                                                                     [DO NOT PUBLISH]

                       IN THE UNITED STATES COURT OF APPEALS

                                   FOR THE ELEVENTH CIRCUIT
                                    ________________________                FILED
                                                                   U.S. COURT OF APPEALS
                                            No. 10-14986             ELEVENTH CIRCUIT
                                        Non-Argument Calendar            APRIL 20, 2011
                                      ________________________            JOHN LEY
                                                                           CLERK
                              D.C. Docket No. 2:10-cv-00973-IPJ-TMP

DEANDRE COOPER,

llllllllllllllllllllllllllllllllllllllll                              Petitioner-Appellant,

                                               versus

DAVID WISE,
ATTORNEY GENERAL, STATE OF ALABAMA,

llllllllllllllllllllllllllllllllllllllll                          Respondents-Appellees.

                                      ________________________

                            Appeal from the United States District Court
                               for the Northern District of Alabama
                                   ________________________

                                           (April 20, 2011)

Before BARKETT, MARCUS and FAY, Circuit Judges.

PER CURIAM:
      DeAndre Cooper, an Alabama prisoner serving a term of life without parole

for two counts of capital murder and one count of attempted murder, appeals the

district court’s order denying his petition for a writ of habeas corpus, 28 U.S.C.

§ 2254. The district court granted a certificate of appealability (“COA”) on the

issue of whether the admission of out-of-court statements made by an alleged

co-conspirator, LaTonya “Punkin” Jackson, violated Cooper’s Sixth Amendment

right to confrontation. For the reasons stated below, we affirm.

                                          I.

      In April 2010, Cooper filed a pro se 28 U.S.C. § 2254 petition in the district

court. Cooper’s petition raised six grounds, but only Ground Five is at issue in this

appeal. In that ground, Cooper argued that the state trial court should not have

admitted out-of-court statements made by a co-conspirator because the state had

failed to establish the existence of a conspiracy. He explained that the witnesses

who had testified regarding the conspiracy had changed their stories many times.



      During Cooper’s trial, the state introduced evidence that Cooper, Jackson,

and Rodrequiz Woods had entered into a plan to rob a marijuana dealer, Willie

Kelly. On the evening of June 9, 2004, Jackson called Kelly and asked if he had

marijuana she could buy. They agreed to meet at the house of Jackson’s friend


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Angela Williams. When Kelly and his cousin, Anthony Kelly, arrived at

Williams’s house, Cooper and Woods parked their Suburban directly behind

Kelly’s vehicle. Kelly looked in his rearview mirror and saw two men with guns

get out of the Suburban. He heard them say, “Give it up.” Kelly “just hit the gas”

and attempted to flee. Cooper and Woods both fired multiple shots at Kelly’s

vehicle.

      As Kelly drove away from Williams’s house, the shooting stopped. Kelly

looked at his cousin, Anthony Kelly, and observed that Anthony was slumped

forward and was bleeding. Kelly immediately drove to the hospital, but Anthony

died of his wounds. Willie Kelly received a gunshot wound to his shoulder. He

was treated for his injury and released. Willie Kelly was able to identify Woods

and Cooper from photographic lineups as the shooters.

      On his direct appeal, Cooper argued, among other things, that the trial court

erred in allowing the state’s witnesses to testify regarding certain out-of-court

statements made by Jackson. Specifically, he objected to: (1) Willie Kelly’s

testimony that Jackson called him and told him to go to Williams’s house;

(2) Angela Williams’s testimony that Jackson spoke to Willie Kelly on the phone,

and that Jackson later told Williams not to inform the police that Jackson was

Cooper’s girlfriend; and (3) Woods’s testimony that Jackson and Cooper were


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dating, and that Jackson was involved in the planning of the robbery. He argued

that Jackson’s statements were inadmissible hearsay under the Alabama Rules of

Evidence. He also asserted that the admission of Jackson’s statements violated his

right to confrontation under the Sixth Amendment.

      The Alabama Court of Criminal Appeals affirmed Cooper’s convictions.

The court concluded that Jackson’s out-of-court statements were properly admitted

as non-hearsay co-conspirator statements because the evidence showed that

Cooper, Woods, and Jackson had entered into a conspiracy to rob Willie Kelly.

The court also held that the admission of Jackson’s statements did not violate the

Confrontation Clause. The Court of Criminal Appeals noted that the United States

Supreme Court, in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158

L.Ed.2d 177 (2004), had determined that the Confrontation Clause only bars the

admission of out-of-court statements that are testimonial. The Court of Criminal

Appeals observed that Crawford had cited Bourjaily v. United States, 483 U.S.

171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), as an example of the type of

statements that are not testimonial in nature. In Bourjaily, the Supreme Court

upheld the admission of a co-conspirator’s out-of-court statements against a

criminal defendant even though the defendant did not have a prior opportunity to

cross-examine the declarant. The Court of Criminal Appeals concluded that


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Jackson’s statements were not testimonial because they were not made in the

context of a police investigation or a pretrial examination. The Court of Criminal

Appeals denied Cooper’s request for rehearing, and the Alabama Supreme Court

declined to grant a writ of certiorari.

