DeAndre Cooper vs David Wise, Attorney General, State of Alabama

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-14986 ELEVENTH CIRCUIT
Non-Argument Calendar APRIL 20, 2011
________________________ JOHN LEY
CLERK
D.C. Docket No. 2:10-cv-00973-IPJ-TMP
DEANDRE COOPER,
llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,
versus
DAVID WISE,
ATTORNEY GENERAL, STATE OF ALABAMA,
llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Alabama
________________________
(April 20, 2011)
Before BARKETT, MARCUS and FAY, Circuit Judges.
PER CURIAM:
DeAndre Cooper, an Alabama prisoner serving a term of life without parole
for two counts of capital murder and one count of attempted murder, appeals the
district court’s order denying his petition for a writ of habeas corpus, 28 U.S.C.
§ 2254. The district court granted a certificate of appealability (“COA”) on the
issue of whether the admission of out-of-court statements made by an alleged
co-conspirator, LaTonya “Punkin” Jackson, violated Cooper’s Sixth Amendment
right to confrontation. For the reasons stated below, we affirm.
I.
In April 2010, Cooper filed a pro se 28 U.S.C. § 2254 petition in the district
court. Cooper’s petition raised six grounds, but only Ground Five is at issue in this
appeal. In that ground, Cooper argued that the state trial court should not have
admitted out-of-court statements made by a co-conspirator because the state had
failed to establish the existence of a conspiracy. He explained that the witnesses
who had testified regarding the conspiracy had changed their stories many times.
During Cooper’s trial, the state introduced evidence that Cooper, Jackson,
and Rodrequiz Woods had entered into a plan to rob a marijuana dealer, Willie
Kelly. On the evening of June 9, 2004, Jackson called Kelly and asked if he had
marijuana she could buy. They agreed to meet at the house of Jackson’s friend
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Angela Williams. When Kelly and his cousin, Anthony Kelly, arrived at
Williams’s house, Cooper and Woods parked their Suburban directly behind
Kelly’s vehicle. Kelly looked in his rearview mirror and saw two men with guns
get out of the Suburban. He heard them say, “Give it up.” Kelly “just hit the gas”
and attempted to flee. Cooper and Woods both fired multiple shots at Kelly’s
vehicle.
As Kelly drove away from Williams’s house, the shooting stopped. Kelly
looked at his cousin, Anthony Kelly, and observed that Anthony was slumped
forward and was bleeding. Kelly immediately drove to the hospital, but Anthony
died of his wounds. Willie Kelly received a gunshot wound to his shoulder. He
was treated for his injury and released. Willie Kelly was able to identify Woods
and Cooper from photographic lineups as the shooters.
On his direct appeal, Cooper argued, among other things, that the trial court
erred in allowing the state’s witnesses to testify regarding certain out-of-court
statements made by Jackson. Specifically, he objected to: (1) Willie Kelly’s
testimony that Jackson called him and told him to go to Williams’s house;
(2) Angela Williams’s testimony that Jackson spoke to Willie Kelly on the phone,
and that Jackson later told Williams not to inform the police that Jackson was
Cooper’s girlfriend; and (3) Woods’s testimony that Jackson and Cooper were
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dating, and that Jackson was involved in the planning of the robbery. He argued
that Jackson’s statements were inadmissible hearsay under the Alabama Rules of
Evidence. He also asserted that the admission of Jackson’s statements violated his
right to confrontation under the Sixth Amendment.
The Alabama Court of Criminal Appeals affirmed Cooper’s convictions.
The court concluded that Jackson’s out-of-court statements were properly admitted
as non-hearsay co-conspirator statements because the evidence showed that
Cooper, Woods, and Jackson had entered into a conspiracy to rob Willie Kelly.
The court also held that the admission of Jackson’s statements did not violate the
Confrontation Clause. The Court of Criminal Appeals noted that the United States
Supreme Court, in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158
L. Ed. 2d 177 (2004), had determined that the Confrontation Clause only bars the
admission of out-of-court statements that are testimonial. The Court of Criminal
Appeals observed that Crawford had cited Bourjaily v. United States, 483 U.S.
171, 107 S. Ct. 2775, 97 L. Ed. 2d 144 (1987), as an example of the type of
statements that are not testimonial in nature. In Bourjaily, the Supreme Court
upheld the admission of a co-conspirator’s out-of-court statements against a
criminal defendant even though the defendant did not have a prior opportunity to
cross-examine the declarant. The Court of Criminal Appeals concluded that
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Jackson’s statements were not testimonial because they were not made in the
context of a police investigation or a pretrial examination. The Court of Criminal
Appeals denied Cooper’s request for rehearing, and the Alabama Supreme Court
declined to grant a writ of certiorari.
