                                                                              FILED
                           NOT FOR PUBLICATION                                 MAR 17 2010

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



                            FOR THE NINTH CIRCUIT


NEIL CHAPMAN,                                    No. 09-35271

             Petitioner - Appellant,             D.C. No. 3:06-cv-00308-HU

  v.
                                                 MEMORANDUM *
ROBERT LAMPERT, Superintendent
Snake River Correctional Institution,

             Respondent - Appellee.


                    Appeal from the United States District Court
                             for the District of Oregon
                   Garr M. King, Senior District Judge, Presiding

                            Submitted March 2, 2010**
                                Portland, Oregon

Before: PAEZ, TALLMAN, and M. SMITH, Circuit Judges.

       Petitioner Neil Chapman (Chapman) appeals the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Chapman seeks

habeas relief from his state court conviction for thirteen counts arising from the

        *
             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).
sexual abuse of his daughter, “B.C.”, on the ground that he was denied his

constitutional right to effective assistance of counsel. Because the parties are

familiar with the facts and procedural history, we do not restate them here except

as necessary to explain our disposition. We have jurisdiction pursuant to 28 U.S.C.

§ 2253. We affirm.

      We review de novo the district court’s denial of habeas relief. Dows v.

Wood, 211 F.3d 480, 484 (9th Cir. 2000). Habeas relief is warranted only if the

state court’s decision “was contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court,” 28 U.S.C. §

2254(d)(1), or “was based on an unreasonable determination of the facts in light of

the evidence presented in the State court proceeding,” id. § 2254(d)(2). We review

de novo a district court’s conclusions regarding procedural default. Pirtle v.

Morgan, 313 F.3d 1160, 1168 (9th Cir. 2002). We review a district court’s

decision to grant or deny an evidentiary hearing for abuse of discretion. Estrada v.

Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008).

      To succeed on an ineffective assistance of counsel claim, the petitioner must

show: (1) “that counsel’s performance was deficient” and (2) “that the deficient

performance prejudiced the defense.” Strickland v. Washington, 466 U.S. 668,

686-87 (1984). Chapman’s habeas petition raises three grounds upon which his


                                          2
trial counsel was constitutionally ineffective: (1) the failure to investigate and call

Steve Chapman as a witness; (2) the failure to investigate and call Stephan White

as a witness; and (3) the failure to investigate and obtain B.C.’s medical records.

Chapman’s petition fails on all three grounds.

      We affirm the district court’s finding that Chapman failed to exhaust his

ineffective assistance claim for failing to investigate and call Steve Chapman as a

witness, and that the claim is therefore procedurally defaulted. See Picard v.

Connor, 404 U.S. 270, 275 (1971). A state prisoner must exhaust all constitutional

claims in state court before a federal court can consider them. 28 U.S.C. §

2254(b)(1)(A), (c). To fully and fairly present a claim to the state courts, a

petitioner “must describe in the state proceedings both the operative facts and the

federal legal theory on which his claim is based so that the state courts have a fair

opportunity to apply controlling legal principles to the facts bearing upon the

constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir. 2003) (internal

quotation marks omitted), overruled on other grounds by Robbins v. Carey, 481

F.3d 1143, 1149 (9th Cir. 2007).

      Chapman failed to present the operative facts of his ineffective assistance

claim relating to Steve Chapman’s testimony, to the Oregon Court of Appeals and

the Oregon Supreme Court. His briefs to both state courts of appeal argued


                                           3
ineffective assistance of counsel only in relation to the testimony of Stephan

White, thereby depriving Oregon’s appellate courts “the opportunity to pass upon

and correct” the alleged violation of Chapman’s federal right related to Steve

Chapman’s testimony. Baldwin v. Reese, 541 U.S. 27, 29 (2004) (internal

quotation marks omitted). Chapman concedes that he did not exhaust his remedies

as to his ineffective assistance claim related to B.C.’s medical records, and that

claim is procedurally defaulted as well.

      Chapman argues that he has overcome his procedural default as to these two

claims by establishing “gateway” actual innocence under Schlup v. Delo, 513 U.S.

298 (1995). A petitioner may overcome a procedural default by (1) producing

“new reliable evidence [of innocence]—whether it be exculpatory scientific

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was

not presented at trial,” id. at 324, and (2) showing “that it is more likely than not

that no reasonable juror would have convicted him in the light of the new

evidence,” id. at 327. To demonstrate actual innocence under Schlup, a petitioner

must show “factual innocence, not mere legal insufficiency.” Bousley v. United

States, 523 U.S. 614, 623 (1998).