      A magistrate prepared a report and recommendation concluding that

Cooper’s habeas petition should be denied. Regarding Jackson’s out-of-court

statements, the magistrate observed that Cooper’s petition appeared to argue that

the admission of those statements violated Alabama law. The magistrate

recognized that a state-law evidentiary ruling can give rise to a federal

constitutional violation if the erroneously admitted evidence rendered the trial

fundamentally unfair. Nevertheless, the magistrate observed that, in Cooper’s

case, the Alabama Court of Criminal Appeals had authoritatively decided that no

error of state law occurred.

      To the extent that Ground Five of the petition could be construed as a

Confrontation Clause claim, the magistrate determined that the Court of Criminal

Appeals’ rejection of that claim was not contrary to, or an unreasonable application

of, clearly established federal law. The magistrate observed that, under Bourjaily

and Crawford, statements made by a co-conspirator during the course of a

conspiracy are not testimonial. The magistrate noted that Cooper did not challenge


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the Court of Criminal Appeals’ application of those decisions, nor did he dispute

the factual basis of the court’s holding. Accordingly, the magistrate recommended

that Ground Five of Cooper’s petition be denied.

      The district court adopted the magistrate’s report and dismissed Cooper’s

habeas petition with prejudice. As noted above, the district court granted a COA

on the issue of whether the admission of Jackson’s out-of-court statements violated

Cooper’s Sixth Amendment right to confrontation.

                                          II.

      We review a district court’s denial of a 28 U.S.C. § 2254 habeas petition de

novo. McNair v. Campbell, 416 F.3d 1291, 1297 (11th Cir. 2005). A federal court

may not grant habeas relief on a claim that has been considered and rejected by a

state court unless the state court’s 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 unless the state court made “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). A state court decision is

contrary to clearly established federal law if the state court reached a legal

conclusion opposite to that reached by the United States Supreme Court on the

same question, or if the state court was presented with facts that were “materially


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indistinguishable” from relevant Supreme Court precedent, but arrived at the

opposite result. Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495,

1519-20, 146 L.Ed.2d 389 (2000). A state court’s decision is an unreasonable

application of clearly established federal law if the court unreasonably applied the

established law to the facts of the case. Id. at 407-09, 120 S.Ct. at 1520-21.

      The Sixth Amendment protects a criminal defendant’s right to confront the

witnesses against him. U.S. Const. amend VI. In Crawford, the Supreme Court

explained that the Sixth Amendment prohibits the introduction of out-of-court

testimonial statements unless the declarant is unavailable to testify and the

defendant had a prior opportunity to cross-examine the declarant. Crawford, 541

U.S. at 68, 124 S.Ct. at 1374. A statement is testimonial if it was “made under

circumstances which would lead an objective witness reasonably to believe that the

statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. at 1364

(quotation omitted).

      In this case, the Alabama Court of Criminal Appeals’ rejection of Cooper’s

Confrontation Clause claim was neither contrary to, nor an unreasonable application

of, clearly established federal law. Jackson’s out-of-court statements were made

during the course of the conspiracy to rob Willie Kelly, rather than in response to the

police investigation into Anthony Kelly’s murder. Thus, the statements were not made


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under circumstances that would lead a reasonable person to believe that they would

be introduced at trial. See Crawford, 541 U.S. at 52, 124 S.Ct. at 1364. Accordingly,

the Alabama Court of Criminal Appeals correctly concluded that Jackson’s statements

were not testimonial and that their admission did not violate Cooper’s right to

confrontation. The Court of Criminal Appeals’ decision was consistent with the legal

principles announced in Crawford. In light of the fact that Jackson’s statements were

not testimonial, the state was not required to show that Jackson was unavailable to

testify.

       In addition to his Sixth Amendment arguments, Cooper also contends that

Jackson’s statements were inadmissible under the Alabama Rules of Evidence because

the state failed to prove the existence of a conspiracy. Although state-law errors

generally are not a grounds for federal habeas relief, a habeas court may review a state

court’s evidentiary rulings in order to determine whether those rulings violated the

petitioner’s right to due process by depriving him of a fundamentally fair trial. Felker

v. Turpin, 83 F.3d 1303, 1311-12 (11th Cir. 1996). Here, however, the COA granted

by the district court only addresses Cooper’s right to confrontation under the Sixth

Amendment, not any due process claim that he may have. Because our review is

limited to the issues specified in the COA, we may not consider Cooper’s contention

that the admission of Jackson’s statements violated Alabama law. See Murray v.


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United States, 145 F.3d 1249, 1250-51 (11th Cir. 1998).

      Because the Alabama Court of Criminal Appeals’ decision rejecting Cooper’s

Sixth Amendment claim was neither contrary to, nor an unreasonable application of,

clearly established federal law, we affirm the denial of Cooper’s habeas petition.

      AFFIRMED.




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