NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FILED

FOR THE NINTH CIRCUIT

FEB 13 2018

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

ANTONIO BARBA, No. 15-56522

Petitioner-Appellant, D.C. No. 2:14-cv-07662-CAS-AGR v.

W. L. MONTGOMERY, Acting Warden, MEMORANDUM*

Respondent-Appellee.

Appeal from the United States District Court for the Central District of California Christina A. Snyder, District Judge, Presiding

Argued and Submitted January 9, 2017 Pasadena, California

Before: WATFORD and OWENS,** Circuit Judges, and BENNETT,*** District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** This case was submitted to a panel that included Judge Kozinski, who recently retired. Following Judge Kozinski’s retirement, Judge Owens was drawn by lot to replace him. Ninth Circuit General Order 3.2.h. Judge Owens has read the briefs, reviewed the record, and listened to oral argument. *** The Honorable Mark W. Bennett, United States District Judge for the Northern District of Iowa, sitting by designation. Page 2 of 3 The district court properly denied Antonio Barba’s petition for a writ of

habeas corpus. The California Court of Appeal concluded that the admission of

Dr. Jennifer Reynolds’ testimony did not violate Barba’s Confrontation Clause

rights, and that even if the DNA report should have been excluded, any error in its

admission was harmless beyond a reasonable doubt. Neither of these decisions is

contrary to or an unreasonable application of clearly established federal law. 28

U.S.C. § 2254(d)(1).

As to the admission of Dr. Reynolds’ testimony, we acknowledge that

Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New

Mexico, 564 U.S. 647 (2011), support Barba’s position. However, in Williams v.

Illinois, 567 U.S. 50 (2012), the Supreme Court’s most recent Confrontation

Clause case, five Justices agreed that the admission of expert testimony referring to

an out-of-court DNA profile did not violate the Confrontation Clause. No single

rationale commanded a majority of the Court. As Justice Breyer acknowledged in

his concurrence, the Court did not settle how “Confrontation Clause ‘testimonial

statement’ requirements apply to crime laboratory reports.” Id. at 92 (Breyer, J.,

concurring). Given the fractured decision in Williams and the lack of clarity in the

Supreme Court’s Confrontation Clause jurisprudence, fairminded jurists could

disagree over whether the state court’s decision is inconsistent with the Supreme Page 3 of 3 Court’s precedents in this area. See Harrington v. Richter, 562 U.S. 86, 103

(2011).

The Court of Appeal reasonably concluded that the admission of the DNA

report was harmless beyond a reasonable doubt. Even if the report had been

excluded, the jury still would have heard Dr. Reynolds’ expert opinion as to the

DNA evidence. Indeed, the report by itself could not have prejudiced Barba,

because the report contains technical language that would be meaningless to a jury

without explanatory expert testimony. Barba therefore cannot establish that the

state court’s harmless error determination is “so lacking in justification” that no

fairminded jurist could agree with it. Davis v. Ayala, 135 S. Ct. 2187, 2199 (2015)

(citation omitted).

AFFIRMED.