NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
AURELIO FIDENCIO SALDIVAR,

Petitioner

- Appellant,

v. G. D. LEWIS, Warden,

Respondent

- Appellee. No. 15

- 55829
D.C. No. 2:13

- cv - 07757

- JLS

- AS

MEMORANDUM *

Appeal from the United States District Court for the Central District of California Josephine L. Staton, District Judge, Presiding Argued and Submitted June 6, 2018 Pasadena, California Before: LIPEZ, ** NGUYEN, and OWENS, Circuit Judges.
Petitioner

- Appellant Aurelio Fidencio Saldivar appeals from the denial of his petition for a writ of habeas corpus. As the parties are familiar with the facts, we do not recount them here. We have jurisdiction under 28 U.S.C. § 1291, and
we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3.

** The Honorable Kermit V. Lipez, United States Circuit Judge for the First Circuit, sitting by designation. 

# FILED

JUN 25 2018
MOLLY C. DWYER, CLER K U.S. COURT OF APPEAL S2

1. Ineffective

-

Assistance Claim. Contrary to petitioner’s argument, t he Supreme Court has never clearly resolved whether, in assessing the competence of counsel’s representation under the Sixth Amendment, an appellate court may consider hypothetical strategi c rationales for counsel’s conduct and, if so, whether a defendant must negate every such rationale to demonstrate Strickland deficiency. There being no such precedent, petitioner’s argument that the court of appeal’s application of the standard from Peop le v. Lucas , 907 P.2d 373, 389 (Cal. 1995), was “contrary to

. . . clearly established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), necessarily fails. See, e.g. , Marshall v. Rodgers , 569 U.S. 58, 61

– 64 (20 13) (per curiam); Knowles v. Mirzayance , 556 U.S. 111, 122 (2009).
As to the court of appeal’s determination that most of the purported errors by petitioner’s trial counsel did not amount to constitutional deficiencies , petitioner
has failed to demonstrate “an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 103 (2011) . And as to those errors the court held to be constitutional
deficiencies , petitioner has failed to show that the court of appeal was “necessarily
unreasonable ” in concluding that the evidence against him was overwhelming and
that counsel’s deficiencies therefore neither independently nor cumulatively3

prejudiced him

. Cullen v. Pinholster , 563 U.S. 170, 190 (2011). 1
2. Due

- Process Claim

. Even assuming that the state trial court’s erroneous
use of CALCRIM 1603 and its failure to provide a theft instruction violated petitioner’s due

- process rights, the error s did not have a “substantial and inju rious
effect ” on the jury’s verdict, either individually or cumulatively

. Brecht v.
Abrahamson , 507 U.S. 619, 637

– 38 (1993) (citation omitted) ; see also Dixon v.
Williams , 750 F.3d 1027, 1034

– 35 (9th Cir. 2014) (per curiam)

. Nor did these purported instructional errors, considered cumulatively with the deficiencies the California court of appeal identified in petitioner’s trial counsel’s performance, prejudice petitioner’s case. See Brecht , 507 U.S. at 637

– 38.
3 . Petitioner’ s Request for Judicial Notice (Dkt. No. 22 ) is granted.
AFFIRMED.

1 Contrary to petitioner’ s suggestions that we analyze the court of appeal’s Strickland holdings under both § 2254(d)(1)’s “unreasonable application” prong and § 2254(d)(2) , federal habeas review of a state court’s Strickland analysis is properly situated under the former

. See, e.g. , Richter , 562 U.S. at 101; Cullen , 563 U.S. at 190

– 203.