FILED
NOT FOR PUBLICATION
OCT 26 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN PAUL SCHROEDER, No. 15-35713
Petitioner-Appellant, D.C. No. 6:10-cv-06198-TC
v.
MEMORANDUM*
JEFF PREMO, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael J. McShane, District Judge, Presiding
Argued and Submitted October 3, 2017
Portland, Oregon
Before: LEAVY, PAEZ, and BEA, Circuit Judges.
John Schroeder appeals the district court’s denial of his petition for habeas
corpus pursuant to 28 U.S.C. § 2254 challenging his convictions for two counts of
first-degree rape, two counts of first-degree sodomy, one count of first-degree
robbery, and one count of first-degree burglary. We have jurisdiction under 28
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
U.S.C. § 2253, and we affirm. Because the petition was filed after April 24, 1996,
the provisions of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) govern. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). Under
AEDPA, habeas relief may be granted only if the state court’s adjudication was:
(1) “contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States” or (2)
“based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C. § 2254(d).
1. Schroeder argues that the trial court erred on the issue of expert testimony on
eyewitness identification in two ways: first, by denying authorization of funds for
an expert witness on eyewitness identification, and second, by excluding the
proffered testimony of the defense’s expert witness on eyewitness identification.
The erroneous exclusion of defense evidence may violate the Fifth
Amendment due process right to a fair trial and the Sixth Amendment right to
present a defense. See Chambers v. Mississippi, 410 U.S. 284, 294-95, 302-03
(1973). A defendant’s “right to present relevant evidence is not unlimited,”
however, and may “bow to accommodate other legitimate interests in the criminal
trial process” and “is subject to reasonable restrictions.” United States v. Scheffer,
523 U.S. 303, 308 (1998). The exclusion of evidence in a criminal trial
2
unconstitutionally abridges a defendant’s right to present a defense only where the
exclusion is arbitrary or disproportionate and where its exclusion has “infringed
upon a weighty interest of the accused.” Id.
The trial court excluded the evidence under Oregon precedent barring expert
testimony on eyewitness identification, and the Oregon Court of Appeals upheld
the exclusion on the same grounds. Schroeder has not shown that this exclusion of
the testimony was contrary to, or an unreasonable application of, clearly
established federal law relating to broad principles of admissibility of evidence in
criminal proceedings. Schroeder has also failed to demonstrate the existence of
any contradictory clearly established law governing the more specific proposition
of admissibility of expert testimony on eyewitness identification. Indeed, we have
consistently affirmed the exclusion of this type of expert testimony under less-
demanding, less-deferential tests than the one AEDPA imposes on reviewing
federal courts. See United States v. Langford, 802 F.2d 1176, 1179–80 (9th Cir.
1986).
We likewise reject Schroeder’s funding argument. The Constitution requires
that courts take steps to ensure that indigent defendants “have a fair opportunity to
present [their] defense,” and the Supreme Court has held that indigent defendants
are entitled to certain types of assistance, including psychiatric experts under some
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circumstances. Ake v. Oklahoma, 470 U.S. 68, 76, 83 (1985). The Supreme Court
has never held, however, that indigent defendants are entitled to funds for other
types of expert witnesses. Indeed, we considered precisely this question in Jackson
v. Ylst, 921 F.2d 882, 886 (9th Cir. 1990), and concluded that there was no
authority for the proposition that the Constitution requires the appointment of an
expert on eyewitness identification. The trial court’s denial of funds was neither
contrary to, nor an unreasonable application of, clearly established federal law.
2. Schroeder contends that trial counsel rendered ineffective assistance in four
ways: (1) failing to adequately impeach the prosecution’s witnesses; (2) failing to
object to bitemark evidence from the cheese L.T. and M.H.’s assailant bit during
the invasion of L.T.’s home; (3) allegedly admitting that Schroeder was in
possession of the assailant’s clothing; and (4) calling J.S.M. and K.M. as witnesses,
unintentionally leading to the introduction of adverse testimony.
To prove ineffective assistance of counsel, Schroeder must demonstrate first
that “counsel's representation fell below an objective standard of reasonableness,”
and second, that “there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been different.”
Williams v. Taylor, 529 U.S. 362, 390–91 (2000) (quoting Strickland v.
4
Washington, 466 U.S. 668, 694 (1984)). When ineffective assistance of counsel is
alleged in a habeas case where AEDPA applies, our review is “doubly deferential.”
Knowles v. Mirzayance, 556 U.S. 111, 123 (2009). Schroeder cannot prevail on
his ineffective assistance of counsel claim unless he demonstrates that it was
“necessarily unreasonable” for the Oregon post-conviction review court to
conclude that: (1) Schroeder had not overcome the strong presumption of
competence; and (2) Schroeder had failed to undermine confidence in his
conviction. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).
Schroeder has not met his burden of demonstrating that it was “necessarily
unreasonable” for the state court to conclude that Schroeder failed to prove counsel
acted deficiently or that he was prejudiced by counsel’s actions. Schroeder’s first
three claims of ineffective assistance—failing to impeach the prosecution’s
witnesses with prior inconsistent statements, failing to object to bitemark evidence,
and allegedly confirming to the jury that Schroeder was in possession of the
assailant’s clothing—clearly fail to meet Strickland’s demanding standard as to
both the ineffective assistance and the prejudice prong. And although calling
J.S.M. and K.M. as witnesses ultimately backfired at trial, we conclude that
counsel’s decisions were strategic, not deficient. See Pinholster, 563 U.S. at 191
(A reviewing court must “begin with the premise that under the circumstances, the
5
challenged action[s] might be considered sound trial strategy”) (citing Strickland,
466 U.S. at 690)).
3. Because Schroeder has failed to establish any constitutional error, he cannot
establish that cumulative error infected his trial with unfairness such that habeas
relief is warranted. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (holding
that where court concludes that “no violation of federal rights” existed, “there is no
reason to reverse for cumulative error”).1
AFFIRMED.
1
The state argues that Schroeder has failed to exhaust his claim of
cumulative error. Rather than resolve the issue of exhaustion, however, we opt to
reach the merits of Schroeder’s claim and reject it, as it is “perfectly clear” that
Schroeder “does not raise even a colorable federal claim.” Cassett v. Stewart, 406
F.3d 614, 623-24 (9th Cir. 2005).
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