                                                                            FILED
                            NOT FOR PUBLICATION
                                                                             JAN 04 2017
                     UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GARY SALCEDO,                                     No. 13-56661

              Petitioner - Appellant,             D.C. No. 2:10-cv-03882-GHK-
                                                  PLA
 v.

DAVE DAVEY, Warden,                               MEMORANDUM*

              Respondent - Appellee.


                   Appeal from the United States District Court
                       for the Central District of California
                  George H. King, Chief District Judge, Presiding

                         Argued and Submitted June 6, 2016
                               Pasadena, California

Before: FERNANDEZ, RAWLINSON, and BEA, Circuit Judges.

      Gary Salcedo (Salcedo) appeals the district court’s decision denying his

petition for a writ of habeas corpus. Salcedo asserts that his trial counsel was

ineffective because he failed to include a preliminary hearing transcript as part of



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

                                           1
the motion for a new trial. Salcedo also asserts that the prosecution presented false

evidence at his trial in violation of Napue v. Illinois, 360 U.S. 264 (1959), and

withheld material impeachment evidence concerning its key witness in violation of

Brady v. Maryland, 373 U.S. 83 (1963). Finally, Salcedo contends that the district

court erred in not holding an evidentiary hearing.1



      1. The California Court of Appeal reasonably applied the Strickland2

prejudice standard in addressing Salcedo’s ineffective assistance of counsel claim.

See Mann v. Ryan, 828 F.3d 1143, 1152-57 (9th Cir. 2016). The United States

Supreme Court has explained that state court decisions must be “given the benefit

of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002). Thus, the California

Court of Appeal’s citation to Strickland is sufficient to show that it applied the

correct prejudice standard, even if the “reasonable probability” language was

omitted from its analysis. See id. (emphasizing the “presumption that state courts

know and follow the law”) (citations omitted). Further, the California Court of



      1
        We decline to address the uncertified issues raised by Salcedo because he
has not “made a substantial showing of the denial of a constitutional right”
regarding those claims. Murray v. Schirro, 745 F.3d 984, 1002, 1015 (9th Cir.
2014) (citation and internal quotation marks omitted).
      2
          Strickland v. Washington, 466 U.S. 668 (1984).

                                           2
Appeal’s prejudice determination was not “so lacking in justification that there

was” no “possibility for fairminded disagreement,” because the jury was aware of

the facts contained in the preliminary hearing transcript. Harrington v. Richter,

562 U.S. 86, 103 (2011).



      2. Even in the absence of an explicit ruling, we presume that a “state court

adjudicated [a] claim on the merits in the absence of any indication or state-law

procedural principles to the contrary.” Johnson v. Williams, 133 S.Ct. 1088, 1094

(2013) (citation omitted). Here, the evidence does not lead “very clearly” to the

conclusion that the state court inadvertently overlooked Salcedo’s Brady and

Napue claims in his state habeas petition to permit de novo review. Cf. Murdaugh

v. Ryan, 724 F.3d 1104, 1121-22 (9th Cir. 2013) (applying de novo review of

federal habeas claim where “‘the evidence leads very clearly to the conclusion that

a federal claim was inadvertently overlooked in state court,’” especially “in light of

the state post-conviction court’s otherwise careful consideration and evaluation of

every other claim in [the state habeas] petition.” (quoting Johnson, 133 S.Ct. at

1097)). Thus, we must consider whether any reasonable theory could have

supported the state court decision. See Bemore v. Chappell, 788 F.3d 1151, 1161

(9th Cir. 2015). In this case, the California Court of Appeal could have reasonably

                                          3
determined that the Napue and Brady3 claims failed because the allegedly false

statements and withheld evidence were cumulative and therefore immaterial. See

United States v. Agurs, 427 U.S. 97, 110-14 (1976); see also United States v.

Renzi, 769 F.3d 731, 751-52 (9th Cir. 2014). The jury was aware of the witness’s

alleged gang membership, and the record reflects no demonstrably false testimony.



      AFFIRMED.




      3
        It also would have been reasonable for the California Court of Appeal to
deny Salcedo’s Brady claim on the ground that Salcedo failed to establish that the
claimed evidence was not disclosed. Speculation that evidence was suppressed
does not support a Brady claim, and absent evidence that the prosecution withheld
evidence favorable to Salcedo, his Brady claim is conclusory. See Runningeagle v.
Ryan, 686 F.3d 758, 769 (9th Cir. 2012) (“[T]o state a Brady claim, [a petitioner] is
required to do more than merely speculate” about potentially favorable and
material evidence.)

                                          4
