                            NOT FOR PUBLICATION                            FILED
                     UNITED STATES COURT OF APPEALS                         JUN 25 2018
                                                                        MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

AURELIO FIDENCIO SALDIVAR,                       No.    15-55829

                Petitioner-Appellant,            D.C. No.
                                                 2:13-cv-07757-JLS-AS
 v.

G. D. LEWIS, Warden,                             MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                       for the Central District of California
                   Josephine L. Staton, District Judge, Presiding

                        Argued and Submitted June 6, 2018
                              Pasadena, California

Before: LIPEZ,** NGUYEN, and OWENS, Circuit Judges.

      Petitioner-Appellant Aurelio Fidencio Saldivar appeals from the denial of

his petition for a writ of habeas corpus. As the parties are familiar with the facts,

we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, 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 Kermit V. Lipez, United States Circuit Judge for the
First Circuit, sitting by designation.
      1. Ineffective-Assistance Claim. Contrary to petitioner’s argument, the

Supreme Court has never clearly resolved whether, in assessing the competence of

counsel’s representation under the Sixth Amendment, an appellate court may

consider hypothetical strategic rationales for counsel’s conduct and, if so, whether

a defendant must negate every such rationale to demonstrate Strickland deficiency.

There being no such precedent, petitioner’s argument that the court of appeal’s

application of the standard from People v. Lucas, 907 P.2d 373, 389 (Cal. 1995),

was “contrary to . . . clearly established Federal law, as determined by the Supreme

Court of the United States,” 28 U.S.C. § 2254(d)(1), necessarily fails. See, e.g.,

Marshall v. Rodgers, 569 U.S. 58, 61–64 (2013) (per curiam); Knowles v.

Mirzayance, 556 U.S. 111, 122 (2009).

      As to the court of appeal’s determination that most of the purported errors by

petitioner’s trial counsel did not amount to constitutional deficiencies, petitioner

has failed to demonstrate “an error well understood and comprehended in existing

law beyond any possibility for fairminded disagreement.” Harrington v. Richter,

562 U.S. 86, 103 (2011). And as to those errors the court held to be constitutional

deficiencies, petitioner has failed to show that the court of appeal was “necessarily

unreasonable” in concluding that the evidence against him was overwhelming and

that counsel’s deficiencies therefore neither independently nor cumulatively




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prejudiced him. Cullen v. Pinholster, 563 U.S. 170, 190 (2011).1

      2. Due-Process Claim. Even assuming that the state trial court’s erroneous

use of CALCRIM 1603 and its failure to provide a theft instruction violated

petitioner’s due-process rights, the errors did not have a “substantial and injurious

effect” on the jury’s verdict, either individually or cumulatively. Brecht v.

Abrahamson, 507 U.S. 619, 637–38 (1993) (citation omitted); see also Dixon v.

Williams, 750 F.3d 1027, 1034–35 (9th Cir. 2014) (per curiam). Nor did these

purported instructional errors, considered cumulatively with the deficiencies the

California court of appeal identified in petitioner’s trial counsel’s performance,

prejudice petitioner’s case. See Brecht, 507 U.S. at 637–38.

      3. Petitioner’s Request for Judicial Notice (Dkt. No. 22) is granted.

      AFFIRMED.




1
 Contrary to petitioner’s suggestions that we analyze the court of appeal’s
Strickland holdings under both § 2254(d)(1)’s “unreasonable application” prong
and § 2254(d)(2), federal habeas review of a state court’s Strickland analysis is
properly situated under the former. See, e.g., Richter, 562 U.S. at 101; Cullen, 563
U.S. at 190–203.

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