FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RUSSELL FRANKLIN SCHROEDER,
Petitioner-Appellant,
v. No. 06-15391
JAMES E. TILTON, Secretary, in his D.C. No.
CV-03-04095-JSW
capacity as head of the California
Department of Corrections and OPINION
Rehabilitation,*
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of California
Jeffrey S. White, District Judge, Presiding
Argued and Submitted
February 16, 2007—San Francisco, California
Filed July 3, 2007
Before: J. Clifford Wallace, Richard D. Cudahy,* and
M. Margaret McKeown, Circuit Judges.
Opinion by Judge McKeown
*James E. Tilton is substituted for his predecessor, Edward S.
Alameida, Jr., who was Director of the California Department of Correc-
tions, pursuant to Fed. R. App. P. 43(c)(2).
*The Honorable Richard D. Cudahy, Senior United States Circuit Judge
for the Seventh Circuit, sitting by designation.
7981
SCHROEDER v. TILTON 7983
COUNSEL
Cliff Gardner and Catherine White, Law Office of Cliff Gard-
ner, Oakland, California, for the appellant.
Bill Lockyer, Mary Jo Graves, Gerald Engler, Juliet Haley,
and Christina Vom Saal, Attorney General of the State of Cal-
ifornia, San Francisco, California, for the appellee.
7984 SCHROEDER v. TILTON
OPINION
McKEOWN, Circuit Judge:
We consider whether a California state trial court violated
the Ex Post Facto Clause when it admitted evidence of prior
sexual misconduct under California Evidence Code § 1108. In
Carmell v. Texas, the Supreme Court explained that some, but
not all, rules of evidence have an impermissible retroactive
effect if used in criminal trials where the conduct at issue took
place before the rule of evidence was adopted. See 529 U.S.
513, 530-33, 544-52 (2000). We now face the question of
whether the California court unreasonably applied Supreme
Court law in holding that California Evidence Code § 1108,
which addresses the admissibility of prior sexual offenses,
falls outside the scope of Carmell.
BACKGROUND
In May 1999, Russell Franklin Schroeder was charged
under California Penal Code § 288 and § 288.2 with five
counts of sexual misconduct in Santa Clara County Superior
Court: three counts of committing a lewd act on his grand-
daughter Jessica D.,1 one count of committing a lewd act on
his granddaughter Alicia D., and one count of exhibiting
harmful material to Jessica. The events giving rise to the
indictment took place in January 1994. At that time,
Schroeder’s daughter Marcia left Jessica and Alicia with
Schroeder overnight while she went on a short trip. Schroeder
allegedly made both girls perform oral sex on him, performed
oral sex on Jessica, made Jessica touch her genitals with a
vibrator, and showed pornographic movies to Jessica. Jessica
testified at trial to these events.
1
The parties refer to the victims by their first names throughout the pro-
ceedings both to aid clarity and protect the victims’ privacy, and we adopt
that convention here.
SCHROEDER v. TILTON 7985
At trial, the prosecution introduced evidence, over the
defense’s objection, that Schroeder had previously molested
both of his daughters, Marcia and Lisa, over a period of sev-
eral years. Similar evidence suggested that Schroeder paid
other young girls to take off their clothes, offered to pay
young girls for oral sex, and had been seen naked by young
girls. The trial court admitted this prior uncharged conduct
under California Evidence Code § 1108. Section 1108 became
effective in 1996, after Schroeder committed the charged
offenses but before he was brought to trial.
The jury convicted Schroeder on all five counts.2 The Santa
Clara County Superior Court sentenced Schroeder to a term
of twelve years. Schroeder appealed to the California Court of
Appeal, arguing in part that applying § 1108 to his trial vio-
lated his rights under the Ex Post Facto Clause. U.S. Const.
art. I, § 10, cl. 1. The Court of Appeal rejected this challenge,
holding that:
section 1108 deems more evidence relevant and
makes more evidence admissible, but it does not
thereby eliminate or lower the quantum of proof
required or in any way reduce the prosecutor’s bur-
den of proof. The prosecutor still had to prove the
same elements beyond a reasonable doubt to convict
defendant.
Based on these considerations, the court held that § 1108 was
not the type of rule contemplated by Carmell. The California
Supreme Court denied review, and the district court denied
Schroeder’s petition for a writ of habeas corpus on the same
claim.
2
The state later conceded the conviction for exhibiting harmful material
was time-barred and Schroeder’s conviction on this count was reversed.
