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Click here for the full text of this decision FACTS:A state jury found Bruce Lee Kittelson guilty of indecency with a child by contact. The case hinged on the child’s accusation, which was made one month after the alleged event. Two enhancement paragraphs alleging prior felony convictions, one for possession of a controlled substance and one for aggravated assault, were found to be true. Kittelson received a 25-year prison sentence. The court of appeals affirmed Kittelson’s conviction, with a dissent. The state habeas court adopted, verbatim, the respondent’s proposed findings of fact, finding no basis for habeas relief, and the Texas Court of Criminal Appeals denied habeas relief without written order. Kittelson appealed the district court’s denial of his application for a writ of habeas corpus and the court granted a certificate of appealability as to three of the issues Kittelson raised. The court granted a COA on the following issues: 1. whether the district court correctly found that Kittelson procedurally defaulted his confrontation clause, due process and insufficient evidence claims; 2. whether the state trial court deprived Kittelson of his constitutional rights to a fair trial by limiting examination of the investigating police officer, T.D. (the alleged victim), and Jana (another minor, who had recanted her allegations of sexual abuse against Kittelson); and 3. whether Kittelson stated a claim for actual innocence. HOLDING:Reversed, rendered and remanded. The district court found that two of Kittelson’s claims were procedurally defaulted: the confrontation and due process challenges to the trial court’s refusal to allow defense counsel to cross-examine the investigating police officer with evidence of Jana’s recanted accusation; and the challenge to the sufficiency of the evidence. The court finds that Kittelson’s constitutional claims were fairly presented in his pro se state habeas application, which referred to his right to cross-examine the investigating police officer under the Sixth and 14th Amendments and specifically invoked due process. The court holds that Kittelson’s discussion of, and citation to, his confrontation, due process and Sixth Amendment rights fairly presented the state courts with his constitutional claims, under federal habeas corpus law. Consequently, the court holds that procedural default is not present on the record. Because Kittelson filed his federal habeas petition on Sept. 11, 2003, the court notes that the petition is subject to review under the standards established in the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. �2254. Section 2254(d)(1) of that law establishes the narrow conditions under which a federal court may grant a petition for a writ of habeas corpus: A federal court may grant habeas relief if the state court decided a case differently from how the U.S. Supreme Court decided a case on a set of materially indistinguishable facts or if the state court correctly divined a legal principle from the Supreme Court’s jurisprudence but misapplied that principle to the facts. Kittelson argues that the trial court limited both his right to challenge the testimony of the state’s witnesses and his right fairly to present the testimony of his own witnesses. But the court points out that before it may grant relief on the basis of a violation of the confrontation clause, the court must apply harmless error analysis. In conducting that analysis, the court finds that the prosecution had no evidence of the allegation against Kittelson other than T.D.’s accusation. Excluding the evidence of Jana’s recanted testimony left Kittelson unable fully to cross-examine T.D. and the investigating police officer, the two critical prosecution witnesses, and unable fully to present evidence from Jana, the only defense witness present with T.D. when the alleged incident occurred and when T.D. made her outcry. The court finds that because of the limits on cross-examination, the jury was left with the impression that Jana had also accused Kittelson, but was deprived of the information about Jana’s recantation. The court holds that the trial court’s determination, far from being a standard, discretionary ruling, doubly harmed Kittelson. The court concludes that the harm was of a constitutional dimension and that the state habeas court’s determination that Kittelson received a fundamentally fair trial in which he was allowed to present a complete defense was an unreasonable application of clearly-established federal law. The court also holds that the state court also unreasonably applied federal law on due process in finding no constitutional error in the trial court’s refusal to permit Kittelson to cross-examine the investigating police officer or to elicit testimony from Jana about her recanted allegation. The evidence supported the defense theory that T.D. was influenced falsely to accuse Kittelson by another child’s description of sexual abuse and the desire to avoid a reprimand. The court determines that by keeping the information about Jana’s recanted accusation from the jury, even after the investigating police officer’s testimony created the impression that Jana was also a victim, the trial court violated Kittelson’s Sixth Amendment rights. The state habeas court’s refusal to rectify this constitutional violation constituted an unreasonable application of clearly established U.S. Supreme Court law on the confrontation and due process clauses. Consequently, the court concludes that Kittelson has shown a basis for relief under 28 U.S.C. �2254 because the state courts unreasonably applied clearly established Supreme Court law governing the Sixth and 14th Amendments. OPINION:Per curiam; King, C.J., Davis, J., and Rosenthal, D.J.

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