                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 06 2017
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


FREDERICK VINCENT THIECKE,                       No.   10-17594

              Petitioner-Appellant,              D.C. No.
                                                 05:06-cv-0161 JF/HRL
 v.

SCOTT M. KERNAN, Warden,                         MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Northern District of California
                      Jeremy Fogel, District Judge, Presiding

                       Argued and Submitted April 21, 2017
                            San Francisco, California

Before: TASHIMA and PAEZ, Circuit Judges, and AMON,** District Judge.

      Following a jury trial, Frederick Thiecke was found guilty in state court of

two counts of first-degree murder of his mother Libby Green and his stepfather

Denny Green and was sentenced to life imprisonment. Thiecke presented a


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Carol Bagley Amon, United States District Judge for
the Eastern District of New York, sitting by designation.
diminished capacity defense at trial, arguing that he lacked the requisite mental

state for first-degree murder. He appealed his convictions to the California Court

of Appeal, which affirmed unanimously. Thiecke subsequently filed a federal

petition for a writ of habeas corpus in which he argued that the state trial court

violated his due process right to present a defense by: (1) limiting the extent to

which Dr. David Foster, the defense’s expert witness, could relate hearsay

evidence to the jury while allowing the prosecution greater latitude to elicit hearsay

on cross-examination; (2) excluding evidence of the victims’ background, lifestyle,

and prior bad acts; and (3) excluding evidence of Thiecke’s neglect and abuse by

the victims. Applying the deferential standard of review established by the

Antiterrorism and Effective Death Penalty Act (“AEDPA”), the district court

dismissed Thiecke’s habeas petition. Thiecke now appeals that decision. We

review a district court’s denial of a petition for a writ of habeas corpus de novo,

Visciotti v. Martel, 839 F.3d 845, 856 (9th Cir. 2016), and we affirm.

      AEDPA “sharply limits the circumstances in which a federal court may issue

a writ of habeas corpus to a state prisoner whose claim was ‘adjudicated on the

merits in State court proceedings.’” Johnson v. Williams, 133 S.Ct. 1088, 1094

(2013) (quoting 28 U.S.C. § 2254(d)). Here, Thiecke contends the California

Court of Appeal did not adjudicate his constitutional claims on the merits. “When


                                           2
a federal claim has been presented to a state court and the state court has denied

relief, it may be presumed that the state court adjudicated the claim on the merits in

the absence of any indication or state-law procedural principles to the contrary.”

Harrington v. Richter, 562 U.S. 86, 99 (2011). Although this presumption “may

be overcome when there is reason to think some other explanation for the state

court’s decision is more likely,” id. at 99–100, Thiecke makes no such showing.

Rather, the California Court of Appeal’s decision makes reference to the Due

Process Clause. Furthermore, although the California Court of Appeal’s opinion

discusses California law, the relevant California standards are “at least as

protective” as the relevant federal standards, so “the federal claim[s] may be

regarded as having been adjudicated on the merits.” Johnson, 133 S.Ct. at 1096.

Therefore, the highly deferential standard of review established by AEDPA

applies.

      1. Thiecke first argues the trial court violated his due process right to

present a defense by limiting the extent to which Dr. Foster could testify about the

hearsay statements on which he based his opinion. The principal hearsay

statements that Thiecke contends were improperly excluded concern Thiecke’s

abuse and neglect by the victims. The California Court of Appeal’s rejection of

this claim was neither contrary to, nor an unreasonable application of, Supreme


                                           3
Court precedent. See 28 U.S.C. § 2254(d)(1). Under Chambers v. Mississippi, 410

U.S. 284, 302 (1973), the exclusion of hearsay statements that are critical to the

defense and that bear “persuasive assurances of trustworthiness” may rise to the

level of a due process violation. However, in contrast to the excluded statements in

Chambers, the excluded hearsay testimony here was not directly exculpatory.

Moreover, the excluded statements had fewer indicia of reliability. Dr. Foster

testified that Thiecke himself did not acknowledge “much” physical abuse, which

casts doubt on the reliability of the other declarants’ statements that Thiecke was

abused. Furthermore, the hearsay statements were made to the defense’s expert

witness preparing to testify at trial, not “spontaneously to a close acquaintance.”

Id. at 300. Accordingly, the California Court of Appeal’s decision was not an

unreasonable application of Chambers. See United States v. Scheffer, 523 U.S.

