Delgadillo v. Woodford

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

HERCULANO DELGADILLO,  No. 07-55089
Petitioner-Appellant,
v.  D.C. No.
CV-03-01501-DMS
JEANNE S. WOODFORD,
OPINION
Respondent-Appellee.

Appeal from the United States District Court
for the Southern District of California
Dana M. Sabraw, District Judge, Presiding

Argued and Submitted
December 3, 2007—Pasadena, California

Filed June 3, 2008

Before: David R. Thompson, Kim McLane Wardlaw, and
Sandra S. Ikuta, Circuit Judges.

Opinion by Judge Ikuta

6271
6276 DELGADILLO v. WOODFORD

COUNSEL

Vivian A. Fu, San Francisco, California, for the petitioner-
appellant.
 DELGADILLO v. WOODFORD 6277
Meagan J. Beale, Deputy Attorney General, Office of the
Attorney General of the State of California, San Diego, Cali-
fornia, for the respondent-appellee.

OPINION

IKUTA, Circuit Judge:

This appeal requires us to consider whether for purposes of
our review under the Antiterrorism and Effective Death Pen-
alty Act (AEDPA), 28 U.S.C. § 2254(d)(1), a state habeas
court’s decision to apply Crawford v. Washington, 541 U.S.
36 (2004), retroactively to uphold a defendant’s sentence is an
unreasonable application of Supreme Court precedent.
Although Whorton v. Bockting, 127 S. Ct. 1173, 1177 (2007),
held that Crawford is not retroactively applicable in federal
habeas proceedings, Danforth v. Minnesota, 128 S. Ct. 1029,
1040-41 (2008), clarified that the rule of nonretroactivity for
federal habeas proceedings is not binding on state habeas
courts. In light of Danforth, we hold that the state habeas
court’s decision to apply Crawford was reasonable. We also
hold that we must defer to the state habeas court’s application
of Crawford to the facts of this case. Therefore, we affirm the
district court’s denial of Delgadillo’s petition for a writ of
habeas corpus.

I

On September 22, 2000, Herculano Delgadillo was con-
victed in California state court of multiple counts of threaten-
ing, assaulting, and inflicting corporal injury on his then
girlfriend, now wife, Rosa Ramirez.

On May 19, 2000, Ramirez called 911 and reported that she
had been beaten by Delgadillo. After meeting Officer
Vasquez at the police station, Ramirez told him that she had
6278 DELGADILLO v. WOODFORD
just been punched and choked by Delgadillo. She also
recounted several prior incidents where Delgadillo had threat-
ened and beaten her. The following day, Ramirez went to
White Memorial Hospital for treatment. She told a nurse that
her boyfriend was responsible for her injuries, and that he had
also assaulted her one or two weeks prior. On May 24th,
Detective Behrendt of the San Diego Police Department inter-
viewed Ramirez. Ramirez repeated the information she had
previously provided to Officer Vasquez about the May 19th
incident, and described two other assaults by Delgadillo,
including an incident where he slammed a door on her head
and another time when Delgadillo had choked her.

Police arrested Delgadillo on May 27, 2000. Several days
afterwards, Ramirez visited Delgadillo in jail. She then
informed Detective Behrendt that she did not wish to pursue
charges. Ramirez and Delgadillo married before his trial.

Delgadillo was charged with two counts of inflicting corpo-
ral injury on a cohabitant, four counts of assault with a deadly
weapon or force likely to produce great bodily injury, and two
counts of making a terrorist threat. See CAL. PENAL CODE
§§ 273.5, 245(a)(1), 422.

At the preliminary hearing on June 14, 2000, Ramirez
appeared both as a witness for the state and as a witness for
the defense. Officer Vasquez, Detective Behrendt, and several
of Ramirez’s coworkers also testified for the state. Ramirez
denied telling the police, her coworkers, or the nurse that Del-
gadillo abused her. She also testified that she had hit Del-
gadillo first on the night of May 19th. Delgadillo had an
opportunity to cross-examine her and the other witnesses.

