466 F.Supp.2d 1199 (2006)
Michael J. BOLDON, Plaintiff
v.
HUMANA INSURANCE COMPANY; Cutter Aviation Group Medical Plan Administrator, Defendants.
No. CV06-02818 PHXNVW.
United States District Court, D. Arizona.
December 13, 2006.
*1200 *1201 *1202 Randolph G. Bachrach, Law Office of Randolph G. Bachrach, Phoenix, AZ, for Plaintiff.
Andrew Mark Federhar, Fennemore Craig PC, Phoenix, AZ, for Defendants.

FINDINGS OF FACT AND CONCLUSIONS OF LAW IN SUPPORT OF PRELIMINARY INJUNCTION
WAKE, District Judge.
This order addresses whether the plaintiffs insurance carrier should be preliminarily enjoined to provide coverage for the plaintiffs prescribed medical treatment under the Employee Retirement Income Security Act ("ERISA"). The court makes the following findings of fact and conclusions of law:
I. Findings of Fact
A. The Parties
Plaintiff Michael J. Boldon ("Boldon") is a 54-year old employee of Cutter Aviation, Inc. Since January 1, 2005, Boldon has been enrolled in the Cutter Aviation Group Medical Plan ("Plan"), a participating provider option plan ("PPO") that provides medical benefits to Cutter Aviation employees. Defendant Humana Insurance Company ("Humana") is the administrator, insurer, and payer of benefits under the Plan.
B. Boldon's Condition
In May 2006, Boldon was diagnosed with advanced unresectable hepatocellular carcinoma ("HCC"), a rare form of terminal liver cancer with four stages of progressing severity. HCC is considered an "orphan disease" because only approximately 16,000 patients are diagnosed with HCC in the United States each year. Patients *1203 who do not receive treatment for HCC survive anywhere from three months to four years following diagnosis. Boldon also has hepatitis-C and is HIV positive.
Due to the size of his tumor and his HIV status, Boldon was advised in July 2006 that he is not eligible for liver transplantation at the Banner Good Samaritan Liver Disease Center ("Banner") in Phoenix, Arizona. In August 2006, the Liver Transplant Clinic at the University of California at San Francisco Medical Center ("UCSF") similarly declined to offer the procedure in light of Boldon's use of narcotics and cigarettes, his tumor's size, and evidence from a CT scan performed on August 23 "consistent with" the conclusion that his HCC had metastasized. Doc. # 38, Exhibit 3 at 6.
Contrary to the UCSF CT scan's indication of possible metastasis, the report from a CT scan subsequently performed at Banner on September 11, 2006, did not mention any signs of metastasis. Additional blood and imaging tests conducted at Banner on December 12, 2006, also showed no signs of metastasis.
C. The Recommended Treatment
In September 2006, Boldon's physician at Banner, Kevin S. Hirsch, M.D. ("Dr. Hirsch"), a board-certified interventional radiologist, recommended treating Boldon's advanced HCC' with yttrium-90 radioembolization using TheraSphere Y-90. TheraSphere treatment involves the intraarterial delivery of glass microspheres of the radioactive element yttrium-90 to the site of a patient's liver tumor and is performed at Banner on an outpatient basis. An initial administration of TheraSphere generally costs over $100,000. Subsequent administrations cost approximately $20,000 each.
TheraSphere was recommended to Boldon for the purpose of prolonging and improving the quality of his life. His only alternative is chemoembolization, a form of treatment that is less likely to extend his life expectancy and more likely to produce adverse side effects. If Boldon does not receive TheraSphere treatment in the near future, it is probable that he will lose his life relatively prematurely.
D. The Status of the. Treatment
In March 2000, the Center for Devices and Radiological Health of the United States Food' and Drug Administration ("FDA") approved TheraSphere for commercial distribution under the FDA's humanitarian device exemption. This exemption permits a company to distribute a medical device commercially without a scientifically rigorous demonstration of effectiveness when the number of patients expected to benefit from the device is fewer than 4,000 per year. The FDA's approval notice permits TheraSphere to be used "for radiation treatment or as a neoadjuvant to surgery or transplantation in patients with unresectable hepatocellular carcinoma (HCC) who can have placement of appropriately positioned hepatic arterial catheters." Joint Exhibit # 16 at 3-4. The FDA's approval was
based on the results of a randomized, controlled clinical trial involving 70 persons with colorectal cancer metastatic to the liver, 34 of whom received [floxuridine] chemotherapy (control group), and 36 of whom received [floxuridine] plus [microspheres]. Two of the patients receiving [floxuridine] plus [microspheres] had a complete response, and 16 had a partial response. By comparison, one patient receiving [floxuridine] alone achieved a complete response and seven had a partial response. There is a statistically significant delay of time to progression of the disease in the group treated with [floxuridine] plus [micro *1204 spheres], when compared with the group treated with [floxuricline] only. Joint Exhibit # 19 at 1.
Since obtaining FDA approval, Thera-Sphere has become a common, if not standard, treatment-for HCC. TheraSphere is available in 29 cancer treatment centers across the United States. Since 2004, the National Comprehensive Cancer Network has included TheraSphere treatment in its clinical guidelines for unresectable primary liver cancer. TheraSphere is also fully reimbursable under. Medicare and Medicaid, and is covered by insurance plans provided by Aetna, CIGNA, and several Blue Cross/Blue Shield companies. Dr. Hirsch has personally treated approximately 30 HCC patients with, TheraSphere since April 2005.
In total, thirteen Phase I and Phase II clinical studies have been conducted on TheraSphere. Phase I studies tested the proper administration and dosage for the treatment. Phase II studies, in contrast, tested whether TheraSphere is effective against HCC. One randomized, controlled trial specifically compared the efficacy of TheraSphere and the common chemother apy drug floxuridine among 70 cancer patients. All of these studies were discussed in peer-reviewed medical journals, and all of them concluded that TheraSphere is a relatively safe and effective treatment for advanced-stage unresectable HCC. Due in large part to the rarity of HCC, Phase III trials have not been conducted to compare TheraSphere to alternative treatments among large populations of patients.
E. The Scope of Boldon's Coverage
The Cutter Aviation Group Medical Plan covers the "services of a radiologist." Joint. Exhibit # 1 at 35. However, the Plan does not cover the provision of "[a]ny drug, biological product, device, medical treatment, or procedure which is experimental, or investigational or for research purposes." Id. at 52. In the Plan's Glossary, "experimental or investigational of for research purposes" is defined as
a drug, biological product, device, treatment or procedure that meets any one of the following criteria, as determined by us:
 Cannot be lawfully marketed without the final approval of the United States Food and Drug Administration (FDA) and which lacks such final FDA approval for the use or proposed use, unless (a) found to be accepted for that use in the most recently published edition of the United States Pharmacopeia-Drug Information for Healthcare Professional (USP-DI) or in the most recently published edition of the American Hospital Formulary Service (AHFS) Drug Information, or (b) identified as safe, widely used and generally accepted as effective for that use as reported in nationally recognized peer reviewed medical literature published in the English language as of the date of service; or (c) is mandated by state law;
 Is a device required to receive Premarket Approval (PMA) or 510K approval by the FDA but has not received a PMA or 510K approval;
 Is not identified as safe, widely used and generally accepted as effective for the proposed use as reported in nationally recognized peer reviewed medical literature published in the English language as of the date of service;
 Is the subject of a National Cancer Institute (NCI) Phase I, II or III trial or a treatment protocol comparable to a NCI Phase I, II or III trial, or any trial not recognized by NCI regardless of phase; or *1205  Is identified as not covered by the Centers for Medicare and Medicaid Services (CMS) Medicare Coverage Issues Manual, a CMS Operational Policy Letter or a CMS National Coverage Decision, except as required by state or federal law. Joint Exhibit # 1 at 94.
The Plan concludes with the following language:
DISCRETIONARY AUTHORITY
With respect to paying claims for benefits or determining eligibility for coverage under a policy issued by Humana, Humana as administrator for claims determinations and as. ERISA claims review fiduciary, shall have full and exclusive discretionary authority to: 1) interpret plan provisions, 2) make decisions regarding eligibility, for coverage and benefits, and 3) resolve factual questions relating to coverage and benefits. Joint Exhibit # 1, Notices at 2.
F. The Denial of Coverage
In September 2006, Dr. Sankara Atman Sidat-Singh ("DrSidat-Singh"), a former family practitioner now employed as the medical director for Humana's Commercial Segment in Arizona and Colorado, reviewed Dr. Hirsch's recommendation of TheraSphere treatment for Boldon. Following an internal Humana guideline that describes TheraSphere as "experimental/investigational," Dr. Sidat-Singh denied coverage. The guideline on which Dr. Sidat-Singh relied states:
Humana members would NOT be eligible under the Plan for intrahepatic yttrium-90 microsphere therapy. This technology is considered experimental/investigational as it is not identified as widely used and generally accepted for the proposed use as reported in nationally recognized peer-reviewed medical literature published in the English language. Joint Exhibit # 15.
This guideline was in turn based on two medical literature summaries provided to Humana by a private industry consultant. Neither of these summaries express the conclusion that TheraSphere treatment for HCC is experimental or investigational as defined in the Plan or in general medical usage. The literature summaries instead note that, as of May 2006, there are "no randomized controlled trials that compare the efficacy of alternative treatment options to those of intrahepatic arterial yttrium-90 microsphere therapy." Joint Exhibit # 16 at 1; see also Joint Exhibit # 17. The literature summaries also note that all of the clinical studies on Thera-Sphere concluded that it is "relatively safe, well-tolerated, and effective for advanced stage unresectable HCC." Id.
Dr. Sidat-Singh's decision to deny coverage was not based on Boldon's medical record. Because Humana had, previously determined that TheraSphere is "experimental/investigational," Humana did not accord him the authority to make an independent determination concerning coverage for Boldon's treatment. Nor was Dr. Sidat-Singh familiar with TheraSphere treatment or the Plan provision on which he based the denial of coverage. Dr. Sidat-Singh has never performed. Thera-Sphere treatment, consulted with other physicians about the treatment, or read any literature on TheraSphere other than the internal Humana guideline. Dr. Sidat-Singh also did not review the UCSF report indicating possible evidence that Boldon's cancer had become metastatic.
Following Dr. Sidat-Singh's application of the guideline, Humana sent a letter to Boldon on September 26, 2006, denying coverage for his prescribed treatment. This denial was based on a "physician review" and Plan provision # 213100, which *1206 excludes coverage for "[a]ny drug, biological product, device, medical treatment, or procedure which is experimental, or investigational or for research purposes." Doc. # 4, Exhibit 3 at 160.
Dr.Hirsch responded on September 26, 2006, by submitting an appeal of the denial of benefits to Humana's Expedited Appeals Department. In the appeal, he argued that Humana's decision was unwarranted because TheraSphere is an effective and widely accepted treatment for Boldon's condition. While the appeal was pending, Humana retained the Medical Review Institute of America, Inc. ("Review Institute"), to provide an independent review of the denial of coverage. Finding the medical literature insufficient to reverse Humana's decision, the Review Institute stated:
The studies on TheraSphere suggest that based on limited data, the treatment may prolong survival as compared with known survival characteristics of liver cancer patients based on Okuda staging. However, none of the studies to date have involved a statistically meaningful study group or have employed rigorous study designs involving randomization to chemotherapy versus [TheraSphere] or blinding of observers, and nearly all expert reviewers conclude there is a need for these randomized, well designed studies to determine the efficaciousness of [TheraSphere] as a palliative measure. Joint Exhibit # 19 at 2.
Again explaining that TheraSphere is considered to be "experimental/investigational," Humana denied the expedited appeal in a letter dated October 3, 2006. The October 3 letter stated that the denial of benefits
was based on the information provided to the Medical Review Institute of America, Inc., an external review agency, whom [sic] determined that the studies conducted for the TheraSphere do not validly prove the efficaciousness of the treatment.
Additionally, based on the limited data, the treatment may prolong survival as compared with known survival characteristics of liver cancer patients based on Okuba [sic] staging. However, none of the studies to date have involved a statistically meaningful study group or have employed rigorous study designs involving randomization to chemotherapy. Joint Exhibit # 10.
Humana attached to this letter a copy of the internal guideline on which Dr. Sidat-Singh relied in denying coverage.
Dr. Hirsch submitted, a second expedited appeal, to Humana's Independent Review Organization on October 10, 2006, repeating that the denial of benefits was unwarranted because TheraSphere is effective and widely accepted as a `treatment for HCC. In response to this second appeal, the Arizona Department of Insurance retained Permedion, an independent medical review organization, to review Boldon's claim. Permedion subsequently concluded that "TheraSphere treatment for unresectable hepatocellular carcinoma is experimental/investigational." Doc. # 49, Exhibit 4 at 2. The Permedion reviewer, a individual certified as a specialist in hematology and oncology, explained the basis for this conclusion as follows:
TheraSphere ... is indicated by the [FDA] for radiation treatment or as a neoadjuvant treatment to. surgery or transplantation in patients with unresectable Hepatocellular Carcinoma. Based on a review of the peer reviewed medical literature it is noted that there are no Phase III randomized clinical trials that show Yttrium 90/TheraSphere is more effective than or as effective as conventional, standard of care, treatment. *1207 This enrollee has not had any surgery or a transplantation, nor is he a candidate for a transplant, so he does not qualify under the conditions that TheraSphere is a neoadjuvant treatment.
There is published peer-reviewed medical literature regarding the technical success and clinical outcomes of Thera-Sphere. These small Phase II randomized trials; [sic] however, fail to show convincingly that subjects on trials are able to exhibit a defined benefit.
Treatment with TheraSphere is not the generally accepted standard of practice, nor does it appear to represent the best practice for this enrollee. There is no demonstrated scientific evidence that TheraSphere will improve his overall health outcome. Further clinical investigation and evaluations with larger controlled clinical trials is recommended. Id.

