Caesar Gabriel Cota v. ANTHONY HEDGPETH, Warden, Salinas Valley State Prison, CDC

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
CAESAR GABRIEL COTA,
Petitioner - Appellant,
v.
ANTHONY HEDGPETH, Warden,
Salinas Valley State Prison, CDC,
Respondent - Appellee.
No. 11-55171
D.C. No. 8:09-cv-00613-DMG-
VBK
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Dolly M. Gee, District Judge, Presiding
Argued and Submitted August 27, 2013
Pasadena, California
Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.**
FILED
SEP 16 2013
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for the Eastern District of New York, sitting by designation.
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Petitioner Caesar Gabriel Cota was convicted of kidnaping to commit a sex
offense and forcible oral copulation. He appeals the district court’s denial of his
petition for habeas corpus. Cota claims that the admission of testimony concerning
out-of-court statements made by the victim to her aunt shortly after the attack
violated the Confrontation Clause of the Sixth Amendment.
The California Court of Appeal held that such admission did not violate the
Confrontation Clause because the victim’s statements were not testimonial. The
petition cannot be granted unless this ruling was “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). “That statutory
phrase refers to the holdings, as opposed to the dicta, of” the Supreme Court’s
decisions. Williams v. Taylor, 529 U.S. 362, 412 (2000).
The state court’s ruling was not contrary to or an unreasonable application of
the Supreme Court’s Confrontation Clause cases. Neither Crawford v.
Washington, 541 U.S. 36 (2004), nor Davis v. Washington, 547 U.S. 813 (2006),
addressed “whether and when statements made to someone other than law
enforcement personnel are ‘testimonial.’” Davis, 547 U.S. at 823 n.2. Despite
Cota’s arguments to the contrary, the Supreme Court’s brief description of King v.
Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), in Davis, 547 U.S. at 828, did not
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clearly establish federal law regarding whether statements made to a relative are
testimonial.
AFFIRMED
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