NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT SEP 07 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
JERRY L. HARRIS, No. 09-35613
Petitioner - Appellant, D.C. No. 2:05-cv-00885-JLR
v.
MEMORANDUM*
SCOTT FRAKES, Superintendent,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
James L. Robart, District Judge, Presiding
Argued and Submitted August 4, 2010
Seattle, Washington
Before: NOONAN, THOMPSON and BERZON, Circuit Judges.
Jerry L. Harris appeals from the district court’s judgment dismissing his 28
U.S.C. § 2254 petition for writ of habeas corpus. We affirm.
The district court granted a Certificate of Appealability as to the following
issues: “(1) [whether] the portion of the claim relying upon Ohio v. Roberts, 448
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S. 56 (1980), is unexhausted, and (2) [whether] Crawford v. Washington, 541
U.S. 36 (2004), may not be applied retroactively in this case.”
The first issue is uncontested because the government conceded on appeal
that Harris’s claim was exhausted.
We affirm the district court’s decision not to apply Crawford v. Washington,
541 U.S. 36 (2004) despite the State’s possible waiver of the non-retroactivity bar
announced in Teague v. Lane, 489 U.S. 288 (1989), and made applicable to
Crawford by Whorton v. Bocking, 549 U.S. 406, 409 (2007). The dispositive
Confrontation Clause issue in this case is whether Sawyer’s redacted statement, not
admitted against Harris, was nonetheless so prejudicial as to Harris as to violate the
protective rule announced in Bruton v. United States, 391 U.S. 123 (1968), and
refined in Richardson v. Marsh, 481 U.S. 200 (1987) and Gray v. Maryland, 523
U.S. 185 (1998). As to this issue, both Crawford and Roberts are inapposite
because those cases addressed admission of a declarant’s statements as substantive
evidence against a defendant. Retroactive application of Crawford, therefore,
would not affect the disposition of this case. Accordingly, we hold that there was
no Roberts or Crawford error, without deciding whether we would apply Crawford
retroactively given the procedural background of this case were it otherwise
applicable.
-2-
We construe Harris’s argument in his brief that there was Bruton error in this
case as a motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e).
So construing the briefs, we grant the certificate, as Harris has made a “substantial
showing of the denial of a constitutional right” as that term has been interpreted.1
28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“A
petitioner must show that reasonable jurists could debate whether . . . the petition
should have been resolved in a different manner or that the issues presented were
adequate to deserve encouragement to proceed further.” (internal quotations
omitted)).
We cannot conclude, however, that the state court’s decision as to the
Bruton argument was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.
§ 2254(d)(1). The form of redaction used at trial in this case falls squarely between
that approved in Richardson and that disapproved in Gray. There is therefore no
“clearly established Federal law, as determined by the Supreme Court” to apply.
See Lockyer v. Andrade, 538 U.S. 63, 74–75 (2003).
1
Ordinarily, we afford an opportunity to respond when expanding a
certificate of appealability. See 9th Cir. R. 22-1(f). No response is necessary in
this case , however, as the State thoroughly addressed the Bruton issue in its brief.
-3-
We decline to expand the certificate of appealability as to the other
uncertified issues Harris raises in his brief. See 9th Cir. R. 22-1(e). The arguments
on those issues do not meet the standard for granting a certificate of appealability.
AFFIRMED.
-4-