In substance, both the Review Institute and Permedion found the lack of Phase III trials to preclude a finding of efficaciousness despite the evidence of safety and efficaciousness from the limited trials noted in the literature.
In light of the denial of coverage, Banner Good Samaritan Medical Center has told Boldon that its staff cannot proceed with TheraSphere treatment. Because Boldon lacks sufficient financial resources to pay for TheraSphere treatment on his own, the treatment will not be administered unless the requested injunction is entered.
TheraSphere is identified as safe, widely used and generally accepted as effective for the treatment of HCC, as reported in nationally recognized peer-reviewed literature published in the English language.
II. Conclusions of Law
"A preliminary injunction may issue when the moving party demonstrates either (1) a combination of probable success on the merits and the possibility of irreparable harm; or (2) that serious questions are raised and the balance of hardships tips in its favor." Faith Ctr. Church Evangelistic Ministries v. Glover, 462 F.3d 1194, 1201-02 (9th Cir.2006) (internal quotation marks omitted). These formulations are not different tests but rather "two points on a sliding scale." Id. at 1202. The "greater the relative hardship to the moving party, the less probability of success must be shown." Microsystems, Inc. v. Microsoft Corp., 188 F.3d 1115, 1119 (9th Cir.1999).
A. Irreparable Harm
In this case, the requirement of irreparable harm is satisfied by the anticipated difference between treating Boldon's condition with TheraSphere and its only alternative: chemoembolization. Clinical studies on TheraSphere have unanimously found that it is an effective way to reduce tumor size and prolong the lives of HCC patients, and Dr. Hirsch specifically recommends TheraSphere as the best treatment for Boldon. Dr. Hirsch has concluded that TheraSphere is both more likely to prolong Boldon's life and less likely to produce negative side effects than chemoembolization. Because the benefits of treating Boldon with TheraSphere cannot be wholly replicated by the alternative, and because Boldon's loss of life expectancy and relative comfort could in no way be corrected, Humana's denial of coverage will cause irreparable harm. Cf. Harris v. Blue Cross Blue Shield, 995 F.2d 877, 879 (8th Cir.1993) (finding irreparable injury where the plaintiff's insurance carrier denied coverage for the treatment of a lifethreatening illness); Sluiter v. Blue Cross *1208 Blue Shield of Mich., 979 F.Supp. 1131, 1145 (E.D.Mich.1997) (same).
The relatively severe nature of Boldon's harm would typically reduce the requisite level of probability for success on the merits. Humana argues, however, that a higher level of probability should be required because Boldon's mandatory injunction will effectively grant ultimate relief. The argument is persuasive. A "mandatory injunction goes well beyond simply maintaining the status quo pendente lite [and] is particularly disfavored." Stanley v. Univ. of S. Cal., 13 F.3d 1313, 1320 (9th Cir.1994) (internal quotation marks omitted). Thus, when a mandatory injunction is requested, "the district court should deny relief unless the facts and law clearly favor the moving party." Id.; see also Neveux v. Webcraft Techs., Inc., 921 F.Supp. 1568, 1571 (E.D.Mich.1996) ("In cases, such as here, where plaintiff seeks preliminary injunctive relief not to maintain the status quo but rather to alter it so that he receives essentially all of the relief to which he would be entitled after a successful trial on the merits, plaintiff must satisfy an even heavier burden of showing that [the factors affecting the propriety of relief] weigh heavily and compelling in [his] favor.") (internal quotation marks omitted).
Because the vast majority of TheraSphere's cost is incurred at the time of the first treatment and Boldon lacks the resources to pay for TheraSphere on his own, a preliminary injunction requiring Humana to provide coverage will effectively decide the entire case. The outcome of a trial held after an award of preliminary relief could be little more than symbolic: even if Humana wins, the cost of the treatment will have already been incurred and Boldon will be unable to compensate Humana for the expense. The requested injunction will issue, therefore, `only if Boldon shows a probability of success on the merits that is the functional, equivalent of proof sufficient for a final judgment on the merits.
The court has denied Humana's motion to consolidate the hearing on the preliminary injunction with a trial on the merits because the preliminary injunction hearing was held only ten days after the action was filed and there remain possibilities that future changes in circumstances might lead to a termination of TheraSphere treatment. However, the court has been presented with all the evidence that would be presented at trial, as Humana's counsel acknowledged. Therefore, though the requested injunction is preliminary in form, it is final in substance, with the opportunity for full presentation of material evidence attendant to a final injunction after trial on the merits.
B. Likelihood of Success on the Merits
A claims determination under an employee benefits plan governed by ERISA is by default subject to de novo review. Kearney v. Standard Ins. Co., 175 F.3d 1084, 1089 (9th. Cir.1999). However, where the plan "unambiguously provide[s] discretion to [its] administrator" to interpret the terms of the plan and make final benefits determinations, the determination is reviewed for an abuse of discretion. Abatie v. Alta Health & Life Ins. Co., 458 F.3d 955, 963 (9th Cir.2006). "The plan administrator bears the burden of showing the plan gives it discretionary authority." Ondersma v. Metro. Life Ins. Co., 2006 WL 3334941, at *1, 2006 U.S. Dist. LEXIS 85460, at *2 (N.D.Cal. Nov. 16, 2006).
If plan language warrants de novo review, "[t]he court `simply proceeds to evaluate whether the plan administrator correctly or incorrectly denied benefits" in *1209 light of all the evidence. Abatie, 458 F.3d at 963. However, if the language of the plan triggers review for an abuse of discretion, three stages of analysis will remain. First, it must be determined whether the administrator in fact exercised its plan-authorized discretion in the course of denying the benefits. If the administrator did not, the denial may be reviewed de novo. Id. at 972.
Second, if the administrator both possessed and actually exercised discretion in denying benefits, the precise level of scrutiny with which to review the denial must then be determined. A denial of benefits should be reviewed with greater scrutiny if a plan gives discretion to an administrator that has a structural conflict of interest due to its status as both administrator and funding source. Id. at 965. Other factors to consider in determining the appropriate level of scrutiny include evidence of malice, self-dealing, "a parsimonious claims-granting history," inconsistent reasons for denial, inadequate investigation into a claim, failure to credit a claimant's reliable evidence, a history of denying "benefits to deserving participants by interpreting plan terms incorrectly or by making decisions against the weight of evidence in the record," and procedural irregularities. Id. at 968, 972. Unlike de novo review, review for an abuse of discretion is generally limited to the administrative record before the plan administrator at the time of its decision. Id. at 970.
Finally, after determining the appropriate level of scrutiny, that scrutiny must be utilized in deciding whether the administrator actually abused its discretion in denying coverage. "ERISA places the burden of proving an exclusion from coverage in an ERISA-regulated welfare plan on the plan administrator." Caffey v. Unum Life Ins. Co., F.3d 576, 580 (6th Cir.2002); see also Fought v. Unum Life Ins. Co. of Am., 379 F.3d 997, 1007 n. 4 (10th Cir.2004). The administrator will have failed to satisfy this burden and accordingly abused its discretion if it construed a coverage exclusion in a fashion that "conflicts with the plain language of the plan." Wallace v. Intel Corp., 2006 WL 2709839, at *9, 2006 U.S. Dist. LEXIS 67693, at *26 (D.Ariz. Sept. 20, 2006).
1. The Language of the Plan
Humana has satisfied its burden of showing its own discretionary authority under the Cutter Aviation Group Medical Plan. The Plan states clearly and unequivocally that "Humana as administrator for claims determinations and as ERISA claims review fiduciary, shall have full and exclusive discretionary authority to: 1) interpret plan provisions, 2) make decisions regarding eligibility for coverage and benefits, and 3) resolve factual questions relating to covarage and benefits." Doc. # 49, Exhibit 1, Notices at 2. This language plainly establishes that Humana, as the Plan administrator, has discretion to interpret the Plan and determine eligibility under its provisions. Accordingly, Humana's decision to deny coverage for Boldon's TheraSphere treatment may be reviewed under the abuse-of-discretion standard.
2. Whether Humana Exercised Discretion
Moving to the second stage of analysis under Abatie, Humana did not exercise discretion in denying coverage specifically for Boldon's treatment. Rather than freely evaluate Dr. Hirsch's recommendation for TheraSphere in order to determine whether coverage was warranted in the circumstances, Dr. Sidat-Singh simply followed a preexisting Humana guideline that categorically barred coverage for TheraSphere on the ground that it is "experimental/investigational." Given *1210 that Dr. Sidat-Singh had no authority to disregard this inflexible "guideline," the outcome of his review was effectively decided before he obtained a single document pertaining to Boldon's case. A decision male in these circumstances can hardly be deemed discretionary. See Black's Law Dictionary 499 (8th ed.2004) (defining "discretion" as "the power of free decision-making").
Nor did Humana exercise discretion during any of Boldon's administrative appeals. The letter denying. Boldon's first appeal simply provided a more thorough articulation of the basis for Dr. Sidat-Singh's initial denial and provided no indication that Humana had denied coverage in its discretion based on the particular facts of Boldon's claim. Humana confirmed that it was simply following a preexisting rule when it sent a copy of its internal guideline to Boldon as an attachment to the October 3 denial of coverage. Boldon is therefore entitled to a de novo decision-actually a first decision-by the court on any issue concerning his individual suitability for TheraSphere treatment.
If Humana is entitled to abuse of discretion review, it would be applied only to its categorical decision that TheraSphere is experimental or investigational for HCC treatment, which is the only decision Humana actually made. No post-Abatie precedent squarely addresses the proper locus of the discretionary decision-making that may trigger abuse-of-discretion review. However, the court need not decide whether Humana's global internal guideline is subject to abuse of discretion or de novo review because, as discussed below, even under the flexible abuse of discretion standard of Abatie, that categorical decision cannot survive a fair reading of the Plan language.
3. The Appropriate Level of Scrutiny
