Foster Shane Gaines v. A. K. Scribner

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).
DAT/Research
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
FOSTER SHANE GAINES,
Petitioner - Appellant,
v.
A. K. SCRIBNER,
Respondent - Appellee.
No. 07-17279
D.C. No. CV-03-01268-PJH
MEMORANDUM *
Appeal from the United States District Court
for the Northern District of California
Phyllis J. Hamilton, District Judge, Presiding
Submitted January 11, 2010**
Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
California state prisoner Foster Shane Gaines appeals from the district
court’s judgment denying his 28 U.S.C. § 2254 habeas petition. We have
jurisdiction pursuant to 28 U.S.C. § 2253, and we affirm.
FILED
JAN 26 2010
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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DAT/Research 07-17279 2
Gaines contends that the district court erred by determining that the
California Court of Appeal did not unreasonably apply clearly established federal
law in rejecting his Confrontation Clause claim. He argues that the trial court
erroneously applied Ohio v. Roberts, 448 U.S. 56, 74, (1980), overruled on other
grounds by Crawford v. Washington, 541 U.S. 36 (2004), when it determined that
the State was diligent in attempting to locate a witness and admitting the
preliminary hearing testimony of the witness in her absence.
The district court properly rejected this claim because the testimony of the
witness was cumulative of other testimony in the record. See Whelchel v.
Washington, 232 F.3d 1197, 1211 (9th Cir. 2000). Thus, any error did not have a
“substantial and injurious effect” on the jury’s verdict. Brecht v. Abrahamson, 507
U.S. 619, 637-38 (1993); see also Fry v. Pliler, 551 U.S. 112 (2007).
AFFIRMED.

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