Gregory Smith v. Charles Harrison

FILED
NOT FOR PUBLICATION MAY 13 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
GREGORY ANDRE SMITH, No. 08-56925
Petitioner - Appellant, D.C. No. 2:06-cv-03158-SGL-
PLA
v.
CHARLES HARRISON, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Stephen G. Larson, District Judge, Presiding
Argued and Submitted May 4, 2010
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, **
District Judge.
Petitioner-Appellant Gregory Andre Smith (“Smith”) appeals a district court
order dismissing his petition for a writ of habeas corpus. The parties are familiar
with the facts of the case and we do not repeat them here. We have jurisdiction
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm the judgment of the district
court.
The California Court of Appeal did not unreasonably apply Supreme Court
precedent, 28 U.S.C. § 2254(d), because the witness “was unavailable to testify,
and the defendant had had a prior opportunity for cross-examination,” Crawford v.
Washington, 541 U.S. 36, 54 (2004). That Smith’s opportunity for cross-
examination came at a preliminary hearing does not change this conclusion. See
California v. Green, 399 U.S. 149, 165 (1970); Delgadillo v. Woodford, 527 F.3d
919, 926 (9th Cir. 2008). Moreover, “the Confrontation Clause guarantees an
opportunity for effective cross-examination, not cross-examination that is effective
in whatever way, and to whatever extent, the defense might wish.” Delaware v.
Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S.
15, 20 (1985) (per curiam)).
We decline Smith’s request to expand the certificate of appealability. See
28 U.S.C. § 2253(c)(2).
AFFIRMED.
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