Richard Lee Mason v. M. Yarborough

447 F.3d 693 Richard Lee MASON, Petitioner-Appellant, v. M. YARBOROUGH, Respondent-Appellee. No. 04-17330. United States Court of Appeals, Ninth Circuit. Argued and Submitted February 16, 2006. Filed May 5, 2006. Matthew Alger, Clovis, CA, for the appellant. Justain P. Riley, Deputy Attorney General, Sacramento, CA, for the appellee. Appeal from the United States District Court for the Eastern District of California; Frank C. Damrell, District Judge, Presiding. D.C. No. CV-03-00450-FCD/JFM. Before WALLACE, HAWKINS, and THOMAS, Circuit Judges. MICHAEL DALY HAWKINS, Circuit Judge. 1 Petitioner-Appellant Richard Lee Mason ("Mason") seeks habeas corpus review of his state court convictions arising out of two separate shooting incidents in Stockton, California, one resulting in first-degree murder charges. Mason's fundamental contention here is that the admission of the fact that a co-participant made a statement to law enforcement, but not the content of that statement, violated his confrontation rights. Exercising our jurisdiction under 28 U.S.C. § 1291 , as constrained by 28 U.S.C. § 2254 (d)(1), 1 we affirm the district court's denial of habeas relief. 2 In the early…

Petitioner-Appellant Richard Lee Mason (“Mason”) seeks habeas corpus review of his state court convictions arising out of two separate shooting incidents in Stockton, California, one resulting in first-degree murder charges. Mason’s fundamental contention here is that the admission of the fact that a co-participant made a statement to law-enforcement, but not the content of that statement, violated his confrontation rights. Exercising our jurisdiction under 28 U.S.C. § 1291 , as constrained by 28 U.S.C. § 2254 (d)(1), 1 we affirm the district court’s denial of habeas relief.

In the early morning hours of May 26, 1996, and twice again later that night, the home of Debra Aguilera was struck by gunfire. A few days prior, Mason was seen in the passenger seat of a maroon BMW owned by Alder Fenton, displaying a handgun and bragging to Fenton’s brother Jeremiah: “Tell Ray I have some *695 thing for him.” Jeremiah knew “Ray” referred to Raymond Munoz, Ms. Aguilera’s oldest son, who was in the house at the time of the shooting and who had been involved in an altercation with Mason some six months earlier.

Later the same evening, neighbors of Sally Purcell heard a man yelling, “Mike,”…

concurring in the judgment:

I agree with the majority’s ultimate conclusion that Mason is not entitled to habe-as relief. Because I disagree with much of the majority’s analysis, I write separately. Under the applicable Supreme Court precedents, Fenton was not a “witness against” Mason, and thus Mason’s allegations fall *697 entirely outside of the protections of the Confrontation Clause of the Sixth Amendment. However, unlike the majority, I do not believe that Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987), and Gray v. Maryland, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) are applicable to this appeal.

I.

The Confrontation Clause guarantees “the accused the right ... to be confronted with the witnesses against him....” U.S. Const. Amend. VI. Thus, as a threshold matter, there must be a “witness[ ] against” the accused for the Confrontation Clause to be invoked properly. In the most recent Supreme Court precedent, Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court considered three possible meanings of this clause.…