Stephen Otto Reitz v. CHARLES HARRISON, Warden

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).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEPHEN OTTO REITZ,
Petitioner - Appellant,
v.
CHARLES HARRISON, Warden,
Respondent - Appellee.
No. 08-56858
D.C. No. 2:07-cv-01119-ABC-JTL
MEMORANDUM*
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.
FILED
DEC 20 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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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

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“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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