FILED
NOT FOR PUBLICATION
APR 20 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
BRADLEY MARSHALL PETERS, No. 15-35994
Petitioner-Appellant, D.C. No. 2:12-cv-01475-RSL
v.
MEMORANDUM*
PATRICK GLEBE, Superintendent,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Robert S. Lasnik, District Judge, Presiding
Argued and Submitted April 4, 2017
Seattle, Washington
Before: KOZINSKI and W. FLETCHER, Circuit Judges, and TUNHEIM,** Chief
District Judge.
Bradley Peters appeals the district court’s denial of his 28 U.S.C. § 2254
petition for a writ of habeas corpus. We have jurisdiction under 28 U.S.C. §§ 1291
and 2253, 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 John R. Tunheim, Chief United States District Judge
for the District of Minnesota, sitting by designation.
We review de novo a district court’s denial of a petition for a writ of habeas
corpus. Lambert v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). We review for
abuse of discretion a district court’s denial of a request for an evidentiary hearing.
Wood v. Ryan, 693 F.3d 1104, 1112 (9th Cir. 2012).
First, Peters contends that admission at trial of a videotaped deposition
violated his confrontation rights and that his absence from the deposition violated
his right to be present at a critical stage of the trial. A defendant may waive his
right to confrontation by failing “to object to the offending evidence,” Melendez-
Diaz v. Massachusetts, 557 U.S. 305, 313 n.3 (2009), and waiver may generally be
accomplished by either the criminal defendant or by counsel, see Wilson v. Gray,
345 F.2d 282, 286 (9th Cir. 1965) (“It has been consistently held that the accused
may waive his right to cross examination and confrontation and that the waiver of
this right may be accomplished by the accused’s counsel as a matter of trial tactics
or strategy.”). The Washington Court of Appeals’ determination that Peters
waived his confrontation rights by voluntarily failing to attend the deposition and
failing to object to the deposition’s admission at trial was neither contrary to, nor
an unreasonable application of, clearly established federal law. See 28 U.S.C. §
2254(d)(1). Peters also waived his right to be present at the deposition. See United
States v. Gagnon, 470 U.S. 522, 527-28 (1985).
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Second, Peters claims that his counsel was ineffective for failing to invite
him to attend the deposition. To prove ineffective assistance of counsel, a
petitioner must show that “counsel’s representation fell below an objective
standard of reasonableness,” and that “there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been
different.” Strickland v. Washington, 466 U.S. 668, 688, 694 (1984). Even
assuming defense counsel’s representation was deficient, Peters has not shown
prejudice sufficient to establish a Strickland violation.
Third, Peters contends that the State violated Brady v. Maryland, 373 U.S.
83 (1963), by failing to disclose the disciplinary record of one of the key detectives
on his case. The Washington Supreme Court reasonably determined that Peters
could not show the prejudice necessary to establish a Brady violation because the
detective’s disciplinary issues were unrelated to Peters’ case and would have had
only limited impeachment value.
Finally, the district court did not abuse its discretion in declining to hold an
evidentiary hearing. See Cullen v. Pinholster, 563 U.S. 170, 183 (2011)
(explaining that “a district court is not required to hold an evidentiary hearing”
when “the state-court record precludes habeas relief under the limitations of
§ 2254(d)” (internal quotation marks omitted)).
AFFIRMED.
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