                                                                           FILED
                           NOT FOR PUBLICATION                              APR 07 2010

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




                            FOR THE NINTH CIRCUIT



COLRINTO REINA LOPEZ,                            No. 06-55815

             Petitioner - Appellant,             D.C. No. CV-03-08712-RSWL

  v.
                                                 MEMORANDUM *
M. YARBOROUGH, Warden,

             Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Central District of California
                    Ronald S.W. Lew, District Judge, Presiding

                      Argued and Submitted January 11, 2010
                               Pasadena, California

Before: GOODWIN, CANBY and O’SCANNLAIN, Circuit Judges.

       Colrinto Lopez was convicted of first-degree murder under California law

and sentenced to a term of imprisonment of 95 years to life. In 2004, Lopez filed

an amended petition for writ of habeas corpus under 28 U.S.C. § 2254. In his

amended petition, he claimed that the exclusion at trial of two defense witnesses’



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
testimony as hearsay violated his rights to a fair trial and to present a defense under

the Fifth, Sixth, and Fourteenth Amendments. The district court concluded that

Lopez procedurally defaulted that claim in state court, and denied his petition.

Lopez timely appealed, and this court granted a certificate of appealability on

whether the claim is procedurally barred. We review de novo the district court’s

determination that it is. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003).

      Lopez does not dispute that in the last reasoned state-court opinion on his

claim, the California Court of Appeal held that he waived any challenge to the

exclusion of the witnesses’ testimony by failing to provide a rationale for the

admission of the evidence at trial. Lopez argues only that California’s waiver rule

is not a state ground “adequate” to bar federal habeas review. “To be deemed

adequate, the state law ground for decision must be well-established and

consistently applied.” Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003).

Citing People v. Koontz, 46 P.3d 335 (Cal. 2002), Lopez contends that the

California courts have not applied the waiver rule consistently. In Koontz,

however, the Supreme Court of California concluded that the defendant preserved

his challenge to the exclusion of evidence as hearsay by advancing a nonhearsay

basis for admission of the evidence at trial. Id. at 358–59. Here, by contrast,

Lopez failed to offer a nonhearsay basis at trial for the admission of either


                                           2
witness’s testimony. Koontz therefore does not establish that California courts

have applied the waiver rule inconsistently where, as here, a defendant has failed to

present a nonhearsay basis at trial for admission of the disputed evidence.

Accordingly, we conclude that the state procedural rule relied upon by the

California Court of Appeal is adequate to bar federal habeas review of Lopez’s

claim.

         Lopez argues that counsel was constitutionally ineffective in failing to

preserve his claim for review in state court, and that counsel’s ineffective

assistance therefore constitutes “cause” to excuse any procedural default. See

Harris v. Reed, 489 U.S. 255, 262 (1989); Murray v. Carrier, 477 U.S. 478, 488

(1986). Lopez cannot establish, however, one of the necessary components of an

ineffective-assistance claim: that he suffered prejudice from counsel’s

performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The

testimony of both the witnesses in question would have been cumulative of

evidence presented to the jury. Thus, even if counsel’s performance was deficient,

there is no “reasonable probability that, but for counsel’s unprofessional errors, the

result of the proceeding would have been different.” Id. at 694. Because Lopez

cannot show cause for his procedural default, his claim alleging a violation of his

rights to a fair trial and to present a defense is procedurally barred.


                                            3
The judgment of the district court is

AFFIRMED.




                                    4
