FILED
NOT FOR PUBLICATION APR 07 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
COLRINTO REINA LOPEZ, No. 06-55815
Petitioner - Appellant, D.C. No. CV-03-08712-RSWL
v.
MEMORANDUM *
M. YARBOROUGH, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Ronald S.W. Lew, District Judge, Presiding
Argued and Submitted January 11, 2010
Pasadena, California
Before: GOODWIN, CANBY and O’SCANNLAIN, Circuit Judges.
Colrinto Lopez was convicted of first-degree murder under California law
and sentenced to a term of imprisonment of 95 years to life. In 2004, Lopez filed
an amended petition for writ of habeas corpus under 28 U.S.C. § 2254. In his
amended petition, he claimed that the exclusion at trial of two defense witnesses’
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Circuit Rule 36-3.
testimony as hearsay violated his rights to a fair trial and to present a defense under
the Fifth, Sixth, and Fourteenth Amendments. The district court concluded that
Lopez procedurally defaulted that claim in state court, and denied his petition.
Lopez timely appealed, and this court granted a certificate of appealability on
whether the claim is procedurally barred. We review de novo the district court’s
determination that it is. Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003).
Lopez does not dispute that in the last reasoned state-court opinion on his
claim, the California Court of Appeal held that he waived any challenge to the
exclusion of the witnesses’ testimony by failing to provide a rationale for the
admission of the evidence at trial. Lopez argues only that California’s waiver rule
is not a state ground “adequate” to bar federal habeas review. “To be deemed
adequate, the state law ground for decision must be well-established and
consistently applied.” Bennett v. Mueller, 322 F.3d 573, 583 (9th Cir. 2003).
Citing People v. Koontz, 46 P.3d 335 (Cal. 2002), Lopez contends that the
California courts have not applied the waiver rule consistently. In Koontz,
however, the Supreme Court of California concluded that the defendant preserved
his challenge to the exclusion of evidence as hearsay by advancing a nonhearsay
basis for admission of the evidence at trial. Id. at 358–59. Here, by contrast,
Lopez failed to offer a nonhearsay basis at trial for the admission of either
2
witness’s testimony. Koontz therefore does not establish that California courts
have applied the waiver rule inconsistently where, as here, a defendant has failed to
present a nonhearsay basis at trial for admission of the disputed evidence.
Accordingly, we conclude that the state procedural rule relied upon by the
California Court of Appeal is adequate to bar federal habeas review of Lopez’s
claim.
Lopez argues that counsel was constitutionally ineffective in failing to
preserve his claim for review in state court, and that counsel’s ineffective
assistance therefore constitutes “cause” to excuse any procedural default. See
Harris v. Reed, 489 U.S. 255, 262 (1989); Murray v. Carrier, 477 U.S. 478, 488
(1986). Lopez cannot establish, however, one of the necessary components of an
ineffective-assistance claim: that he suffered prejudice from counsel’s
performance. See Strickland v. Washington, 466 U.S. 668, 687 (1984). The
testimony of both the witnesses in question would have been cumulative of
evidence presented to the jury. Thus, even if counsel’s performance was deficient,
there is no “reasonable probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Id. at 694. Because Lopez
cannot show cause for his procedural default, his claim alleging a violation of his
rights to a fair trial and to present a defense is procedurally barred.
3
The judgment of the district court is
AFFIRMED.
4