                            NOT FOR PUBLICATION                           FILED
                     UNITED STATES COURT OF APPEALS                       MAR 30 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT

 ROBERT DWAYNE HARVEY,                             No. 15-35998

                   Petitioner-Appellant,          D.C. No. 2:13-cv-01425-PK

   v.
                                                  MEMORANDUM*
 JERI TAYLOR,

                   Respondent-Appellee.

                     Appeal from the United States District Court
                              for the District of Oregon
                      Anna J. Brown, District Judge, Presiding

                              Submitted March 6, 2017**
                                  Portland, Oregon

Before: FISHER and FRIEDLAND, Circuit Judges, and MAHAN,*** District
Judge.

        Petitioner-Appellant Robert Harvey appeals the district court’s denial of his

habeas petition challenging his state conviction on four counts of first-degree


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
        ***
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
sexual abuse and one count of first-degree unlawful sexual penetration. Harvey

seeks relief pursuant to 28 U.S.C. § 2254(d)(1), arguing that the Oregon Circuit

Court’s denial of post-conviction relief was unreasonable. We have jurisdiction

under 28 U.S.C. §§ 1291 and 2253, and we affirm.

      We review a district court’s decision to grant or deny a petition for a writ of

habeas corpus de novo. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004).

As applied here, the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) prevents a federal court from providing post-conviction relief from a

state court decision “adjudicated on the merits” unless it was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1);

Harrington v. Richter, 562 U.S. 86, 97–98 (2011).

      An unreasonable application of law under AEDPA requires more than “clear

error.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003). Instead, “[t]he state court’s

application of clearly established law must be objectively unreasonable.” Id. The

reasonableness of a state court’s decision is evaluated with respect to

contemporaneous Supreme Court precedent and the record before it. Cullen v.

Pinholster, 563 U.S. 170, 182 (2011).

      As this court has held, “[a] Supreme Court precedent is not clearly

established law under § 2254(d)(1) unless it squarely addresses the issue in the


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case before the state court or establish[es] a legal principle that clearly extends to

the case before the state court.” Andrews v. Davis, 798 F.3d 759, 773 (9th Cir.

2015) (alteration in original) (citations and internal quotation marks omitted).

Furthermore, “[i]f a habeas court must extend a rationale before it can apply to the

facts at hand, then by definition the rationale was not clearly established at the time

of the state-court decision.” Id. (quoting White v. Woodall, 134 S. Ct. 1697, 1706

(2014)). Indeed, AEDPA “preserves authority to issue the writ in cases where

there is no possibility fairminded jurists could disagree that the state court’s

decision conflicts with [Supreme Court] precedents. It goes no further.” Richter,

562 U.S. at 102.

      Under this standard of review, we hold that Harvey has failed to produce

Supreme Court precedent illustrating that the Oregon Circuit Court’s decision to

deny his petition for post-conviction relief was unreasonable.1 Harvey has cited

cases that are outside of Supreme Court jurisprudence or are distinguishable from




1
   We examine the Oregon Circuit Court’s denial of Harvey’s petition for post-
conviction relief because it is “the last reasoned state-court decision.” See Murray
v. Schriro, 745 F.3d 984, 996 (9th Cir. 2014) (“When a state court does not explain
the reason for its decision, we ‘look through’ to the last state-court decision that
provides a reasoned explanation capable of review.”).


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the instant case because they did not apply AEDPA, involved dissimilar facts, or

considered extraneous legal questions.2

      Moreover, defense counsel reasonably investigated and decided against

calling an expert on the reliability of child memory. Indeed, counsel consulted an

expert, who stated she had “nothing to contribute that would be helpful to the

defense.” Based on this consultation, counsel reasonably decided to attack the

state’s expert through cross-examination, rather than by calling an expert of her

own. See Richter, 562 U.S. at 111 (“Strickland does not enact Newton’s third law

for the presentation of evidence, requiring for every prosecution expert an equal

and opposite expert from the defense. In many instances cross-examination will be

sufficient.”). Therefore, Harvey’s appeal fails. See Woodall, 134 S. Ct. at 1706.

      AFFIRMED.




2
  To the extent that petitioner-appellant seeks also to challenge his conviction
based upon the lack of an expert medical witness’s comparison of the victim’s
physical exam results to her memory, we hold that this ground is unexhausted
because he has not fairly presented that issue to the Oregon courts. See Davis v.
Silva, 511 F.3d 1005, 1008–10 (9th Cir. 2008).

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