                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        MAR 7 2018
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

JOHN MCKNIGHT WADE,                             No.   16-35399

                Petitioner-Appellant,           D.C. No. 2:13-cv-00755-PK

 v.
                                                MEMORANDUM*
MARK NOOTH,

                Respondent-Appellee.

                   Appeal from the United States District Court
                            for the District of Oregon
                   Michael W. Mosman, Chief Judge, Presiding

                            Submitted March 5, 2018**
                                Portland, Oregon

Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL, *** District
Judge.

      John Wade was convicted in Oregon state court of offenses arising out of an

assault and robbery. The convictions were affirmed on direct appeal, and Wade’s


      *
             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 Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
petition for state post-conviction relief was unsuccessful. The district court denied

Wade’s subsequent 28 U.S.C. § 2254 habeas corpus petition and we affirm.

      1. We assume, as does the respondent warden, that the introduction at trial of

Wade’s co-defendant’s statements violated the Confrontation Clause. See Crawford

v. Washington, 541 U.S. 36, 52 (2004) (“Statements taken by police officers in the

course of interrogations are . . . testimonial under even a narrow standard.”). But,

“[h]abeas relief on a trial error claim is appropriate only if the error results in ‘actual

prejudice.’” Hall v. Haws, 861 F.3d 977, 991 (9th Cir. 2017) (quoting Davis v.

Ayala, 135 S. Ct. 2187, 2197 (2015)); see also Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986) (holding that Confrontation Clause violations are subject to

harmless error review). Wade has not demonstrated that the trial error had a

“substantial and injurious effect or influence in determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United

States, 328 U.S. 750, 776 (1946)). The co-defendant’s statements were brief and

cumulative of the testimony of the victims, “add[ing] nothing new.” Mayes v.

Premo, 766 F.3d 949, 965 (9th Cir. 2014).

      2. The state post-conviction review court did not unreasonably reject Wade’s

ineffective assistance of counsel claim. “The standards created by Strickland and

§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review

is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted).


                                            2
Instead of hiring an expert to testify about the likely trajectory of the bullet, counsel

chose to rely on the cross-examination of the officers, and to argue the state’s failure

to proffer evidence. The state court could have reasonably concluded that this

“strategy choice was . . . within the range of professionally reasonable judgments.”

Strickland v. Washington, 466 U.S. 668, 699 (1984); see Harrington, 562 U.S. at

106–09 (rejecting claim that state court was unreasonable in finding counsel

effective when counsel failed to consult with a blood pattern expert).

      AFFIRMED.




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