      Chapman presents several items in support of his actual innocence claim,

including B.C.’s medical records and affidavits from ex-wife Stella Chapman, the


                                           4
daughters from his prior marriage to Rose Chapman, Stephan White, and Steve

Chapman. Although Chapman has presented some impeachment evidence, that

evidence does not fundamentally call into question the reliability of Chapman’s

conviction. It does not rise to the level of evidence that this court has previously

found to satisfy the Schlup standard. Compare Carriger v. Stewart, 132 F.3d 463,

471-72, 478-79 (9th Cir. 1997) (en banc) (holding that the petitioner satisfied the

Schlup standard where the prosecution’s chief witness against the petitioner, who

had been convicted and sentenced to death for murder, later confessed in open

court that he was the murderer and that he had framed the petitioner) with Sistrunk

v. Armenakis, 292 F.3d 669, 673-76 (9th Cir. 2002) (en banc) (holding that the

petitioner could not pass through the Schlup gateway where new evidence

presented by the petitioner, who had been convicted of raping an eleven-year-old

girl, revealed inaccuracies in the expert’s testimony and had some impeachment

value related to the victim’s testimony).

      At trial, B.C. presented a detailed and coherent narrative of the treatment to

which she was subjected over many years, and she was cross-examined. The jury

was thus afforded the first-hand opportunity to judge her credibility. The state’s

case did not hinge exclusively on B.C.’s testimony. The jury heard the testimony

of her mother Delia, her two siblings, her grandmother, and two expert witnesses,


                                            5
all of whom corroborated B.C.’s account. In sum, in light of all the evidence

presented at trial, the mere cumulative or uncorroborated impeachment evidence

offered by Chapman is not “so strong” that we do not have “confidence in the

outcome of the trial” such that “no reasonable juror would have found [Chapman]

guilty.” Schlup, 513 U.S. at 316, 327.

      With Chapman’s ineffective assistance claims as to Steve Chapman and

B.C.’s medical records procedurally defaulted, Chapman’s only remaining claim

for habeas relief is that related to the testimony of Stephan White. We affirm the

district court’s denial of habeas relief on this claim.

      Neil Chapman must show that his counsel’s failure to call White to testify

prejudiced his defense. See Strickland, 466 U.S. at 687. “He must show that there

is a reasonable probability that, but for counsel’s unprofessional error[] [in failing

to call White], the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the

outcome.” United States v. Schaflander, 743 F.2d 714, 718 (9th Cir. 1984)

(internal citation omitted).

      White would have primarily testified about his observations of the Chapman

family, particularly the relationship between Chapman and his children, and the

conduct of Chapman and Delia during their divorce proceedings. This information


                                            6
was already in the record. There were over a dozen witnesses presented at the trial

who spent time at the Chapman’s home, saw the family members interacting with

each other, and testified that they appeared happy together. As to the divorce,

other witnesses, namely Delia, Chapman, and his divorce attorney, testified about

the bitter nature of the divorce and the judgment awarded to Chapman in those

proceedings, allowing the defense to build a case that Delia possessed a financial

motive to have B.C. fabricate the abuse allegations against her father. The failure

to present a witness at trial whose testimony would be only cumulative of other

witnesses’ testimony cannot show prejudice under Strickland. See Schaflander,

743 F.2d at 718. As a result, Chapman’s remaining ineffective assistance claim

fails. See Rios v. Rocha, 299 F.3d 796, 805 (9th Cir. 2002) (“Failure to satisfy

either prong of the Strickland test obviates the need to consider the other.”).

      We also affirm the district court’s denial of Chapman’s motion for an

evidentiary hearing. The district court was not obligated to conduct an evidentiary

hearing, as “the record refutes [Chapman’s] factual allegations or otherwise

precludes habeas relief.” Schriro v. Landrigan, 550 U.S. 465, 474 (2007); United

States v. Birtle, 792 F.2d 846, 849 (9th Cir. 1986) (stating that an evidentiary

hearing is not necessary if “the ‘motion and the files and records of the case

conclusively show that the prisoner is entitled to no relief’” (quoting 28 U.S.C.


                                          7
§ 2255)).

      AFFIRMED.




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