Two aspects of Humana's decision denying coverage for Boldon's Thera-Sphere treatment warrant a high level of scrutiny under the abuse-of-discretion standard. First, it is relevant to the extent of deference to be accorded to Humana's global decision that Dr. Sidat-Singh failed to consider the merits of Dr. Hirsch's recommendation in light of Boldon's specific condition and treatment options. Indeed, even if he had attempted to make such an individualized determination, he did not have expertise in the relevant field of medicine. Dr. Sidat-Singh, a former family practitioner, testified that he has never performed TheraSphere treatment, consulted with another physician about the treatment, or even read any literature on the topic. Compounding this problem is the fact that Dr. Sidat-Singh never reviewed the definition of "experimental/investigational" that is contained in the Plan Glossary. In these circumstances, he could not have possibly made a well-informed decision under the provisions of the Plan. Although Humana heard several appeals on Boldon's claim, there is also no indication that it ever considered the specific facts of Boldon's individual claim at any stage of the appeal process.
Similar conduct has previously been held to warrant a heightened level of scrutiny. Daic v. Metropolitan Life Insurance Company, 458 F.Supp.2d 1167 (D.Hawai'i 2006), for example, involved a plaintiff who had been denied long-term disability benefits under a plan governed by ERISA on the ground that her condition did not preclude her from holding employment. In evaluating the denial of benefits, it was noted that some skepticism was appropriate because the administrator did not thoroughly investigate the claim: although the administrator's physicians reviewed evidence concerning the plaintiffs condition, *1211 they did not examine the plaintiff in person. Id. at 1176.
Second, a higher level of scrutiny is supported, even if only marginally, by the structural conflict of interest created by Humana's status as both the administrator of the Plan and its funding source. See Abatie, 458 F.3d at 965. This conflict creates an "incentive to pay as little in benefits as possible to plan participants because the less money the insurer pays out, the more money it retains in its own coffers." Id. at 966. In this case, there is no evidence of malice, self-dealing, or a parsimonious claims-granting history on the part of Humana. Independent review organizations also concurred with Humana's medical judgment. However, the conflict of interest created by Humana's dual role is "inherent" and must be given some weight "even if merely formal and unaccompanied by indicia of bad faith." Id. Thus, the fact that independent reviewers agreed with the judgment that Thera-Sphere is "experimental/investigational" cannot fully obviate the conflict of interest, see Sherry v. Hartford Life & Accident Ins. Co., 314 F.Supp.2d 714, 722 (N.D.Ohio 2004), particularly when there is no indication that the reviewers concurred with Humana's decision based on the precise language of the Plan, rather than on the meaning of "experimental/investigational" that is generally understood within the medical community. The conflict of interest will therefore be considered in determining whether Humana abused its discretion.
4. Whether Humana Abused its Discretion
Humana abused its discretion by denying coverage without demonstrating that the exclusion for "experimental/investigational" treatments applies to Thera-Sphere under the plain language of the Plan. See Wallace, 2006 WL 2709839, at *9, 2006 U.S. Dist. LEXIS 67693, at *26. Humana considers TheraSphere treatment to be "experimental/investigational" because "it is not identified as safe, widely used and generally accepted as effective for the proposed use as reported in nationally recognized peer reviewed medical literature published in the English language." Joint Exhibit # 1 at 94. This conclusion is based on two literature summaries that Humana obtained from a medical industry consultant in May 2006. Yet those summaries do not support Defendant's conclusion. They simply observe that, while all Phase I and Phase II clinical studies on TheraSphere have concluded that it is "relatively safe, well-tolerated, and effective for advanced stage unresectable HCC," no Phase III trials have been conducted to compare its efficacy with that of alternative treatment options. Joint Exhibits # 16-17.
Humana also failed to demonstrate that the treatment fell short of the Plan's requirements for reported safety and effectiveness. The literature summaries on which Humana relied report that all thirteen clinical trials on the treatment found it to be "relatively safe, well-tolerated, and effective." Joint Exhibit # 17 at 2. These trials were discussed in nearly thirty peerreviewed, professional medical journals, all of which are cited in the literature summaries that Humana used to inform its internal guideline. To the extent that the literature provided additional analysis on the treatment, it further supported the conclusion that TheraSphere is safe and effective. Moreover, even if some scientists hypothetically dispute the safety and efficacy of the treatment, Humana's policy exclusion does not apply so long as a treatment is identified in the literature as "generally accepted as effective." Doc. # 49, Exhibit 1 at 94. The existent peer-reviewed *1212 literature on TheraSphere amply satisfies this language.
Humana has also failed to show that TheraSphere is identified in the relevant literature as anything other than widely used. The reason is transparent: Thera-Sphere is available in nearly thirty cancer treatment centers across the United States. Since 2004, the National Comprehensive Cancer Network has included TheraSphere treatment in its clinical guidelines for HCC. TheraSphere is also fully reimbursable under Medicare and Medicaid, and it is covered by a series of major medical insurance carriers. Dr. Hirsch has himself treated approximately 30 patients with TheraSphere since April 2005. In these circumstances, the peer-reviewed medical literature would have little basis for concluding that TheraSphere is not widely used. Indeed, one peer-reviewed article suggested that TheraSphere is "rapidly being adopted in the medical community as an adjunctive therapeutic tool in the management of primary and secondary liver malignancies." Riad Salem, Radioembolization with 90Yttrium, Microspheres: A State-of-the-Art Brachytherapy Treatment for Primary and Secondary Liver Malignancies, 17 J. Vascular Interventional Radiology 1251, 1251 (2006).
If Humana is arguing that TheraSphere is experimental or investigational because it is not "widely used" in relation to the size of the general public, it advances an unreasonable interpretation of the Plan language. The only sensible interpretation of the Plan is that a covered treatment must be identified in the relevant literature as widely used among the population of patients who suffer from the disease for which the treatment is designed. Because the burden is on Humana to show the applicability of its exclusion and Humana has failed to provide any evidence, that TheraSphere is not widely used among HCC patients, the treatment cannot be deemed experimental or investigational on that basis.
Rather than demonstrate that Thera-Sphere is "experimental/investigational" under the plain language of the Plan, Humana denied coverage solely on the ground that TheraSphere has not been subject to Phase III comparative clinical studies involving large numbers of patients. That is the criticism voiced in the independent reports Humana endorsed as the basis for its universal finding that TheraSphere is "experimental/investigational." In making its decision on this basis, Humana imported a surprising, categorical requirement of Phase III trials that effectively excludes coverage for FDA-approved and otherwise safe, efficacious, and generally used treatments for orphan diseases. This was an abuse of discretion. Phase III trials typically require hundreds, if not thousands, of participating patients to demonstrate in a statistically meaningful manner the effectiveness of a treatment. Because orphan diseases by definition only involve a small number of patients, it is extremely difficult, if not impossible in many cases, to conduct Phase III trials involving patients with these diseases. The humanitarian device exemption recognizes this reality by waiving many of the FDA's rigorous clinical requirements for commercial distribution when a treatment will be utilized by fewer than 4,000 patients per year.
Despite its significant effect, the asserted requirement for Phase III clinical trials is by no means apparent from the text of the. Plan. No language in the Plan's definition of "experimental or investigational" fairly discloses that treatments otherwise legal, safe, efficacious and generally used can be excluded solely on the ground that they have not been subjected to Phase III trials. With references to Phase I, II, and *1213 III clinical trials performed by the National Cancer Institute, various forms of FDA approval, and even a specific Medicare coverage manual, the Plan's definition of "experimental or investigational" clearly contained a high level of detail. Boldon had no reason to believe that those details were incomplete. Humana may not employ what amounts to a submerged requirement of Phase III trials when that exclusion cannot, reasonably be anticipated from the text of the Plan. This approach is consistent with the doctrine of reasonable expectations, which requires an ERISA plan administrator to make exclusionary clauses "conspicuous, plain, and clear, placing them in such a fashion as to make obvious their relationship to other policy terms." Saltarelli v. Bob Barker Group Med. Trust, 35 F.3d 382, 385 (9th Cir.1994) (quoting Nat'l Mut. Ins. Co. v. McMahon & Sons, Inc., 177 W.Va. 734, 356 S.E.2d 488, 496 (1987)).
For these reasons, Boldon has shown a prospect of success equivalent to what would be required for a final injunction upon trial on the merits.
5. Current Suitability for the Treatment
Humana separately argues that the injunction request should be denied because, according to the report from the UCSF CT scan that Humana discovered during this litigation, Boldon's HCC has already metastasized. Humana reasons that if this information had been reviewed originally, coverage justifiably could have been denied under the Plan's exclusion for treatments that are not medically necessary because TheraSphere is ineffective and even harmful for patients with metastatic HCC. The argument is rejected.
Boldon is entitled to an original decision by the court on this issue, without deference to any decision Humana may wish to make. Humana made no effort, and indeed had no intention, to base its denial of coverage on Boldon's specific suitability for this treatment. Rather, Humana made a strategic decision to deny coverage for TheraSphere on the basis of a global policy that disregards the medical circumstances of individual patients. In making that decision, Humana embraced the possibility that some valid, case-specific justifications for the application of its policy exclusions would remain unutilized. Humana's failure to make a decision, and to call for the specific medical evidence that would allow it to make a decision, leaves the matter for decision by the court.
The court has been advised this day by Boldon's attorney that tests conducted at Banner Hospital on December 12, 2006, lead Dr. Hirsch to conclude that Boldon's cancer has not metastasized and that he remains a suitable patient for TheraSphere treatment. To address the issue, the court will set a hearing on Monday, December 18, 2006, at 1:00 p.m. If Humana does not dispute Dr. Hirsch's opinion, it will advise the court promptly and the hearing will be vacated.
6. Bond
Because the injunctive relief is granted under the standard for final injunction after trial on the merits, no bond will be required of Boldon.
The relief shall be delayed until after December 22, 2006, to provide Humana an opportunity to seek a stay of the order from the Court of Appeals.


