Gonzalo Barbosa SALGADO, Petitioner-Appellant, v. Rick COURSEY, Respondent-Appellee, 621 F. App'x 362

MEMORANDUM Gonzalo Salgado appeals the district court’s denial of his petition for habeas corpus. We review de novo, and we affirm. To prevail on his claim that counsel was ineffective for failing to object to testimony that Salgado was identifiable by a socially offensive tattoo located on the back of his head, Salgado must show that his counsel’s performance was deficient and that counsel’s error prejudiced him. Hibbler v. Benedetti, 693 F.3d 1140, 1149 (9th Cir.2012).

Salgado has not shown that his counsel’s performance was deficient, because he has not shown that the witness’s identification testimony was inadmissible as irrelevant or because “its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury.” O.R.S. § 40.160, Or. Rev.Stat. Ann. § .40.160 (West). To the contrary, the witness testified that he recognized the defendant by his tattoo. It was not unreasonable for counsel not to make a futile objection.

Further, even if counsel erred by failing to object, Salgado cannot show prejudice because Salgado had shaved his head before trial. The state post-conviction review court found that Salgado had thus rendered the tattoo visible, that the jury was made aware of the tattoo during voir diré, and that therefore Salgado was not prejudiced. That finding is not an unreasonable determination of the facts in light of the evidence presented in the State court proceeding, and we affirm, 28 U.S.C. § 2254(d)(2). AFFIRMED. This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir.

R. 36-3.