MICHAEL R. KENNEDY, Jr. v. John C. Marshall

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
The panel unanimously concludes this case is suitable for decision**
without oral argument. See Fed. R. App. P. 34(a)(2).
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL R. KENNEDY, Jr.,
Petitioner - Appellant,
v.
JOHN C. MARSHALL,
Respondent - Appellee.
No. 07-55053
D.C. No. CV-05-00164-RGK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
R. Gary Klausner, District Judge, Presiding
Submitted June 29, 2010**
Before: ALARCÓN, LEAVY, and GRABER, Circuit Judges.
California state prisoner Michael R. Kennedy, Jr. appeals pro se from the
district court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction under 28 U.S.C. § 2253, and we affirm.
FILED
JUL 02 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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07-55053 2
Kennedy contends that the trial court’s admission into evidence of the
victim’s preliminary hearing testimony violated his Sixth Amendment right to
confrontation. This contention fails because the record reflects that the prosecution
went to considerable lengths to obtain the victim’s attendance at trial, and thus
satisfied the “good-faith effort” required to demonstrate unavailability. See Ohio v.
Roberts, 448 U.S. 56, 74-76 (1980); see also Windham v. Markle, 163 F.3d 1092,
1102 (1998). Moreover, Kennedy cross-examined the victim at the preliminary
hearing. See Ohio, 448 U.S. at 71-73. Thus, the state court’s decision denying
Kennedy’s claims was neither contrary to, nor involved an unreasonable
application of, clearly established Supreme Court law. See 28 U.S.C. § 2254(d)(1).
We do not address the State’s exhaustion argument because it is “perfectly
clear” that the claim fails on the merits. See Cassett v. Stewart, 406 F.3d 614, 624
(9th Cir. 2005).
AFFIRMED.

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