16 Cal.Rptr.3d 293 (2004)
120 Cal.App.4th 1199
In re EDY D., a Person Coming Under the Juvenile Court Law.
The People, Plaintiff and Respondent,
v.
Edy D., Defendant and Appellant.
No. B166775.
Court of Appeal, Second District, Division Four.
July 26, 2004.
*294 Sandra L. Waite, Rancho Cucamonga, under appointment by the Court of Appeal, for Defendant and Appellant.
Bill Lockyer, Attorney General, Robert R. Anderson, Chief Assistant Attorney General, Pamela C. Hamanaka, Senior Assistant Attorney General, Victoria B. Wilson and Jaime L. Fuster, Deputy Attorneys General, for Plaintiff and Respondent.
CURRY, J.
Edy D. appeals from a judgment entered declaring him a ward of the court pursuant to Welfare and Institutions Code section 602 upon a finding that he had committed petty theft, a misdemeanor, in violation of Penal Code section 484, subdivision (a). Placed home on probation, he contends the trial court violated his right to due process in failing to consider a disposition pursuant to Welfare and Institutions Code section 725, subdivision (a), as punishment for exercising his right to adjudication. For reasons explained in the opinion, we reverse the disposition order.

FACTUAL AND PROCEDURAL SUMMARY
Immediately prior to adjudication, the minor moved pursuant to Code of Civil Procedure section 170.1 to disqualify the judge for trial purposes. Defense counsel explained that while the trial court believed the motion was untimely, the problem was that when the parties last came to court and tried to discuss disposition, the court advised that "the 725[1] disposition was off the table because [defense counsel] was setting it for trial." Defense counsel argued the court could not be fair in terms of disposition when the court had already decided appellant should not receive a 725, subdivision (a) disposition just because the matter was set for trial.
In response, the court stated the matter had been set for pre plea and it was the court's "understanding discussions were had and the minor rejected 725(a). If he rejected it, [the court is] not going to allow [the minor] to take advantage of 725(a) when witnesses are inconvenienced and *295 brought to court. [The court] did say that 725(a) was off the table. [The court doesn't] see anything wrong with that. It was offered to him, and he rejected it."
At the adjudication hearing, Domingo Gomez testified he was employed in loss prevention at Tower Records in Marina Del Rey. On October 29, 2002, he was operating a camera from an observation point and observed the minor peeling the security tags from CD's. Gomez left the camera on the minor to see what he was going to do with the CD's and observed the minor conceal two of them in his front waistband. The minor then walked to the front of the store, grabbed his backpack, and exited the store. He passed "personed registers" on his way out but made no attempt to pay for the CD's. Alarms went off as the CD's have "back-up tags." Gomez detained the minor outside of the store. Gomez identified himself, stated for whom he worked, and placed the minor under arrest. Gomez subsequently turned the minor over to the police. The total value of the items was $41.98.
The petition was sustained and although the probation report recommended disposition in accordance with Welfare and Institutions Code section 725, subdivision (a), the court declared the minor a ward of the court pursuant to Welfare and Institutions Code section 602 and placed him home on probation.[2]

DISCUSSION
Appellant contends his due process rights were violated in that he was punished for exercising his constitutional rights. We agree.
"It is well settled that to punish a person for exercising a constitutional right is `a due process violation of the most basic sort.' [Citation.] The constitutional right to trial by jury in criminal prosecutions is fundamental to our system of justice [citations]; thus, [our Supreme Court has] stated that `only the most compelling reasons can justify any interference, however slight, with an accused's prerogative to personally decide whether to stand trial or to waive his rights by pleading guilty.' [Citation.] `A court may not offer any inducement in return for a plea of guilty or nolo contendere. It may not treat a defendant more leniently because he foregoes his right to trial or more harshly because he exercises that right.' [Citation.]" (In re Lewallen (1979) 23 Cal.3d 274, 278-279, 152 Cal.Rptr. 528, 590 P.2d 383.)
The court's statement that if the minor inconvenienced witnesses by having them come to court for an adjudication hearing, the option of a disposition under Welfare and Institutions Code section 725, subdivision (a) would no longer be available to him, reveals that the court gave consideration to the minor's election to exercise his right to an adjudication. That he chose not to admit the allegation "is completely irrelevant at sentencing; if a judge bases a sentence, or any aspect thereof, on the fact that such a plea is entered, error has been committed and the sentence cannot stand." (In re Lewallen, supra, 23 Cal.3d 274, 279, 152 Cal.Rptr. 528, 590 P.2d 383.) We conclude that the court's statement indicates the court was basing the minor's disposition at least in part on the fact that he declined the disposition *296 prior to the adjudication. (See In re Lawanda L. (1986) 178 Cal.App.3d 423, 432-433, 223 Cal.Rptr. 685.)

