                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                           FILED
                            FOR THE NINTH CIRCUIT                              JAN 19 2011

                                                                           MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

FRANCISCO BELTRAN,                               No. 09-55922

              Petitioner - Appellant,            D.C. No. 2:06-cv-00367-VBF-
                                                 PLA
  v.

DAVID L. RUNNELS, Warden; JEANNE                 MEMORANDUM*
S. WOODFORD, Director of Corrections,

              Respondents - Appellees.


                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                           Submitted January 13, 2011**
                              Pasadena, California

Before: McKEOWN, W. FLETCHER, and CLIFTON, Circuit Judges.

       Petitioner Francisco Beltran appeals the district court’s order dismissing

with prejudice his 28 U.S.C. § 2254 petition for writ of habeas corpus. Petitioner

challenges his May 1, 2001, California state jury conviction of first degree murder,

        *
             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).
as affirmed by the California Court of Appeal. He argues that the introduction of

prior inconsistent statements by two witnesses, who at trial recanted and claimed to

have forgotten nearly everything about the murder, violated his rights under the

Confrontation Clause. To grant the petition, we must find that the California Court

of Appeal decision was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the United

States.” 28 U.S.C. § 2254(d). Because it was not, and because Petitioner failed to

object to the introduction of the prior inconsistent statements at trial, we affirm.

      At trial, Petitioner failed to object to the introduction of the prior

inconsistent statements made by Rodriguez or Espinoza. Under California law, a

defendant waives a Confrontation Clause objection to the introduction of evidence

by failing to make the objection at trial. See People v. Burgener, 62 P.3d 1, 28

(Cal. Ct. App. 2003). “Ordinarily, violation of ‘firmly established and regularly

followed’ state rules . . . will be adequate to foreclose review of a federal claim.”

Lee v. Kemna, 534 U.S. 362, 376 (2002) (quoting James v. Kentucky, 466 U.S.

341, 348 (1984)). Although there are “exceptional cases in which exorbitant

application of a generally sound rule renders the state ground inadequate” to

prevent federal review, id., Petitioner has not suggested any reason why this is such

a case.


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      Furthermore, even if federal review of this issue were not foreclosed, the

California Court of Appeal decision was not contrary to or an unreasonable

application of Supreme Court precedent. On several occasions the Supreme Court

has upheld the introduction of the prior inconsistent statement of witnesses who

claimed at trial not to remember the relevant events. See, e.g., United States v.

Owens, 484 U.S. 554 (1988); California v. Green, 399 U.S. 149 (1970). In one of

those cases, as in this case, the witness’s lack of memory appeared disingenuous.

Green, 399 U.S. at 151-52 (witness, after making several statements to police

about drug deal, testified at trial that he could not remember relevant events

because he was on LSD at the time of the drug deal). More recently, in Crawford

v. Washington, 541 U.S. 36 (2002), the Supreme Court “reiterate[d] that, when the

declarant appears for cross-examination at trial, the Confrontation Clause places no

constraints at all on the use of his prior testimonial statements.” Id. at 60 n.9. The

California Court of Appeal decision was not contrary to, or an unreasonable

application of, these decisions.

      AFFIRMED.




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