                                                                              FILED
                           NOT FOR PUBLICATION                                NOV 19 2013

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



                           FOR THE NINTH CIRCUIT


JOHNNIE LEE FOSTON,                              No. 12-35612

              Petitioner - Appellant,            D.C. No. 9:11-cv-00036-DWM

  v.
                                                 MEMORANDUM*
SAM LAW, Warden and ATTORNEY
GENERAL OF THE STATE OF
MONTANA,

              Respondents - Appellees.


                   Appeal from the United States District Court
                           for the District of Montana
                   Donald W. Molloy, District Judge, Presiding

                     Argued and Submitted November 6, 2013
                                Portland, Oregon

Before: ALARCÓN, M. SMITH, and HURWITZ, Circuit Judges.

       Johnnie Lee Foston appeals from the district court’s decision dismissing his

28 U.S.C. § 2254 federal habeas corpus petition. Detective Scott Newell opined at

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.


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trial that conversations between Foston and a confidential informant (“CI”) were

consistent with his understanding of a drug deal. The CI did not testify and her

identity was never revealed to Foston. The district court concluded that Detective

Newell’s testimony did not violate the Confrontation Clause, as interpreted by the

Supreme Court in Crawford v. Washington, 541 U.S. 36 (2004). We have

jurisdiction to review Foston’s appeal under 28 U.S.C. § 2253, and we affirm.

                                           I

      Foston contends that this court should review his claim de novo because the

Montana Supreme Court’s decision denying his direct appeal did not adjudicate his

federal claim on the merits. “When a state court rejects a federal claim without

expressly addressing that claim, a federal habeas court must presume that the

federal claim was adjudicated on the merits—but that presumption can in some

limited circumstances be rebutted.” Johnson v. Williams, ___ U.S. ___, 133 S. Ct.

1088, 1096 (2013).

      Foston has failed to rebut that presumption. His federal claim was

“intertwined with” his state claim; they were “delineated under a single heading in

[his brief on appeal], supported by identical facts and without distinct analysis.”

Bell v. Uribe, 729 F.3d 1052, 1058 (9th Cir. 2013). Even though the Montana

Supreme Court did not mention the Confrontation Clause or Crawford, it implicitly


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rejected his federal claim when it concluded that “Newell did not testify as to the

content of conversations or statements by Foston or the CI.” State v. Foston, 209

P.3d 262, 264 (Mont. 2009); see also Davis v. Washington, 547 U.S. 813, 823–25

(2006) (holding that the Confrontation Clause is only violated by the admission of

testimonial statements). Because Foston has not rebutted the Williams

presumption, we apply AEDPA deference in reviewing the merits of his federal

habeas corpus petition.

                                          II

      Foston contends that the Montana Supreme Court erred in affirming the

admission of Detective Newell’s testimony. The Montana Supreme Court’s

implicit decision that Crawford is not applicable under the facts in this record is

not contrary to or an unreasonable application of clearly established law, as

decided by the United States Supreme Court. Accordingly, the district court

properly denied Foston’s petition under 28 U.S.C. § 2254(d)(1).

                                          III

      We cannot reach the contentions raised in Foston’s supplemental brief

regarding alleged violations of due process because he failed to exhaust them.

28 U.S.C. § 2254(b)(1)(A); see Rose v. Palmateer, 395 F.3d 1108, 1110 (9th Cir.

2005) (“To satisfy the exhaustion requirement, [the petitioner] must have fairly


                                          -3-
presented this claim in the state courts in order to give them the ‘opportunity to

pass upon and correct alleged violations’ of his rights.” (quoting Baldwin v. Reese,

541 U.S. 27, 29 (2004))).

AFFIRMED.




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