DISPOSITION
The disposition in this matter is reversed and remanded to the trial court for reconsideration.
We concur: EPSTEIN, Acting P.J., and HASTINGS, J.
NOTES
[1]  Welfare and Institutions Code section 725 provides in pertinent part, "After receiving and considering the evidence on the proper disposition of the case, the court may enter judgment as follows: (a) If the court has found that the minor is a person described by Section 601 or 602, by reason of the commission of an offense other than any of the offenses set forth in Section 654.3, it may, without adjudging the minor a ward of the court, place the minor on probation, under the supervision of the probation officer, for a period not to exceed six months.... [¶] (b) If the court has found that the minor is a person described by Section 601 or 602, it may order and adjudge the minor to be a ward of the court."
[2]  Defense counsel again argued relative to the disposition that "[t]he probation report recommended 725. On the last court date, March 25th, the Court apparently thought he was eligible for 725 probation. I provided his grades, which are better than they were the 25th of March. I think he remains eligible for 725 probation. This incident occurred in October. He has been free from law enforcement since October. It is now April. It has been a good six months."


            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                   March 4, 2009
                                 No. 08-60523
                               Summary Calendar                Charles R. Fulbruge III
                                                                       Clerk

SONIA ZAVALA-MORALES

                                             Petitioner

v.

ERIC H HOLDER, JR, U S ATTORNEY GENERAL

                                             Respondent

                      Petition for Review of an Order of the
                         Board of Immigration Appeals
                               BIA No. A78 987 512

Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
        Sonia Zavala-Morales, a native and citizen of Mexico, seeks a petition for
review of an order of the Board of Immigration Appeals (BIA) denying her
application for hardship cancellation of removal pursuant to 8 U.S.C. § 1229b.
We dismiss the petition in part for lack of jurisdiction and deny the petition in
part.

        *
      Pursuant to 5 TH C IR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5 TH C IR. R. 47.5.4.
                                  No. 08-60523

      We generally review only the BIA’s decision except to the extent that the
decision of the immigration judge (IJ) influences the BIA. Mikhael v. INS, 115
F.3d 299, 302 (5th Cir. 1997). We may review the IJ’s decision in the instant
case because the BIA adopted it. See Chun v. INS, 40 F.3d 76, 78 (5th Cir.
1994).
      We lack jurisdiction to review the IJ’s discretionary determination that
Zavala-Morales failed to demonstrate the “exceptional and extremely unusual
hardship” required for cancellation of removal under § 1229b. See 8 U.S.C.
§ 1252(a)(2)(B)(i); Sung v. Keisler, 505 F.3d 372, 377 (5th Cir. 2007); Rueda v.
Ashcroft, 380 F.3d 831, 831 (5th Cir. 2004). We reject Zavala-Morales’s attempt
to classify her disagreement with the weighing and consideration of the relevant
factors by the IJ as an issue of constitutional dimension.      See Hadwani v.
Gonzales, 445 F.3d 798, 801 (5th Cir. 2006). To the extent that Zavala-Morales
challenges the discretionary denial of her request for cancellation of removal, we
dismiss her petition for want of jurisdiction.
      Zavala-Morales’s claim that her due process rights were violated because
the IJ exhibited bias against her is unavailing. Our review of the record does not
show that the IJ held a “personal bias” against Zavala-Morales that arose from
an “extrajudicial source” or that the IJ’s conduct demonstrated “pervasive bias
and prejudice.” See Matter of Exame, 18 I & N Dec. 303, 306 (BIA 1982).
Zavala-Morales’s bias claim lacks merit, and we deny her petition for review on
this issue.
      DISMISSED IN PART FOR LACK OF JURISDICTION; DENIED IN
PART.

                                        2


      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

                                       NO. 03-15-00785-CR

                                  The State of Texas, Appellant

                                                  v.

                                Robert Luther Trevino, Appellee

   FROM THE DISTRICT COURT OF LAMPASAS COUNTY, 27TH JUDICIAL DISTRICT
           NO. 8866A, HONORABLE JOHN GAUNTT, JUDGE PRESIDING

                             MEMORANDUM OPINION

               Robert Luther Trevino was charged with misapplication of trust funds in an amount

of $500 or more with an intent to defraud. See Tex. Prop. Code §§ 162.031(a) (setting out elements

of offense), .032(b) (specifying that offense is third-degree felony if person misapplies “$500 or

more . . . with intent to defraud”). Trevino and the State entered into a plea-bargain agreement in

which he agreed to enter a plea of nolo contendere to the charged offense in exchange for the State

agreeing to recommend that his adjudication of guilt be deferred and that he be placed on community

supervision. See Tex. Code Crim. Proc. art. 27.02(5) (explaining that plea of nolo contendere has

same legal effect as guilty plea). In accordance with that agreement, Trevino entered a plea of nolo

contendere, and the district court determined that there was sufficient evidence to support the plea.

               During the punishment phase of the hearing, the State asserted that there was an

error in the pre-sentence investigation report. Specifically, the State mentioned that the restitution
amount listed in the report was approximately $8,000 and referenced a different victim than the one

alleged in the offense at issue. See id. art. 42.037(a) (empowering trial court sentencing defendant

to require defendant “to make restitution to any victim of the offense”), (m) (providing that “[a]n

order of restitution may be enforced by the state or a victim named in the order to receive the

restitution in the same manner as a judgment in a civil action”). Further, the State explained that it

had previously provided the district court with a letter arguing that the evidence would show that

“Quality Turf Farms of West Columbia, Texas, is still owed $1211.25 and that Mike Carter of North

Texas Hydromulch Services is due and payable $84,325.20.” In addition, the State contended that

those amounts “are due and payable and . . . need to be paid as terms and conditions of probation.”

In response, Trevino urged that he did not owe the amounts proposed by the State.

                At the end of the hearing, the district court pronounced that it was going to defer

Trevino’s adjudication and placed him on community supervision for ten years, and the district court

also explained that it has “corrected the payments on the amount of restitution as follows: $1,211.25

to Quality Turf Farms; $84,325.20 to Mike Carter.” Immediately afterwards, Trevino moved to

withdraw his plea of nolo contendere and urged that he was relying on the amount of restitution

listed in the pre-sentence-investigation report when he agreed to the terms of the plea bargain. The

district court denied the request but granted Trevino the right to appeal “[i]n order to fix any problem.”

The district court’s order of deferred adjudication is consistent with its oral pronouncement,

including the amount of restitution owed.

                Approximately two years after the district court deferred Trevino’s adjudication,

Trevino filed an application for writ of habeas corpus. See id. art. 11.072, § 1 (authorizing person

                                                    2
convicted of felony to seek relief from “an order or a judgment of conviction ordering community

supervision”). In his application, Trevino requested that he be granted an out-of-time appeal in

order to appeal the order deferring his adjudication and placing him on community supervision.

See Ex parte McCarty, No. 03-14-00575-CR, 2015 WL 2089091, at *1, *4 (Tex. App.—Austin

Apr. 29, 2015, no pet.) (mem. op., not designated for publication) (addressing habeas claim that

applicant’s attorney failed to file notice of appeal and concluding “that an out-of-time appeal is a

permissible remedy under article 11.072”). Specifically, he argued that his plea “was not freely and

voluntarily entered” and that “the evidence was legally insufficient to support conviction,” and he

also asserted that his “plea was entered based on his understanding of the restitution amount reflected

in the” pre-sentence-investigation report, “which was far less than the amount that was ultimately”

imposed. In addition, Trevino contended that he communicated his desire to appeal the district

court’s order to his attorney and that he did not learn that his attorney did not file the notice of appeal

until after the deadline had passed. In response, the State filed a motion opposing the requested

relief and arguing that Trevino’s requested relief was barred by the doctrine of laches. See Ex parte

Carrio, 992 S.W.2d 486, 488 (Tex. Crim. App. 1999) (explaining that doctrine of laches may

serve as basis to deny habeas relief), overruled in part by Ex parte Perez, 398 S.W.3d 206, 213

(Tex. Crim. App. 2013). The State also filed an affidavit from Trevino’s trial counsel in which his

attorney averred that he had told Trevino on multiple occasions that he did not do appellate work and

told Trevino to hire an appellate lawyer.

                During the habeas hearing, Trevino testified that his trial attorney was also representing

him in the civil matter, that he did not agree to the amount of restitution ordered, that he intended

                                                    3
to appeal the amount of restitution imposed, that his trial attorney told him that he was going to file

an appeal, and that he thought that his attorney had filed an appeal. Further, Trevino explained that

he was not informed that his trial attorney did not file an appeal until after the deadline for filing an

appeal had run. In his testimony, Trevino discussed how he began searching for a new attorney

approximately one month after being informed that his trial attorney did not file an appeal, how he

met with the attorney who ended up representing him in the habeas proceeding months later, how

he decided to wait on the outcome of the civil case before pursuing a challenge to the criminal

conviction because he did not have enough money to pursue both cases at the same time, and how

he pursued a challenge to the criminal conviction as soon as he had the financial resources to do so.

In the hearing, Trevino also explained that although he was ready to proceed in the civil suit, the suit

was dismissed because the other party, North Texas Hydromulch, did not have any money to pursue

its claims, and he stated that he was unaware of any discussion about the civil case being dismissed

because of the restitution ordered in the criminal case.

