                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 28 2015

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

DAVID CHARLES SCHUBERT,                          No. 14-35182

              Petitioner - Appellant,            D.C. No. 2:08-cv-00660-RSL

  v.
                                                 MEMORANDUM*
BERNARD WARNER,

              Respondent - Appellee.


                   Appeal from the United States District Court
                     for the Western District of Washington
                    Robert S. Lasnik, District Judge, Presiding

                             Submitted April 7, 2015**
                                Seattle Washington

Before: FERNANDEZ, RAWLINSON, and CALLAHAN, Circuit Judges.

       Petitioner-Appellant David Charles Schubert (Schubert) appeals the district

court’s denial of his habeas petition, and his motion to amend his habeas petition.




        *
             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).
      1.     Admission of the victim’s out-of-court statements made to a family

friend did not violate the Confrontation Clause because the statements were not

testimonial. See Michigan v. Bryant, 131 S. Ct. 1143, 1153 (2011) (describing

testimonial statements as those made “prior testimony at a preliminary hearing,

before a grand jury, or at a former trial; and police interrogations”) (citation and

alteration omitted). No Supreme Court authority has held that statements made to

someone other than law enforcement personnel are testimonial. See id. at 1155

n.3. The state court’s denial of relief on this claim was not contrary to or an

unreasonable application of Supreme Court law. See Murray v. Schriro, 745 F.3d

984, 996 (9th Cir. 2014).



      2.     Improper admission of evidence violates due process only if

consideration of the evidence renders the trial fundamentally unfair. See Estelle v.

McGuire, 502 U.S. 62, 70 (1991). Schubert has cited no Supreme Court case

holding that application of the excited utterance hearsay exception may render a

trial fundamentally unfair, and we are aware of none. See Murray, 745 F.3d at 997

(“Obviously, a state-court decision cannot be contrary to clearly established

Federal law that was not yet in existence.”). The state court’s denial of Schubert’s




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due process claim was not contrary to or an unreasonable application of Supreme

Court authority. See id. at 996.



      3.     Schubert failed to demonstrate cause for the procedural default of his

claim based on an alleged lack of candor about the level of complicity between the

State and plaintiff’s counsel in the civil proceeding. See Henry v. Ryan, 720 F.3d

1073, 1083 (9th Cir. 2013) (discussing procedural default). It is evident from the

state court filings that Schubert and his counsel suspected, alleged, and had

evidentiary support for this claim long before commencing federal habeas

proceedings. Schubert’s ineffective assistance of counsel arguments fail because

he has not raised a “substantial” claim under Martinez v. Ryan, 132 S. Ct. 1309

(2012). Trevino v. Thaler, 133 S. Ct. 1911, 1918 (2013).



      4.     Because Schubert knew or should have known at the time of his

original filing the facts and theories upon which he based his late proposal for

amendment, the district court did not abuse its discretion when it denied Schubert

leave to amend his petition to add a new Fifth Amendment claim. See Bonin v.

Calderon, 59 F.3d 815, 845-46 (9th Cir. 1995) (holding “that a district court does

not abuse its discretion in denying a motion to amend where the movant presents


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no new facts but only new theories and provides no satisfactory explanation for his

failure to fully develop his contentions originally”).

      AFFIRMED.




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