                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                           FOR THE NINTH CIRCUIT                              AUG 17 2011

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

CRAIG WILLIAMS,                                  No. 09-55192

              Petitioner - Appellant,            D.C. No. 2:05-cv-05150-PA-SH

  v.
                                                 MEMORANDUM*
DERRAL G. ADAMS, Warden;
ATTORNEY GENERAL,

              Respondents - Appellees.


                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                       Argued and Submitted August 2, 2011
                               Pasadena, California

Before: REINHARDT and BERZON, Circuit Judges, and KENNELLY, District
Judge.**

       Craig Williams petitions for a writ of habeas corpus, contending that he was

denied due process and a fair trial by admission of (1) gang evidence and gang


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Matthew F. Kennelly, District Judge for the U.S.
District Court for Northern Illinois, Chicago, sitting by designation.
expert testimony; and (2) evidence concerning Williams’s knowledge of narcotics

sales in his neighborhood. Williams also argues that his right to confrontation was

violated by admission of (3) Bruce Battle’s out-of-court statements identifying

Williams as his shooter.1

                                          1.

      Admission of the gang evidence was not so “unduly prejudicial that it

render[ed] the trial fundamentally unfair.” Payne v. Tennessee, 501 U.S. 808, 825

(1991). The government theorized that Williams, a Baby Gangster (“B.G.”), had

murdered Bruce, an Original Gangster (“O.G.”), as part of an ongoing, violent

rivalry between the B.G. and O.G. factions of the Atlantic Drive Crips over control

of narcotics sales in Williams’s neighborhood. Although inflammatory, evidence

of such gang-related retaliation was highly probative of motive and central to the

prosecution’s theory of the case. See Windham v. Merkle, 163 F.3d 1092, 1103-04

(9th Cir. 1998). Admission of this evidence was therefore not “unduly




      1
        Though Williams has argued the case on appeal under the AEDPA
standard, the Panel does not apply AEDPA deference in reviewing his due process
claims, because there was “not a scintilla of evidence” that the state appellate court
adjudicated these constitutional claims. Williams v. Cavazos, No. 07-56127, 2011
WL 1945744, at *8 n. 10. In contrast, because the state appellate court addressed
Williams’s Confrontation Clause claim, the Panel applies AEDPA deference to its
review of that claim.

                                          2
prejudicial.” Payne, 501 U.S. at 825 (emphasis added); see United States v.

LeMay, 260 F.3d 1018, 1026-27 (9th Cir. 2001).

       In contrast, Detective Timothy Brennan’s highly inflammatory testimony on

why a hypothetical B.G.—who was factually indistinguishable from

Williams—would shoot and kill an O.G. was “completely out of proportion to its

probative value,” LeMay, 260 F.3d at 1030. The inference that Williams would

kill Bruce in order to “frighten[] the community at large,” so that he could commit

additional crimes without the impediment of individuals serving as witnesses

against him, was at best highly speculative and bore only an attenuated connection

to the prosecution’s theory of the murder.

      Nevertheless, admission of Brennan’s unduly prejudicial testimony cannot

justify habeas relief, because it did not have a “substantial and injurious” effect on

the jury’s determination of guilt. Brecht v. Abrahamson, 507 U.S. 619, 637

(1993). Not only did Bruce name “Craig” as his shooter, but Bruce’s wife

Monique also provided corroborating eyewitness testimony, and identified

Williams from a six-photograph lineup shortly after the murder. In addition, the

government provided extensive evidence that Williams had retaliatory, gang-

related motivations for killing Bruce.

                                          2.


                                           3
      Admission of the narcotics evidence was not so unduly prejudicial as to

render Williams’s trial unfair. The prosecutor merely asked if Williams knew

whether the Atlantic Drive Crips controlled narcotics sales in his` neighborhood,

knowledge that Williams denied. It is moreover unlikely that the prosecutor’s

questioning provoked undue emotional bias against Williams, because evidence of

Williams’s previous conviction for narcotics sales was otherwise properly before

the jury. This court has “held that admission of far more inflammatory evidence

did not violate due process.” Hovey v. Ayers, 458 F.3d 892, 923 (9th Cir. 2006);

see, e.g., Windham, 163 F.3d at 1103-04.

                                        3.

      We deny Williams’s motion to expand the Certificate of Appealability as to

his Confrontation Clause claim. No reasonable jurist could debate whether the

state appellate court unreasonably applied clearly established Supreme Court law

in concluding that admission of Bruce’s dying declaration to Monique, identifying

Williams as his shooter, comported with the Sixth Amendment. See Towery v.

Schriro, 641 F.3d 300, 311 (9th Cir. 2010).

      Under Crawford v. Washington, 541 U.S. 36 (2004), the admission of

Bruce’s statement to Monique could not have violated Confrontation Clause unless

that statement was “testimonial.” See id. at 68; Whorton v. Bockting, 549 U.S. 406,


                                           4
413-14 (2007). Bruce made this excited utterance while in a critical condition,

slumped over Monique’s arm, and in his car in the middle of the street—soon after

the shooting and right before Monique exited the car to flag people down for help.

ER 96-97. With no indication that Bruce intended his statement to be used

prosecutorially, the state appellate court reasonably concluded, based on the

informality of the situation and the presence of only family members, that Bruce’s

statement was non-testimonial. See Crawford, 541 U.S. at 51; Jensen v. Piller, 439

F.3d 1086, 1090 (2006); United States v. Cervantes-Flores, 421 F.3d 825, 831 (9th

Cir. 2005).

      The district court’s judgment is AFFIRMED.




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