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NOT FOR PUBLICATION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. 15-35966
Petitioner-Appellant, D.C. No. 6:10-cv-06197-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 one count of
first-degree sodomy and one count of first-degree burglary. We have jurisdiction
under 28 U.S.C. § 2253, and we affirm. Because the petition was filed after April
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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’s refusal to grant his change of venue
request denied his constitutional right to “a fair trial by a panel of impartial,
indifferent jurors,” Irvin v. Dowd, 366 U.S. 717, 722 (1961). To support a change
of venue request on the basis of prejudicial pretrial publicity, the defendant must
establish either presumed or actual prejudice. See Murphy v. Florida, 421 U.S.
794, 800-01 (1975). As the reviewing federal court, our duty is to make an
independent review of the record—including an independent review of news
reports about the case—to determine whether there was such a degree of prejudice
against the defendant that a fair trial was impossible. Murray v. Schriro, 746 F.3d
418, 443-46 (9th Cir. 2014).
Schroeder has failed to demonstrate either presumed or actual prejudice. An
independent review of the record reveals that the press coverage of Schroeder’s
2
trial was largely factual, not unusually inflammatory, did not saturate the
community, and did not interfere with the court proceedings. Likewise, an
independent review of the voir dire transcript shows that few potential jurors had
formed preconceived notions of Schroeder’s guilt based on pretrial publicity, and
that none of the jurors seated held preconceived opinions of his guilt or otherwise
exhibited signs of bias or partiality. The Oregon Court of Appeals’ decision
affirming the trial court’s denial of the motion for change of venue was neither
contrary to, nor an unreasonable application of clearly established federal law, and
its decision did not rest on an unreasonable determination of the facts.
2. Schroeder contends that the Oregon Court of Appeals erred in affirming the
trial court’s admission of the eyewitness identifications by L.B. and E.C. because
the identifications were the product of impermissibly suggestive identification
procedures in violation of the Due Process Clause. Courts employ a two-step
approach to determine whether the Due Process Clause requires suppression of an
eyewitness identification tainted by police arrangement. Perry v. New Hampshire,
565 U.S. 228, 238–41 (2012). If police used “an identification procedure that is
both suggestive and unnecessary,” the court must determine whether the improper
procedure created a “substantial likelihood of misidentification.” Id. at 238-39
(citing Neil v. Biggers, 409 U.S. 188, 201 (1972)). If so, then the court must
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determine whether the identification was nonetheless reliable, as “reliability is the
linchpin in determining the admissibility of identification testimony.” Manson v.
Brathwaite, 432 U.S. 98, 114 (1977). We apply the factors identified in Neil v.
Biggers, 409 U.S. at 199–200, in evaluating the reliability of the identification.
Schroeder first contends that the photographic lineup shown to two
witnesses, E.C. and L.B., was itself impermissibly suggestive in both its
composition and its administration by an investigating officer. We conclude that
the fact that Schroeder’s photograph was slightly larger than the other photographs
in the lineup did not render the lineup itself impermissibly suggestive, nor did the
fact that the lineup was administered by an officer investigating the case.
With E.C., the police did use an impermissibly suggestive identification
procedure—they told her that a suspect was among the lineup’s photographs—but
her identification was nonetheless reliable under a Biggers analysis. The sole
factor cutting against the reliability of E.C.’s identification was the length of time
between the crime and the identification, as eight months had passed between the
encounter and the photo identification and another four months had passed
between the photo identification and the in-court identification. Nonetheless, no
clearly established federal law compelled exclusion on the basis of this kind of
time lapse.
4
With L.B., the police did not use an impermissibly suggestive identification
procedure and therefore did not create a substantial likelihood of misidentification.
Moreover, even if the procedure had been impermissibly suggestive, the
identification would still be reliable upon consideration of the Biggers factors.
When considering the “totality of the circumstances,” Biggers, 409 U.S. at 199, the
Oregon Court of Appeals’ conclusion—that the identifications were sufficiently
reliable to be admissible as a constitutional matter—was a reasonable application
of clearly established federal law and was not based on an unreasonable
determination of the facts.
3. 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 only Oregon court that provided a reasoned opinion on the merits of these two
claims was the original trial court, so we look to the trial court’s decision in our
analysis. See Van Lynn v. Farmon, 347 F.3d 735, 738 (9th Cir. 2003).
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
5
(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
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. 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).
6
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
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.
4. 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”).
AFFIRMED.
7