FILED

NOT FOR PUBLICATION

MAY 01 2018

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICHOLAS HACHENEY, No. 16-35810

Petitioner-Appellant, D.C. No. 3:15-cv-05492-RBL

v.

MEMORANDUM*

MIKE OBENLAND,

Respondent-Appellee.

Appeal from the United States District Court for the Western District of Washington Ronald B. Leighton, District Judge, Presiding

Submitted March 9, 2018** Seattle, Washington

Before: RAWLINSON and CLIFTON, Circuit Judges, and FREUDENTHAL,*** Chief District Judge.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Nancy Freudenthal, Chief United States District Judge for the District of Wyoming, sitting by designation. Petitioner Nicholas Hacheney appeals the district court’s denial of his

petition for a writ of habeas corpus. He obtained a certificate of appealability

(COA) on one claim, and has also briefed an uncertified claim. We affirm and

decline to expand the scope of the COA.

Hacheney petitions for a writ of habeas corpus on the ground that the state

trial court violated his Sixth Amendment Confrontation Clause rights by admitting

a toxicology report and testimony relying on the report, even though the

toxicologist who performed the analysis was not available to testify. The

Washington Court of Appeals was the highest state court to hear this claim on the

merits. Hacheney argues that the state court’s decision to deny his Confrontation

Clause claim “was contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States.”

28 U.S.C. 2254(d)(1). However, when Hacheney’s conviction became final, it was

not clearly established 1) that reports that were not prepared specifically for use

against a targeted defendant were testimonial; 2) that reports performed in

connection with autopsies were testimonial; and 3) that a supervisor could not

testify about reports performed by examiners that he oversaw.

Neither Crawford v. Washington, 541 U.S. 36 (2004), nor Melendez-Diaz v.

Massachusetts, 557 U.S. 305 (2009), the key Supreme Court cases that had been

2 decided when Hacheney’s conviction became final in 2010, addressed these points.

These cases established only that forensic reports may be testimonial, and if they

are, a witness must appear to testify in person for the report to be admitted. See

Fluornoy v. Small, 681 F.3d 1000, 1005 (9th Cir. 2012). Indeed, the Supreme

Court’s subsequent plurality decision in Williams v. Illinois, 567 U.S. 50 (2012),

makes plain that the state court’s decision was not contrary to clearly established

law. The four-judge plurality opinion held that admission of a test that was not

prepared to furnish evidence against a specific individual did not implicate the

Confrontation Clause. Id. at 84. Hacheney was not a target of investigation when

the toxicology report was prepared. The state court therefore did not unreasonably

apply clearly established law by denying Hacheney’s Confrontation Clause claim.

We treat Hacheney’s uncertified claim as a motion to expand the COA.

Murray v. Schriro, 745 F.3d 984, 1002 (9th Cir. 2014). We decline to expand

Hacheney’s COA because Hacheney has not made a “substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Hacheney requests that we

expand the COA to include an ineffective assistance of counsel claim under

Strickland v. Washington, 466 U.S. 668 (1984). However, the record reflects that

his trial counsel conducted a reasonable investigation into his purported alibi and

then made appropriate tactical choices about how best to rebut the state’s evidence.

3 His counsel’s conduct thus was not deficient, as it fell “within the wide range of

reasonable professional assistance.” Id. at 689.

AFFIRMED.

4