Ramirez did not appear at Delgadillo’s trial. The court
declared her unavailable and allowed the state to read
Ramirez’s testimony at the preliminary hearing to the jury.
Officer Vasquez, Detective Behrendt, and Ramirez’s
coworkers, including Maha Dahglas, who had not testified at
 DELGADILLO v. WOODFORD 6279
the preliminary hearing, were witnesses for the state. The
police officers, the nurse, and Ramirez’s coworkers testified
regarding Ramirez’s prior inconsistent statements, including
Ramirez’s statements that Delgadillo had assaulted her.
Coworkers also testified that they saw Ramirez with various
injuries between November 1999 and May 2000, including
bruising around her leg, throat, and eyes. Delgadillo’s trial
counsel did not object to the admissibility of Ramirez’s hear-
say statements at trial.

On September 22, 2000, Delgadillo was convicted on all
counts except for one of the terrorist threat counts.

Delgadillo did not raise any Confrontation Clause claims
on direct appeal. The state appellate court denied his appeal
in a reasoned opinion on June 28, 2002, and the state supreme
court summarily denied his appeal on September 11, 2002.

Delgadillo filed his federal habeas petition on July 28,
2003, claiming that Ramirez’s preliminary hearing testimony
was admitted at trial in violation of state evidentiary rules,
and that there was insufficient evidence to support the jury
verdicts. While the federal petition was pending, Delgadillo
filed a petition for writ of habeas corpus in the state superior
court on September 3, 2003, alleging that trial counsel was
ineffective in failing to object to the admissibility of
Ramirez’s prior inconsistent statements. The superior court
denied the petition, as did the California appellate court. With
respect to Delgadillo’s ineffective assistance claim, the Cali-
fornia appellate court noted that it “ha[d] already determined
that [Ramirez’s] prior inconsistent statements were properly
admitted and an objection would have been fruitless.” More-
over, the court held there was no prejudice. The California
Supreme Court summarily denied Delgadillo’s appeal of this
decision.

After the Supreme Court decided Crawford on March 8,
2004, a federal magistrate judge considering Delgadillo’s
6280 DELGADILLO v. WOODFORD
pending federal habeas petition determined that Delgadillo
had raised Sixth Amendment claims, namely, that the intro-
duction of Ramirez’s out-of-court statements at trial violated
Delgadillo’s Confrontation Clause rights. Because the state
court had not previously addressed this issue, it was unex-
hausted. The magistrate judge stayed Delgadillo’s habeas
petition and held it in abeyance pending Delgadillo’s exhaus-
tion of his Confrontation Clause claims in state court. Del-
gadillo then filed a second state petition for writ of habeas
corpus in the state appellate court, raising his Confrontation
Clause claims.

On March 21, 2005, the California Court of Appeal
rejected Delgadillo’s Confrontation Clause claims, ruling that
Delgadillo had not demonstrated that his Sixth Amendment
rights were violated under Crawford. The California Supreme
Court denied Delgadillo’s petition without opinion.

Having exhausted his state remedies, Delgadillo returned to
the federal district court, which denied Delgadillo’s habeas
petition on December 15, 2006. Pursuant to 28 U.S.C.
§ 2253(c), the district court certified five claims for appeal.
Delgadillo also raises 11 uncertified issues.

II

On appeal, Delgadillo raises the same claim he raised to the
state habeas court, that his Confrontation Clause rights were
violated by the admission at trial of Ramirez’s out-of-court
statements to Detective Behrendt and Ramirez’s co-workers.
Delgadillo also contends that, absent these inadmissible state-
ments, there was insufficient evidence to support one of his
convictions for assaulting Ramirez. In addition, Delgadillo
claims his Sixth Amendment rights to effective assistance of
counsel were violated by trial counsel’s failure to object to the
admission of hearsay testimony from Detective Behrendt and
Ramirez’s co-workers.
 DELGADILLO v. WOODFORD 6281
A

[1] We first address Delgadillo’s Confrontation Clause
claims. Although the state habeas court applied Crawford to
his claims, Delgadillo contends that we should apply Ohio v.
Roberts, 448 U.S. 56 (1980), which was the applicable
Supreme Court precedent at the time Delgadillo’s conviction
became final. Ohio v. Roberts held that if a hearsay declarant
is not present for cross-examination at trial, there must nor-
mally be a showing that the declarant is unavailable, and even
then the hearsay statement is admissible “only if it bears ade-
quate ‘indicia of reliability.’ ” 448 U.S. at 66. The Supreme
Court overruled Ohio v. Roberts in Crawford, after Delgadil-
lo’s conviction became final. Crawford distinguished testimo-
nial from nontestimonial statements, “and held that
‘[t]estimonial statements of witnesses absent from trial’ are
admissible ‘only where the declarant is unavailable, and only
where the defendant has had a prior opportunity to cross-
examine [the witness].’ ” Whorton, 127 S. Ct. at 1179 (alter-
ations in original) (quoting Crawford, 541 U.S. at 59). Non-
testimonial statements do not raise Confrontation Clause
concerns. Whorton, 127 S. Ct. at 1183 (explaining Crawford).