                In addition, Trevino admitted into evidence two letters from his trial counsel to the

district court in which the attorney requested findings of fact and conclusions of law so that “I can

proceed with [Trevino’s] appeal,” a letter from his trial counsel to him in which his attorney stated

that “I have completed my work in filing for the appeal on the criminal case,” and a letter from his

trial counsel to him that was mailed after the deadline to file the appeal had run explaining that the

case was “in the appeal phase” but that his attorney did not practice appellate law and asking Trevino

to come pick up the case file. During the hearing, the State did not call any witnesses to the stand

but did argue that the requested relief was barred by the doctrine of laches.

                                                   4
               After convening the hearing on the writ application, the district court issued the

following relevant findings of fact and conclusions of law:

       Findings of Fact

       F. After applicant was placed on deferred adjudication, [his] attorney . . . filed a
       Motion for New Trial, and also filed a Request for Findings of Fact.

       G. The court did not specifically rule on the Motion for New Trial, and it was
       overruled by operation by law.

       H. After applicant was placed on deferred adjudication[, his] attorney . . . wrote two
       letters to the Court, and in both letters indicated he was pursuing an appeal.

       I. No notice of appeal was filed by trial counsel.

       J. Applicant did not learn that a Notice of Appeal had not been filed until February
       24, 2014. At that time, the time for filing a notice of appeal had already expired.

       K. Applicant retained Walter M. Reaves, Jr., to represent him in all habeas and
       appellate proceedings in July of 2015.

       L. Applicant retained counsel to request an out of time appeal as soon as he was
       financially able to do so.

       Conclusions of Law

       B. Applicant’s Notice of Appeal was not filed on a timely basis.

       C. Applicant was entitled to appeal under the law, having received approval from the
       trial court to appeal.

       D. Applicant desired to appeal from the judgment.

       E. Applicant is entitled to the opportunity to file an out-of-time appeal. See, e.g.,
       Ex parte Dorsey, No. AP-75986, 2008 WL 4151929, *1 (Tex. Crim. App. Sept. 10,
       2008) (not designated for publication).

                                                 5
                Accordingly, the district court granted Trevino’s application. After the district court

made its determination, the State appealed the district court’s order.1 See Tex. Code Crim. Proc. art.

44.01(k) (authorizing State to appeal order granting habeas relief under article 11.072). We will

affirm the district court’s order.

                                     STANDARD OF REVIEW

                Appellate courts review a trial court’s ruling on a habeas claim under an abuse-of-

discretion standard. Kniatt v. State, 206 S.W.3d 657, 664 (Tex. Crim. App. 2006). “A trial court

abuses its discretion when its ruling is arbitrary or unreasonable.” Gaytan v. State, 331 S.W.3d 218,

223 (Tex. App.—Austin 2011, pet. ref’d). But a trial court does not abuse its discretion if its ruling

lies within “the zone of reasonable disagreement.” Bigon v. State, 252 S.W.3d 360, 367 (Tex. Crim.

App. 2008); see Lopez v. State, 86 S.W.3d 228, 230 (Tex. Crim. App. 2002). Under that standard,

we “review the record evidence in the light most favorable to the trial court’s ruling.” Kniatt,

206 S.W.3d at 664. Further, “[a]n applicant’s delay in seeking habeas corpus relief may prejudice

the credibility of the claim.” Id.

                An individual who has been convicted of a felony or misdemeanor may seek habeas

“relief from an order or a judgment of conviction ordering community supervision.” Tex. Code

Crim. Proc. art. 11.072, § 1. “At the time the application is filed, the applicant must be, or have

been, on community supervision, and the application must challenge the legal validity of . . . the

conviction for which or order in which community supervision was imposed; or . . . the conditions

        1
         After the State filed its notice of appeal, it filed a request with the district court for
additional findings of fact and conclusions of law specifically pertaining to the doctrine of laches.

                                                  6
of community supervision.” Id. § 2(b); see also Ex parte Motta, No. 13-13-00667-CR, 2014 WL

6602280, at *1 (Tex. App.—Corpus Christi Nov. 20, 2014, no pet.) (mem. op., not designated for

publication) (addressing appeal of habeas application filed under article 11.072 by individual who

pleaded guilty to offense “and was placed on deferred-adjudication community supervision”). In

general, a post-conviction writ of habeas corpus may not be used to decide matters that could have

been raised at trial and on direct appeal. See Tex. Code Crim. Proc. art. 11.072, § 3. To succeed

under a post-conviction writ of habeas corpus, “the applicant bears the burden of proving, by a

preponderance of the evidence, the facts that would entitle him to relief.” Ex parte Ali, 368 S.W.3d

827, 830 (Tex. App.—Austin 2012, pet. ref’d).

                In habeas proceedings, “[v]irtually every fact finding involves a credibility

determination,” and “the fact finder is the exclusive judge of the credibility of the witnesses.” Ex

parte Mowbray, 943 S.W.2d 461, 465 (Tex. Crim. App. 1996). For habeas proceedings under article

11.072, “the trial court is the sole finder of fact,” and appellate courts afford “almost total deference

to a trial court’s factual findings when supported by the record, especially when those findings are

based upon credibility and demeanor.” Ex parte Ali, 368 S.W.3d at 830; see also id. (stating that

there is less potential for disregarding trial court’s findings in article 11.072 appeal than in appeal

under article 11.07 where court of criminal appeals “is the ultimate fact finder”).

                                            DISCUSSION

                In its sole issue on appeal, the State urges that the district court erred by granting the

relief requested because the doctrine of laches applied in this case and should have barred Trevino

from pursuing an out-of-time appeal. See Stansberry v. State, 239 S.W.3d 260, 264 (Tex. Crim.

                                                    7
App. 2007) (explaining that out-of-time appeal may be granted through habeas relief and that if out-

of-time appeal is granted, defendant is returned to point in appellate process when he can give notice

of appeal and perfect his appeal); cf. Palmer v. State, No. 03-15-00525-CR, 2015 WL 5096318, at *1

n.1 (Tex. App.—Austin Aug. 28, 2015, pet. ref’d) (mem. op., not designated for publication) (noting

in context of article 11.07 of Code of Criminal Procedure that remedy for untimely filed notice of

appeal “is to file a post-conviction writ of habeas corpus”).

                The doctrine of laches is a common-law principle that prevents a party from asserting

a claim when there was an unreasonable delay in presenting the claim and when the other party

is prejudiced by the delay, and that principle applies in the habeas context. See Ex parte Perez,

398 S.W.3d at 210 & n.3. Among other “relevant circumstances,” a trial court may consider “factors

such as the length of the applicant’s delay in filing the application, the reasons for that delay, and the

degree and type of prejudice resulting from the delay.” Id. at 217; see also id. (stating that there is

“an inverse relationship” between extent of prejudice that must be shown and length of delay).

When determining if the State has been prejudiced, a court may consider “anything that places the

State in a less favorable position, including prejudice to the State’s ability to retry a defendant, so

that [the] court may consider the totality of the circumstances in deciding whether to grant equitable

relief.” Id. at 215. A trial court may also consider “the diminished memories of trial participants

and the diminished availability of the State’s evidence, both of which may often be said to occur

beyond five years after a conviction becomes final.” Id. at 216; see also id. at 217-18 (explaining

that “the longer an applicant delays filing his application, and particularly when an applicant delays

filing for much more than five years after conclusion of direct appeals, the less evidence the State

                                                    8
must put forth in order to demonstrate prejudice”). Stated differently, a court may “reject the State’s

reliance on laches when the record shows that” the “delay was not unreasonable because it was due

to a justifiable excuse or excusable neglect,” that “the State would not be materially prejudiced as

a result of the delay,” or that “the applicant is entitled to equitable relief for other compelling

reasons.” Id. at 218.

               Viewing the evidence presented to the district court in the light most favorable to the

court’s ruling and given that reviewing courts must afford almost total deference to a trial court’s

findings that are supported by the record, we must conclude that the district court did not abuse its

discretion when it determined that Trevino wanted to appeal the district court’s order deferring his

adjudication, that Trevino’s lawyer informed Trevino and the court that he was actively pursuing an

appeal, that no appeal was filed, that Trevino did not discover that no appeal had been filed until

after the deadline to file had run, and that Trevino hired an attorney to request an out-of-time appeal

when he was financially able to do so. See Ex parte McCarty, 2015 WL 2089091, at *3 (explaining

that claim that attorney did not timely file appeal fell under article 11.072 because it challenges

legality of conviction and that out-of-time appeal may be granted as remedy); cf. Ex parte Coy,

909 S.W.2d 927, 928 (Tex. Crim. App. 1995) (concluding that applicant was “entitled to an out-

of-time appeal” because his counsel failed to comply with procedural rule and, therefore, denied

applicant “of an opportunity for meaningful appellate review”).

               Further, although the record does reveal that a year and several months passed

between the time when Trevino discovered that his trial attorney had not filed a notice of appeal and

when he filed an application for writ of habeas corpus, courts have typically held that the doctrine

                                                  9
of laches applied in the habeas context when the delays were significantly longer than the one at

issue in this case. See Ex parte Smith, 444 S.W.3d 661, 663 (Tex. Crim. App. 2014) (noting delay

of 10 years and remanding case to trial court to allow applicant opportunity to explain delay so

that determination regarding whether laches applies could be made); Ex parte Carrio, 992 S.W.2d at

488-89 (holding application for post-conviction writ of habeas corpus in abeyance while trial court

addressed issue of whether doctrine of laches prohibited relief requested fourteen years after

conviction was imposed); Ex parte Roberts, No. 14-15-00338-CR, ___S.W.3d___, 2016 WL 1097731,

at *3-4 (Tex. App.—Houston [14th Dist.] Mar. 10, 2016, pet. ref’d) (concluding that trial court

did not abuse its discretion by denying habeas application where applicant waited thirteen years

to file application); Ex parte Gonzales, No. 09-14-00250-CR, 2015 WL 690823, at *2 (Tex.

