                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                  March 7, 2012
                   UNITED STATES COURT OF APPEALS
                                                Elisabeth A. Shumaker
                                                                   Clerk of Court
                                 TENTH CIRCUIT


 DAVID GREGOR,

       Petitioner - Appellant,
                                                        No. 11-6244
 v.                                             (D.C. No. 5:09-CV-00464-W)
                                                       (W.D. Okla.)
 ERIC FRANKLIN, Warden,

       Respondent - Appellee.


                             ORDER
              DENYING CERTIFICATE OF APPEALABILITY


Before KELLY, HARTZ, and HOLMES, Circuit Judges.


      Petitioner, David Gregor, requests a Certificate of Appealability (“COA”)

to appeal the district court’s denial of his 28 U.S.C. § 2254 petition. On appeal,

Mr. Gregor claims that the violation of his confrontation clause rights under

Crawford v. Washington, 541 U.S. 36 (2004), was not harmless, and that he

received ineffective assistance of trial and appellate counsel based on the

Crawford violation. Aplt. Br. at 3, 6. The Oklahoma Court of Criminal Appeals

(“OCCA”) held that the Sixth Amendment post-conviction Crawford claim was

procedurally barred for failure to raise the claim on direct appeal, a holding not

challenged in this appeal. 1 R. 311; Gregor v. Franklin, No. 5:09-cv00464-W,

2011 WL 4401611 at *6 n.5 (W.D. Okla. Aug. 5, 2011). Nevertheless, the OCCA
did consider the Crawford claim in the context of Mr. Gregor’s ineffective

assistance of counsel claim, and concluded that no confrontation clause violation

occurred because the statements in question did not expressly inculpate Mr.

Gregor. 1 R. 311-12. To the contrary, on collateral review, both the magistrate

judge and the district court concluded that a Crawford violation occurred—for the

purposes of assessing the ineffective assistance of counsel claim—when the state

trial court admitted testimonial statements to a police officer by a non-testifying

co-defendant. Gregor, 2011 WL 4401611 at *6; Gregor v. Franklin, No. 5:09-

cv00464-W, 2011 WL 4006576 at *3, n.3 (W.D. Okla. Sept. 8, 2011). Ultimately,

however, both the magistrate judge and the district court concluded that the result

reached by the OCCA on the ineffective assistance claim was entitled to

deference. 1 While we reach the same result, I conclude that the OCCA did not

misapply clearly established Supreme Court precedent in determining that there

was no Crawford violation, and therefore Mr. Gregor does not succeed on his

ineffective assistance of counsel claim under Strickland.




      1
        The magistrate judge so held because it was reasonable to conclude that
the confrontation clause violation was harmless error and did not prejudice Mr.
Gregor under the Strickland v. Washington test, 466 U.S. 688 (1984). Gregor v.
Franklin, 2011 WL 4401611 at *7-8. The district court concluded that Mr.
Gregor could not show that the OCCA’s rejection of his ineffective assistance
claim was unreasonable given Supreme Court precedent. Gregor v. Franklin,
2011 WL 4006576 at *3.

                                        -2-
                                     Background

      On March 29, 2007, a jury convicted Mr. Gregor of attempted grand

larceny for attempting to steal several pieces of equipment from the Western

Equipment yard near Clinton, Oklahoma, on April 16, 2006. None of the five

persons charged testified at trial. At trial, the investigator for the Custer County

Sheriff’s Department testified as to statements made by a co-defendant, Mr.

Rackley, during his interrogation:

      I basically asked him what had happened earlier in the morning,
      and he told me that they had been at Lake Thunderbird all
      evening and they were on their way to Woodward because Mr.
      Gregor had to take a urine test for his job. They had stopped in
      Weatherford and got something to eat and after they left there,
      the Gregors got into an argument, and she kicked them out. I
      then asked him what was he doing around Western Equipment,
      and he then denied being around Western Equipment. I said,
      “Well, what if I said your footprints were found on the Western
      Equipment yard?” He said, “Well, I walked through there, but I
      didn’t steal nothing.”


2 Trial Tr. 325. On direct appeal, the OCCA held that the statements of Mr.

Gregor’s non-testifying co-defendant did not deny him his confrontation rights

because those statements did not “expressly implicate” him in the crime. 1 R.

315; see Bruton v. United States, 391 U.S. 123, 137 (1968). Mr. Gregor sought

post-conviction relief on the theory that introduction of the above statement (1)

denied him his rights under Crawford, and (2) should have been raised on direct

appeal (ineffective assistance of appellate counsel). The OCCA held that the


                                         -3-
former was procedurally barred, and the latter lacked merit because the co-

defendant’s statement still must expressly implicate the defendant to amount to a

Crawford violation. Therefore, there was no Crawford violation and counsel’s

failure to raise the issue was not deficient. 1 R. 312.



                                     Discussion

      To establish ineffective assistance of counsel, Mr. Gregor must prove (1)

deficient performance and (2) prejudice. Strickland v. Washington, 466 U.S. 668,

694 (1984). A federal habeas court must defer to the state court’s proceedings on

Mr. Gregor’s ineffective assistance claims unless those proceedings “resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly

established Federal law” or “resulted in a decision that was based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1), (2). Section 2254(d) contains

difficult standards to satisfy—a defendant must show that a state court’s ruling is

“so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded

disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011). Moreover,

factual findings made by state courts are presumed correct unless the presumption

is rebutted by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

      Applying these deferential standards, it is clear that Mr. Gregor’s claim for

                                         -4-
ineffective assistance of counsel fails under the first requirement of Strickland.

