                           NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                        NOV 6 2017
                                                                      MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

OSCAR MORALES,                                  No.    16-16537

                Petitioner-Appellant,           D.C. No.
                                                2:12-cv-00544-TLN-KJN
 v.

ANTHONY HEDGPETH, Warden,                       MEMORANDUM*

                Respondent-Appellee.

                   Appeal from the United States District Court
                      for the Eastern District of California
                    Troy L. Nunley, District Judge, Presiding

                           Submitted October 11, 2017**
                             San Francisco, California

Before: THOMAS, Chief Judge, and REINHARDT and O’MALLEY,*** Circuit
Judges.

   1. The California Court of Appeal’s decision regarding the trial court’s

exclusion of hearsay statements made by a 911 caller was not contrary to or an


      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
            The Honorable Kathleen M. O'Malley, United States Circuit Judge for
the U.S. Court of Appeals for the Federal Circuit, sitting by designation.
unreasonable application of Davis v. Washington, 547 U.S. 813 (2006). Davis held:

“Statements are nontestimonial [for the purposes of the Confrontation Clause]

when made in the course of police interrogation under circumstances objectively

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

assistance to meet an ongoing emergency.” Id. at 822. Here, the defense sought to

introduce the 911 call, and thus there was no Confrontation Clause issue. Davis is

inapposite.

   2. The state court did not unreasonably determine the facts. For the reasons

stated above, the state court did not need to make findings regarding an “ongoing

emergency” because the testimonial/nontestimonial distinction is only relevant to a

Confrontation Clause analysis. Moreover, the state court did not need to determine

the identity of the 911 caller to conclude that the caller’s statements were

inadmissible hearsay.

   AFFIRMED.




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