App.—Beaumont Feb. 18, 2015, no pet.) (mem. op., not designated for publication) (deciding that

trial court could have reasonably concluded “that the nine-year delay was unreasonable and

unexplained, compromised the reliability of a retrial, and was prejudicial to the State”); Ex parte

Reyna, 435 S.W.3d 276, 280 (Tex. App.—Waco 2014, no pet.) (determining that trial court did not

err in denying relief where delay was twenty years long); see also Ex parte Perez, 398 S.W.3d at 216

n.12 (recognizing that “delays of more than five years may generally be considered unreasonable in

the absence of any justification for the delay”).

               Moreover, when asserting that it has been prejudiced by the delay, the State does not

argue on appeal and did not argue in the habeas hearing that the delay would negatively impact its

ability to pursue the case, that the evidence that the State would need has been compromised due to

the delay, or that the memories of those involved have diminished. Instead, the State argues on

                                                    10
appeal that it has been prejudiced because it should be able to rely on the finality of court judgments

when seeking to recover restitution. Specifically, the State contends that granting habeas relief will

undermine “the State’s interest in being able to proceed with a judgment and order to include the

efforts of probation departments to collect restitution . . . without concern that after such efforts have

been made the very basis for those efforts may be subject to attack after the deadline for appeal.”

                Although the State does have a “broad interest in the finality of a long-standing

conviction,” see Ex parte Perez, 398 S.W.3d at 218, we note that this type of general interest is

somewhat lessened in this case given the amount of delay actually at issue and given the absence of

any showing that the State’s ability to pursue this particular case had somehow been prejudiced.

Further, we can see no reason to conclude that the fact that this case involves restitution to the alleged

victim should, on its own, compel a determination that the State has somehow been prejudiced.

                In addition to arguing that it has been prejudiced in the manner described above, the

State also refers to the companion civil case between North Texas Hydromulch, which was owned

by Carter, and Sprinkleman, LLC, which was owned by Trevino, and argues that Trevino was aware

of the connection between the suits and even informed the district court that if the jury in the civil

suit returned a damages award that was less than the amount of restitution ordered, “we would like

for [the district court] to take [that] in[to] consideration and maybe suspend some of that payment.”

Further, the State highlights that Trevino waited ten months after the civil suit had been dismissed

with prejudice to file his application for writ of habeas corpus. In light of the preceding, the State

contends that if the relief is granted, “the dismissal of the companion civil case in reliance of finding

and judgment of restitution [will have] harmed the overall interest of society,” including the interest

                                                   11
of the victim in this case, by affecting “the ability [of] courts to act and rely on the finality of court

findings and orders that have passed the deadlines for appeals” and by affecting the ability of citizens

“to rely on orders of the courts for relief and protection.” Finally, the State urges that the State’s

and society’s interests “would not have been materially prejudiced” if Trevino had sought relief

before the civil suit was dismissed because “the parties to the civil suit could still [have] protect[ed]

their interests.”

                To the extent that the State is asserting that its interests and those of its citizens

would be prejudiced if the requested relief were granted because the companion civil suit had already

been dismissed in reliance on the amount of restitution ordered in this case, we have been unable

to find any support for the proposition that this type of alleged prejudice is a relevant consideration

when determining whether the doctrine of laches should prevent an applicant seeking habeas relief

from obtaining an out-of-time appeal. See Ex parte Saenz, No. WR-80,945-01, ___ S.W.3d ___,

2016 WL 1359214, at *5 (Tex. Crim. App. Apr. 6, 2016) (explaining that “the doctrine of laches is

intended to address the broader interests of the criminal-justice system, such as prejudice to the

State’s ability to prosecute a defendant or to respond to allegations due to the loss of evidence, rather

than being focused on the ills of repetition and wasted resources caused by an applicant’s failure to

act more quickly in raising his claims” (emphasis added)). Moreover, nothing in the record in this

case indicates that the civil suit was dismissed because of or in response to the judgment in the

underlying criminal case. On the contrary, as discussed above, Trevino testified that the civil suit

was dismissed because North Texas Hydromulch did not have the funds to pursue the suit, and

Trevino related that he was unaware of any discussions indicating that the suit was dismissed

because a judgment had been issued in the criminal case.

                                                   12
               For all of these reasons, we must conclude that the district court did not abuse its

discretion by rejecting the State’s assertion that Trevino’s claim was barred by the doctrine of

laches or by granting Trevino the habeas relief that he requested. Accordingly, we overrule the

State’s issue on appeal.

                                        CONCLUSION

               Having overruled the State’s issue on appeal, we affirm the district court’s order

granting Trevino’s application for writ of habeas corpus.

