FILED
UNITED STATES COURT OF APPEALS JAN 07 2011
MOLLY C. DWYER, CLERK
FOR THE NINTH CIRCUIT U.S . CO U RT OF AP PE A LS
CARLIS A. GRAGG, No. 09-17268
Petitioner - Appellant, D.C. No. 2:08-cv-02162-GGH
Eastern District of California,
v. Sacramento
K. PROSPER,
ORDER
Respondent - Appellee.
Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.
The memorandum disposition filed December 9, 2010, and appearing at
2010 WL 5030093, is withdrawn and replaced with the accompanying
memorandum disposition. With this amendment, the panel has voted to deny the
petition for panel rehearing. The petition for panel rehearing is denied and the
panel will entertain no further petitions for rehearing.
FILED
NOT FOR PUBLICATION JAN 07 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S . CO U RT OF AP PE A LS
FOR THE NINTH CIRCUIT
CARLIS A. GRAGG, No. 09-17268
Petitioner - Appellant, D.C. No. 2:08-cv-02162-GGH
v.
MEMORANDUM *
K. PROSPER,
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Gregory G. Hollows, Magistrate Judge, Presiding
Submitted December 7, 2010**
San Francisco, California
Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.
Carlis A. Gragg appeals from the district court's denial of his petition for
habeas corpus filed pursuant to 28 U.S.C. y 2254. We have jurisdiction under 28
U.S.C. y 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
Gragg was found guilty of maµing a criminal threat in violation of California
Penal Code y 422. The California Court of Appeal affirmed the conviction in a
reasoned decision. People v. Gragg, No. C053681, 2008 WL 933554 (Cal. Ct.
App. Apr. 8, 2008). The California Supreme Court denied review without
comment. The district court denied prisoner's federal habeas corpus petition, and
issued a certificate of appealability under 28 U.S.C. y 2253(c).
The certified issue is whether admission of Jade Spricµman's statements in
the 911 recordings violated Gragg's rights under the Confrontation Clause of the
Sixth Amendment. To obtain relief under y 2254, Gragg must show that the state
court decision was 'contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the United States;
or . . . resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.' 28
U.S.C. y 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). We
review the decision of the California Court of Appeal, as the 'last reasoned
decision' of the state court. Ylst v. Nunnemaµer, 501 U.S. 797, 804-06 (1991).
We hold that the California Court of Appeal's characterization of the
statements in both 911 calls as non-testimonial under Davis v. Washington, 547
U.S. 813 (2006), and thus not subject to the Confrontation Clause, was not an
2
unreasonable application of clearly established Federal law nor an unreasonable
determination of the facts presented. Davis establishes that a statement is non-
testimonial when made 'under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police . . . to meet an ongoing
emergency.' Id. at 822.
Gragg argues that the state court unreasonably applied Davis when it failed
to consider the evidence of Spricµman's alleged revengeful intent. However,
Spricµman's alleged subjective intentions at the time she made the calls are
irrelevant because the circumstances surrounding the calls objectively indicated an
ongoing emergency situation. See id. Next, Gragg argues the state court failed to
recognize the point at which the second call produced testimonial statements. The
district court drew a line distinguishing the point at which it believed the second
call began to produce testimonial statements, but concluded that because Gragg
had a sufficient opportunity to cross-examine Spricµman, his Confrontation Clause
rights were not violated. We taµe no position on these questions because, even
assuming the portion of the second call was testimonial, and even if Gragg had, as
he argues, an insufficient ability to cross-examine Spricµman, we must deny
Gragg's habeas petition because he has failed to show the 'substantial and
injurious effect or influence' of these statements. See Brecht v. Abrahamson, 507
3
U.S. 619, 627 (1993). The threats that were the basis of the conviction were not
discussed during the disputed portions of the call.
AFFIRMED.
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