303, 316 (1998) (“Chambers specifically confined its holding to the ‘facts and

circumstances’ presented in that case . . . .”).

      Thiecke makes a related claim that the trial court violated his due process

right to present a defense by allowing the prosecution greater latitude to elicit

hearsay information in its cross-examination of Dr. Foster. The California Court

of Appeal’s rejection of this claim was neither contrary to, nor an unreasonable

application of, clearly established federal law as determined by the Supreme Court.


                                            4
See 28 U.S.C. § 2254(d)(1). The Supreme Court has held that the admission of

evidence only implicates due process when the “evidence ‘is so extremely unfair

that its admission violates fundamental conceptions of justice . . . .’” Perry v. New

Hampshire, 565 U.S. 228, 237 (2012) (quoting Dowling v. United States, 493 U.S.

342, 352 (1990)). Because Thiecke has not demonstrated that the hearsay

evidence the prosecution was permitted to introduce on cross-examination violated

fundamental conceptions of justice, the California Court of Appeal’s rejection of

this argument was neither contrary to, nor an unreasonable application of, clearly

established federal law as determined by the Supreme Court. Furthermore, the

California Court of Appeal correctly concluded that any error was non-prejudicial

because, as Thiecke concedes, defense counsel was permitted to elicit similar

hearsay testimony from Dr. Foster on redirect examination.

      2. Thiecke next argues the trial court violated his constitutional rights by

prohibiting him from introducing evidence of traces of methamphetamine revealed

in the victims’ autopsies, pornographic videotapes found in the victims’ apartment,

and evidence that Thiecke’s mother had solicited the murder of a previous

husband. The California Court of Appeal rejected this argument, finding that this

evidence was only marginally related to Thiecke’s theory of defense. The

Constitution permits the exclusion of evidence whose “probative value is


                                           5
outweighed by certain other factors such as unfair prejudice, confusion of the

issues, or potential to mislead the jury.” Holmes v. South Carolina, 547 U.S. 319,

326 (2006). Thiecke does not meaningfully address the California Court of

Appeal’s conclusion that the evidence of the Greens’ background and lifestyle was

properly excluded because it had little relevance. Thiecke only offers conclusory

assertions that this evidence was probative which are insufficient to demonstrate

that the California Court of Appeal’s application of Supreme Court precedent was

objectively unreasonable.

      3. Thiecke also contends that the trial court erred by prohibiting him from

introducing evidence of his abuse and neglect by the victims. However, the trial

court never issued a categorical prohibition from introducing evidence of

Thiecke’s abuse and neglect. The California Court of Appeal’s rejection of

Thiecke’s claim that the trial court erred in issuing such a ruling was neither

contrary to, nor an unreasonable application of, clearly established federal law as

determined by the Supreme Court. See 28 U.S.C. § 2254(d)(1).

      Even if the exclusion of evidence rose to the level of a constitutional

violation, any error was harmless under Brecht v. Abrahamson, 507 U.S. 619, 638

(1993). First, as the California Court of Appeal noted, much of the testimony that

Thiecke complains was excluded was, in fact, ultimately presented to the jury,


                                           6
including evidence that Thiecke grew up in an environment of extreme stress, and

suffered deprivation at the hands of his mother, Dr. Foster was thus able to convey

his opinion to the jury and at least some hearsay evidence that formed the basis of

that opinion. Furthermore, the evidence of Thiecke’s guilt was overwhelming.

The prosecution presented substantial evidence at trial that Thiecke had the

requisite mental state to commit first-degree murder, including the undisputed

testimony that Thiecke (1) repeatedly threatened to kill his mother after learning

his car was repossessed, (2) shot the Greens in their house, (3) burned his clothes,

(4) buried the gun in a planter box, and (5) fled the jurisdiction. Accordingly, we

conclude that the exclusion of evidence about which Thiecke complains did not

have a “substantial and injurious effect or influence in determining the jury’s

verdict.” Id.

      4. Finally, Thiecke raises a cumulative error argument for the first time in

his reply brief. The Court will not consider this cumulative error claim because it

is not exhausted, see Wooten v. Kirkland, 540 F.3d 1019, 1025–26 (9th Cir. 2008),

the issue was not certified for appeal, and Thiecke failed to comply with the Ninth

Circuit’s rules in presenting this uncertified issue, see 9th Cir. R. 22-1(e) &

Committee Note.

      AFFIRMED.


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