                                             __________________________________________

                                             David Puryear, Justice

Before Chief Justice Rose, Justices Puryear and Pemberton

Affirmed

Filed: June 23, 2016

Do Not Publish

                                                13


266 N.J. Super. 406 (1993)
629 A.2d 1362
STATE OF NEW JERSEY, PLAINTIFF-RESPONDENT,
v.
LARRY SEGO, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Submitted February 23, 1993.
Decided July 29, 1993.
*407 Before Judges ANTELL, DREIER and SKILLMAN.
Zulima V. Farber, Public Defender, attorney for appellant (Judith A. Fallat, Designated Counsel, of counsel and on the brief).
*408 Stephen G. Raymond, Burlington County Prosecutor, attorney for respondent (Deborah A. Siegrist, Assistant Prosecutor, of counsel and on the brief).
The opinion of the court was delivered by SKILLMAN, J.A.D.
This appeal requires us to decide whether an alleged accomplice's out-of-court statement inculpating defendant, which the Confrontation Clause of the Sixth Amendment would preclude the State from introducing as substantive evidence, may be used for the purpose of impeaching the alleged accomplice's subsequent out-of-court statement exculpating defendant.
A jury found defendant guilty of knowing murder, in violation of N.J.S.A. 2C:11-3a(1) or (2), two counts of first degree robbery, in violation of N.J.S.A. 2C:15-1a(1), second degree burglary, in violation of N.J.S.A. 2C:18-2b(1), and fourth degree theft by unlawful taking, in violation of N.J.S.A. 2C:20-3a. The jury also acquitted defendant of purposeful murder, one count of first degree robbery and one count of second degree burglary. The court sentenced defendant to a 40 year term of imprisonment, with 30 years of parole ineligibility, for murder, and concurrent terms of four years imprisonment for burglary and nine months imprisonment for theft. The court merged defendant's robbery convictions into his conviction for murder.
The State's evidence showed that defendant, who was then 16 years old, committed the murder jointly with Donald Slover, an 18 year old, who was tried separately. The victim was Martin Vinson, who lived in an old school bus parked in a Woodland Township junkyard where he worked. After consuming a substantial amount of alcoholic beverages, defendant and Slover went to the junkyard during the early morning hours of August 2, 1988 to rob Vinson. The two young men entered Vinson's school bus and struck him with multiple blows on the head, with defendant wielding a metal pipe and Slover a flashlight in the attack. These blows crushed Vinson's skull and caused his death.
*409 The most damaging testimony against defendant was given by his friend, Stephen DeFrank. According to DeFrank, defendant came to his house during the late morning of August 2, 1988, and said that he and Slover had just killed Vinson. Defendant told DeFrank that they had decided to rob Vinson because he owed Slover money. When they arrived at Vinson's school bus, Slover and Vinson got into an argument and Slover hit Vinson over the head several times with a flashlight. Defendant and Slover then had a discussion outside Vinson's bus in which they agreed that "somebody had to take him out or kill him." After defendant and Slover got back into the bus, defendant used a metal pipe to hit Vinson over the head "[m]ore than a couple of times." As defendant was hitting Vinson, Slover asked for Vinson's wallet, which defendant took from Vinson's back pocket and gave to Slover.
In addition, defendant gave a statement to the police in which he admitted involvement in the murder, stating that, after waking up following a night of drinking, he and Slover talked about robbing Vinson. They then entered Vinson's bus, at which time Vinson "jumped up ... and ... was coming at" them. Slover grabbed a flashlight and defendant grabbed a pipe, and each of them struck Vinson in the back of his head two or three times.
Defendant testified on his own behalf that he and Slover consumed an extremely large amount of alcohol and marijuana before the murder. According to defendant, he went to the junkyard with Slover with the intent of finding motorcycles with which to go "joyriding." But sometime after they arrived at the junkyard, Slover walked over to Vinson's school bus and defendant followed him. Slover opened the door of the bus and when he got to the top of the stairs, Vinson "jumped out." Slover then picked up a flashlight and hit Vinson over the head. According to defendant, Vinson came towards him, so he picked up a pipe and also hit Vinson over the head several times. Vinson then fell to the floor. Slover said, "[g]rab the wallet," and defendant did so, throwing it to Slover. Defendant claimed that he did not intend to hurt, kill *410 or rob Vinson, but was simply defending himself because he thought Vinson was attacking him.
Defendant also presented testimony by a psychiatrist who expressed the opinion that defendant was suffering from extreme intoxication when Vinson was killed, resulting in a "prostration of faculties," and causing defendant to be "unable to act with knowledge and purpose with ... respect to the criminal charges against him."
On appeal, defendant makes the following arguments:
I. PHOTOGRAPHS AND SLIDES OF THE VICTIM SHOULD HAVE BEEN DEEMED INADMISSIBLE.
II. THE COURT SHOULD HAVE GRANTED DEFENDANT A JUDGMENT OF ACQUITTAL, WHICH ERROR CLEARLY PROVIDED AN UNJUST RESULT.
III. THE TRIAL COURT ERRED IN REFUSING TO GRANT A NEW TRIAL, WHICH ERROR RESULTED IN A MANIFEST DENIAL OF JUSTICE.
1. The trial court's charge to the jury on intoxication improperly shifted the burden of proof to the defendant, constituting reversible error.
2. The defendant's motions for mistrial should have been granted on the ground that his right to a fair trial was prejudiced by the prosecutor's impermissible comments.
3. The court erred in deeming codefendant's statement to police admissible.
4. The charge given to the jury by the court assumed defendant to be guilty, constituting grounds for a new trial.
Defendant's only substantial argument is that the trial court violated his Sixth Amendment right of confrontation in ruling that Slover's statement to the police inculpating him would be admissible for the limited purpose of impeaching Slover's subsequent exculpatory statement. Defendant's other arguments are clearly without merit and do not require discussion. R. 2:11-3(e)(2).
During trial, defendant indicated his intention to call John Dobran, who had been incarcerated with Slover, to testify that Slover told him he had killed Vinson and that defendant left the *411 bus before Slover administered the fatal blows.[1] Defendant offered this testimony pursuant to Evidence Rule 63(10) as a declaration against penal interest. The trial court ruled that Dobran's testimony would be admissible but that if he testified, the prosecution would be permitted under Evidence Rule 65 to introduce portions of Slover's statement to the police which placed primary responsibility for the murder upon defendant for the purpose of impeaching Slover's later statement to Dobran. The court indicated that it would instruct the jury that the statement could not be used as independent evidence of defendant's guilt but only to show that Slover "said several different things on the subject." In light of this ruling, defendant did not call Dobran as a witness.
Evidence Rule 65 provides:
Evidence of a statement or other conduct by a declarant inconsistent with a statement received in evidence under an exception to Rule 63, is admissible for the purpose of discrediting the declarant, though he had no opportunity to deny or explain such inconsistent statement. Any other evidence tending to impair or support the credibility of the declarant is admissible if it would have been admissible had the declarant been a witness.[2]
Slover's statement to the police placing primary responsibility for the murder upon defendant was inconsistent with his alleged subsequent statement to Dobran which substantially exculpated defendant. Therefore, under Rule 65, Slover's statement to the police was admissible for the purpose of impeachment. See State *412 v. Pierro, 253 N.J. Super. 280, 284-85, 601 A.2d 757 (App.Div.), certif. denied, 127 N.J. 564, 606 A.2d 374 (1992); see also United States v. Wuagneux, 683 F.2d 1343, 1357-58 (11th Cir.1982), cert. denied, 464 U.S. 814, 104 S.Ct. 69, 78 L.Ed.2d 83 (1983); Henderson v. State, 765 S.W.2d 336, 338 (Mo. Ct. App. 1989); State v. Kline, 11 Ohio App.3d 208, 210-213, 11 OBR 330, 333-336, 464 N.E.2d 159, 162-65 (1983).
Nevertheless, defendant argued at trial, and again argues on appeal, that the trial court's ruling that Slover's statement to the police was admissible for the purpose of impeachment violated his rights under the Confrontation Clause. In Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), the Court held that the introduction of an inculpatory out-of-court statement by a codefendant who does not take the stand violates a defendant's Sixth Amendment right of confrontation. But a codefendant's or accomplice's out-of-court statement may be introduced for a purpose other than proving the truth of what it asserts without violating a defendant's right of confrontation. Thus, in Tennessee v. Street, 471 U.S. 409, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985), after the defendant testified that his confession had been coerced by the Sheriff reading an accomplice's confession and directing him to say the same thing, the trial court allowed the State to impeach defendant by introducing the accomplice's confession to show that it was different from defendant's confession in a number of material respects. The Supreme Court held that this use of the accomplice's confession for the purpose of impeachment did not violate defendant's rights under the Confrontation Clause:
The nonhearsay aspect of [the accomplice's] confession  not to prove what happened at the murder scene but to prove what happened when [defendant] confessed  raises no Confrontation Clause concerns.
....
Had the prosecutor been denied the opportunity to present [the accomplice's] confession in rebuttal so as to enable the jury to make the relevant comparison, the jury would have been impeded in its task of evaluating the truth of [defendant's] testimony and handicapped in weighing the reliability of his confession. Such a result would have been at odds with the Confrontation Clause's very mission  to advance "the accuracy of the truth-determining process in criminal trials."

*413 Moreover, unlike the situation in Bruton, 391 US, [123,] 134, 20 L Ed 2d 476, 88 S Ct 1620, [1627,] there were no alternatives that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence.
[Id. at 414-15, 105 S.Ct. at 2081-82, 85 L.Ed.2d at 431-32.]
We believe that the same reasoning is equally applicable to this case. If unrebutted, an alleged accomplice's statement that he was solely responsible for a crime can be extremely strong evidence for the defense. However, such a statement can be seriously discredited by evidence that the accomplice made a statement on another occasion that the defendant was involved in the crime. Thus, if the jury had been denied the opportunity to hear Slover's statement inculpating defendant, its ability to evaluate the truthfulness of Slover's statement exculpating defendant would have been significantly impeded. Therefore, as in Street, it was necessary for the jury to hear both of Slover's statements "to advance `the accuracy of the truth-determining process.'" Id. at 415, 105 S.Ct. at 2082, 85 L.Ed.2d at 432. And as in Street, "there were no alternatives," such as the separate trials of codefendants suggested in Bruton, "that would have both assured the integrity of the trial's truth-seeking function and eliminated the risk of the jury's improper use of evidence." Ibid.
We also note that if Slover had actually testified at defendant's trial that he was solely responsible for Vinson's murder, the State could have used Slover's prior inconsistent statement in cross-examining him. Evid.R. 20; State v. DiRienzo, 53 N.J. 360, 383, 251 A.2d 99 (1969). Thus, if the State were precluded by the Confrontation Clause from using Slover's prior inconsistent statement to impeach his out-of-court statement to Dobran, defendant would enjoy a significant strategic advantage in being able to present Slover's exculpatory statement in hearsay form. The State not only would be deprived of the opportunity of cross-examining Slover but also would be prevented from using one of the most effective techniques of witness impeachment, the introduction *414 of a prior inconsistent statement. The hearsay rule and the Confrontation Clause both reflect the view that live testimony with an opportunity for face-to-face confrontation is the most reliable method of determining the truth. Bourjaily v. United States, 483 U.S. 171, 182, 107 S.Ct. 2775, 2782, 97 L.Ed.2d 144, 156-57 (1987); Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597, 606 (1980). Therefore, the Confrontation Clause should not be construed to impose limitations upon the impeachment of out-of-court statements admitted under an exception to the hearsay rule which would not apply to in-court testimony.
Our conclusion that the State could have introduced Slover's statement to the police for impeachment purposes is also supported by the line of cases which hold that "[b]ecause `hearsay rules and the Confrontation Clause are generally designed to protect similar values,' and `stem from the same roots,' ... no independent inquiry into reliability is required when the evidence `falls within a firmly rooted hearsay exception.'" Bourjaily v. United States, supra, 483 U.S. at 182-83, 107 S.Ct. at 2782, 97 L.Ed.2d at 157 (citations omitted); accord Ohio v. Roberts, supra, 448 U.S. at 65-66, 100 S.Ct. at 2538-39, 65 L.Ed.2d at 607-08. The rule codified in Evidence Rule 65 that evidence admissible under an exception to the rule against hearsay is subject to impeachment by the same methods which could be used if the declarant had testified at trial is as "firmly rooted" as the hearsay exception for declarations against penal interest codified in Evidence Rule 63(10). See Carver v. United States, 164 U.S. 694, 697-98, 17 S.Ct. 228, 229-30, 41 L.Ed. 602, 603-04 (1897); Fed. R.Evid. 804(b)(3), 806; Unif.R.Evid. 804(b)(3), 806; compare 3A Wigmore on Evidence §§ 884, 887 (Chadbourne rev. 1970) with 5 Wigmore on Evidence, § 1477 (Chadbourne rev. 1974). Therefore, the trial court correctly concluded that the State could impeach the credibility of Slover's out-of-court statement exculpating defendant by showing that he made another out-of-court statement which inculpated defendant.
Affirmed.
NOTES
[1]  Slover's alleged statement to Dobran is referred to in this opinion as exculpatory because it assigned a lesser responsibility for the offense to defendant than did the State's evidence at trial. However, this statement indicated that defendant had participated in the robbery of Vinson and in fact inflicted the first blow upon him. Therefore, while this statement negated defendant's guilt of purposeful or knowing murder, it could have supported a verdict for felony murder.
[2]  The Uniform Rules of Evidence and Federal Evidence Rules include similar provisions. Unif.R.Evid. 806; Fed.R.Evid. 806. We note that, effective July 1, 1993, New Jersey has adopted new rules of evidence. See 134 N.J.L.J. 798 (July 5, 1993). The subject of impeachment of a hearsay declarant is now addressed in Rule 806, which generally follows Fed.R.Evid. 806.