                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             JAN 11 2017
                   UNITED STATES COURT OF APPEALS                        MOLLY C. DWYER, CLERK
                                                                          U.S. COURT OF APPEALS


                           FOR THE NINTH CIRCUIT


MARIO DONTA GAULDIN,                             No.   14-56863

              Petitioner-Appellant,              D.C. No.
                                                 3:12-cv-00791-LAB-RBB
 v.

MATTHEW CATE,                                    MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Southern District of California
                     Larry A. Burns, District Judge, Presiding

                            Submitted January 9, 2017**
                               Pasadena, California

Before:      KOZINSKI and WATFORD, Circuit Judges, and BENNETT,***
             District Judge.




      *
             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 Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
                                                                                  page 2
      1.     Assuming that Gauldin’s Confrontation Clause claim isn’t

procedurally defaulted, habeas relief is unwarranted because the state court’s

adjudication of this claim wasn’t “contrary to, or involved an unreasonable

application of” Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the “clearly

established Federal law” at the time of the state court’s decision. 28 U.S.C. §

2254(d)(1). Patrick O’Donnell, the supervisor that signed and approved the DNA

report, testified at trial. Gauldin had a chance to cross-examine O’Donnell about

any perceived inadequacies in the report.


      2.     Gauldin argues that we shouldn’t defer to the state court under the

Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because there is

no reasoned state court decision rejecting his Confrontation Clause claim on the

merits. But Gauldin’s claim was rejected by the California Superior Court on

October 26, 2009. The court found that Gauldin “ha[d] not submitted any evidence

to support his claim that DNA testimony was admitted through the use of affidavit

testimony and that he was denied the right to properly cross exam on this issue.”

AEDPA applies.


      3.     The magistrate judge and the district court erred in determining that

the DNA report wasn’t entered into evidence. The DNA report was clearly
                                                                                page 3
admitted as evidence at trial. But admitting the DNA report didn’t violate

Gauldin’s rights under the Confrontation Clause because he had an opportunity to

cross-examine O’Donnell about the validity of the report. See Bullcoming v. New

Mexico, 564 U.S. 647, 672 (2011) (Sotomayor, J., concurring) (explaining that the

Court’s holding that forensic lab reports can’t be admitted through the testimony of

a “surrogate” analyst didn’t extend to a situation where the surrogate was “a

supervisor, reviewer, or someone else with a personal, albeit limited, connection to

the scientific test at issue”).


       4.     Even if we were to find a constitutional violation, any error would be

harmless. In light of the extensive body of evidence supporting Gauldin’s

conviction we can’t say that any constitutional error had a “substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted).


       AFFIRMED.
