Jesse VON BERCKEFELDT, Petitioner-Appellant, v. Guy HALL, Superintendent, Two Rivers Correctional Institution, Respondent-Appellee, 200 F. App'x 642

MEMORANDUM Jesse Von Berckefeldt appeals the denial of his petition for a writ of habeas corpus. He argues that he was denied effective assistance of counsel at trial and that the admission of a witness’s testimony regarding an incident unrelated to the charges against him violated his due process rights. We affirm the denial of the habeas petition. First, Von Berckefeldt does not show that his attorney was ineffective in failing to locate a witness to the shoot-out. Counsel and his investigator made a reasonable effort to locate the witness, who had fled the state and was concealing her whereabouts.

Further, Von Berckefeldt was not prejudiced by counsel’s inability to locate the witness because her testimony would have been cumulative and because, given her prior contradictory statements, it is not clear that she would have testified in the manner Von Berckefeldt asserts. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Second, trial counsel’s decision not to object to the prosecutor’s closing argument did not constitute ineffective assistance because the prosecutor made no “egregious misstatements.” See United States v. Necoechea, 986 F.2d 1273, 1281 (9th Cir.1993).

Von Berckefeldt also does not show that he was prejudiced by his attorney’s decision. Von Berekefeldt’s due process claim is not procedurally defaulted because the state court decision denying the claim affords no basis for determining whether it did so on state procedural grounds. See Koerner v. Grigas, 328 F.3d 1039, 1052 (9th Cir.2003). Nevertheless, the claim fails on its merits because the testimony to which Von Berckefeldt objects did not render his trial fundamentally unfair. See McKinney v. Rees, 993 F.2d 1378, 1380 (9th Cir.1993).

For the foregoing reasons, the district court’s decision denying Von Berckefeldt’s petition for a writ of habeas corpus is AFFIRMED. This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.