Blocker v. Ollison

240 F. App'x 761

Opinion

MEMORANDUM

Footnotes

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California state prisoner John Scott Blocker appeals from the district court’s denial of his 28 U.S.C. § 2254 petition. We have jurisdiction pursuant to 28 U.S.C. § 2253 and 28 U.S.C. § 1291, and we affirm.

Appellant contends that his rights under the Confrontation Clause were violated by the admission of incriminatory out-of-court statements made by his non-testifying co-defendant. Habeas relief is unavailable because the California Court of Appeal’s denial of this claim was neither contrary to nor an unreasonable application of clearly established federal law. See 28 U.S.C. § 2254(d)(1).

We do not apply Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), because appellant’s conviction became final prior to that decision. See Whorton v. Bockting, — U.S. -, 127 S.Ct. 1173, 1180-82,167 L.Ed.2d 1 (2007). Rather, the applicable framework is set forth in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which permits the admission of hearsay statements against a criminal defendant so long as the speaker is unavailable and the statements bear adequate indicia of reliability, either falling within a “firmly rooted hearsay exception” or containing “particularized guarantees of trustworthiness.”

Here, the challenged statements were made to a Mend in what the speaker perceived to be a private setting, where there was no apparent police involvement and no motive to shift blame away from himself; indeed, the speaker was “unabashedly inculpating himself’ as well as appellant. See Padilla v. Terhune, 309 F.3d 614, 618 (9th Cir.2002) (quoting United States v. Boone, 229 F.3d 1231, 1234 (9th Cir.2000)). The circumstances attendant to the challenged statements therefore provided a particularized guarantee of trustworthiness that satisfied the Confrontation Clause. See id.

AFFIRMED.

This disposition is not appropriate for publication and is not precedent except as provided by 9 th Cir. R. 36-3.