[2] After Crawford was decided, the Supreme Court deter-
mined in Whorton that Crawford constituted a new constitu-
tional rule of criminal procedure that was not retroactively
applicable on federal habeas review. Whorton, 127 S. Ct. at
1184. The Court based this conclusion on the framework set
forth in Teague v. Lane, 489 U.S. 288 (1989), and its progeny.
In Teague, the Supreme Court first enunciated the rule that
“[u]nless they fall within an exception to the general rule, new
constitutional rules of criminal procedure will not be applica-
ble to those cases which have become final before the new
rules are announced.” Teague, 489 U.S. at 310.

Delgadillo argues that we must consider his claims under
Ohio v. Roberts, because Crawford does not apply retroac-
tively on federal habeas review. Accordingly, Delgadillo chal-
6282 DELGADILLO v. WOODFORD
lenges the admission of Ramirez’s out-of-court statements as
violating the criteria for admissibility set forth in Ohio v. Rob-
erts, arguing that Ramirez’s statements do not bear “adequate
‘indicia of reliability.’ ” 448 U.S. at 66. Because Crawford
rejected this framework for analyzing Confrontation Clause
violations, see Whorton, 127 S. Ct. at 1183, such arguments
are irrelevant unless Ohio v. Roberts applies to Delgadillo’s
claims.

B

[3] Before reaching the merits of Delgadillo’s Confronta-
tion Clause claims, however, we must consider the applicabil-
ity of AEDPA, 28 U.S.C. § 2254, which establishes a “highly
deferential standard for evaluating state-court rulings.” Wood-
ford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam) (internal
quotation marks omitted). Under AEDPA, we must defer to
the state court’s resolution of federal claims unless its deter-
mination “resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the
United States.” 28 U.S.C. § 2254(d)(1); see also, e.g., Himes
v. Thompson, 336 F.3d 848, 852 (9th Cir. 2003). “ ‘[C]learly
established Federal law’ under § 2254(d)(1) is the governing
legal principle or principles set forth by the Supreme Court at
the time the state court renders its decision.” Lockyer v.
Andrade, 538 U.S. 63, 71-72 (2003). Only if the state court’s
decision does not meet the criteria set forth in § 2254(d)(1) do
we conduct a de novo review of a habeas petitioner’s claims.
See Panetti v. Quarterman, 127 S. Ct. 2842, 2855 (2007)
(holding that where the state court’s application of Supreme
Court precedent was unreasonable, the federal court may
review petitioner’s claim “unencumbered by the deference
AEDPA normally requires”); see also Frantz v. Hazey, 513
F.3d 1002, 1013 (9th Cir. 2008) (en banc) (“[I]t is now clear
both that we may not grant habeas relief simply because of
§ 2254(d)(1) error and that, if there is such error, we must
 DELGADILLO v. WOODFORD 6283
decide the habeas petition by considering de novo the consti-
tutional issues raised.”).

[4] The relevant state court determination for purposes of
AEDPA review is the last reasoned state court decision. Ylst
v. Nunnemaker, 501 U.S. 797, 804-06 (1991); see Medley v.
Runnels, 506 F.3d 857, 862 (9th Cir. 2007) (en banc). Here,
the March 21, 2005 decision of the state appellate court deny-
ing Delgadillo’s second state habeas petition is the last rea-
soned decision on Delgadillo’s Confrontation Clause claims.
Therefore, Delgadillo’s appeal requires us to consider first
whether the state habeas court’s application of Crawford to
Delgadillo’s Confrontation Clause claims is contrary to or an
unreasonable application of Supreme Court precedent.

