                                                                            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                           NOT FOR PUBLICATION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.   15-35965

              Petitioner-Appellant,              D.C. No. 6:10-cv-00505-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 first-degree

attempted rape and first-degree burglary. We have jurisdiction under 28 U.S.C. §

2253, and we affirm. Because the petition was filed after April 24, 1996, the



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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). The only Oregon

court that provided a reasoned opinion on the merits of Schroeder’s first three

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).

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




                                            2
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

trial was largely factual, not unusually inflammatory, did not saturate the

community, and did not interfere with the court proceedings. We are not able to

review the transcript of jury voir dire in this trial, as it apparently does not exist.

We conclude, however, that none of the other evidence pointed to by Schroeder as

evincing actual prejudice—comments made by defense counsel during closing

argument regarding the jurors’ promise to keep an open mind, and the voir dire

transcript from his first trial—demonstrate prejudice; if anything, both pieces of

evidence undermine his claim. 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 trial court erred in admitting the pre-trial and in-

court eyewitness identifications by victim L.B. 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


                                             3
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 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 makes two arguments in support of his contention that the

identifications were inadmissible under the Due Process Clause. First, Schroeder

argues that L.B.’s identification was based on an impermissibly suggestive

procedure because L.B. read a newspaper article that included a photograph of

Schroeder and saw a brief news clip about Schroeder’s case prior to identifying

him in the photo lineup. Under Perry, however, only police-created impermissibly

suggestive circumstances implicate due process concerns and thus require a

reliability assessment by the trial court. Perry, 565 U.S. at 238-41. The police had

nothing to do with L.B. seeing the article or viewing the television clip, so the


                                            4
police did not create any of the allegedly suggestive circumstances surrounding her

identification. Second, Schroeder argues that the identification was tainted by

L.B.’s identification of Schroeder’s shirt in a clothing lineup several weeks prior to

the photo lineup in which she identified Schroeder. This argument is based on a

misinterpretation of the record—the shirt in the lineup photo was not the same shirt

that L.B. had identified in the clothing lineup—and we reject it. Even if the shirt

had been the same, we conclude that under these specific circumstances, the

identification procedure would still not have been impermissibly suggestive.

      Because L.B.’s identifications were not the product of police-created

impermissibly suggestive identification procedures, the trial court was not required

to conduct a reliability assessment using the factors enumerated in Biggers. See

Perry, 565 U.S. at 238-41. And indeed, the trial court did not conduct a Biggers

analysis, but that decision was neither contrary to nor an unreasonable application

of clearly established federal law, given its finding that the identifications were not

the product of any impermissibly suggestive procedures. When considering the

“totality of the circumstances,” Biggers, 409 U.S. at 199, the trial court’s

conclusion that the identifications were admissible was a reasonable application of

clearly established federal law and was not based on an unreasonable

determination of the facts.


                                           5
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 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

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


                                           6
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

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


                                           7
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.




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