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September 6, 2005.

FRANCE A. ELIAS, Petitioner,
TONY LAMARQUE, Warden, Respondent.

The opinion of the court was delivered by: MAXINE CHESNEY, District Judge


Petitioner France A. Elias ("petitioner"), a California prisoner proceeding pro se, filed the above-titled petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. After reviewing the petition, the Court ordered respondent Tony LaMarque ("respondent") to show cause why the petition should not be granted based on petitioner's cognizable claims. Respondent has filed an answer, accompanied by a memorandum and exhibits, contending that the petition should be denied. Petitioner has filed a traverse.


  A jury in Santa Clara County Superior Court found petitioner guilty of second degree robbery with personal use of a firearm. The Superior Court sentenced petitioner to twelve years in state prison, inclusive of ten years for the firearm enhancement. The California Court of Appeal affirmed the conviction and sentence, and the California Supreme Court denied the petition for review. FACTUAL BACKGROUND

  The California Court of Appeal provided the following summary of the facts of the case:
Edwin Lin owned the ECL market. Mr. Lin also ran a check cashing service in the market. Lin made and kept an identification card that contained a photograph, address, fingerprint and signature for each check cashing customer. This card indicated the dates upon which they cashed checks.
At approximately 8:00 p.m. on December 19, 2000, Carlos Ramirez and the defendant entered the ECL Market. Ramirez joined Lin behind the counter while the defendant pointed a gun at Mr. Lin. The two men ordered Mr. Lin to put money in a bag, but he refused. Ramirez grabbed money from the open register and stuffed it into his pockets. He then jumped back over the counter and ran out of the store with the defendant, dropping some of the money.
Each of the men wore black and had pantyhose pulled over their faces. The defendant wore a beanie hat. Mr. Lin recognized Ramirez as a frequent check cashing customer. Mr. Lin did not recognize the defendant, but was able to see him clearly during the robbery, and was sure of his identification of the defendant as the robber. According to Mr. Lin's calculation, the duo stole $1996.
Jerry Marsh and Diana Gesner testified that while they sat in Marsh's car in a parking lot at 8:00 p.m., two men approached the ECL Market. The men wore black clothing and hoods. Marsh believed one man had a beanie hat on under his hood. A few minutes later, the same two men ran away from the store and drove away in a dark colored truck. Each man appeared to be carrying something under his shirt. It was too dark outside to see either of their faces. After the men left, Marsh and Gesner went inside the market to see what had happened. There was money strewn on the floor behind the counter and Mr. Lin said he had just been robbed.
Officer Chris Pilger responded to a dispatch regarding the robbery. Mr. Lin gave Ramirez's identification card with a photograph and thumbprint to Officer Pilger. Shortly after the robbery, a truck matching the description of the getaway vehicle was involved in a traffic accident. The defendant and Ramirez were arrested when they arrived at an address recorded in the accident report approximately three and a half hours after the robbery in a GMC Jimmy truck. While Officer Pilger assisted in booking the defendant, he found approximately $419 in cash in the defendant's pockets, and a similar amount of cash on Ramirez. Ramirez had a pistol in the waistband of his pants. A black beanie hat and a pair of cut-up women's pantyhose were found in the truck.
Detective Filemon Zaragoza separately interviewed first Ramirez and then the defendant. Detective Zaragoza told the defendant that Ramirez had confessed and identified the defendant as the one holding the gun. The defendant denied any such participation. The two suspects were then placed together in a holding cell while a video camera recorded their interaction. When Ramirez told the defendant that he had "snitched," the defendant responded, "we worked together, we got caught together, we're fucked together, we'll finish it together, fool." They also discussed how the police might have identified them as the culprits. And then stated, "[It's] like us walking in with full identity, [it's] just like us walking in with like armed burglary (inaudible) full identity, with our names, face, address card, everything."
  Ramirez testified that he pled guilty to the robbery [of] the market and that the defendant was with Ramirez during the robbery. People v. Elias, No. H023687, slip op. at 1-3 (Cal.Ct.App. July 29, 2003).


  A. Standard of Review

  This Court may entertain a petition for a writ of habeas corpus on "behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a); Rose v. Hodges, 423 U.S. 19, 21 (1975).

  A district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d); Williams v. Taylor, 529 U.S. 362, 402-404, 409 (2000).*fn1 Habeas relief is warranted only if the constitutional error at issue had a "substantial and injurious effect or influence in determining the jury's verdict." Penry v. Johnson, 532 U.S. 782, 795 (2001) (quoting Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)).

  B. Legal Claims

  1. Confrontation Clause

  At petitioner's trial, Detective Filomen Zaragoza ("Detective Zaragoza") testified that, during his interview of petitioner, he told petitioner that Carlos Ramirez ("Ramirez") had inculpated petitioner as a participant in the robbery and as the suspect who had used the gun. Petitioner's counsel objected to the testimony as inadmissible hearsay, which objection was overruled by the trial court. Petitioner claims he is entitled to habeas relief because the admission of this testimony violated his right under the Confrontation Clause of the Sixth Amendment "to be confronted with the witnesses against him." See U.S. Const., amend. VI. The California Court of Appeal held petitioner's right to confrontation was not violated, based on the Supreme Court's decision in Ohio v. Roberts, 448 U.S. 56 (1980). Under Roberts, the Confrontation Clause bars the admission of hearsay evidence in a criminal trial unless the evidence (1) falls within a "firmly rooted hearsay exception" as dictated by the applicable rules of evidence, or (2) bears "particularized guarantees of trustworthiness." See id. at 66. The Court of Appeal agreed with the trial court that Detective Zaragoza's testimony came within the "firmly rooted" hearsay exception for adoptive admissions.

  Shortly before the instant petition was filed, however, the Supreme Court decided Crawford v. Washington, 541 U.S. 36 (2004), partially abrogating Roberts. Although petitioner's conviction became final almost five months before Crawford was decided, the Ninth Circuit has held that Crawford applies retroactively to collateral attacks on state court decisions. See Bockting v. Bayer, 399 F.3d 1010, 1015-1016 (9th Cir. 2005). Consequently, petitioner's claim must be reviewed de novo under Crawford. See id.

  Under Crawford, the Confrontation Clause bars the admission of out-of-court statements of a "testimonial" nature unless (1) the declarant is unavailable to testify, and (2) the defendant had a prior opportunity to cross-examine the declarant. See Crawford, 541 U.S. at 59. While expressly declining to give "testimonial" a comprehensive definition, the Supreme Court held that the term "applies at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." See id. at 68. Here, because Ramirez inculpated petitioner during questioning by the police, any such statement by Ramirez would qualify as "testimonial" under Crawford. Next, as discussed infra, Ramirez was "unavailable" to testify as a witness with respect to petitioner's use of the gun. Third, it is ...

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