
    Foster Shane GAINES, Petitioner-Appellant, v. A.K. SCRIBNER, Respondent-Appellee.
    No. 07-17279.
    United States Court of Appeals, Ninth Circuit.
    
      Submitted Jan. 11, 2010.
    
    Filed Jan. 26, 2010.
    Foster Shane Gaines, Soledad, CA, pro se.
    Christina Vom Saal, Esq., AGCA-Office of the California Attorney General, San Francisco, CA, for Respondent-Appellee.
    Before: BEEZER, TROTT, and BYBEE, Circuit Judges.
    
      
       The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R.App. P. 34(a)(2).
    
   MEMORANDUM

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.

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, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), overruled on other grounds by Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see also Fry v. Pliler, 551 U.S. 112, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007).

AFFIRMED. 
      
       This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
     