Hiracheta v. Attorney General of California

105 F. App'x 937

Opinion

MEMORANDUM

**

Anthony W. Hiracheta, Jr. appeals the district court’s order denying his 28 U.S.C. § 2254 habeas corpus petition. We have jurisdiction pursuant to 28 U.S.C. § 2253(a), and we affirm.

The district court did not err when it determined that the state trial court’s admission of alleged accomplice Johnny Flores’ out of court confession did not violate Petitioner’s Sixth Amendment right to confrontation. The admission of the evidence, which inculpated only Flores and not the petitioner, was not contrary to, nor an unreasonable application of clearly established federal law, as determined by the Supreme Court of the United States in Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980) (holding that no Confrontation Clause violation arises from the admission of a witness’ testimony from a preliminary hearing, where witness is unavailable for trial and the testimony bore adequate “indicia of reliability”) and Lilly v. Virginia, 527 U.S. 116, 134, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (holding that accomplice confessions that “inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence”). While the Supreme Court has recently held that evidence admitted under these circumstances would not comply with the Sixth Amendment, see Crawford v. Washington, — U.S. -, 124 S.Ct. 1354, 1369, 158 L.Ed.2d 177 (2004) (holding that the framers of the Confrontation Clause would not have allowed admission of testimonial statements of a witness who did not appear at trial unless he was unavailable to testify, and the defendant had a prior opportunity for cross-examination), applying the analysis of Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989), the new rule articulated in Crawford is procedural in nature and does not apply retroactively to Petitioner’s collateral attack on his conviction. See Crawford, — U.S. at-, 124 S.Ct. at 1370 (“To be sure the [Confrontation] Clause’s ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee.”); see also Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir.2004) (holding that “the Crawford Court did not suggest that this doctrine would apply retroactively and the doctrine itself does not appear to fall within either of the two narrow exceptions to League v. Lane’s non-retroactivity doctrine.”).

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as may be provided by Ninth Cir. R. 36-3.