David Schubert v. Bernard Warner

MEMORANDUM

Petitioner-Appellant David Charles Schubert (Schubert) appeals the district court’s denial of his habeas petition, and his motion to amend his habeas petition.

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, 562 U.S. 344 , 131 S.Ct. 1143, 1153 , 179 L.Ed.2d 93 (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 , 112 S.Ct. 475 , 116 L.Ed.2d 385 (1991). Schubert has cited no Supreme Court case…