NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS MAR 7 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN MCKNIGHT WADE, No. 16-35399
Petitioner-Appellant, D.C. No. 2:13-cv-00755-PK
v.
MEMORANDUM*
MARK NOOTH,
Respondent-Appellee.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, Chief Judge, Presiding
Submitted March 5, 2018**
Portland, Oregon
Before: N.R. SMITH and HURWITZ, Circuit Judges, and CURIEL, *** District
Judge.
John Wade was convicted in Oregon state court of offenses arising out of an
assault and robbery. The convictions were affirmed on direct appeal, and Wade’s
*
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 Gonzalo P. Curiel, United States District Judge for the
Southern District of California, sitting by designation.
petition for state post-conviction relief was unsuccessful. The district court denied
Wade’s subsequent 28 U.S.C. § 2254 habeas corpus petition and we affirm.
1. We assume, as does the respondent warden, that the introduction at trial of
Wade’s co-defendant’s statements violated the Confrontation Clause. See Crawford
v. Washington, 541 U.S. 36, 52 (2004) (“Statements taken by police officers in the
course of interrogations are . . . testimonial under even a narrow standard.”). But,
“[h]abeas relief on a trial error claim is appropriate only if the error results in ‘actual
prejudice.’” Hall v. Haws, 861 F.3d 977, 991 (9th Cir. 2017) (quoting Davis v.
Ayala, 135 S. Ct. 2187, 2197 (2015)); see also Delaware v. Van Arsdall, 475 U.S.
673, 684 (1986) (holding that Confrontation Clause violations are subject to
harmless error review). Wade has not demonstrated that the trial error had a
“substantial and injurious effect or influence in determining the jury’s verdict.”
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (quoting Kotteakos v. United
States, 328 U.S. 750, 776 (1946)). The co-defendant’s statements were brief and
cumulative of the testimony of the victims, “add[ing] nothing new.” Mayes v.
Premo, 766 F.3d 949, 965 (9th Cir. 2014).
2. The state post-conviction review court did not unreasonably reject Wade’s
ineffective assistance of counsel claim. “The standards created by Strickland and
§ 2254(d) are both ‘highly deferential,’ and when the two apply in tandem, review
is ‘doubly’ so.” Harrington v. Richter, 562 U.S. 86, 105 (2011) (citations omitted).
2
Instead of hiring an expert to testify about the likely trajectory of the bullet, counsel
chose to rely on the cross-examination of the officers, and to argue the state’s failure
to proffer evidence. The state court could have reasonably concluded that this
“strategy choice was . . . within the range of professionally reasonable judgments.”
Strickland v. Washington, 466 U.S. 668, 699 (1984); see Harrington, 562 U.S. at
106–09 (rejecting claim that state court was unreasonable in finding counsel
effective when counsel failed to consult with a blood pattern expert).
AFFIRMED.
3