                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS
                                                                           FILED
                            FOR THE NINTH CIRCUIT
                                                                            SEP 07 2016
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
SALVADOR A. RODRIGUEZ,                           No.   15-15679

              Petitioner-Appellant,              D.C. No. 4:04-cv-02233-PJH

 v.
                                                 MEMORANDUM*
DERRAL G. ADAMS, Warden,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Northern District of California
                    Phyllis J. Hamilton, Chief Judge, Presiding

                          Submitted September 2, 2016**
                            San Francisco, California

Before: HAWKINS, N.R. SMITH, and NGUYEN, Circuit Judges.

      Salvador Rodriguez appeals the district court’s order denying his motion to

excuse procedural default. 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).
      In his habeas petition, Rodriguez claims that his trial counsel rendered

ineffective assistance of counsel (“IAC”) by failing to interview two

eyewitnesses—Vonree Alberty and Kenneth Jackson. However, Rodriguez did not

timely raise this claim in state court. Therefore, we may not grant habeas relief on

Rodriguez’s procedurally defaulted IAC claim, unless Rodriguez “can demonstrate

cause for the default and actual prejudice as a result of the alleged violation of

federal law.” Coleman v. Thompson, 501 U.S. 722, 750 (1991).

      In Martinez v. Ryan, the Supreme Court explained that a federal court may

find “cause” to excuse a defendant’s procedural default only when certain

requirements are met. 132 S. Ct. 1309, 1320 (2012). The requirement relevant on

this appeal: the underlying IAC claim must be “substantial,” meaning that it has

“some merit.” Id. at 1318–19. The standard for determining whether a claim is

substantial is comparable to the standard for issuing certificates of appealability,

see id., whereby “a petitioner must show that reasonable jurists could debate

whether . . . the petition should have been resolved in a different manner or that the

issues presented were adequate to deserve encouragement to proceed further,”

Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (internal quotation marks and

alteration omitted).




                                           2
       Under Strickland v. Washington, to succeed on an IAC claim, a prisoner

“must show that counsel’s performance was deficient” and “that the deficient

performance prejudiced the defense.” 466 U.S. 668, 687 (1984). Thus, “[a]n IAC

claim has merit where (1) counsel’s ‘performance was unreasonable under

prevailing professional standards,’ and (2) ‘there is a reasonable probability that

but for counsel’s unprofessional errors, the result would have been different.’”

Cook v. Ryan, 688 F.3d 598, 610 (9th Cir. 2012) (quoting Hasan v. Galaza, 254

F.3d 1150, 1154 (9th Cir. 2001)).

       Even if we were to assume that trial counsel’s performance was deficient,

Rodriguez is still not entitled to relief from his procedural default, because (as the

district court determined) he has not evidenced a substantial claim that trial

counsel’s performance resulted in prejudice at trial. See Hurles v. Ryan, 752 F.3d

768, 782 (9th Cir. 2014). The eyewitness accounts of Alberty and Jackson would

have been cumulative to some of the evidence already presented at trial and often

inconsistent with Rodriguez’s own testimony. Further, their testimonies would not

have supported Rodriguez’s claim that the use of deadly force was justified, and

neither had suggested they would be willing to testify on behalf of the defense at

the time of trial.




                                           3
      Importantly, the government’s case against Rodriguez was also strong.

Rodriguez admitted that he fired a gun at a group of people, despite not observing

them carrying any weapons. Although he claimed he fired the weapon only in an

attempt to scare the group off, independent witnesses testified that he fired directly

at the group with his arm parallel to the ground, and the coroner’s preliminary

testimony established “that the bullet entered the victim’s ear and traveled straight

through the brain at neither an up or down angle.” Jackson and Alberty did not see

Rodriguez fire the weapon and, therefore, could not have rebutted the

government’s evidence that Rodriguez fired directly at the group.

      Having concluded that Rodriguez fails to demonstrate cause under Martinez,

we need not separately inquire whether he can demonstrate prejudice under

Coleman.

      AFFIRMED.




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