                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              MAY 17 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

DERRICK COURTNEY,                                No. 09-16361

             Petitioner - Appellant,             D.C. No. 2:07-cv-01045-MJP

  v.
                                                 MEMORANDUM *
MIKE KNOWLES,

             Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Eastern District of California
                   Marsha J. Pechman, District Judge, Presiding

                            Submitted May 11, 2010**
                             San Francisco, California


Before: RYMER and McKEOWN, Circuit Judges, and FAWSETT, *** Senior
District Judge.


        *
             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).

       ***  The Honorable Patricia C. Fawsett, Senior United States District Judge
for the Middle District of Florida, sitting by designation.
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      Derrick Courtney appeals from the district court’s denial of his 28 U.S.C.

§ 2254 habeas corpus petition. We review de novo a district court’s decision to

deny a habeas petition and review its factual findings for clear error. McMurtrey v.

Ryan, 539 F.3d 1112, 1118 (9th Cir. 2008). Under the Antiterrorism and Effective

Death Penalty Act of 1996 (“AEDPA”), a federal court may grant habeas relief on

a claim “adjudicated on the merits” in state court if the decision “was contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States” or “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)(1)-(2). The standard of review is

“highly deferential . . . [and] demands that state court decisions be given the

benefit of the doubt.” Woodford v. Visciotti, 537 U.S. 19, 24 (2002) (per curiam).

      Courtney and his codefendant Melvin Peete were tried jointly on charges of

murder, robbery, and possession of a firearm by a convicted felon. Before trial,

Courtney filed a motion for severance, citing Peete’s videotaped pre-trial statement

wherein Peete admitted to committing the alleged crimes and stated that Courtney

participated in the criminal acts. The motion was denied as moot when the

prosecutor indicated that he would not attempt to use Peete’s pre-trial admission in

his case-in-chief. Courtney unsuccessfully renewed the motion for severance when


                                          2
Peete decided to testify. The prosecutor cross-examined Peete and impeached him

with his videotaped pre-trial statement incriminating Courtney. When Peete was

tendered for cross-examination by Courtney, Courtney chose not to cross-examine

Peete. Courtney did not testify.

      Courtney alleges that his due process rights were violated when the trial

court denied his motions for severance. Courtney contends that, as a result of the

denial of his severance motions, he was not afforded a meaningful opportunity to

cross-examine Peete regarding Peete’s videotaped pre-trial statement in violation

of Courtney’s Sixth and Fourteenth Amendment rights.

      A defendant is deprived of his Sixth Amendment right to confront the

witnesses against him when the facially incriminating confession of a nontestifying

codefendant is introduced at their joint trial. Bruton v. United States, 391 U.S.

123, 135-36 (1968). On the other hand, “when the [codefendant] appears for

cross-examination at trial, the Confrontation Clause places no constraints at all on

the use of his prior testimonial statements.” Crawford v. Washington, 541 U.S. 36,

59 n.9 (2004). In the present case, the Confrontation Clause was not implicated by

the introduction of Peete’s videotaped pretrial statement because Peete was

tendered for cross-examination. See Nelson v. O’Neil, 402 U.S. 622, 629-30

(1971) (“We conclude that where a codefendant takes the stand in his own defense,


                                          3
denies making an alleged out-of-court statement implicating the defendant, and

proceeds to testify favorably to the defendant concerning the underlying facts, the

defendant has been denied no rights protected by the Sixth and Fourteenth

Amendments.”); United States v. Allen, 425 F.3d 1231, 1235 (9th Cir. 2005)

(where declarant was available as a witness and subject to cross-examination, the

admission of declarant’s out-of-court statements did not violate defendant’s Sixth

Amendment rights). Courtney relies on dicta from Nelson v. O’Neil, 402 U.S. 630

(1971), suggesting that his Sixth and Fourteenth Amendment rights were violated

because Peete admitted making the pre-trial statement. Id. at 628-29. But

Courtney’s argument is unpersuasive, as

§ 2254(d)(1)’s “clearly established” phrase “refers to the holdings, as opposed to

the dicta, of [the Supreme] Court’s decisions as of the time of the relevant state-

court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). Thus, the

California court’s determination that Courtney’s Sixth and Fourteenth Amendment

rights were not violated by denial of the severance motions is not contrary to

clearly established federal law.

      Courtney next argues that he was denied his due process right not to be tried

while mentally incompetent, despite a unanimous jury finding that he was in fact

competent to stand trial. Under the AEDPA, the jury finding on Courtney’s


                                          4
competency may only be overturned if it was “based on an unreasonable

determination of the facts in light of the evidence presented in the state court

proceedings.” 28 U.S.C. § 2254(d)(2). State court findings of fact are presumed

correct unless “rebutted by clear and convincing evidence.” 28 U.S.C.

§ 2254(e)(1).

      The evidence presented at Courtney’s competency hearing included a

previous court finding of incompetence, conflicting opinions of three

psychologists, and a videotaped interview of Courtney taken by a detective. While

such evidence may have supported a finding of incompetence, Courtney has not

met his burden of presenting clear and convincing evidence that the jury’s finding

was incorrect. Accordingly, habeas relief is inappropriate.

      AFFIRMED.




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