the terms of the plea bargain in making his recommendation. The deputy prosecutor replied that were it not for the plea bargain, he would have sought an exceptional sentence. The trial judge then imposed an exceptional sentence.
On review, the Court of Appeals concluded that the deputy prosecutor's explanation of his reasons for recommending a standard range sentence and bare submission of documents, although prejudicial to Coppin, did not constitute a breach of the plea agreement. Coppin, 57 Wash.App. at 875 n. 6, 791 P.2d 228. The Coppin court contrasted the actions of the deputy prosecutor to those of the deputy prosecutor in Palodichuk, stressing the deputy prosecutor's comments in Coppin did not contain subjective reservations about the recommended sentence and were given only in response to a direct inquiry by the court. The court cited RPC 3.3 and concluded that as an officer of the court, the deputy prosecutor had no choice but to answer the questions honestly. Coppin, 57 Wash.App. at 875, 791 P.2d 228; see also State v. Gutierrez, 58 Wash.App. 70, 76, 791 P.2d 275 (1990) ("A prosecutor is entitled to present all relevant facts, whether or not they fully support his [or her] recommendation."); State v. Davis, 43 Wash.App. 832, 837, 720 P.2d 454 ("prosecutor did not breach the agreement by informing the court of the two witnesses' concern and their wish to testify"), review denied, 106 Wash.2d 1017 (1986).
Although we believe that the Palodichuk and Coppin decisions are both sound, neither is precisely on point because in those cases the defendants did not enter Alford pleas and, thus, there were facts known to the court about those defendants' conduct in committing the charged offenses. Coppin, though, is more instructive of the two cases because it concerns the prosecutor's response to the sentencing court's initiative. Adopting its reasoning, we conclude that while the deputy prosecutor is obliged to make the agreed upon sentencing recommendation to the sentencing court at the sentencing hearing, mere participation by the deputy in an evidentiary hearing does not undercut the State's agreed upon recommendation. If we were to conclude otherwise, the sentencing court would be faced with a one-sided hearing, a circumstance that would not promote the ends of justice. In this regard, we believe the Court of Appeals was correct here when it indicated:
[T]he prosecutor has an obligation as an officer of the court to participate in the hearing and present evidence that will help the court make its decision. Presenting evidence that will help the court make a decision does not amount to advocating against its earlier recommendation. Thus, *364 it does not violate the terms of the plea agreement.
Talley, 83 Wash.App. at 759, 923 P.2d 721.
Although we conclude that the prosecutor's participation in an evidentiary hearing does not, by itself, violate the plea agreement, we recognize that the State could violate the agreement by advocating for an exceptional sentence in the way that it presents evidence at the evidentiary hearing and in making its sentencing recommendation to the court. While, as we have observed, merely presenting relevant evidence to the sentencing court and responding to its inquiries is an appropriate fulfillment of the prosecutor's duty as an officer of the court, a deputy prosecutor could easily undercut the plea agreement by placing emphasis on the evidence that supports findings that aggravating factors are present.
Indeed, that is precisely what happened in State v. Sledge, 947 P.2d 1199 (1997), a case that was very recently before this court. In Sledge, the deputy prosecutor had agreed to recommend a standard range sentence for a juvenile defendant. At a disposition hearing, in addition to submitting a probation counselor's "manifest injustice report" for the court's consideration, the deputy prosecutor also called the probation counselor to testify about the report. The deputy prosecutor then led the counselor through her report, extensively examining her about the factors that caused her to recommend an exceptional sentence. The deputy prosecutor also presented testimony by the juvenile's parole officer who testified about the defendant's prior problems at a juvenile institution. Finally, the deputy prosecutor gave a detailed and lengthy summary of the aggravating factors, that supported an exceptional disposition. The effect of the deputy prosecutor's presentation, we concluded, was to undermine the plea agreement. In reaching this conclusion, we emphasized the point that if the State's purpose was to have the sentencing court impose a standard range sentence, there was no need for the State to insist upon a hearing with witnesses, as the probation counselor's report was before the court.
We wish to stress that we are not indifferent to the difficulties the State may face in maintaining a balance between, on the one hand, its duty to present relevant evidence and respond to the sentencing court's inquiries, and on the other, its equally important obligation not to undercut the plea agreement. Although we are not able to forge a rule of general application that establishes a bright line between adherence and undercutting, we can indicate that the State will not violate its duty of good faith and fair dealing by participating in an evidentiary hearing and presenting evidence to assist the sentencing court, so long as it does not, by its words and conduct at that hearing, contradict its recommendation for a standard range sentence.
Finally, as noted above, the Court of Appeals also held that deliberate cruelty and multiple acts of penetration, if proven at the evidentiary hearing, could be considered by the sentencing judge as reasons for imposing an exceptional sentence. Talley contends that consideration of facts necessary to prove these aggravating factors by the sentencing court would violate the real facts doctrine. Because we are upholding the Court of Appeals' decision to reverse Talley's sentence and remand for an evidentiary hearing, there are no facts or findings before the court and it is not appropriate for us to speculate about what facts may be proven at such a hearing. We, therefore, decline to address that contention.
We affirm the Court of Appeals' decision ordering an evidentiary hearing before a different sentencing judge, as well as its conclusion that the prosecuting attorney's participation in that hearing, by itself, would not constitute a breach of the plea agreement between Talley and the State.
DURHAM, C.J., and DOLLIVER, SMITH, GUY, JOHNSON, MADSEN, TALMADGE and SANDERS, JJ., concur.
NOTES
[1]  See North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970) (defendant may plead guilty while disputing the facts alleged by the State).
[2]  The other items reviewed by the sentencing judge included: presentence memoranda submitted by Talley, the State, and the Department of Corrections; letters from the victim, the victim's family, and friends; letters from the defendant's family and friends; a transcript of testimony of witnesses who had testified at the earlier trial; and testimony at the original sentencing hearing from the victim, the defendant and family, and friends of each.
[3]  RCW 9.94A.370(2) states:

"In determining any sentence, the trial court may rely on no more information than is admitted by the plea agreement, or admitted, acknowledged, or proved in a trial or at the time of sentencing. Acknowledgment includes not objecting to information stated in the presentence reports. Where the defendant disputes material facts, the court must either not consider the fact or grant an evidentiary hearing on the point. The facts shall be deemed proved at the hearing by a preponderance of the evidence."
[4]  The State conceded at the Court of Appeals that negative impact of the crime on the victim was not so distinctive in this case that it justified an exceptional sentence. Talley, 83 Wash.App. at 760, 923 P.2d 721.
[5]  Plea bargains are authorized by RCW 9.94A.080(4).
[6]  RPC 3.3 states:

"(a) A lawyer shall not knowingly:
"(1) Make a false statement of material fact or law to a tribunal."
"A prosecutor, like any other attorney, has a duty of candor toward the tribunal which precludes it from making a false statement of material fact or law to such tribunal." Coppin, 57 Wash.App. at 874 n. 4, 791 P.2d 228.
RCW 9.94A.460 states in part:
"The prosecutor shall not agree to withhold relevant information from the court concerning the plea agreement."