Graves

MEMORANDUM

Earnest Anthony Graves, a prisoner in state custody, appeals the denial of his petition for habeas corpus. We granted a certificate of appealability limited to the issue of whether state appellate counsel was constitutionally ineffective for failing to argue that Graves’ Sixth Amendment rights to confrontation and cross-examination were violated by admission of a co-defendant’s out of court statement at trial. The district court had jurisdiction over the *522 petition by virtue of 28 U.S.C. § 2254 ; we have jurisdiction over the appeal by virtue of 28 U.S.C. § 2253 (c)(3). We affirm the denial of the writ.

The facts are well known to the parties and will be repeated only so far as is necessary to explain our decision. At Graves’ state court murder trial, an out of court statement of his co-defendant Terry Hemal Jordan was permitted into testimony. Shortly before the murders, Jordan allegedly said to co-defendant Delano Johnson, in prosecution witness Alan Marsh’s presence, that “[Graves] say that we can jack 'em.’ ” The meaning of this statement was that Graves was telling Jordan and Johnson to either kill the victims or steal the cash they were carrying in a shoe…