FILED

NOT FOR PUBLICATION DEC 09 2010

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS

FOR THE NINTH CIRCUIT

CARLIS A. GRAGG, No. 09-17268

Petitioner - Appellant, D.C. No. 2:08-cv-02162-GGH

v.

MEMORANDUM *

K. PROSPER,

Respondent - Appellee.

Appeal from the United States District Court for the Eastern District of California Gregory G. Hollows, Magistrate Judge, Presiding

Submitted December 7, 2010 ** San Francisco, California

Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

Carlis A. Gragg appeals from the district court’s denial of his petition for

habeas corpus filed pursuant to 28 U.S.C. § 2254. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). Gragg was found guilty of making a criminal threat in violation of California

Penal Code § 422. The California Court of Appeal affirmed the conviction in a

reasoned decision. People v. Gragg, No. C053681, 2008 WL 933554 (Cal. Ct.

App. Apr. 8, 2008). The California Supreme Court denied review without

comment. The district court denied prisoner’s federal habeas corpus petition, and

issued a certificate of appealability under 28 U.S.C. § 2253(c).

The certified issue is whether admission of Jade Sprickman’s statements in

the 911 recordings violated Gragg’s rights under the Confrontation Clause of the

Sixth Amendment. To obtain relief under § 2254, Gragg must show that the state

court decision was “contrary to, or involved an unreasonable application of, clearly

established Federal law, as determined by the Supreme Court of the United States;

or . . . resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court proceeding.” 28

U.S.C. § 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). We

review the decision of the California Court of Appeal, as the “last reasoned

decision” of the state court. Ylst v. Nunnemaker, 501 U.S. 797, 804-06 (1991).

We hold that the California Court of Appeal’s characterization of the

statements in both 911 calls as non-testimonial under Davis v. Washington, 547

U.S. 813 (2006), and thus not subject to the Confrontation Clause, was not an

2 unreasonable application of clearly established Federal law nor an unreasonable

determination of the facts presented. Davis establishes that a statement is non-

testimonial when made “under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police . . . to meet an ongoing

emergency.” Id. at 822.

Gragg argues that the state court unreasonably applied Davis when it failed

to consider the evidence of Sprickman’s alleged revengeful intent. However,

Sprickman’s alleged subjective intentions at the time she made the calls are

irrelevant because the circumstances surrounding the calls objectively indicated an

ongoing emergency situation. See id. Next, Gragg argues the state court failed to

recognize the point at which the second call produced testimonial statements.

Although we recognize that the district court drew a line distinguishing the point at

which it believed the second call began to produce testimonial statements, we

decline to do so. Instead, we hold that it was not unreasonable for the state court to

characterize the entirety of Sprickman’s statements in both calls as non-testimonial

because the police did not yet have Gragg in custody and Sprickman was still

facing an ongoing emergency. In light of this determination, we need not consider

Gragg’s final argument regarding his counsel’s ability to cross-examine

Sprickman. See Crawford v. Washington, 541 U.S. 36, 51 (2004) (noting the

3 Confrontation Clause applies to “‘witnesses’ . . . who ‘bear testimony’”); Whorton

v. Bockting, 549 U.S. 406, 420 (2007) (“[T]he Confrontation Clause has no

application to [non-testimonial] statements . . . . ”).

AFFIRMED.

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