The Supreme Court answered this question in the negative
in Danforth, which was decided while this appeal was pend-
ing. In Danforth, the Supreme Court addressed the question
whether a state habeas court is constrained by a federal court
determination that, under Teague, a new constitutional rule of
criminal procedure is not retroactively applicable on collateral
review. The petitioner in Danforth argued on appeal that his
Confrontation Clause rights had been violated by the admis-
sion at trial of a videotaped interview. Danforth, 128 S. Ct. at
1033. The state appellate court upheld the admissibility of the
videotape under Ohio v. Roberts. Id. After petitioner’s convic-
tion became final, the Court announced the new rule in Craw-
ford, and the petitioner thereupon filed a state postconviction
petition asking for the benefit of Crawford. Id. The Minnesota
Supreme Court held that Crawford was a nonretroactive new
rule of criminal procedure, and that the state habeas courts
were thereby bound by Teague not to apply Crawford retroac-
tively to the petitioner’s habeas petition. Id. at 1033-34.

The Supreme Court agreed that Crawford is a nonretroac-
tive new rule of criminal procedure under Teague, as was
made clear in the Court’s intervening decision in Whorton. Id.
at 1034. However, the Court disagreed with the Minnesota
6284 DELGADILLO v. WOODFORD
Supreme Court’s further holding that Teague prohibits state
courts from retroactively applying Crawford on collateral
review, id. at 1042, and instead clarified why the Teague non-
retroactivity rule constrains only federal courts. First, the
Court explained that it is not empowered to create a nonretro-
active constitutional right. Id. at 1035; see also id. at 1044. In
deciding that a new constitutional rule of criminal procedure
is nonretroactive on collateral review, the Court is therefore
assessing only “whether a violation of the right that occurred
prior to the announcement of the new rule will entitle a crimi-
nal defendant to the relief sought.” Id. at 1035. This authority
—the Court’s authority to limit the relief afforded by a new
constitutional rule of criminal procedure—is based on the
Court’s federal habeas authority. Id. at 1039-1040 (“Teague’s
general rule of nonretroactivity was an exercise of this
Court’s power to interpret the federal habeas statute.”). The
Court interpreted the habeas statute’s directive to dispose of
habeas petitions “as law and justice require,” 28 U.S.C.
§ 2243, as authorizing the Court to “adjust the scope of the
writ in accordance with equitable and prudential consider-
ations.” Id. at 1040. Teague is an exercise of this prudential
and equitable authority “to achieve the goals of federal habeas
while minimizing federal intrusion into state criminal pro-
ceedings.” Id. at 1041. Given that Teague “is based on statu-
tory authority that extends only to federal courts applying a
federal statute, it cannot be read as imposing a binding obliga-
tion on state courts.” Id. at 1040.

[5] Because “Teague speaks only to the context of federal
habeas,” id. at 1041, the Supreme Court held that the Minne-
sota Supreme Court erred in holding that state courts were
constrained by Teague. According to the Court, “the Teague
decision limits the kinds of constitutional violations that will
entitle an individual to relief on federal habeas, but does not
in any way limit the authority of a state court, when reviewing
its own state criminal convictions, to provide a remedy for a
violation that is deemed ‘nonretroactive’ under Teague.” Id.
at 1042.
 DELGADILLO v. WOODFORD 6285
[6] In light of Danforth’s holding that Teague is inapplica-
ble to a state habeas court’s retroactivity decisions, and more
specifically, that a state habeas court may apply Crawford
retroactively on collateral review, the state habeas court here
did not err in applying Crawford to Danforth’s habeas peti-
tion. Under AEDPA, we must defer to the state habeas court’s
determination that the clearly established federal law at issue
here is Crawford, rather than Ohio v. Roberts.

III

The state court did not err in electing to apply Crawford.
Therefore, Crawford is the “clearly established Federal law”
for purposes of our AEDPA review. See 28 U.S.C.
§ 2254(d)(1). Under AEDPA, we must next determine
whether the state court unreasonably applied Crawford, or
reached a decision contrary to Crawford, in holding that the
admission of Ramirez’s statements to Detective Behrendt and
to her coworkers at trial did not violate Delgadillo’s Confron-
tation Clause rights. See id. § 2254(d)(1).

[7] In examining Ramirez’s statements to Detective
Behrendt, the state habeas court concluded that the statements
were “testimonial evidence and were admissible at trial
because she was unavailable and Delgadillo did cross-
examine her at the preliminary hearing.” This determination
was consistent with Crawford. Crawford held that a statement
“knowingly given in response to structured police question-
ing” is a testimonial statement under “any conceivable defini-
tion.” 541 U.S. at 53 n.4. Crawford further held that “[w]here
testimonial evidence is at issue . . . the Sixth Amendment
demands what the common law required: unavailability and
a prior opportunity for cross-examination.” 541 U.S. at 68.

