John Nelson v. Leland McEwen

MEMORANDUM

John Paul Nelson appeals the district court’s denial of his 28 U.S.C. § 2254 petition. Nelson contends that his Confrontation Clause rights were violated when Firefighter Bradley Witt testified that the shooting victim identified Nelson as the shooter, and that his due process rights were violated by the cumulative effect of multiple trial errors. Because the California Court of Appeal’s decision was neither contrary to, nor an unreasonable application of, clearly established Supreme Court precedent, nor based on an unreasonable determination of the facts, we affirm. 28 U.S.C. § 2254 (d)(l)-(2).

Nontestimonial statements do not implicate the Confrontation Clause. Moses v. Payne, 555 F.3d 742, 754 (9th Cir.2009) (citing Whorton v. Bockting, 549 U.S. 406 ,’ 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007)). The California Court of Appeal reasonably determined that the victim’s statement to Firefighter Witt was nontestimonial because the circumstances objectively indicated that the primary purpose of Firefighter Witt’s question was to enable police to respond to an ongoing emergency. Davis v. Washington, 547 U.S. 813, 822 , 126 S.Ct. 2266 , 165 L.Ed.2d 224 (2006). Firefighter…