                                                                              FILED
                           NOT FOR PUBLICATION                                OCT 23 2014

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


ANTHONY RAUL BARRON,                             No. 13-15565

              Petitioner - Appellant,            D.C. No. 4:11-cv-02797-PJH

  v.
                                                 MEMORANDUM*
MIKE STAINER,

              Respondent - Appellee.


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

                      Argued and Submitted October 9, 2014
                            San Francisco, California

Before: W. FLETCHER and WATFORD, Circuit Judges, and DUFFY, District
Judge.**

       Petitioner Anthony Barron appeals the denial of his 28 U.S.C. § 2254 habeas

petition. We have jurisdiction under 28 U.S.C. § 2253. We review de novo the



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
            The Honorable Kevin Thomas Duffy, United States District Judge for
the Southern District of New York, sitting by designation.
district court’s decision to deny a habeas petition, see Clabourne v. Ryan, 745 F.3d

362, 370 (9th Cir. 2014), and we affirm.

      The state trial court refused to admit impeaching evidence that a testifying

officer had kicked Petitioner three times during his arrest. Petitioner claims that

this evidence supports the inference that the arresting officer never saw Petitioner

strike the victim with a knife but nevertheless gave false testimony in order to

justify his use of excessive force and avoid discipline. The California Court of

Appeal concluded that the exclusion of this impeachment evidence violated the

Confrontation Clause. We treat that finding of constitutional error as established.

      The Court of Appeal then concluded that this error was harmless. Whether

we adopt deferential review under AEDPA or consider harmlessness independently

under Brecht v. Abrahamson, 507 U.S. 619 (1993), we agree with the state court.

When analyzing the prejudicial effect of a Confrontation Clause violation, we

review “(1) the importance of the witness’ testimony in the prosecution’s case; (2)

whether the testimony was cumulative; (3) the presence or absence of evidence

corroborating or contradicting the witness’ testimony on material points; (4) the

extent of cross-examination otherwise permitted; and (5) the overall strength of the

prosecution’s case.” Ortiz v. Yates, 704 F.3d 1026, 1039 (9th Cir. 2012). We will




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assume that the damaging potential of the precluded evidence would have been

fully realized but for the error. Id.

      While the arresting officer’s testimony was important, the prosecution also

introduced substantial corroborating evidence at trial. Three other officers saw

Petitioner use a “sharp instrument . . . in a stabbing manner,” use “something in his

hand” to strike the victim in “his back, maybe shoulder blade area,” and clench his

hand “like he had something in there” and make a “stabbing motion.” Moreover,

photographs of the victim’s back taken twenty days after the assault showed a

wound where Petitioner supposedly stabbed him. Finally, a fifth officer testified

that the victim previously made comments indicating that Petitioner had stabbed

him. Given the corroborating evidence and the overall strength of the

prosecution’s case, the trial court’s error was harmless.

      To the extent that Petitioner’s brief raises uncertified issues, we construe his

arguments as a motion to expand the certificate of appealability, and we deny the

motion. See 9th Cir. R. 22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104–05 (9th

Cir. 1999) (per curiam).

      AFFIRMED.




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