FILED
NOT FOR PUBLICATION SEP 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICK RENTERIA, No. 08-56135
Petitioner - Appellant, D.C. No. 5:07-cv-00776-JVS-AN
v.
MEMORANDUM*
R. J. SUBIA, Warden,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
James V. Selna, District Judge, Presiding
Submitted September 2, 2011**
Pasadena, California
Before: ALARCÓN, O’SCANNLAIN, and SILVERMAN, Circuit Judges.
Patrick Renteria appeals the district court’s denial of his 28 U.S.C. § 2254
habeas petition challenging his California convictions for murdering his wife,
dissuading a witness, and felony child endangerment. We affirm.
*
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 state court ruled that Renteria procedurally defaulted his Confrontation
Clause challenge to his daughter’s videotaped interview by failing to object at trial.
Because this is an independent and adequate state ground, federal habeas relief was
properly denied. Loveland v. Hatcher, 231 F.3d 640, 643-44 (9th Cir. 2000); Rich
v. Calderon, 187 F.3d 1064, 1070 (9th Cir. 1999). The state ruling did not lose its
independence merely because the state court ruled in the alternative on the merits.
Loveland, 231 F.3d at 643-44.
Likewise, because Renteria has not established that counsel was ineffective
for not objecting, he has not shown cause and prejudice to excuse his procedural
default. The record establishes that counsel made a reasonable tactical decision not
to assert an objection that lacked merit.
In any event, the state court reasonably held that Crawford did not apply
because Renteria had an opportunity to cross-examine his daughter at trial, but
declined to cross-examine a “very cute” five-year-old. Crawford v. Washington,
541 U.S. 36, 59 n.9 (2004).
Nor did the state court unreasonably reject the Crawford challenge to
Anthony Marin’s testimony. The challenged statement, which was not testimonial
and was admitted as non-hearsay, did not implicate confrontation rights. Id.;
Tennessee v. Street, 471 U.S. 409, 416-17 (1985).
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Finally, the state court reasonably held that an erroneous felony child
endangerment jury instruction did not deprive Renteria of his due process right to a
fair trial. The state court reasonably held that the prosecutor’s closing argument
clarified any ambiguity that the state had to prove both the possibility for great
bodily harm and mental suffering to establish felony child abuse. Middleton v.
McNeil, 541 U.S. 433, 438 (2004).
We decline to expand the certificate of appealability to include the
uncertified and unexhausted claim raised for the first time in this appeal. Lopez v.
Schriro, 491 F.3d 1029, 1039 (9th Cir. 2007). We also deny counsel’s request to
appoint him to exhaust the uncertified claim in state court.
AFFIRMED.
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