A magistrate prepared a report and recommendation concluding that
Cooper’s habeas petition should be denied. Regarding Jackson’s out-of-court
statements, the magistrate observed that Cooper’s petition appeared to argue that
the admission of those statements violated Alabama law. The magistrate
recognized that a state-law evidentiary ruling can give rise to a federal
constitutional violation if the erroneously admitted evidence rendered the trial
fundamentally unfair. Nevertheless, the magistrate observed that, in Cooper’s
case, the Alabama Court of Criminal Appeals had authoritatively decided that no
error of state law occurred.
To the extent that Ground Five of the petition could be construed as a
Confrontation Clause claim, the magistrate determined that the Court of Criminal
Appeals’ rejection of that claim was not contrary to, or an unreasonable application
of, clearly established federal law. The magistrate observed that, under Bourjaily
and Crawford, statements made by a co-conspirator during the course of a
conspiracy are not testimonial. The magistrate noted that Cooper did not challenge
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the Court of Criminal Appeals’ application of those decisions, nor did he dispute
the factual basis of the court’s holding. Accordingly, the magistrate recommended
that Ground Five of Cooper’s petition be denied.
The district court adopted the magistrate’s report and dismissed Cooper’s
habeas petition with prejudice. As noted above, the district court granted a COA
on the issue of whether the admission of Jackson’s out-of-court statements violated
Cooper’s Sixth Amendment right to confrontation.
II.
We review a district court’s denial of a 28 U.S.C. § 2254 habeas petition de
novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). A federal court
may not grant habeas relief on a claim that has been considered and rejected by a
state court unless the state court’s 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 unless the state court made “an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). A state court decision is
contrary to clearly established federal law if the state court reached a legal
conclusion opposite to that reached by the United States Supreme Court on the
same question, or if the state court was presented with facts that were “materially
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indistinguishable” from relevant Supreme Court precedent, but arrived at the
opposite result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S. Ct. 1495,
1519-20, 146 L. Ed. 2d 389 (2000). A state court’s decision is an unreasonable
application of clearly established federal law if the court unreasonably applied the
established law to the facts of the case. Id. at 407-09, 120 S.Ct. at 1520-21.
The Sixth Amendment protects a criminal defendant’s right to confront the
witnesses against him. U.S. Const. amend VI. In Crawford, the Supreme Court
explained that the Sixth Amendment prohibits the introduction of out-of-court
testimonial statements unless the declarant is unavailable to testify and the
defendant had a prior opportunity to cross-examine the declarant. Crawford, 541
U.S. at 68, 124 S.Ct. at 1374. A statement is testimonial if it was “made under
circumstances which would lead an objective witness reasonably to believe that the
statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. at 1364
(quotation omitted).
In this case, the Alabama Court of Criminal Appeals’ rejection of Cooper’s
Confrontation Clause claim was neither contrary to, nor an unreasonable application
of, clearly established federal law. Jackson’s out-of-court statements were made
during the course of the conspiracy to rob Willie Kelly, rather than in response to the
police investigation into Anthony Kelly’s murder. Thus, the statements were not made
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under circumstances that would lead a reasonable person to believe that they would
be introduced at trial. See Crawford, 541 U.S. at 52, 124 S. Ct. at 1364. Accordingly,
the Alabama Court of Criminal Appeals correctly concluded that Jackson’s statements
were not testimonial and that their admission did not violate Cooper’s right to
confrontation. The Court of Criminal Appeals’ decision was consistent with the legal
principles announced in Crawford. In light of the fact that Jackson’s statements were
not testimonial, the state was not required to show that Jackson was unavailable to
testify.
In addition to his Sixth Amendment arguments, Cooper also contends that
Jackson’s statements were inadmissible under the Alabama Rules of Evidence because
the state failed to prove the existence of a conspiracy. Although state-law errors
generally are not a grounds for federal habeas relief, a habeas court may review a state
court’s evidentiary rulings in order to determine whether those rulings violated the
petitioner’s right to due process by depriving him of a fundamentally fair trial. Felker
v. Turpin, 83 F.3d 1303, 1311-12 (11th Cir. 1996). Here, however, the COA granted
by the district court only addresses Cooper’s right to confrontation under the Sixth
Amendment, not any due process claim that he may have. Because our review is
limited to the issues specified in the COA, we may not consider Cooper’s contention
that the admission of Jackson’s statements violated Alabama law. See Murray v.
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United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).
Because the Alabama Court of Criminal Appeals’ decision rejecting Cooper’s
Sixth Amendment claim was neither contrary to, nor an unreasonable application of,
clearly established federal law, we affirm the denial of Cooper’s habeas petition.
AFFIRMED.
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