Smith v. Felker

Full title: JEFFREY ALAN SMITH, Petitioner, v. TOM FELKER, Warden, Respondent.

Court: United States District Court, Ninth Circuit, California, C.D. California

Date published: Jan 31, 2011

SACV 07-471 PA(JC) (C.D. Cal. Jan. 31, 2011)

Opinion

JEFFREY ALAN SMITH, Petitioner, v. TOM FELKER, Warden, Respondent. No. SACV 07-471 PA(JC) United States District Court, C.D. California. January 31, 2011

          ORDER ADOPTING FINDINGS, CONCLUSIONS, AND RECOMMENDATIONS OF UNITED STATES MAGISTRATE JUDGE

          PERCY ANDERSON, District Judge.

         Pursuant to 28 U.S.C. § 636, the Court has reviewed the Petition for Writ of Habeas Corpus by a Person in State Custody (the "Petition") and accompanying documents, and all of the records herein, including the attached Report and Recommendation of United States Magistrate Judge ("Report and Recommendation"), and petitioner's objections to the Report and Recommendation ("Objections"). The Court has further made a de novo determination of those portions of the Report and Recommendation to which objection is made. The Court concurs with and adopts the findings, conclusions, and recommendations of the United States Magistrate Judge and overrules the Objections.

         Petitioner's objections are without merit. First, his reliance on Winzer v. Hall , 494 F.3d 1192 (9th Cir. 2007), is misplaced because the Winzer decision did not apply Crawford v. Washington , 541 U.S. 36 (2004) and its progeny, the cases that are dispositive of the issue presented here, since Crawford was decided before petitioner's convictions became final. See Winzer , 494 F.3d at 1194 (Crawford "does not apply because it was decided after Winzer's trial and appeal."); see also Whorton v. Bockting , 549 U.S. 406, 421 (2007) (Crawford announced a new rule of criminal procedure that does not apply retroactively in collateral proceedings).

         Second, the Supreme Court has rejected petitioner's argument that the Confrontation Clause should apply to both testimonial and non-testimonial statements. Davis v. Washington , 547 U.S. 813, 824 (2006); see also Giles v. California , 554 U.S. 353, 376 (2008) ("[O]nly testimonial statements are excluded by the Confrontation Clause. Statements to friends and neighbors... would be excluded, if at all, only by hearsay rules...."); United States v. Sine , 493 F.3d 1021, 1035 n.11 (9th Cir. 2007) ("Only testimonial out-of-court statements raise Confrontation Clause concerns."); Flores v. Roe, 228 Fed.Appx. 690, 691 (9th Cir.) ("The Supreme Court recently made clear that the Confrontation Clause applies only to limit the admission of testimonial statements. The statements at issue in this case were not testimonial, so the use of them at trial did not violate the Confrontation Clause." (citing Davis and Crawford)), cert. denied, 552 U.S. 953 (2007).¹

1 The Court may cite unpublished Ninth Circuit opinions issued on or after January 1, 2007. See U.S.Ct. App. 9th Cir. Rule 36-3(b); Fed. R. App. P. 32.1(a).

         IT IS ORDERED that Judgment be entered denying the Petition and dismissing this action with prejudice.

         IT IS FURTHER ORDERED that the Clerk serve copies of this Order, the Report and Recommendation, and the Judgment herein on counsel for petitioner and respondent.

         LET JUDGMENT BE ENTERED ACCORDINGLY.