7986 SCHROEDER v. TILTON
ANALYSIS
Our de novo review is governed by the Anti-Terrorism and
Effective Death Penalty Act (“AEDPA”). See Wildman v.
Johnson, 261 F.3d 832, 836-37 (9th Cir. 2001). Under
AEDPA, a district court may grant a petition for habeas cor-
pus under 28 U.S.C. § 2254 only if a state court’s adjudication
of the petitioner’s claim “(1) resulted in a decision that was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States; or (2) resulted in a decision that
was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
Id. § 2254(d).3 “Under the ‘unreasonable application’ clause,
a federal habeas court may grant the writ if the state court
identifies the correct governing legal principle from [the]
Court’s decisions but unreasonably applies that principle to
the facts of the prisoner’s case.” Williams v. Taylor, 529 U.S.
362, 413 (2000).
Schroeder’s only contention on appeal is that the state court
violated the Ex Post Facto Clause when it admitted evidence
of his prior sexual misconduct under California Evidence
Code § 1108.4 Section 1108 provides in part: “In a criminal
action in which the defendant is accused of a sexual offense,
evidence of the defendant’s commission of another sexual
offense or offenses is not made inadmissible by Section 1101,
if the evidence is not inadmissible pursuant to Section 352.”
Cal. Evid. Code § 1108(a).
3
In this case, we review the judgment of the California Court of Appeal
because it is the state’s “last reasoned decision.” Avila v. Galaza, 297 F.3d
911, 918 (9th Cir. 2002).
4
To the extent that Schroeder raises a separate challenge that the jury
instructions resulted in an impermissibly retroactive application of § 1108
in his individual case, that issue goes beyond the scope of the certificate
of appealability, and we decline to address it here. See 9th Cir. R. 22-1 &
Advisory Committee Note.
SCHROEDER v. TILTON 7987
Our analysis of § 1108 leads us to comment on §§ 1101 and
352. Section 1101 articulates California’s general ban on the
use of propensity evidence. It states that “[e]xcept as provided
in this section and in Sections 1102, 1103, 1108, and 1109,
evidence of a person’s character or a trait of his or her charac-
ter (whether in the form of an opinion, evidence of reputation,
or evidence of specific instances of his or her conduct) is
inadmissible when offered to prove his or her conduct on a
specified occasion.” Cal. Evid. Code § 1101(a). Section 1101
then identifies some of the permissible uses of prior conduct
evidence, including, but not limited, to demonstration of “mo-
tive, opportunity, intent, preparation, plan, knowledge, iden-
tity, [and] absence of mistake or accident.” Id. § 1101(b).
[1] Section 352 requires the court to evaluate whether the
“probative value [of the evidence] is substantially outweighed
by the probability that its admission will (a) necessitate undue
consumption of time or (b) create substantial danger of undue
prejudice, of confusing the issues, or of misleading the jury.”
Cal. Evid. Code § 352. In sum, § 1108 creates an exception to
the general ban on propensity evidence, so that evidence of
prior sexual misconduct may be presented to the jury to dem-
onstrate propensity to commit the crime charged, provided
that the prejudicial value of that evidence does not substan-
tially outweigh its probative value.
[2] To evaluate Schroeder’s claim, we turn to article I, sec-
tion 10 of the United States Constitution, which states that
“[n]o State shall . . . pass any Bill of Attainder [or] ex post
facto Law . . . .” U.S. Const., art. I, § 10, cl. 1. In its most
basic application, the clause precludes Congress and the states
from enacting laws that criminalize an act already performed.
See Calder v. Bull, 3 U.S. (3 Dall.) 386, 390 (1798).
[3] In Carmell, the Supreme Court confirmed that the pro-
hibition on ex post facto laws also extends to those laws that
“alter[ ] the legal rules of evidence, and [allow the court to]
receive[ ] less, or different testimony, than the law required at
7988 SCHROEDER v. TILTON
the time of the commission of the offence, in order to convict
the offender.” 529 U.S. at 522 (citing Calder, 3 U.S. at 390)
(emphases omitted).5 Carmell addressed a challenge to a
Texas law that changed the rules of evidence with respect to
certain types of sex offenses. Id. at 516. An amendment to the
Texas penal code authorized conviction for such offenses
based solely on the victim’s testimony, whereas before the
amendment was enacted, other corroborating evidence —
beyond the victim’s testimony — was required where the vic-
tim was fourteen years of age or older. Id. at 517-19. Prior to
enactment of the amendment, if no corroborating evidence
was presented, a defendant was entitled to a judgment of
acquittal. Id. at 518. The defendant in Carmell argued that
retroactive application of the rule violated the Ex Post Facto
Clause because his convictions were based solely on the testi-
mony of the alleged victim who was fourteen or fifteen years
old at the time the acts were committed. Id. at 520.
