     Case: 11-30139     Document: 00511901788         Page: 1     Date Filed: 06/27/2012




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

                                                                            FILED
                                                                           June 27, 2012
                                     No. 11-30139
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

CHRISTOPHER BUCKENBERGER,

                                                  Petitioner-Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                  Respondent-Appellee


                   Appeals from the United States District Court
                       for the Eastern District of Louisiana
                             USDC No. 2:10-CV-1194


Before KING, JOLLY, and GRAVES, Circuit Judges.
PER CURIAM:*
        Christopher Buckenberger, Louisiana prisoner # 102343, appeals the
district court’s denial of his 28 U.S.C. § 2254 application challenging his
convictions for attempted second degree murder, attempted forcible rape,
attempted second degree kidnaping, and public intimidation. The district court
granted a certificate of appealability (COA) as to whether Buckenberger was
entitled to habeas relief under the Confrontation Clause. We previously denied
Buckenberger’s motion to expand the issues on which COA was granted.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
   Case: 11-30139    Document: 00511901788      Page: 2    Date Filed: 06/27/2012

                                  No. 11-30139

      The denial of § 2254 relief under the Confrontation Clause is reviewed de
novo because it presents a mixed question of law and fact. See Fratta v.
Quarterman, 536 F.3d 485, 499 (5th Cir. 2008).            Because Buckenberger’s
Confrontation Clause claim was adjudicated on the merits by the state court, see
State v. Buckenberger, 984 So. 2d 751, 753 (La. Ct. App. 2008), the district court
was prohibited from granting habeas relief unless the state court’s decision (1)
“was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court,” or (2) “was based on an
unreasonable determination of the facts in light of the evidence presented in the
State court proceeding.” § 2254(d)(1). The “clearly established Federal law”
refers to holdings of the Supreme Court at the time of the state court’s decision.
See Williams v. Taylor, 529 U.S. 362, 412 (2000). An unreasonable application
of law differs from an incorrect application; thus a federal habeas court may
correct what it finds to be an incorrect application of law only if this application
also is objectively unreasonable. See id. at 409-11.
      Buckenberger argues that the arresting officer’s statements as to what the
victim told him should have been suppressed because they were not excited
utterances and there was no continuing emergency. He also asserts, without
support, that the officer and the victim fabricated their stories, that their
veracity could have been impeached, that the officer admitted violating the
Confrontation Clause, and that the state’s representation that the victim could
not be found to testify at trial was false. He contends that there was insufficient
evidence as to the victim’s emotional state and that admission of the victim’s
statements was not harmless error because it was key to his conviction.
      In Crawford v. Washington, 541 U.S. 36, 54-57, 68 (2004), the Supreme
Court held that out-of-court testimonial statements are barred by the Sixth
Amendment’s Confrontation Clause unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine the witness.               Only
testimonial statements “cause the declarant to be a ‘witness’ within the meaning

                                         2
   Case: 11-30139   Document: 00511901788      Page: 3   Date Filed: 06/27/2012

                                  No. 11-30139

of the Confrontation Clause.” Davis v. Washington, 547 U.S. 813, 821 (2006).
The state court correctly identified the governing law in Crawford and Davis,
but determined that the victim’s statements were made during an ongoing
emergency and were nontestimonial. The victim’s statements were made at the
scene, while under the stress of the incident, and while law enforcement was still
attempting to resolve the situation and to obtain any needed treatment for the
victim.   Given these circumstances, which are distinguishable from any
controlling Supreme Court precedent at the time of the state court’s decision, the
state court’s determination that the statements were nontestimonial is not
objectively unreasonable. See Harrington v. Richter, 131 S. Ct. 770, 786 (2011);
Williams, 529 U.S. at 409-11. Additionally, in light of the eyewitness testimony
regarding Buckenberger’s conduct, Buckenberger has not shown that the state
court’s determination that any error was harmless involved an unreasonable
application of clearly established federal law. See Williams, 529 U.S. at 409-11;
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993); Fratta, 536 F.3d at 507-08.
Accordingly, the district court’s judgment is AFFIRMED.
      Buckenberger’s motions to supplement his brief and his reply brief, and
his motion for judicial notice, are DENIED.




                                        3
