                                                                           FILED
                           NOT FOR PUBLICATION                              FEB 25 2014

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



                            FOR THE NINTH CIRCUIT


DONALD STEPHEN BOUTTE,                           No. 12-17459

              Petitioner - Appellee,             D.C. No. 2:07-cv-01508-AK

  v.
                                                 MEMORANDUM*
MARTIN D. BITER; KAMALA D.
HARRIS, Attorney General,

              Respondents - Appellants.


                    Appeal from the United States District Court
                       for the Eastern District of California
                      Alex Kozinski, Chief Judge,** Presiding

                     Argued and Submitted February 11, 2014
                            San Francisco, California

Before: O’SCANNLAIN and MURGUIA, Circuit Judges, and ADELMAN,
District Judge.***



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The Honorable Alex Kozinski, Chief Judge of the U.S. Court of
Appeals for the Ninth Circuit, sitting by designation.
       ***
             The Honorable Lynn S. Adelman, District Judge for the U.S. District
Court for the Eastern District of Wisconsin, sitting by designation.
      Respondents Martin D. Biter and Kamala D. Harris appeal from the district

court’s grant of Donald Stephen Boutte’s motion for summary judgment, which

conditionally granted his petition for a writ of habeas corpus. The district court

granted relief based on Boutte’s ineffective assistance of counsel claim. See

Strickland v. Washington, 466 U.S. 668 (1984).

                                           I

      The parties dispute whether the Anti-Terrorism and Effective Death Penalty

Act’s (AEDPA) deferential standard of review applies to the state court’s decision.

See 28 U.S.C. § 2254(d)(1)–(2). The district court held that it did not and reviewed

Boutte’s claim de novo. “[A] habeas petitioner will not be entitled to a writ of

habeas corpus [under AEDPA] if his or her claim is rejected on de novo review.”

Berghuis v. Thompkins, 560 U.S. 370, 390 (2010). Because we conclude that

Boutte is not entitled to relief under de novo review, we need not decide whether

AEDPA’s standard of review applies.

                                           II

      In reaching its decision, the district court relied primarily on three pieces of

evidence that Boutte’s counsel did not present at trial.

                                          A




                                           2
      As to the 1992 police report detailing the victim’s intentional drug overdose,

such evidence is cumulative with that presented to the jury at trial. Matylinsky v.

Budge, 577 F.3d 1083, 1097 (9th Cir. 2009) (holding that a habeas petitioner

“cannot show prejudice for failure to present what is most likely cumulative

evidence”). The victim admitted under cross-examination that she has “a chemical

disorder of major depression” and that she took prescription medications.

Moreover, the report in question was a decade old by the time of the trial, and

Boutte has offered no evidence that the victim has experienced a similarly

traumatic episode since then. “[T]he absence of evidence that was cumulative of

what had already been presented . . . does not undermine our confidence in the

outcome.” Bible v. Ryan, 571 F.3d 860, 872 (9th Cir. 2009).

                                           B

      Like the 1992 police report, the 2000 personnel report regarding the victim’s

employment suspension from Beale Air Force Base is cumulative. Id.

Additionally, the description of the victim’s behavior in the report is relatively

benign. The district court reasoned that the report could have served as the basis

for cross-examination regarding the victim’s suspension, but aside from Boutte’s

own statements, there is no evidence that the victim said or did anything beyond

what is contained in the personnel report. Boutte does not contend he would have


                                           3
testified at trial had the personnel report been introduced into evidence, and he

cannot rely on speculation about what possible, unnamed witnesses might have

said to show prejudice. Grisby v. Blodgett, 130 F.3d 365, 373 (9th Cir. 1997).

                                          C

      Finally, the 1993 police report regarding the victim’s daughter contains only

an unsubstantiated, almost-decade-old allegation in which the alleged victim

neither appeared injured nor pressed charges. Such evidence is not sufficient to

“undermine confidence in the outcome [of the trial].” Strickland, 446 U.S. at 694.

      REVERSED and REMANDED with instructions to deny the petition

for writ of habeas corpus.




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