[8] With respect to Ramirez’s statements to her coworkers,
the state court denied Delgadillo’s Confrontation Clause
claim without a detailed analysis.1 In context, the state court
1
The court stated, “Rosa’s statements to others were admitted at trial
largely without objection and Delgadillo does not specify which specific
6286 DELGADILLO v. WOODFORD
implicitly concluded that Ramirez’s statements to her
coworkers were nontestimonial.2 This conclusion is also not
contrary to, nor an unreasonable application of, Crawford.
Although Crawford did not define “testimonial” or “nontesti-
monial,” it made clear that the Confrontation Clause was con-
cerned with “testimony,” which “is typically [a] solemn
declaration or affirmation made for the purpose of establish-
ing or proving some fact,” and noted that “[a]n accuser who
makes a formal statement to government officers bears testi-
mony in a sense that a person who makes a casual remark to
an acquaintance does not.” 541 U.S. at 51 (first alteration in
original) (internal quotation marks omitted). In light of this
definition of “testimony,” and Crawford’s holding that the
admission of nontestimonial statements does not raise Con-
frontation Clause concerns, see Whorton, 127 S. Ct. at 1183,
the state court’s implicit conclusion that Ramirez’s remarks to
her coworkers did not implicate Delgadillo’s Sixth Amend-
ment rights of confrontation was not contrary to, nor an
unreasonable application of Crawford, see 28 U.S.C.
§ 2254(d)(1).

[9] Therefore, we defer to the state habeas court’s determi-
nation that the admission at trial of testimony from Detective
Behrendt and Ramirez’s coworkers did not violate Delgadil-
lo’s Confrontation Clause rights. Accordingly, we must also
reject Delgadillo’s claim that absent this testimony there was
insufficient evidence to support one of his convictions.

Because Delgadillo fails to “satisfy the AEDPA standard of
review,” see Horn v. Banks, 536 U.S. 266, 272 (2002), we

statements are objectionable. Several of Rosa’s coworkers testified at the
preliminary hearing and were also thoroughly cross-examined about
Rosa’s statements they related that incriminated Delgadillo.”
2
If Ramirez’s statements to coworkers were testimonial, they would be
admissible to the same extent as her statements to Detective Behrendt
because Ramirez was unavailable and had been previously subject to
cross-examination by Delgadillo.
 DELGADILLO v. WOODFORD 6287
may not undertake a de novo review of his Confrontation
Clause claims. See Panetti, 127 S. Ct. at 2855. Therefore, we
do not reach Delgadillo’s argument that we should review his
claims de novo under Ohio v. Roberts.3

[10] We note, however, that even if we were free to con-
duct de novo review, Delgadillo could not have required us to
consider his claims under Ohio v. Roberts rather than Craw-
ford. The Supreme Court has made clear that the purpose of
the Teague non-retroactivity rule is to protect state interests.
The rule is “motivated by a respect for the States’ strong
interest in the finality of criminal convictions, and the recog-
nition that a State should not be penalized for relying on ‘the
constitutional standards that prevailed at the time the original
proceedings took place.’ ” Lockhart v. Fretwell, 506 U.S. 364,
372 (1993) (quoting Teague, 489 U.S. at 306). For this rea-
son, in federal habeas proceeding, the state “can waive a
Teague defense, during the course of litigation, by expressly
choosing not to rely on it.” Danforth, 128 S. Ct. at 1046; see
also Lockhart, 506 U.S. at 372. A habeas petitioner, on the
other hand, may not raise Teague to bar the application of a
new rule. See Lockhart, 506 U.S. at 372-73. Thus, the state
can get the benefit of a new rule of criminal procedure by
waiving Teague in a federal habeas proceeding just as the
state habeas courts can elect to apply a non-retroactive new
rule when considering a state habeas petitioner’s claims. Dan-
forth, 128 S. Ct. at 1046. Accordingly, Delgadillo could not
have required a federal habeas court to apply Ohio v. Roberts
to his Confrontation Clause claims over the state’s objection.
Moreover, even if Ohio v. Roberts were applicable to Del-
gadillo’s Confrontation Clause claims, it is far from clear that
3
As noted supra at 6280, Delgadillo’s central argument on appeal is that
the testimony of Detective Behrendt and Ramirez’s coworkers was inad-
missible under Ohio v. Roberts because it did not fall into a “firmly rooted
hearsay exception” or bear “particularized guarantees of trustworthiness,”
as required under that case. 448 U.S. at 66. Because the state court was
not required to apply Ohio v. Roberts, we reject these arguments.
6288 DELGADILLO v. WOODFORD
Delgadillo would have prevailed. The district court analyzed
Delgadillo’s claims that certain nontestimonial statements
violated his Confrontation Clause rights under Ohio v. Rob-
erts, and nevertheless denied his habeas petition.

