The opinion of the court was delivered by: MAXINE CHESNEY, District Judge
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
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
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
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)).
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
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 ...