Gregory Smith v. Charles Harrison

378 F. App'x 767

• Court: Court of Appeals for the Ninth Circuit
• Decided: May 13, 2010
• Docket: 08-56925
• Status: Unpublished

Opinion

MEMORANDUM **

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 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, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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, 90 S.Ct. 1930, 26 L.Ed.2d 489 (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, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986) (quoting Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985) (per curiam)).

We decline Smith’s request to expand the certificate of appealability. See 28 U.S.C. § 2253(c)(2).

AFFIRMED.

** This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.