IV

Finally, Delgadillo argues that his Sixth Amendment right
to effective assistance of counsel was violated because his
trial counsel failed to object to the admission at trial of hear-
say testimony from Detective Behrendt and Ramirez’s
coworkers. The testimony at issue consisted of out-of-court
statements by Ramirez that were inconsistent with Ramirez’s
statements at the preliminary hearing. Ramirez’s statements at
the preliminary hearing had been read to the jury at trial. Del-
gadillo argues that the hearsay testimony was inadmissible
under California law. The state appellate court rejected this
ineffective assistance of counsel argument in its January 12,
2004 decision.

[11] Under AEDPA, we must determine whether the state
appellate court’s decision is contrary to, or an unreasonable
application of, Strickland v. Washington, 466 U.S. 668
(1984). See § 2254(d)(1). To establish constitutionally inef-
fective assistance of counsel under Strickland, a petitioner
must show that (1) “counsel’s performance was deficient,”
and (2) counsel’s “deficient performance prejudiced the
defense.” Strickland, 466 U.S. at 687. To show that counsel’s
performance was deficient, a petitioner must show that “coun-
sel’s representation fell below an objective standard of rea-
sonableness.” Id. at 688. To establish prejudice, the petitioner
must show “that counsel’s errors were so serious as to deprive
the defendant of a fair trial, a trial whose result is reliable.”
Id. at 687.

[12] A trial counsel’s failure to object to evidence which is
inadmissible under state law can constitute deficient perfor-
mance under Strickland. See Rupe v. Wood, 93 F.3d 1434,
 DELGADILLO v. WOODFORD 6289
1444-45 (9th Cir. 1996). Degadillo argues that the hearsay
testimony at issue was inadmissible under state law, and
argues in the alternative that even if the testimony was admis-
sible in the form of a preliminary hearing transcript, counsel
was deficient in failing to object to the live testimony.

[13] Delgadillo first argues that the hearsay evidence was
not admissible in any form at trial because the evidence was
never “properly admitted” at the preliminary hearing. See
CAL. EVID. CODE § 1294(a). We disagree. California Evidence
Code § 1294 provides:

(a) The following evidence of prior inconsistent
statements of a witness properly admitted in a pre-
liminary hearing or trial of the same criminal matter
pursuant to Section 1235 is not made inadmissible
by the hearsay rule if the witness is unavailable and
former testimony of the witness is admitted pursuant
to Section 1291:

(1) A videotaped statement introduced at a
preliminary hearing or prior proceeding
concerning the same criminal matter.

(2) A transcript, containing the statements,
of the preliminary hearing or prior proceed-
ing concerning the same criminal matter.

(b) The party against whom the prior inconsistent
statements are offered, at his or her option, may
examine or cross-examine any person who testified
at the preliminary hearing or prior proceeding as to
the prior inconsistent statements of the witness.

Prior inconsistent statements are “properly admitted” under
§ 1235 “provided the witness [who made the prior inconsis-
tent statement] is given the opportunity to explain or deny the
statement or the witness has not been excused from giving
6290 DELGADILLO v. WOODFORD
further testimony in the action.” People v. Avila, 133 P.3d
1076, 1138 (Cal. 2006). In this case, Ramirez testified at the
preliminary hearing and had the opportunity to explain or
deny the testimony from other witnesses about her prior
inconsistent statements. The inconsistent statements were
therefore properly admitted pursuant to § 1235. Delgadillo’s
argument that the statements were not properly admitted rests
solely on the fact that the prosecutor did not cite to California
Evidence Code § 1235, relying instead on Proposition 115. It
is irrelevant, however, what ground the prosecutor cited. See,
e.g., People v. Martinez, 113 Cal. App. 4th 400, 408 (Ct. App.
2003) (“When a trial court erroneously relies on one hearsay
exception to admit evidence that otherwise would have been
admissible under a different exception, it cannot be said that
the evidence was admitted in error.”).

