                                                                            FILED
                             NOT FOR PUBLICATION                             JAN 26 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 FOSTER SHANE GAINES,                             No. 07-17279

               Petitioner - Appellant,            D.C. No. CV-03-01268-PJH

   v.
                                                  MEMORANDUM *
 A. K. SCRIBNER,

               Respondent - Appellee.



                     Appeal from the United States District Court
                        for the Northern District of California
                     Phyllis J. Hamilton, District Judge, Presiding

                             Submitted January 11, 2010 **

Before:        BEEZER, TROTT, and BYBEE, Circuit Judges.

        California state prisoner Foster Shane Gaines appeals from the district

court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have

jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.

          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

DAT/Research
       Gaines contends that the district court erred by determining that the

California Court of Appeal did not unreasonably apply clearly established federal

law in rejecting his Confrontation Clause claim. He argues that the trial court

erroneously applied Ohio v. Roberts, 448 U.S. 56, 74, (1980), overruled on other

grounds by Crawford v. Washington, 541 U.S. 36 (2004), when it determined that

the State was diligent in attempting to locate a witness and admitting the

preliminary hearing testimony of the witness in her absence.

       The district court properly rejected this claim because the testimony of the

witness was cumulative of other testimony in the record. See Whelchel v.

Washington, 232 F.3d 1197, 1211 (9th Cir. 2000). Thus, any error did not have a

“substantial and injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507

U.S. 619, 637-38 (1993); see also Fry v. Pliler, 551 U.S. 112 (2007).

       AFFIRMED.




DAT/Research                              2                                    07-17279
