                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        SEP 19 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

BRIAN JOSEPH MCMONAGLE,                         No.    16-16822

                Petitioner-Appellant,           D.C. No. 2:11-cv-02115-GGH

 v.
                                                MEMORANDUM*
DON L. MEYER, Chief Probation Officer,
Sacramento County,

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                 Gregory G. Hollows, Magistrate Judge, Presiding

                          Submitted September 15, 2017**
                             San Francisco, California

Before: GOULD, TALLMAN, and WATFORD, Circuit Judges.

      Brian McMonagle appeals the district court’s denial of his 28 U.S.C. § 2254

habeas petition challenging his California Superior Court conviction for driving

under the influence of alcohol. McMonagle claims that the state’s introduction of



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
a lab report analyzing his blood alcohol content, without supporting testimony

from the analyst who prepared the report, violated his right to confrontation and

resulted in prejudice at his trial. We have jurisdiction pursuant to 28 U.S.C. §

2253, and we review de novo the district court’s denial of habeas relief. Yee v.

Duncan, 463 F.3d 893, 897 (9th Cir. 2006). We affirm.

      Despite the acknowledged Confrontation Clause violation,1 McMonagle

fails to show that the error had a substantial and injurious effect or influence on the

jury’s verdict that he nonetheless drove under the influence of alcohol. See Brecht

v. Abrahamson, 507 U.S. 619, 637 (1993). The evidence presented on this charge

by a crime lab supervisor and one of the arresting CHP officers who witnessed

McMonagle’s driving was “overwhelming”:

      “[McMonagle] stopped abruptly and irregularly for a red light, drove
      abnormally slow, turned abruptly, smelled of alcohol, mumbled, admitted
      consuming alcohol, had red, watery eyes, was slow and unsteady on his feet,
      and had difficulty walking. In addition, the criminalist, an expert, testified
      that such symptoms are consistent with intoxication.”

      Thus, it was reasonable for the state appellate court to find the confrontation

error harmless as to the lesser included charge.


1
 The Appellate Division of the California Superior Court, citing Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), found that McMonagle was denied
confrontation under the Sixth Amendment and reversed his more serious
convictions for driving with a blood alcohol level of .08% or more, as well as
driving a motor vehicle with a blood alcohol concentration of .15% or more. This
was clearly a reasonable application of federal law, see 28 U.S.C. § 2254(d)(1),
and the state’s arguments to the contrary are unavailing.

                                           2
AFFIRMED.




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