FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
TENTH CIRCUIT June 23, 2010
Elisabeth A. Shumaker
Clerk of Court
FARRELL RAY JONES,
Petitioner–Appellant,
v. No. 09-6297
(D.C. No. 5:08-CV-01236-F)
JUSTIN JONES, Director, (W.D. Okla.)
Respondent–Appellee.
ORDER DENYING CERTIFICATE OF APPEALABILITY *
Before KELLY, EBEL, and LUCERO, Circuit Judges.
Farrell Ray Jones requests a certificate of appealability (“COA”) to appeal the
district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and
dismiss the appeal.
Jones was convicted in Oklahoma state court of first degree felony murder. On
direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his
conviction. Jones then filed a § 2254 petition in federal district court, which was denied.
*
This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The district court further denied Jones’ request for a COA.
A habeas petitioner must obtain a COA before he is permitted to appeal a district
court’s denial of relief. § 2253(c)(1)(A). We will grant a COA only if Jones can
demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that)
the petition should have been resolved in a different manner or that the issues presented
were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529
U.S. 473, 484 (2000) (quotations omitted).
Jones raises a single issue before this court 1: He contends the OCCA applied an
incorrect legal standard in rejecting his Confrontation Clause challenge. During trial, the
prosecutor questioned Jones about his knowledge of statements made by a codefendant to
police in an effort to show that Jones was “a little bit upset with” the codefendant. The
prosecutor explained that he was attempting to establish a motive for Jones to blame the
codefendant. Jones argued to the OCCA that this line of questioning violated his
Confrontation Clause rights because the codefendant was not subject to cross
examination. This claim was rejected by the OCCA, which cited a state case for the
proposition that the Confrontation Clause does not prohibit the use of testimonial
statements for purposes other than establishing the truth of the matter asserted.
To obtain habeas relief, Jones must show that the OCCA’s adjudication of his
1
Jones frames this issue as two separate arguments. He claims that the OCCA
applied an incorrect legal standard and claims that, as a result, its determination is not
entitled to deference. Because the first contention is incorrect, the second necessarily
fails.
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claim either “resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented” or was “contrary to, or involved an
unreasonable application of, clearly established Federal law.” § 2254(d)(1), (2). He has
not done so. Under Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation
Clause “does not bar the use of testimonial statements for purposes other than
establishing the truth of the matter asserted.” Id. at 59 n.9; accord United States v.
Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006). Further, the OCCA’s determination that
the prosecutor’s questions were aimed at demonstrating motive rather than establishing
the truth of the statements was reasonable.
Jones request for a COA is DENIED and the appeal is DISMISSED. Jones’
motion for leave to proceed in forma pauperis is GRANTED.
Entered for the Court
Carlos F. Lucero
Circuit Judge
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