                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                          FILED
                             FOR THE NINTH CIRCUIT                            SEP 23 2014

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DAVID FOSTER,                                      No. 12-35865

               Petitioner - Appellant,             D.C. No. 3:06-cv-00689-ST

  v.
                                                   MEMORANDUM*
STATE OF OREGON,

               Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                         Argued and Submitted July 8, 2014
                                 Portland, Oregon

Before: PREGERSON, PAEZ, and WATFORD, Circuit Judges.


       David Foster appeals the district court’s denial of his petition for a writ of

habeas corpus under 28 U.S.C. § 2254. We have jurisdiction under 28 U.S.C. §§

1291, 2253(c), and we affirm.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. Foster challenges a number of the state court’s factual findings as

unreasonable under 28 U.S.C. § 2254(d)(2). To find a state court’s determination

of facts unreasonable, “it is not enough that we would reverse in similar

circumstances if this were an appeal from a district court decision.” Taylor v.

Maddox, 366 F.3d 992, 1000 (9th Cir. 2004). “Rather, we must be convinced that

an appellate panel, applying the normal standards of appellate review, could not

reasonably conclude that the finding is supported by the record.” Id.

      The state court’s finding that Hendershott declined to call Dr. Griest because

she told him that, “it would not be a good idea to have her testify as she would

have to largely agree with the prosecution experts,” is not unreasonable. It is

supported by both Melvin-Davidson’s and Hendershott’s testimony. Moreover,

Dr. Griest’s affidavit does not directly contradict the trial attorneys’ accounts, and

the state court considered the relevant evidence in making its factual findings. See

id. at 1008.

      The state court’s finding that either Melvin-Davidson or Davis had supplied

Dr. Griest with all pertinent information as it became available is also not

unreasonable. Melvin-Davidson and Hendershott both testified that this was the

case, and Dr. Griest’s letter also confirms that she was provided with relevant

background material. The only medical evidence Foster has identified that Dr.


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Griest did not receive in advance was B.F.’s retinal slides. However, Melvin-

Davidson testified that the slides became available “very late in the case,” and she

could not remember if they were available even the day before trial. In light of this

evidence, the state court reasonably found that Dr. Griest received all pertinent

evidence as it became available.

      Finally, the state court’s finding that Foster failed to produce evidence that

there was an expert available to testify that all of B.F.’s injuries could have been

caused by non-criminal reasons is also reasonable. Hendershott and Melvin-

Davidson both testified that Dr. Griest could not be called to testify because she

had developed an unfavorable opinion mid-trial. It was not unreasonable for the

state court to credit the lawyers’ recollections. Nor does Dr. Jollo’s affidavit—the

only other piece of evidence Foster identifies to challenge the state court’s

finding—render the state court’s finding unreasonable. Dr. Jollo offered only

general opinions about possible non-criminal causes of retinal hemorrhages and

seizures; he never stated that he reviewed B.F.’s records and he did not offer any

opinions on the possible causes of the constellation of symptoms B.F. exhibited.

      2. Foster also argues that the state court unreasonably applied Strickland v.

Washington, 466 U.S. 668 (1984), in rejecting his ineffective assistance of counsel

claim. 28 U.S.C. § 2254(d)(1). To prevail on an ineffective assistance of counsel


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claim, Foster must show both deficient performance and prejudice. Strickland, 466

U.S. at 687. Deficient performance means that trial “counsel’s representation fell

below an objective standard of reasonableness.” Id. at 687–88. Our review of

counsel’s performance is “highly deferential,” and we “must indulge a strong

presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689.

      “[I]n some cases—particularly cases where the promised witness was key to

the defense theory of the case and where the witness’s absence goes

unexplained—a counsel’s broken promise to produce the witness” may amount to

prejudicial deficient performance. Saesee v. McDonald, 725 F.3d 1045, 1049–50

(9th Cir. 2013). This, however, is not one of those cases. Foster’s counsel was

faced with an unforeseen trial development—newly available retinal slides had

apparently led Dr. Griest to agree with the State’s medical witnesses. In light of

this development, counsel was faced with “quite a dilemma”—counsel could break

their promise to the jury and risk losing the jury’s trust, or counsel could call their

expert to the stand anyway and risk detrimental testimony. Counsel chose the

former. Counsel has “wide latitude . . . in making [such] tactical decisions.”

Strickland, 466 U.S. at 689. The state court could reasonably have concluded that

the decision to break a promise made in opening statements in light of these


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unforeseen circumstances was a “sound trial strategy.” Id. (internal quotation

marks and citations omitted).

      3. Finally, Foster raises several unexhausted ineffective assistance of

counsel claims. We may reach the merits of a petitioner’s unexhausted and

procedurally defaulted claims if he “presents evidence of innocence so strong that a

court cannot have confidence in the outcome of the trial unless the court is also

satisfied that the trial was free of nonharmless constitutional error.” Schlup v.

Delo, 513 U.S. 298, 316 (1995). A petitioner can meet this standard by presenting

“new reliable evidence—whether it be exculpatory scientific evidence, trustworthy

eyewitness accounts, or critical physical evidence—that was not presented at trial.”

Schlup, 513 U.S. at 324. The new evidence must be so significant that when all of

the evidence is viewed together, it becomes “more likely than not that no

reasonable juror would have convicted [Foster].” Id. at 327; accord House v. Bell,

547 U.S. 518, 538 (2006); Larsen v. Soto, 742 F.3d 1083, 1096 (9th Cir. 2013).

      Foster has not met this demanding standard. Although Foster’s newly-

retained experts provide a non-criminal explanation for B.F.’s injuries, the State’s

experts continue to opine that the constellation of symptoms B.F. displayed are

most likely caused by abuse and they dispute many of the conclusions of Foster’s

experts. Foster’s evidence only renders it possible that a reasonable juror would


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not have convicted; it does not so undermine the State’s case that it is more likely

than not that no reasonable juror would have convicted. See Shumway v. Payne,

223 F.3d 982, 989–90 (9th Cir. 2000). Accordingly, we do not review the merits

of Foster’s unexhausted ineffective assistance of counsel claims.

      The district court also did not abuse its discretion in denying a request for an

evidentiary hearing on Foster’s actual innocence claim. The medical evidence

presented is thorough, and the experts have all had an opportunity to respond to

each other. Ultimately, however, the evidence is inconclusive. Foster has not

established that “an evidentiary hearing would produce evidence more reliable or

more probative than the medical records and expert opinion[s] that were before the

district court.” Griffin v. Johnson, 350 F.3d 956, 966 (9th Cir. 2003).

      AFFIRMED.




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