                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           AUG 19 2016
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


LEONARD LLOYD,                                   No.   14-56239

              Petitioner-Appellant,              D.C. No.
                                                 2:13-cv-06129-JAK-JPR
 v.

VINCENT ADAMS, Warden,                           MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                    John A. Kronstadt, District Judge, Presiding

                            Submitted August 4, 2016**
                               Pasadena, California

Before: O’SCANNLAIN, RAWLINSON, and CALLAHAN, Circuit Judges.

      Petitioner Leonard Lloyd appeals the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. The facts of this case are known to the parties, and

we do not repeat them here. We have jurisdiction under 28 U.S.C. § 1291.


         *
             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).
      Lloyd argues that the state court unreasonably applied clearly established

federal law and unreasonably determined the facts when it held that Lloyd had not

demonstrated prejudice “sufficient to undermine confidence in the outcome” from

his lawyer’s failure to call Charde Ray as a witness. See Strickland v. Washington,

466 U.S. 668, 694 (1984). Lloyd’s argument fails.

      Ray’s testimony concerning the shooter’s height would have been

cumulative. Although it is true that Ray stated that she believed the shooter to be

shorter than 6’4”, no fewer than three witnesses testified similarly. At most, Ray

merely repeated Tammy Favazza’s description of the shooter’s height and her

uncertainty that such a description was correct. As such, Ray’s testimony “would

have offered [only] an insignificant benefit, if any at all.” Wong v. Belmontes, 558

U.S. 15, 23 (2009). Moreover, Ray’s testimony also may have hurt Lloyd’s case

more than helped it, by corroborating various prosecution witnesses who stated the

shooter was Hispanic, that the shooter wore a black hoodie like one regularly worn

by Lloyd, and that the killings were race-related.

      Lloyd’s argument that his attorney promised to call Charde Ray also lacks

merit. Read in context, counsel’s mention of Ray was clearly an attempt to point

out weaknesses in the prosecution’s case, nothing more. But even assuming

counsel meant to convey an intention to call Ray, that expressed intention was only


                                          2
conditional. Such a “lack of certainty is fatal to . . . [a] claim that a promise was

made.” Saesee v. Mcdonald, 725 F.3d 1045, 1050 (9th Cir. 2013).

      AFFIRMED.




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