                                                                            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                           NOT FOR PUBLICATION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


                                          3
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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