FILED
NOT FOR PUBLICATION
JAN 11 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARIO DONTA GAULDIN, No. 14-56863
Petitioner-Appellant, D.C. No.
3:12-cv-00791-LAB-RBB
v.
MATTHEW CATE, MEMORANDUM*
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of California
Larry A. Burns, District Judge, Presiding
Submitted January 9, 2017**
Pasadena, California
Before: KOZINSKI and WATFORD, Circuit Judges, and BENNETT,***
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable Mark W. Bennett, United States District Judge for the
Northern District of Iowa, sitting by designation.
page 2
1. Assuming that Gauldin’s Confrontation Clause claim isn’t
procedurally defaulted, habeas relief is unwarranted because the state court’s
adjudication of this claim wasn’t “contrary to, or involved an unreasonable
application of” Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), the “clearly
established Federal law” at the time of the state court’s decision. 28 U.S.C. §
2254(d)(1). Patrick O’Donnell, the supervisor that signed and approved the DNA
report, testified at trial. Gauldin had a chance to cross-examine O’Donnell about
any perceived inadequacies in the report.
2. Gauldin argues that we shouldn’t defer to the state court under the
Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) because there is
no reasoned state court decision rejecting his Confrontation Clause claim on the
merits. But Gauldin’s claim was rejected by the California Superior Court on
October 26, 2009. The court found that Gauldin “ha[d] not submitted any evidence
to support his claim that DNA testimony was admitted through the use of affidavit
testimony and that he was denied the right to properly cross exam on this issue.”
AEDPA applies.
3. The magistrate judge and the district court erred in determining that
the DNA report wasn’t entered into evidence. The DNA report was clearly
page 3
admitted as evidence at trial. But admitting the DNA report didn’t violate
Gauldin’s rights under the Confrontation Clause because he had an opportunity to
cross-examine O’Donnell about the validity of the report. See Bullcoming v. New
Mexico, 564 U.S. 647, 672 (2011) (Sotomayor, J., concurring) (explaining that the
Court’s holding that forensic lab reports can’t be admitted through the testimony of
a “surrogate” analyst didn’t extend to a situation where the surrogate was “a
supervisor, reviewer, or someone else with a personal, albeit limited, connection to
the scientific test at issue”).
4. Even if we were to find a constitutional violation, any error would be
harmless. In light of the extensive body of evidence supporting Gauldin’s
conviction we can’t say that any constitutional error had a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 623 (1993) (citation omitted).
AFFIRMED.