Guerra v. Felker , 379 F. App'x 574 ( 2010 )

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                                                                           FILED
NOT FOR PUBLICATION                           MAY 14 2010
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
MARIO GUERRA,                                     No. 07-55891
Petitioner - Appellant,           D.C. No. CV 05-8313-CJC (RNB)
v.
MEMORANDUM *
THOMAS FELKER,
Respondent - Appellee.
Appeal from the United States District Court
for the Central District of California
Cormac J. Carney, District Judge, Presiding
Argued and Submitted May 3, 2010
Pasadena, California
Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW,**
District Judge.
Petitioner-Appellant Mario Guerra appeals the district court’s denial of his

28 U.S.C. § 2254

 petition, which alleged he was denied his right to confrontation
under the Sixth Amendment by the admission of his co-defendant Jairo Andrade’s
*
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.
out-of-court statement. Because the parties are familiar with the facts and
procedural history, we do not restate them here except as necessary to explain our
disposition. We have jurisdiction pursuant to

28 U.S.C. § 2253

. We review de
novo the district court’s denial of a § 2254 petition, Washington v. Lampert,

422 F.3d 864

, 869 (9th Cir. 2005), and we affirm.
Habeas relief is warranted only if 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,”

28 U.S.C. § 2254

(d)(1), or
“was based on an unreasonable determination of the facts in light of the evidence
presented in the State court proceeding,”

id.

 § 2254(d)(2). Guerra’s Confrontation
Clause challenge is governed by Ohio v. Roberts,

448 U.S. 56

 (1980), overruled in
part by Crawford v. Washington,

541 U.S. 36

 (2004), and Lilly v. Virginia,

527 U.S. 116

 (1999).1
Under Roberts, the admission of an accomplice’s out-of-court statement
inculpating a criminal defendant does not violate the Confrontation Clause if the
witness is unavailable and the statement bears particularized guarantees of
trustworthiness. Roberts,

448 U.S. at 66

. Here, it is uncontested that Andrade was
1
Although Crawford abrogated the Roberts test, Roberts applies to this case
because Crawford was decided after Guerra’s conviction became final. Whorton v.
Bockting,

549 U.S. 406

, 409 (2007).
2
unavailable to testify at trial. A statement may be admitted “[w]hen a court can be
confident . . . that ‘the declarant’s truthfulness is so clear from the surrounding
circumstances that the test of cross-examination would be of marginal utility.’”
Lilly,

527 U.S. at 136

 (quoting Idaho v. Wright,

497 U.S. 805

, 820 (1990)).
In evaluating the trustworthiness of Andrade’s statements, the California
Court of Appeal considered extrinsic evidence presented at Guerra’s trial. By
taking into account this corroborating evidence, the California Court of Appeal’s
decision was contrary to clearly established federal law. See Lilly,

527 U.S. at

137–38; Wright,

497 U.S. at

822–23. Thus, we review de novo whether the
admission of Andrade’s out-of-court statement violated Guerra’s confrontation
right. Frantz v. Hazey,

533 F.3d 724

, 739 (9th Cir. 2008) (en banc).
After de novo review, we conclude that Andrade’s statement contains
sufficient indicia of reliability to demonstrate its trustworthiness. Andrade’s
statement to Cesar Mariscal, a fellow gang member, was not made under coercive
conditions. Andrade identified Guerra as the other shooter involved in the incident
prior to inquiring whether Mariscal was cooperating with the police. Even after
expressing his suspicion that the police were involved, Andrade persisted in
confiding in Mariscal and continued to provide detailed information about the
shooting that only a participant in the crime would know. Although Andrade did
3
implicate Guerra as the other shooter, in doing so he was not attempting to foist
blame on Guerra while minimizing his own responsibility. Instead, Andrade was
“unabashedly inculpating himself while making no effort to mitigate his own
conduct,” Padilla v. Terhune,

309 F.3d 614

, 619 (9th Cir. 2002) (quoting United
States v. Boone,

229 F.3d 1231

, 1234 (9th Cir. 2000) (internal quotation marks
omitted), even wishing that he could take more credit. That Andrade told Mariscal
in the course of conversation that another gang member, Scrappy, was in jail for
murder instead of vandalism does not detract from the reliability of Andrade’s
statements regarding the shooting given their highly detailed nature and Andrade’s
willingness to take credit for what had occurred. Thus, we conclude that
Andrade’s statements bear sufficient indicia of reliability and that their admission
at Guerra’s trial did not violate Guerra’s confrontation right.
Guerra presented an uncertified issue in his opening brief, arguing that the
district court erred in denying his claim of ineffective assistance of trial counsel for
failure to interview potential alibi witnesses and present an alibi defense. We
construe its inclusion as a motion to expand the certificate of appealability.
Because reasonable jurists would not find the uncertified issue debatable, we deny
that motion.

28 U.S.C. § 2253