Opinion
No. 16-35399
03-07-2018
JOHN MCKNIGHT WADE, Petitioner-Appellant, v. MARK NOOTH, Respondent-Appellee.
NOT FOR PUBLICATION
D.C. No. 2:13-cv-00755-PK MEMORANDUM Appeal from the United States District Court for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding Submitted March 5, 2018 Portland, Oregon Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
The Honorable Gonzalo P. Curiel, United States District Judge for the Southern District of California, sitting by designation. --------
John Wade was convicted in Oregon state court of offenses arising out of an assault and robbery. The convictions were affirmed on direct appeal, and Wade's petition for state post-conviction relief was unsuccessful. The district court denied Wade's subsequent 28 U.S.C. § 2254 habeas corpus petition and we affirm.
1. We assume, as does the respondent warden, that the introduction at trial of Wade's co-defendant's statements violated the Confrontation Clause. See Crawford v. Washington, 541 U.S. 36, 52 (2004) ("Statements taken by police officers in the course of interrogations are . . . testimonial under even a narrow standard."). But, "[h]abeas relief on a trial error claim is appropriate only if the error results in 'actual prejudice.'" Hall v. Haws, 861 F.3d 977, 991 (9th Cir. 2017) (quoting Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015)); see also Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (holding that Confrontation Clause violations are subject to harmless error review). Wade has not demonstrated that the trial error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). The co-defendant's statements were brief and cumulative of the testimony of the victims, "add[ing] nothing new." Mayes v. Premo, 766 F.3d 949, 965 (9th Cir. 2014).
2. The state post-conviction review court did not unreasonably reject Wade's ineffective assistance of counsel claim. "The standards created by Strickland and § 2254(d) are both 'highly deferential,' and when the two apply in tandem, review is 'doubly' so." Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted). Instead of hiring an expert to testify about the likely trajectory of the bullet, counsel chose to rely on the cross-examination of the officers, and to argue the state's failure to proffer evidence. The state court could have reasonably concluded that this "strategy choice was . . . within the range of professionally reasonable judgments." Strickland v. Washington, 466 U.S. 668, 699 (1984); see Harrington, 562 U.S. at 106-09 (rejecting claim that state court was unreasonable in finding counsel effective when counsel failed to consult with a blood pattern expert).
AFFIRMED.