[4] The Supreme Court agreed. It first noted that “[u]nder
the law in effect at the time the acts were committed, the pros-
ecution’s case was legally insufficient and petitioner was enti-
tled to a judgment of acquittal.” Id. at 530. The Court held
that because the amended law “changed the quantum of evi-
dence necessary to sustain a conviction,” it violated the Ex
Post Facto Clause. See id. In so doing, Carmell distinguished
ordinary rules of evidence, which govern admissibility or
competency, for example, from those rules that affect the suf-
ficiency of the evidence. Id. at 533 n.23. Applying the Texas
rule had an impermissible retroactive effect because the rule
did “not merely ‘regulat[e] . . . the mode in which the facts
constituting guilt may be placed before the jury,’ . . . but gov-
ern[ed] the sufficiency of those facts for meeting the burden
of proof.” Id. at 545 (citing Hopt v. Territory of Utah, 110
U.S. 574, 590 (1884)) (first alteration in Carmell).
5
Carmell was decided on May 1, 2000, during Schroeder’s trial, so Car-
mell is the applicable law.
SCHROEDER v. TILTON 7989
The narrow question presented in this appeal is whether the
state court unreasonably applied Carmell in holding that
§ 1108 does not “eliminate or lower the quantum of proof
required or in any way reduce the prosecutor’s burden of
proof.”
[5] The state court did not err in concluding that § 1108 is
an “ordinary” rule of evidence that does not violate the Ex
Post Facto Clause. Id. at 533 n.23. The text of § 1108 does not
speak to the sufficiency of the evidence it renders admissible.
It simply states that evidence of prior uncharged sexual mis-
conduct may be admitted to prove propensity. Cal. Evid. Code
§ 1108. The rule, “by simply permitting evidence to be admit-
ted at trial, . . . do[es] not concern whether the admissible evi-
dence is sufficient to overcome the presumption [of
innocence].” Carmell, 529 U.S. at 533 n.23. Nothing in the
text of § 1108 suggests that the admissible propensity evi-
dence would be sufficient, by itself, to convict a person of any
crime. Section 1108 relates to admissibility, not sufficiency.
Carmell explicitly recognized that the retroactive applica-
tion of certain evidentiary rules to certain defendants might
well be disadvantageous to those defendants. Id. But, it
observed that “to the extent that one may consider [laws
affecting only the admissibility of evidence] as ‘unfair’ or
‘unjust,’ they do not implicate the same kind of unfairness
implicated by changes in rules setting forth a sufficiency of
the evidence standard.” Id.
Schroeder raises two arguments suggesting that we reach a
different conclusion. First, he argues that the state court’s
decision was contrary to clearly established federal law
because the state court read the word “different” out of Car-
mell’s prohibition against retroactively applying laws that
allow a defendant to be convicted on “less or different” evi-
dence than was required at the time of the offense. Carmell,
529 U.S. at 525. While it is literally true that § 1108 allows
conviction on “different” evidence than allowed before the
7990 SCHROEDER v. TILTON
adoption of the rule, Schroeder would have us overlook Car-
mell’s extended discussion of the difference between suffi-
ciency rules on one hand, and admissibility and competency
rules on the other. See id. at 530, 532-33, 542-47. We are not
free to do so.
[6] Schroeder also argues that two facts alone dictate rever-
sal under Carmell: (1) that uncharged acts could be intro-
duced to prove criminal disposition and (2) that a jury could
rely on this disposition to convict. Schroeder’s argument
would be persuasive only if the jury could rely solely on the
uncharged acts to convict. As noted above, nothing in the rule
provides that evidence under § 1108 would suffice to prove
all of the elements of a violation of California Penal Code
§ 288(a) beyond a reasonable doubt with respect to Jessica
and Alicia specifically. The fact that the jury could consider
prior sexual misconduct in weighing whether Schroeder was
guilty of the offenses charged does not, without more, violate
the Ex Post Facto Clause.
[7] Because § 1108 did not affect the quantum of evidence
sufficient to convict Schroeder, the state did not violate his
right to be free from retroactive punishment when it allowed
§ 1108 evidence to be presented at his trial. The decision of
the California courts was neither contrary to nor an unreason-
able application of clearly established Supreme Court law
under Carmell.
AFFIRMED.