Jeffrey Alan Smith v. FRANK X. CHAVEZ, Warden, High Desert State Prison

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEFFREY ALAN SMITH,
Petitioner - Appellant,
v.
FRANK X. CHAVEZ, Warden, High
Desert State Prison,
Respondent - Appellee.
No. 11-55211
D.C. No. 8:07-cv-00471-PA-JC
MEMORANDUM*
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Submitted March 4, 2014 **
Pasadena, California
Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.
Jeffrey Alan Smith appeals the district court’s denial of his petition for
habeas relief under 28 U.S.C. § 2254 from convictions of first degree murder with
special circumstances, first degree burglary, and attempted robbery. We affirm.
FILED
MAR 26 2014
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 panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

-- 1 of 3 --

1. Smith argues that the trial court violated Bruton when it admitted an out-of-
court statement by his non-testifying co-defendant, Mark Taffolla, which directly
implicated Smith. See Bruton v. United States, 391 U.S. 123 (1968). Bruton,
however, applies to statements that violate the Confrontation Clause of the Sixth
Amendment. Id. at 126. In Crawford v. Washington, 541 U.S. 36, 51 (2004), the
United States Supreme Court held that the Confrontation Clause only bars
“testimonial” out-of-court statements. Although Crawford did not establish a
singular definition of “testimonial,” the Court explained that “[a]n accuser who
makes a formal statement to government officers bears testimony in a sense that a
person who makes a casual remark to an acquaintance does not.” Id. The disputed
statement—an account of the crime Taffolla gave to his girlfriend in a motel
room—was clearly not testimonial. Given that Bruton’s core holding relies on the
Confrontation Clause, the California Court of Appeal’s decision was not “contrary
to, [nor did it] involve[] an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States.” See 28 U.S.C. §
2254(d)(1).
2. We decline to expand the Certificate of Appealability to incorporate Smith’s
additional, related argument that admission of Taffolla’s statement violated his due
2

-- 2 of 3 --

process rights. Smith has not made “a substantial showing of the denial of a
constitutional right.” See 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-1(e).
AFFIRMED.
3

-- 3 of 3 --