                                                                              FILED
                            NOT FOR PUBLICATION                                SEP 07 2011

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



                            FOR THE NINTH CIRCUIT


PATRICK RENTERIA,                                No. 08-56135

              Petitioner - Appellant,            D.C. No. 5:07-cv-00776-JVS-AN

  v.
                                                 MEMORANDUM*
R. J. SUBIA, Warden,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     James V. Selna, District Judge, Presiding

                          Submitted September 2, 2011**
                              Pasadena, California

Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.

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

habeas petition challenging his California convictions for murdering his wife,

dissuading a witness, and felony child endangerment. We affirm.


        *
             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).
      The state court ruled that Renteria procedurally defaulted his Confrontation

Clause challenge to his daughter’s videotaped interview by failing to object at trial.

Because this is an independent and adequate state ground, federal habeas relief was

properly denied. Loveland v. Hatcher, 231 F.3d 640, 643-44 (9th Cir. 2000); Rich

v. Calderon, 187 F.3d 1064, 1070 (9th Cir. 1999). The state ruling did not lose its

independence merely because the state court ruled in the alternative on the merits.

Loveland, 231 F.3d at 643-44.

      Likewise, because Renteria has not established that counsel was ineffective

for not objecting, he has not shown cause and prejudice to excuse his procedural

default. The record establishes that counsel made a reasonable tactical decision not

to assert an objection that lacked merit.

      In any event, the state court reasonably held that Crawford did not apply

because Renteria had an opportunity to cross-examine his daughter at trial, but

declined to cross-examine a “very cute” five-year-old. Crawford v. Washington,

541 U.S. 36, 59 n.9 (2004).

      Nor did the state court unreasonably reject the Crawford challenge to

Anthony Marin’s testimony. The challenged statement, which was not testimonial

and was admitted as non-hearsay, did not implicate confrontation rights. Id.;

Tennessee v. Street, 471 U.S. 409, 416-17 (1985).


                                            2
      Finally, the state court reasonably held that an erroneous felony child

endangerment jury instruction did not deprive Renteria of his due process right to a

fair trial. The state court reasonably held that the prosecutor’s closing argument

clarified any ambiguity that the state had to prove both the possibility for great

bodily harm and mental suffering to establish felony child abuse. Middleton v.

McNeil, 541 U.S. 433, 438 (2004).

      We decline to expand the certificate of appealability to include the

uncertified and unexhausted claim raised for the first time in this appeal. Lopez v.

Schriro, 491 F.3d 1029, 1039 (9th Cir. 2007). We also deny counsel’s request to

appoint him to exhaust the uncertified claim in state court.

      AFFIRMED.




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