Carlis Gragg v. K. Prosper ( 2010 )

FILED
NOT FOR PUBLICATION DEC 09 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
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. § 2254. We have jurisdiction under 28
U.S.C. § 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 making a criminal threat in violation of California
Penal Code § 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. § 2253(c).
The certified issue is whether admission of Jade Sprickman’s statements in
the 911 recordings violated Gragg’s rights under the Confrontation Clause of the
Sixth Amendment. To obtain relief under § 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. § 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. Nunnemaker, 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
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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 Sprickman’s alleged revengeful intent. However,
Sprickman’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.
Although we recognize that the district court drew a line distinguishing the point at
which it believed the second call began to produce testimonial statements, we
decline to do so. Instead, we hold that it was not unreasonable for the state court to
characterize the entirety of Sprickman’s statements in both calls as non-testimonial
because the police did not yet have Gragg in custody and Sprickman was still
facing an ongoing emergency. In light of this determination, we need not consider
Gragg’s final argument regarding his counsel’s ability to cross-examine
Sprickman. See Crawford v. Washington, 541 U.S. 36, 51 (2004) (noting the
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Confrontation Clause applies to “‘witnesses’ . . . who ‘bear testimony’”); Whorton
v. Bockting, 549 U.S. 406, 420 (2007) (“[T]he Confrontation Clause has no
application to [non-testimonial] statements . . . . ”).
AFFIRMED.
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