                                                                               FILED
                             NOT FOR PUBLICATION                                DEC 20 2010

                                                                           MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                          U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



STEPHEN OTTO REITZ,                                No. 08-56858

               Petitioner - Appellant,             D.C. No. 2:07-cv-01119-ABC-JTL

  v.
                                                   MEMORANDUM *
CHARLES HARRISON, Warden,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                  Audrey B. Collins, Chief District Judge, Presiding

                           Submitted December 10, 2010 **
                               Pasadena, California

Before: TROTT, WARDLAW, and IKUTA, Circuit Judges.

       The state appellate court’s denial of Reitz’s claim that the trial court violated

his due process rights by limiting the testimony of his expert witnesses was not

contrary to nor an unreasonable application of Supreme Court precedent.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Defendants do not have an absolute right to present evidence relevant to their

defense, see Crane v. Kentucky, 476 U.S. 683, 690–91 (1986), and the state court

neither invoked a “per se” evidentiary rule, see Rock v. Arkansas, 483 U.S. 44,

56–57, 62 (1987), nor so drastically limited Reitz’s ability to examine his expert

witnesses as to raise due process concerns, see Chambers v. Mississippi, 410 U.S.

284, 302 (1973).

      The state court’s denial of Reitz’s Confrontation Clause claim was not

contrary to nor an unreasonable application of Supreme Court precedent. Here,

none of the casual remarks by Eva to friends and family were “testimonial” within

the meaning of Crawford v. Washington, 541 U.S. 36, 51–52 (2004), or Davis v.

Washington, 547 U.S. 813, 822 (2006), because the remarks were not made “under

circumstances which would lead an objective witness reasonably to believe that

[they] would be available for use at a later trial,” Parle v. Runnels, 387 F.3d 1030,

1037 (9th Cir. 2004) (quoting Crawford, 541 U.S. at 52) (internal quotation marks

omitted).

      The state court’s denial of Reitz’s claim that the admission of six hearsay

statements by the victim violated his due process rights under the Fourteenth

Amendment was not contrary to nor an unreasonable application of Supreme Court

precedent. The hearsay statements were cumulative of other testimony and did not


                                           2
“render[ ] the trial so fundamentally unfair as to violate due process.” Randolph v.

California, 380 F.3d 1133, 1147 (9th Cir. 2004) (quoting Windham v. Merkle, 163

F.3d 1092, 1103 (9th Cir. 1998)) (internal quotation marks omitted). Even if the

admission of such statements was a state law error, such an error cannot, on its

own, support the granting of habeas relief. See Estelle v. McGuire, 502 U.S. 62,

67–68 (1991).

      AFFIRMED.




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