                            NOT FOR PUBLICATION                          FILED
                     UNITED STATES COURT OF APPEALS                      MAR 16 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

 NOEL REYES-MAURO,                                No.   16-35012

                  Petitioner-Appellant,           D.C. No. 2:14-cv-00802-SB

   v.
                                                  MEMORANDUM *
 BRIGITTE AMSBERRY, Superintendent,
 EOCI,

                  Respondent-Appellee.

                    Appeal from the United States District Court
                             for the District of Oregon
                    Michael H. Simon, District Judge, Presiding

                        Argued and Submitted March 6, 2017
                                 Portland, Oregon

Before: FISHER and FRIEDLAND, Circuit Judges, and MAHAN,** District
Judge.

        Noel Reyes-Mauro, an Oregon state prisoner, appeals the district court’s

order denying his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

We have jurisdiction under 28 U.S.C. §§ 1291 and 2253, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable James C. Mahan, United States District Judge for the
District of Nevada, sitting by designation.
      Reyes-Mauro seeks federal habeas relief on the ground that the prosecution

ran afoul of the Confrontation Clause at his criminal trial. The State concedes

error; the remaining issue is thus whether that constitutional violation was

harmless. See Davis v. Ayala, 135 S. Ct. 2187, 2197 (2015).

      The Oregon Court of Appeals determined that the confrontation error was

harmless beyond a reasonable doubt under Chapman v. California, 386 U.S. 18

(1967), State v. Reyes-Mauro, 175 P.3d 998, 1002-04 (Or. Ct. App. 2007), review

denied, 190 P.3d 380 (Or. 2008). Our review of that determination is

circumscribed by the highly deferential standards that govern federal habeas

review of state court determinations. See Ayala, 135 S. Ct. at 2198; accord 28

U.S.C. § 2254(d). Applying those standards, we may only grant habeas relief if the

state court’s “harmlessness determination itself was unreasonable.” Ayala, 135 S.

Ct. at 2199 (quoting Fry v. Pliler, 551 U.S. 112, 119 (2007)).

      Reyes-Mauro argues that the Oregon Court of Appeals erred by considering

as part of its harmlessness determination certain testimony he contends should

have been excluded from that analysis as a “fruit” of the confrontation violation.1



1
 Although Reyes-Mauro did not present to the state courts the precise legal theory
he now advances on federal habeas review, his claim is technically exhausted
because no further state remedies are available. See Coleman v. Thompson, 501
U.S. 722, 732 (1991). We decline to hold that Reyes-Mauro’s claim is
procedurally defaulted, however, because the State did not raise that affirmative
defense in the district court and has not offered any explanation for its failure to do

                                           2
The Supreme Court has not extended the fruit-of-the-poisonous-tree doctrine to

that context.2 As such, the Oregon Court of Appeals’ failure to apply that doctrine

in the manner Reyes-Mauro advocates was not contrary to or an unreasonable

application of clearly established federal law. See Brewer v. Hall, 378 F.3d 952,

955 (9th Cir. 2004).

      Moreover, even if we disregard the testimony Reyes-Mauro objects to, the

state court’s harmlessness determination was not unreasonable. The erroneously

admitted statements identifying Reyes-Mauro as the perpetrator of the charged

crimes were largely cumulative of (1) eyewitness descriptions of the robberies and

the perpetrators, (2) testimony by Reyes-Mauro’s ex-girlfriend implicating him in

two of the three charged robberies, and (3) physical evidence linking Reyes-Mauro

to all three crimes. Given the other evidence presented by the prosecution, even if

we set aside the testimony he challenges as a fruit of the confrontation error, we


so. See Vang v. Nevada, 329 F.3d 1069, 1073 (9th Cir. 2003); Franklin v.
Johnson, 290 F.3d 1223, 1233 (9th Cir. 2002).
2
  Reyes-Mauro contends otherwise, relying primarily on Harrison v. United States,
392 U.S. 219 (1968). But Harrison held that a defendant’s prior trial testimony,
which resulted from the admission of a confession obtained in violation of the Fifth
Amendment, was not admissible at trial. See id. at 222-24. Reyes-Mauro’s claim
involves (1) the testimony of a witness other than the defendant, (2) a Sixth
Amendment confrontation violation, and (3) the post-conviction consideration of
allegedly tainted evidence as part of the reviewing court’s Chapman analysis.
Accordingly Harrison does not address the issue presented by Reyes-Mauro’s
petition. See id. at 223 n.9 (“We have no occasion in this case to canvass the
complex and varied problems that arise when the trial testimony of a witness other
than the accused is challenged.” (emphasis added)).

                                          3
cannot conclude that Reyes-Mauro has met his burden of proving actual prejudice

under Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). See Ayala, 135 S. Ct. at

2198 (explaining that the Brecht test governs harmlessness analysis in a collateral

proceeding).

      AFFIRMED.




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