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SCHROEDER v. TILTON

No. 06-15391.

493 F.3d 1083 (2007)

Russell Franklin SCHROEDER, Petitioner-Appellant, v. James E. TILTON, Secretary, in his capacity as head of the California Department of Corrections and Rehabilitation, Respondent-Appellee.

United States Court of Appeals, Ninth Circuit.

Filed July 3, 2007.

Attorney(s) appearing for the Case

Cliff Gardner and Catherine White, Law Office of Cliff Gardner, Oakland, CA, for the appellant.

Bill Lockyer, Mary Jo Graves, Gerald Engler, Juliet Haley, and Christina Vom Saal, Attorney General of the State of California, San Francisco, CA, for the appellee.

Before: J. CLIFFORD WALLACE, RICHARD D. CUDAHY, and M. MARGARET McKEOWN, Circuit Judges.

OPINION

McKEOWN, Circuit Judge.

We consider whether a California state trial court violated the Ex Post Facto Clause when it admitted evidence of prior sexual misconduct under California Evidence Code § 1108. In Carmell v. Texas, the Supreme Court explained that some, but not all, rules of evidence have an impermissible retroactive effect if used in criminal trials where the conduct at issue took place before the rule of evidence was adopted...

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