[14] Delgadillo next argues that because the inconsistent
statements were only admissible as part of the preliminary
hearing transcript, not as live testimony, counsel was constitu-
tionally deficient in failing to object to the live testimony. We
cannot say that trial counsel’s decision to allow witnesses to
testify to Ramirez’s prior inconsistent statements on the stand,
in lieu of having the statements admitted in the form of the
preliminary hearing transcript, was an objectively unreason-
able trial strategy. The courts have long-recognized the value
“of a personal examination and cross-examination of the wit-
ness,” and of “compelling him to stand face to face with the
jury in order that they may look at him, and judge by his
demeanor upon the stand and the manner in which he gives
his testimony whether he is worthy of belief.” Mattox v.
United States, 156 U.S. 237, 242-43 (1895). Moreover, Cali-
fornia Evidence Code § 1294(b) contemplates that trial coun-
sel may prefer to have the witness take the stand insofar as it
provides that “[t]he party against whom the prior inconsistent
statements are offered, at his or her option, may examine or
cross-examine any person who testified at the preliminary
hearing or prior proceeding as to the prior inconsistent state-
ments of the witness.” See Martinez, 113 Cal. App. 4th at 408
 DELGADILLO v. WOODFORD 6291
(quoting CAL. EVID. CODE § 1294). Delgadillo has therefore
failed to “overcome the presumption that, under the circum-
stances, the challenged action might be considered sound trial
strategy.” Strickland, 466 U.S. at 689 (internal quotation
marks omitted).4

[15] Because the preliminary hearing evidence of
Ramirez’s prior inconsistent statements was admissible at
Delgadillo’s trial in transcript form, and because trial coun-
sel’s decision to instead permit the evidence to be presented
on the stand did not fall below “an objective standard of rea-
sonableness,” id. at 688, we conclude that the state court’s
determination that Delgadillo was not deprived of effective
assistance of counsel was not contrary to, nor an unreasonable
application of, Strickland.5

V

Delgadillo also raises eleven uncertified issues. When a
brief includes uncertified issues, we may treat it as a request
to expand the scope of the certificate of appealability. Solis v.
Garcia, 219 F.3d 922, 926 (9th Cir. 2000). Nine of Delgadil-
lo’s claims substantively rely on Delgadillo’s argument that
his Confrontation Clause arguments should have been
reviewed under Ohio v. Roberts, an argument we have already
4
Delgadillo argues for the first time in his reply brief that he was preju-
diced by counsel’s failure to object to the admission of hearsay testimony
from Maha Dahglas, a coworker who did not testify at the preliminary
hearing. Arguments raised for the first time in petitioner’s reply brief are
deemed waived. Burlington N. & Santa Fe Ry. Co. v. Vaughn, 509 F.3d
1085, 1093 n.3 (9th Cir. 2007). Moreover, Delgadillo’s argument fails on
the merits, because the testimony is largely cumulative and Delgadillo
fails to establish that but for the admission of that testimony “there is a
reasonable probability that . . . the result of the proceeding would have
been different.” Strickland, 466 U.S. at 694.
5
Because we determine that the performance of Delgadillo’s trial coun-
sel was not deficient under Strickland, we do not reach the state appellate
court’s alternative holding that Delgadillo suffered no prejudice.
6292 DELGADILLO v. WOODFORD
rejected. The tenth claim alleges that Delgadillo’s trial coun-
sel provided ineffective assistance of counsel for failing to
object to the introduction of preliminary hearing evidence of
Ramirez’s prior inconsistent statements, and that appellate
counsel was ineffective for failing to raise this issue on
appeal. We have already rejected this argument as well.
Finally, Delgadillo claims that his trial counsel was unconsti-
tutionally ineffective in failing to object to the admission of
particular statements Ramirez made to the 911 operator. In
light of the strong evidence supporting the counts against Del-
gadillo, Delgadillo has failed to demonstrate prejudice. Strick-
land, 466 U.S. at 687, 694, 697. Because Delgadillo has not
“made a substantial showing of the denial of a constitutional
right,” 28 U.S.C. § 2253(c)(2), we deny his request for a cer-
tificate of appealability.

AFFIRMED