                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           OCT 28 2015
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


GONZALO BARBOSA SALGADO,                         No. 14-35517

              Petitioner - Appellant,            D.C. No. 2:12-cv-01334-PK

 v.
                                                 MEMORANDUM*
RICK COURSEY,

              Respondent - Appellee.


                   Appeal from the United States District Court
                            for the District of Oregon
                   Marco A. Hernandez, District Judge, Presiding

                           Submitted October 13, 2015**
                                Portland, Oregon

Before: TASHIMA, GILMAN***, and BEA, Circuit Judges.

      Gonzalo Salgado appeals the district court’s denial of his petition for habeas

corpus. We review de novo, 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).
        ***
            The Honorable Ronald Lee Gilman, Senior Circuit Judge for the U.S.
Court of Appeals for the Sixth Circuit, sitting by designation.
      To prevail on his claim that counsel was ineffective for failing to object to

testimony that Salgado was identifiable by a socially offensive tattoo located on the

back of his head, Salgado must show that his counsel’s performance was deficient

and that counsel’s error prejudiced him. Hibbler v. Benedetti, 693 F.3d 1140, 1149

(9th Cir. 2012). Salgado has not shown that his counsel’s performance was

deficient, because he has not shown that the witness’s identification testimony was

inadmissible as irrelevant or because “its probative value is substantially

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” O.R.S. § 40.160, Or. Rev. Stat. Ann. § 40.160 (West). To

the contrary, the witness testified that he recognized the defendant by his tattoo. It

was not unreasonable for counsel not to make a futile objection.

      Further, even if counsel erred by failing to object, Salgado cannot show

prejudice because Salgado had shaved his head before trial. The state post-

conviction review court found that Salgado had thus rendered the tattoo visible,

that the jury was made aware of the tattoo during voir dire, and that therefore

Salgado was not prejudiced. That finding is not an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding, and we

affirm. 28 U.S.C. § 2254(d)(2).

      AFFIRMED.
