                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          DEC 29 2009

                                                                        MOLLY C. DWYER, CLERK
                              FOR THE NINTH CIRCUIT                       U.S . CO U RT OF AP PE A LS




STEVEN CLAY JACKSON,                             No. 05-56645

              Petitioner - Appellant,            D.C. No. CV-02-00867-DT
                                                 Central District of California,
  v.                                             Riverside

DERRAL ADAMS, Warden California
Substance Abuse Treatment Facility State         ORDER
Prison Corcoran; et al.,

              Respondents - Appellees.



Before:      GRABER, GOULD, and BEA, Circuit Judges.

       The memorandum disposition filed on April 17, 2009, is withdrawn. A

replacement memorandum disposition will be filed concurrently with this order.

       The pending petition for rehearing is granted and no further petitions for

review will be entertained.
                                                                            FILED
                            NOT FOR PUBLICATION                              DEC 29 2009

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



STEVEN CLAY JACKSON,                             No. 05-56645

              Petitioner - Appellant,            D.C. No. CV-02-00867-DT

  v.
                                                 MEMORANDUM *
DERRAL ADAMS, Warden California
Substance Abuse Treatment Facility State
Prison Corcoran; et al.,

              Respondents - Appellees.



                    Appeal from the United States District Court
                        for the Central District of California
                   Dicµran M. Tevrizian, District Judge, Presiding

                             Submitted April 13, 2009**

Before: GRABER, GOULD, and BEA, Circuit Judges.

       California state prisoner Steven Clay Jacµson appeals from the district

court's judgment dismissing his 28 U.S.C. y 2254 habeas petition. Petitioner's

October 5, 2008, notice of appeal is timely under the district court's order granting

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
leave to file out of time. Fed. R. App. P. 4(a)(6). We have jurisdiction pursuant to

28 U.S.C. yy 1291 and 2253, and we affirm.

      Jacµson argues that his confrontation clause objection is not procedurally

defaulted under California law. We need not decide the procedural default issue

because this claim fails on the merits. On de novo review, we hold that the trial

court did not err in ruling that Jacµson had an opportunity and the proper incentive

to cross-examine his accusers in the preliminary hearing where the testimony of

these witnesses and the investigating detective were heard before they became

unavailable. See California v. Green, 399 U.S. 149, 151 (1970). Even if there

were a confrontation clause violation, the error was harmless in light of Jacµson's

confessions and the other evidence of his guilt. See Forn v. Hornung, 343 F.3d

990, 999 (9th Cir. 2003).

      AFFIRMED.




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