Opinion
No. 05-55438.
This panel unanimously finds this case suitable for decision without oral argument. See Fed.R.App.P. 34(a)(2).
Filed June 13, 2007.
Joseph Allen Vickroy, Corcoran, CA, pro se.
April S. Rylaarsdam, Esq., AGCA — Office of the California Attorney General Los Angeles, CA, for Respondent-Appellee.
Appeal from the United States District Court for the Central District of California, Manuel L. Real, District Judge, Presiding. D.C. No. CV-04-02402-R.
Before: LEAVY, RYMER and T.G. NELSON, Circuit Judges.
MEMORANDUM
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
California state prisoner Joseph Allen Vickroy appeals pro se from the district court's judgment denying his 28 U.S.C. § 2254 habeas petition challenging his jury-trial conviction for committing lewd acts upon a child. We have jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
Appellant contends that the trial court's admission of the victim's preliminary hearing testimony violated his rights under the Confrontation Clause because the prosecution did not establish that the victim was unavailable to testify at trial. We reject this contention because the record establishes that the prosecution made a good-faith effort to obtain the victim's presence at trial. See Ohio v. Roberts, 448 U.S. 56, 74, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), abrogated on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Because we determine that appellant's claim is clearly not meritorious, we need not address the state's contention that the claim is procedurally barred. See Lambrix v. Singletary, 520 U.S. 518, 525, 117 S.Ct. 1517, 137 L.Ed.2d 771 (1997); see also Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).