FILED
NOT FOR PUBLICATION MAR 14 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
STEVEN LEE BARTHOLOMEW, No. 09-35103
Petitioner - Appellant, D.C. No. 2:08-cv-00587-TSZ
v.
MEMORANDUM*
RONALD VAN BOENING,
Respondent - Appellee.
Appeal from the United States District Court
for the Western District of Washington
Thomas S. Zilly, Senior District Judge, Presiding
Argued and Submitted March 7, 2011
Seattle, Washington
Before: McKEOWN, FISHER, and GOULD, Circuit Judges.
Steven Lee Bartholomew appeals the district court’s denial of his 28 U.S.C.
§ 2254 petition for a writ of habeas corpus that challenged his Washington state
court convictions for kidnapping and attempted murder. A single issue has been
certified for appeal: whether the Washington trial court violated Bartholomew’s
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
Sixth Amendment right to confrontation by allowing two witnesses to testify as to
hearsay statements that the victim, Colleen Annyas, made soon after the alleged
crime. We have jurisdiction under 28 U.S.C. § 2253, and we affirm.
The Washington Court of Appeals’ decision that Annyas’s statements were
not testimonial and thus not subject to the Confrontation Clause was not contrary
to, nor an unreasonable application of, clearly established federal law as
determined by the Supreme Court. See 28 U.S.C. § 2254(d). There is no clearly
established Supreme Court precedent on whether and when statements made to
someone other than law enforcement personnel are testimonial. Michigan v.
Bryant, 562 U.S. ____, No. 09-150, 2011 WL 676964, at *9 n.3 (Feb. 28, 2011).
Furthermore, under existing precedent, it is not unreasonable to conclude that an
objective witness would not believe that statements would be available for use at a
later trial, where the statements were made by a speaker suffering from the stress of
a traumatic event for the purpose of explaining her unusual circumstances to
strangers who had stopped to assist her. See Davis v. Washington, 547 U.S. 813,
822 (2006); Crawford v. Washington, 541 U.S. 36, 52 (2004).
As a federal habeas court, we may not review the state court’s decisions on
matters of admissibility of evidence under state rules. Winzer v. Hall, 494 F.3d
1192, 1198 (9th Cir. 2007) (“State court rulings on the admissibility of evidence
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generally fall outside the scope of federal habeas relief, which is designed only to
remedy violations of federal law.”); see also Estelle v. McGuire, 502 U.S. 62,
67–68 (1991) (“[I]t is not the province of a federal habeas court to reexamine state-
court determinations on state-law questions.”). No established Supreme Court
precedent suggests that the trial court’s admission of hearsay statements under the
excited utterances exception rendered Bartholomew’s trial fundamentally unfair, as
necessary to rise to the level of a due process violation that would warrant habeas
relief. Id. at 68–70. The state court’s appellate ruling was neither contrary to
Supreme Court precedent, nor an objectively unreasonable application of it. See 28
U.S.C. § 2254(d).
We deny Bartholomew’s motion to expand the Certificate of Appealability
pursuant to Ninth Circuit Rule 22-1 and decline to address the uncertified issues
raised in his brief, as Bartholomew has not made a “substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Bartholomew’s motion
for judicial notice is granted.
AFFIRMED.
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