                                                                           FILED
                            NOT FOR PUBLICATION                             JUL 02 2010

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




                            FOR THE NINTH CIRCUIT



MICHAEL R. KENNEDY, Jr.,                         No. 07-55053

               Petitioner - Appellant,           D.C. No. CV-05-00164-RGK

  v.
                                                 MEMORANDUM *
JOHN C. MARSHALL,

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    R. Gary Klausner, District Judge, Presiding

                              Submitted June 29, 2010 **

Before:        ALARCÓN, LEAVY, and GRABER, Circuit Judges.

       California state prisoner Michael R. Kennedy, Jr. appeals pro se from the

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

jurisdiction under 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).
      Kennedy contends that the trial court’s admission into evidence of the

victim’s preliminary hearing testimony violated his Sixth Amendment right to

confrontation. This contention fails because the record reflects that the prosecution

went to considerable lengths to obtain the victim’s attendance at trial, and thus

satisfied the “good-faith effort” required to demonstrate unavailability. See Ohio v.

Roberts, 448 U.S. 56, 74-76 (1980); see also Windham v. Markle, 163 F.3d 1092,

1102 (1998). Moreover, Kennedy cross-examined the victim at the preliminary

hearing. See Ohio, 448 U.S. at 71-73. Thus, the state court’s decision denying

Kennedy’s claims was neither contrary to, nor involved an unreasonable

application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1).

      We do not address the State’s exhaustion argument because it is “perfectly

clear” that the claim fails on the merits. See Cassett v. Stewart, 406 F.3d 614, 624

(9th Cir. 2005).

      AFFIRMED.




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