          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                  Fifth Circuit

                                                                  FILED
                                                                  July 22, 2008
                                No. 07-30500
                              Summary Calendar               Charles R. Fulbruge III
                                                                     Clerk

JESSIE MARTIN

                                           Petitioner-Appellant

v.

WARDEN FORCHT WADE CORRECTIONAL CENTER, also known as Veneita
Michael

                                           Respondent-Appellee


                 Appeal from the United States District Court
                    for the Western District of Louisiana
                           USDC No. 3:06-CV-1383


Before WIENER, STEWART, and CLEMENT, Circuit Judges.
PER CURIAM:*
      Jessie Martin, Louisiana state prisoner # 121275, appeals from the denial
of his 28 U.S.C. § 2254 petition, challenging his conviction and sentence for
attempted manslaughter. The district court granted a certificate of appealability
(COA) on the issues whether the admission at trial of a tape recording of a 911
telephone call and the victim’s statement to the police officer who responded to
the 911 call violated Martin’s Sixth Amendment Confrontation Clause rights.


      *
      Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion
should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
                                  No. 07-30500

Martin argues that his right to confrontation was violated under Crawford v.
Washington, 541 U.S. 36 (2004), because the district court admitted into
evidence the 911 tape recording, but Claudia Evans, the victim, did not testify
at trial. He also challenges, under the Confrontation Clause, the admission of
the testimony of the officer who responded to the 911 call.
      The AEDPA’s scheme of deference is to be used in reviewing the claims in
a state prisoner’s habeas petition that were adjudicated in state court
proceedings on the merits of the federal constitutional questions. See § 2254(d);
see Hill v. Johnson, 210 F.3d 481, 484-85 (5th Cir. 2000). Because it is not
apparent that the state court adjudicated the merits of the federal constitutional
claims, review is de novo. See Nobles v. Johnson, 127 F.3d 409, 416 (5th Cir.
1997).
      The Sixth Amendment states that “[i]n all criminal prosecutions, the
accused shall enjoy the right . . . to be confronted with the witnesses against
him.” U.S. CONST. AMEND. VI. In Crawford, the Court held that the right to
confrontation bars the “admission of testimonial statements of a witness who did
not appear at trial unless he was unavailable to testify, and the defendant had
had a prior opportunity for cross-examination.” Crawford, 541 U.S. at 53-54.
Evans’s statements to the 911 operator were nontestimonial because the
circumstances, viewed objectively, indicated that the primary purpose of the
interrogation by the 911 operator was “to enable police assistance to meet an
ongoing emergency.” Davis v. Washington, 547 U.S. 813, 822 (2006); see also
United States v. Proctor, 505 F.3d 366, 370-72 (5th Cir. 2007), cert. denied, 128
S. Ct. 1457 (2008). To the extent that Martin challenges the portion of the tape
involving the exchange between Catherine Johnson, Evans’s mother, and the
operator, the trial court instructed the jury to disregard the portion of the tape
in which “the louder female voice makes a statement where she is guessing
about what might have happened.” Moreover, because Johnson testified at trial,
Martin’s right to confrontation was not violated. See Crawford, 541 U.S. at 53-

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54. Martin has not shown that his right to confrontation was violated by the
trial court’s admission of the tape of the 911 call. See Davis, 547 U.S. at 827-28;
Proctor, 505 F.3d at 372.
      Martin argues that his right to confrontation was violated by the
admission into evidence of statements Evans made to police officers responding
to the 911 call. Although Martin argues that the testimony of “various officers”
violated his right to confrontation, the only specific officers he mentions are
Officer Joe Reynolds and Detective Chuck Wilson, and he fails to identify any
specific trial testimony. Conclusional allegations on a critical issue do not raise
a constitutional issue and are not sufficient to warrant habeas relief. See Koch
v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990).
      To the extent that Martin suggests that 1) his right to confrontation was
violated because an officer testified that Evans stated that the attack was
unprovoked, and 2) his right to confrontation was violated by the trial testimony
of Chuck Wilson, these claims are raised for the first time on appeal. “A
contention not raised by the habeas petitioner in the district court cannot be
considered for the first time on appeal from that court’s denial of habeas relief.”
Johnson v. Puckett, 176 F.3d 809, 814 (5th Cir. 1999) (internal quotation marks
and citation omitted).
      Martin challenges Officer Reynolds’s testimony that the victim identified
him as the person who stabbed her. In situations involving domestic disputes,
“‘[o]fficers called to investigate . . . need to know whom they are dealing with
in order to assess the situation, the threat to their own safety, and possible
danger to the potential victim.’” Davis, 547 U.S. at 832 (quoting Hiibel v. Sixth
Judicial Dist. Court of Nev., Humboldt Cty., 542 U.S. 177, 186 (2004)). We need
not decide, however, for purposes of this appeal whether the admission of the
testimony violated the Confrontation Clause because any error was harmless.
See Horn v. Quarterman, 508 F.3d 306, 322 n.24 (5th Cir. 2007), cert. denied, 128
S. Ct. 2084 (2008). In federal habeas proceedings, the harmless error analysis

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looks to whether the error “had substantial and injurious effect or influence in
determining the jury’s verdict.” Id. (internal quotation marks and citation
omitted).   As the district court observed, Evans identified Martin as the
individual who stabbed her during the taped 911 call; Martin admitted to
“hitting” Evans with a knife in his recorded statement to police, which was
admitted into evidence at trial; and Evans’s statement implicating Martin in the
stabbing was distinct from the issues as to whether Martin acted in self defense
or had the requisite intent, both of which were significant issues at trial. Any
Confrontation Clause error was harmless. See Horn, 508 F.3d at 322 n.24.
      AFFIRMED.




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