                                                                           FILED
                             NOT FOR PUBLICATION                            JAN 08 2010

                                                                        MOLLY C. DWYER, CLERK
                      UNITED STATES COURT OF APPEALS                     U .S. C O U R T OF APPE ALS




                             FOR THE NINTH CIRCUIT



 MARCUS COLE CARPENTER,                          No. 07-56214

               Petitioner -- Appellant,          D.C. No. CV-07-00135-ABC

   v.
                                                 MEMORANDUM *
 JAMES A. YATES,

               Respondent - Appellee.



                    Appeal from the United States District Court
                        for the Central District of California
                  Audrey B. Collins, Chief District Judge, Presiding

                           Submitted December 15, 2009 **

Before:        GOODWIN, WALLACE, and FISHER, Circuit Judges.

        California state prisoner Marcus Cole Carpenter appeals from the district

court’s order denying his 28 U.S.C. § 2254 habeas petition. We have jurisdiction

pursuant to 28 U.S.C. § 2253, and we affirm.

          *
             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).

EOH/Research
       Carpenter contends that at trial, the court improperly admitted statements

that the robbery victim had made to responding paramedics and police officers, in

violation of his Sixth Amendment right to confrontation.

       The state court’s determination that the victim’s statements to paramedics

were admissible was not contrary to, or an unreasonable application of, clearly

established federal law. See 28 U.S.C. § 2254(d)(1). The record reflects that the

purpose of the paramedics’ questions was to address the victim’s ongoing medical

emergency, rather than to assist law enforcement, and that the questioning took

place in a chaotic environment that lacked any “level of formality.” Davis v.

Washington, 547 U.S. 813, 827 (2006).

       Further, it was not an unreasonable determination of the facts for the state

court to hold that police legitimately believed that there was an ongoing emergency

at the time they questioned the victim. 28 U.S.C. § 2254 (d)(2). The record

reflects that until the officers confirmed that there were no other victims, the

primary purpose of the questioning was to enable the police to meet an ongoing

emergency. See Davis, 547 U.S. at 822.

       Additionally, the state court’s determination that the victim’s statements to

police officers were admissible was not an unreasonable application of clearly

established federal law. See 28 U.S.C. § 2254(d)(1). In light of the circumstances


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and the ongoing emergency, the statements were not testimonial. See Davis, 547

U.S. at 822.

       Finally, we agree with the district court that even if Ramirez’s statements

were erroneously admitted, the error did not have a “substantial and injurious

effect or influence in determining” the court’s judgment. Brecht v. Abrahamson,

507 U.S. 619, 637–38 (1993). As the state court explained, a substantial amount of

other evidence supported Carpenter’s conviction.

       AFFIRMED.




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