                                                                            FILED
                           NOT FOR PUBLICATION
                                                                             APR 20 2017
                    UNITED STATES COURT OF APPEALS                       MOLLY C. DWYER, CLERK
                                                                           U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


BRADLEY MARSHALL PETERS,                         No. 15-35994

              Petitioner-Appellant,              D.C. No. 2:12-cv-01475-RSL

 v.
                                                 MEMORANDUM*
PATRICK GLEBE, Superintendent,

              Respondent-Appellee.


                    Appeal from the United States District Court
                      for the Western District of Washington
                     Robert S. Lasnik, District Judge, Presiding

                        Argued and Submitted April 4, 2017
                               Seattle, Washington

Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,** Chief
District Judge.

      Bradley Peters appeals the district court’s denial of his 28 U.S.C. § 2254

petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291

and 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 Honorable John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
      We review de novo a district court’s denial of a petition for a writ of habeas

corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). We review for

abuse of discretion a district court’s denial of a request for an evidentiary hearing.

Wood v. Ryan, 693 F.3d 1104, 1112 (9th Cir. 2012).

      First, Peters contends that admission at trial of a videotaped deposition

violated his confrontation rights and that his absence from the deposition violated

his right to be present at a critical stage of the trial. A defendant may waive his

right to confrontation by failing “to object to the offending evidence,” Melendez-

Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009), and waiver may generally be

accomplished by either the criminal defendant or by counsel, see Wilson v. Gray,

345 F.2d 282, 286 (9th Cir. 1965) (“It has been consistently held that the accused

may waive his right to cross examination and confrontation and that the waiver of

this right may be accomplished by the accused’s counsel as a matter of trial tactics

or strategy.”). The Washington Court of Appeals’ determination that Peters

waived his confrontation rights by voluntarily failing to attend the deposition and

failing to object to the deposition’s admission at trial was neither contrary to, nor

an unreasonable application of, clearly established federal law. See 28 U.S.C. §

2254(d)(1). Peters also waived his right to be present at the deposition. See United

States v. Gagnon, 470 U.S. 522, 527-28 (1985).



                                           2
      Second, Peters claims that his counsel was ineffective for failing to invite

him to attend the deposition. To prove ineffective assistance of counsel, a

petitioner must show that “counsel’s representation fell below an objective

standard of reasonableness,” and that “there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been

different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Even

assuming defense counsel’s representation was deficient, Peters has not shown

prejudice sufficient to establish a Strickland violation.

      Third, Peters contends that the State violated Brady v. Maryland, 373 U.S.

83 (1963), by failing to disclose the disciplinary record of one of the key detectives

on his case. The Washington Supreme Court reasonably determined that Peters

could not show the prejudice necessary to establish a Brady violation because the

detective’s disciplinary issues were unrelated to Peters’ case and would have had

only limited impeachment value.

      Finally, the district court did not abuse its discretion in declining to hold an

evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 183 (2011)

(explaining that “a district court is not required to hold an evidentiary hearing”

when “the state-court record precludes habeas relief under the limitations of

§ 2254(d)” (internal quotation marks omitted)).

      AFFIRMED.

                                           3
