                                                                           FILED
                           NOT FOR PUBLICATION
                                                                           JUN 19 2019
                    UNITED STATES COURT OF APPEALS                      MOLLY C. DWYER, CLERK
                                                                         U.S. COURT OF APPEALS


                            FOR THE NINTH CIRCUIT


SAMUEL LAM,                                      No.   17-17488

              Petitioner-Appellant,              D.C. No.
                                                 2:14-cv-01899-WBS-AC
 v.

BARNES B. GOWER,                                 MEMORANDUM*

              Respondent-Appellee.


                    Appeal from the United States District Court
                       for the Eastern District of California
                    William B. Shubb, District Judge, Presiding

                        Argued and Submitted June 10, 2019
                             San Francisco, California

Before: SCHROEDER and M. SMITH, Circuit Judges, and RAYES,** District
Judge.

      California state prisoner Samuel Lam appeals the district court’s denial of

his 28 U.S.C. § 2254 habeas corpus petition challenging his conviction for

inflicting corporal injury on a cohabitant, false imprisonment, brandishing a

      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The Honorable Douglas L. Rayes, United States District Judge for the
District of Arizona, sitting by designation.
firearm, and simple assault. Lam asserts that the state trial court violated his Sixth

Amendment rights by admitting two hearsay statements of the complaining

witness. The district court denied the petition under the strictures imposed by 28

U.S.C. § 2254 and we affirm.

      1. The state court determined that the first statement was non-testimonial

because it was made in the context of a contemporaneous emergency. See Davis

v. Washington, 547 U.S. 813, 822 (2006) (“[S]tatements are nontestimonial when

made in the course of police interrogation under circumstances objectively

indicating that the primary purpose of interrogation is to enable police assistance to

meet an ongoing emergency.”). To determine the primary purpose, we must

“objectively evaluate[] the circumstances in which the encounter occurs and the

statements and actions of the parties.” Lucero v. Holland, 902 F.3d 979, 989 (9th

Cir. 2018) (quoting Michigan v. Bryant, 562 U.S. 344, 359 (2011)). In this case,

the victim’s statement took place during an initial interrogation after officers

responded to a 911 call where the victim was visibly injured, shocked, and

confused. Given these circumstances, we cannot say that the state court judgment

was “so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fair-minded

disagreement.” Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011).


                                           2
      2. The state court also concluded that admission of the second statement,

although testimonial, was harmless because the statement was repetitive of the first

one and therefore not prejudicial. This was not an unreasonable application of the

law to the facts. See Davis v. Ayala, 135 S. Ct. 2187, 2208 (2015) (the state court’s

determination of harmless error was a reasonable application of controlling

precedent). Lam has therefore not met his burden to show that the state court’s

decision was objectively unreasonable. See id.

      We affirm.




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