                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 13 2010

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




                              FOR THE NINTH CIRCUIT



GREGORY ANDRE SMITH,                              No. 08-56925

                Petitioner - Appellant,           D.C. No. 2:06-cv-03158-SGL-
                                                  PLA
  v.

CHARLES HARRISON,                                 MEMORANDUM *

                Respondent - Appellee.



                      Appeal from the United States District Court
                          for the Central District of California
                      Stephen G. Larson, District Judge, Presiding

                           Argued and Submitted May 4, 2010
                                 Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW, **
District Judge.

       Petitioner-Appellant Gregory Andre Smith (“Smith”) appeals a district court

order dismissing his petition for a writ of habeas corpus. The parties are familiar

with the facts of the case and we do not repeat them here. We have jurisdiction

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
pursuant to 28 U.S.C. §§ 1291 and 2253. We affirm the judgment of the district

court.

         The California Court of Appeal did not unreasonably apply Supreme Court

precedent, 28 U.S.C. § 2254(d), because the witness “was unavailable to testify,

and the defendant had had a prior opportunity for cross-examination,” Crawford v.

Washington, 541 U.S. 36, 54 (2004). That Smith’s opportunity for cross-

examination came at a preliminary hearing does not change this conclusion. See

California v. Green, 399 U.S. 149, 165 (1970); Delgadillo v. Woodford, 527 F.3d

919, 926 (9th Cir. 2008). Moreover, “the Confrontation Clause guarantees an

opportunity for effective cross-examination, not cross-examination that is effective

in whatever way, and to whatever extent, the defense might wish.” Delaware v.

Van Arsdall, 475 U.S. 673, 679 (1986) (quoting Delaware v. Fensterer, 474 U.S.

15, 20 (1985) (per curiam)).

         We decline Smith’s request to expand the certificate of appealability. See

28 U.S.C. § 2253(c)(2).

         AFFIRMED.




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