                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                             MAR 25 2014

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

ALBERT MEDINA,                                   No. 12-16957

              Petitioner - Appellant             D.C. No. 2:09 cv-1331 GMN
                                                 GWF
  v.

BRIAN WILLIAMS, SR.; ATTORNEY
GENERAL FOR THE STATE OF                         MEMORANDUM*
NEVADA,

              Defendants - Appellees.

                  Appeal from the United States District Court
                           for the District of Nevada
                Gloria M. Navarro, Chief District Judge, Presiding

                      Argued and Submitted March 13, 2014
                           San Francisco, California

Before:       FARRIS, REINHARDT, and TASHIMA, Circuit Judges.

       Albert Medina appeals from the judgment of the district court denying his

petition for a writ of habeas corpus. Reviewing the district court’s denial of the

petition de novo, see Brown v. Ornoski, 503 F.3d 1006, 1010 (9th Cir. 2007), we

affirm.


          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. We affirm the district court’s determination that the admission of

Francine Ryer’s statements to Dorothy Golden did not violate the Confrontation

Clause. As a preliminary matter, Medina waived this argument by failing to raise

it in his opening brief. See United States v. Kama, 394 F.3d 1236, 1238 (9th Cir.

2005).

      Even if the Confrontation Clause claim were not waived, however, we

would affirm. The Confrontation Clause applies only to testimonial statements,

see Davis v. Washington, 547 U.S. 813, 823–26 (2006), and Ryer’s statements to

Golden were not testimonial, see Delgadillo v. Woodford, 527 F.3d 919, 927 (9th

Cir. 2008). Further, under the Antiterrorism and Effective Death Penalty Act, we

can reverse a state court judgment only if the decision was contrary to, or an

unreasonable application of, clearly established federal law. Id. Because the

Supreme Court has not held that the admission of statements like the ones admitted

in this case violates the Confrontation Clause, we cannot conclude that the state

court’s denial of relief was contrary to, or an unreasonable application of, clearly

established federal law, even if the statements could be construed as testimonial.

See id.

      2. We affirm the district court’s determination that the admission of the

statements Ryer made to nurse Marian Adams (“Adams”) was harmless error. The


                                         -2-
testimony was cumulative of Ryer’s statements to Golden, which were properly

admitted under Nevada’s hearsay exception for excited utterances1 and, as

discussed above, did not violate the Confrontation Clause. The statements were

also corroborated by physical evidence, which included description of Ryer’s

extensive injuries, photographs of bruises and cuts, and testimony that Ryer was

visibly distraught in the days following the assault. See United States v. Henry,

560 F.2d 963, 965 (9th Cir. 1977). In light of this evidence, like the district court,

we conclude that the error was harmless. See Welchel v. Washington, 232 F.3d

1197, 1210–11 (9th Cir. 2000); Laboa v. Calderon, 224 F.3d 972, 977 (9th Cir.

2000); cf. Merolillo v. Yates, 663 F.3d 444, 455–58 (9th Cir. 2011).

      3. Finally, we affirm the district court’s determination that sufficient

evidence supported the guilty verdicts of five counts of sexual assault. In making

this determination, we consider all the evidence admitted by the trial court,




      1
            The Nevada Supreme Court determined, as a matter of state law, that
the statements were admissible under Nevada Revised Statute § 51.095 and we are
bound by that ruling. See Wisconsin v. Mitchell, 508 U.S. 476, 483 (1993).

                                          -3-
regardless of whether it should have been excluded.2 See McDaniel v. Brown, 558

U.S. 120, 121 (2010) (per curiam). The evidence before the jury was more than

sufficient to sustain five counts of sexual assault. Ryer’s own statement to Golden

is alone sufficient under Nevada law to sustain the conviction. See Deeds v. State,

626 P.2d 271, 272 (Nev. 1981) (per curiam). We also note, however, that there is

ample other evidence to support the verdict. For example, the prosecution

introduced testimony and photographs of Ryer’s injuries, as well as testimony that

Ryer was visibly distraught, pale, shaken, and crying in the days following the

assault. All of this evidence, in addition to the victim’s statements, is sufficient to

sustain the verdict. See Henry, 560 F.2d at 965; Deeds, 626 P.2d at 272; Lloyd v.

State, 576 P.2d 740, 742 (Nev. 1978).

      The judgment of the district court is AFFIRMED.




      2
             While we may consider evidence admitted in violation of the
Confrontation Clause when assessing the sufficiency of the evidence, United States
v. Huber, 772 F.2d 585, 592 (9th Cir. 1985), we conclude that the evidence is
sufficient even without considering the statements Ryer made to Adams, which
were admitted in violation of the Confrontation Clause.

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