                                                                              FILED
                            NOT FOR PUBLICATION
                                                                               JAN 19 2018
                    UNITED STATES COURT OF APPEALS                         MOLLY C. DWYER, CLERK
                                                                             U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


DANELL L. PRATT,                                  No.    16-15535

              Petitioner-Appellant,               D.C. No. 4:13-cv-01225-YGR

 v.
                                                  MEMORANDUM*
B. GOWER,

              Respondent-Appellee.


                  Appeal from the United States District Court
                     for the Northern District of California
                Yvonne Gonzalez Rogers, District Judge, Presiding

                      Argued and Submitted January 10, 2018
                            San Francisco, California

Before: THOMAS, Chief Judge, and RAWLINSON and WATFORD, Circuit
Judges.

      Danell Pratt appeals the district court’s denial of his petition for a writ of

habeas corpus brought under 28 U.S.C. § 2254. We have jurisdiction pursuant to

28 U.S.C. § 2253, and we affirm.




      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      The district court did not err in holding that the state court reasonably

concluded that Pratt’s right to confront witnesses under the Sixth Amendment was

not violated by the admission of jail phone records. 28 U.S.C. § 2254(d). The

state court reasonably concluded that the jail phone records were cumulative of

other evidence that tended to show Pratt’s attempt to fabricate an alibi. The state

court did not misapply clearly established law or make an unreasonable

determination of fact when it concluded that Pratt was not prejudiced by the

admission of the records.

      We need not decide whether Pratt’s counsel’s performance was

constitutionally deficient because Pratt’s claims of ineffective assistance of counsel

fail for lack of prejudice. See Strickland v. Washington, 466 U.S. 668, 687 (1984)

(holding that an ineffective assistance of counsel claim has two components:

deficient performance and prejudice). The undisputed evidence showed that Pratt

attempted through various means to fabricate an alibi. Eyewitnesses identified him

as the shooter. Thus, the state court reasonably determined that Pratt failed to

demonstrate Strickland prejudice on the claims it considered.

      To the extent that the state court overlooked some of Pratt’s ineffective

assistance of counsel claims, we review those claims de novo. Johnson v.




                                          2
Williams, 568 U.S. 289, 302–03 (2013). On de novo review, for the same reasons,

we conclude that Pratt failed to establish Strickland prejudice on those claims.

      We review Pratt’s claim of complete denial of counsel under the Sixth

Amendment de novo because the state court overlooked the claim. Id. The denial

of counsel inquiry focuses on whether counsel “act[ed] in the role of an advocate”

and put the prosecution’s case to “meaningful adversarial testing.” United States v.

Cronic, 466 U.S. 648, 656 (1984). As the District Court noted, “the record reflects

a trial attorney who was perhaps not particularly skillful but who nevertheless

successfully made and argued against objections, adequately cross-examined

government witnesses, presented a logical defense to the jury in light of the

evidence, and advocated on Petitioner’s behalf during a jury instruction conference

and at sentencing.” The record reveals that Pratt was not completely denied

counsel.

      We are troubled by some of the allegations made by Pratt as to his attorney’s

conduct, as was the State of California. However, applying the appropriate legal

standards to this case, we conclude that the district court properly denied Pratt’s

petition for a writ of habeas corpus.



      AFFIRMED.


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