FILED
NOT FOR PUBLICATION
MAY 01 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
NICHOLAS HACHENEY, No. 16-35810
Petitioner-Appellant, D.C. No. 3:15-cv-05492-RBL
v.
MEMORANDUM*
MIKE OBENLAND,
Respondent-Appellee.
Appeal from the United States District Court
for the Western District of Washington
Ronald B. Leighton, District Judge, Presiding
Submitted March 9, 2018**
Seattle, Washington
Before: RAWLINSON and CLIFTON, Circuit Judges, and FREUDENTHAL,***
Chief 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 Nancy Freudenthal, Chief United States District Judge
for the District of Wyoming, sitting by designation.
Petitioner Nicholas Hacheney appeals the district court’s denial of his
petition for a writ of habeas corpus. He obtained a certificate of appealability
(COA) on one claim, and has also briefed an uncertified claim. We affirm and
decline to expand the scope of the COA.
Hacheney petitions for a writ of habeas corpus on the ground that the state
trial court violated his Sixth Amendment Confrontation Clause rights by admitting
a toxicology report and testimony relying on the report, even though the
toxicologist who performed the analysis was not available to testify. The
Washington Court of Appeals was the highest state court to hear this claim on the
merits. Hacheney argues that the state court’s decision to deny his Confrontation
Clause claim “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). However, when Hacheney’s conviction became final, it was
not clearly established 1) that reports that were not prepared specifically for use
against a targeted defendant were testimonial; 2) that reports performed in
connection with autopsies were testimonial; and 3) that a supervisor could not
testify about reports performed by examiners that he oversaw.
Neither Crawford v. Washington, 541 U.S. 36 (2004), nor Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), the key Supreme Court cases that had been
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decided when Hacheney’s conviction became final in 2010, addressed these points.
These cases established only that forensic reports may be testimonial, and if they
are, a witness must appear to testify in person for the report to be admitted. See
Fluornoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012). Indeed, the Supreme
Court’s subsequent plurality decision in Williams v. Illinois, 567 U.S. 50 (2012),
makes plain that the state court’s decision was not contrary to clearly established
law. The four-judge plurality opinion held that admission of a test that was not
prepared to furnish evidence against a specific individual did not implicate the
Confrontation Clause. Id. at 84. Hacheney was not a target of investigation when
the toxicology report was prepared. The state court therefore did not unreasonably
apply clearly established law by denying Hacheney’s Confrontation Clause claim.
We treat Hacheney’s uncertified claim as a motion to expand the COA.
Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014). We decline to expand
Hacheney’s COA because Hacheney has not made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Hacheney requests that we
expand the COA to include an ineffective assistance of counsel claim under
Strickland v. Washington, 466 U.S. 668 (1984). However, the record reflects that
his trial counsel conducted a reasonable investigation into his purported alibi and
then made appropriate tactical choices about how best to rebut the state’s evidence.
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His counsel’s conduct thus was not deficient, as it fell “within the wide range of
reasonable professional assistance.” Id. at 689.
AFFIRMED.
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