Joe Hernandez, III v. Larry Small, Warden

In this habeas case, we must decide whether the admission of testimony at a criminal trial in state court was contrary to or involved an unreasonable application of the Supreme Court’s Confrontation Clause jurisprudence.

I

A

The underlying convictions in this case arose from two separate incidents that took place on August 10, 1993 in El Monte, California. At approximately 7:00 p.m. that evening, Joe Hernandez and his subsequent eodefendant Robert Cota, both members of the El Monte Flores gang, met at the home of fellow gang-member Arthur Lopez. Hernandez was armed with a gun. Hernandez and Cota left Lopez’s home riding Lopez’s bicycle; Cota was pedaling the bicycle with Hernandez sitting on the handlebars. The pair bicycled to Medina Court, a shopping center which is considered to be in the territory of the El Monte Hayes gang — a Flores gang rival. There the pair spotted Raphael Torres, a Hayes gang member. Torres, upon seeing Hernandez and Cota, shouted his Hayes gang affiliation. Unimpressed, Hernandez responded by getting off the bicycle, brandishing his gun, and shooting Torres several times. Torres, who was not armed, died as a result of the multiple gunshot…