David Foster v. State of Oregon

MEMORANDUM

David Foster appeals the district court’s denial of his petition for a writ of habeas corpus under 28 U.S.C. § 2254 . We have jurisdiction under 28 U.S.C. §§ 1291 , 2253(c), and we affirm.

1. Foster challenges a number of the state court’s factual findings as unreasonable under 28 U.S.C. § 2254 (d)(2). To find a state court’s determination of facts unreasonable, “it is not enough that we would reverse in similar circumstances if this were an appeal from a district court decision.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.2004). “Rather, we must be convinced that an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding is supported by the record.” Id.

The state court’s finding that Hender-shott declined to call Dr. Griest because she told him that, “it would not be a good idea to have her testify as she would have to largely agree with the prosecution experts,” is not unreasonable. It is supported by both Melvin-Davidson’s and Hendershott’s testimony. Moreover, Dr. Griest’s affidavit does not directly contra- diet the trial attorneys’ accounts, and the state court considered the relevant evidence in…