Although the magistrate judge concluded that the statements above were “clearly

testimonial” under Crawford because they were the product of police

interrogation, 541 U.S. at 68, we have observed that “not every statement made in

response to an interrogation is testimonial” for purposes of confrontation clause

analysis, United States v. Smalls, 605 F.3d 765, 779 (10th Cir. 2010). Rather, the

emphasis must be on the responses generated. Davis v. Washington, 547 U.S.

813, 822 n.1 (2006). Moreover, Crawford itself deals with witnesses against the

accused bearing inculpatory testimonial statements. Crawford, 541 U.S. at 51,

68. Thus, the OCCA could reasonably conclude (as it did with Mr. Gregor’s

Bruton claim raised on direct appeal) that Mr. Rackley’s statement to the officer

simply did not inculpate Mr. Gregor in criminal activity, and therefore its

introduction did not amount to a Crawford violation. “Federal courts may no

longer extract clearly established law from the general legal principles developed

in factually distinct contexts. . . . [W]hether the law is clearly established is

dispositive of the § 2254(d)(1) analysis.” See Lambert v. Workman, 594 F.3d

1260, 1263 (10th Cir. 2010). Accordingly, Mr. Gregor cannot prove deficient

performance of counsel under Strickland. Therefore, it is unnecessary to reach

Strickland’s prejudice requirement.




                                          -5-
          We DENY a COA, and DISMISS this appeal. We GRANT Mr. Gregor IFP

status.

                                    Entered for the Court


                                    Paul J. Kelly, Jr.
                                    Circuit Judge




                                     -6-
11-6244 - Gregor v. Franklin

HARTZ, Circuit Judge, concurring:

      I concur in the result. I join the district court in believing that the

magistrate judge got it right. In my view, the statement by the codefendant was

testimonial evidence offered for the truth of the matter asserted. But, after

reviewing the trial evidence, I believe that it would not be unreasonable (in fact, I

think it would be quite reasonable) to decide that admission of the evidence was

harmless error.
11-6244, Gregor v. Franklin

HOLMES, J., concurring in the result.

      I respectfully concur in the decision to deny Petitioner David Gregor a

Certificate of Appealability (“COA”). Specifically, I would hold that reasonable

jurists could not debate the district court’s conclusion that the Oklahoma Court of

Criminal Appeals (“OCCA”) did not unreasonably apply Strickland v.

Washington, 466 U.S. 688 (1984), in rejecting Mr. Gregor’s claim of ineffective

assistance of appellate counsel. However, I respectfully disagree with the

reasoning of my esteemed colleague, Judge Kelly.

      In my view, it was clearly established law under Crawford v. Washington,

541 U.S. 36 (2004), that testimonial statements may implicate the protections of

the Sixth Amendment, even if they do not directly inculpate or expressly

implicate the defendant. The critical inquiry under Crawford focuses on whether

a declarant could have objectively perceived that the primary purpose of his or

her statement was for use in a criminal investigation or prosecution—irrespective

of whether that statement could incriminate the defendant. See 541 U.S. at 51

(discussing “[v]arious formulations of this core class of ‘testimonial’

statements”); see also Davis v. Washington, 547 U.S. 813, 822 (2006) (noting that

statements made “in response to police interrogation” are “testimonial when the

circumstances objectively indicate . . . that the primary purpose of the

interrogation is to establish or prove past events potentially relevant to later

criminal prosecution”); United States v. Smalls, 605 F.3d 765, 778 (10th Cir.
2010) (“Synthesizing Crawford and Davis, we might today formulate a definition

of a testimonial statement which reads: a formal declaration made by the

declarant that, when objectively considered, indicates the primary purpose for

which the declaration was made was that of establishing or proving some fact

potentially relevant to a criminal prosecution.”).

      Therefore, the OCCA unreasonably interpreted Crawford, when it held:

“Crawford did not change the principle recognized in Bruton that a co-

defendant’s statements must directly inculpate the defendant before a

confrontation clause violation occurs.” R., Vol. 1, at 312 (Order Affirm. Den. of

Appl. for Post-Conviction Relief, dated Oct. 7, 2010). In effect, in rejecting Mr.

Gregor’s distinct Crawford claim, the OCCA rendered the rule of Crawford

conterminous with that of Bruton, and concluded that if, as it had previously held,

the latter was not violated, then neither could the former have been. However,

this reading of Crawford defies logic because Bruton arises in the narrow context

of joint trials of co-defendants and is predicated on the Confrontation Clause

principles of Crawford; it cannot be read to delimit Crawford’s scope. See, e.g.,

Smalls, 605 F.3d at 768 n.2 (“[T]he Bruton rule, like the Confrontation Clause

upon which it is premised, does not apply to nontestimonial hearsay statements.”

(emphasis added)); see also United States v. Johnson, 581 F.3d 320, 326 (6th Cir.

2009) (noting that “the Bruton rule guards against a risk that arises in joint trials”).




                                          -2-
      Nonetheless, in my view, the OCCA still reasonably concluded under

Strickland that Mr. Gregor’s appellate counsel was not constitutionally ineffective

for failing to present a Crawford claim because such a claim would have been

without merit. In his supplemental brief before the district court, Mr. Gregor

focused his Crawford arguments on the testimony of co-defendant Rackley. I

agree with the district court (as well as the magistrate judge) that co-defendant

Rackley’s statements were “clearly testimonial” under Crawford. R., Vo. 1, at

371 n.3 (Dist. Ct. Order, dated Sept. 8, 2011). However, when statements are not

admitted for a hearsay purpose (i.e., to prove the truth of the matter asserted),

they do not fall within the protective ambit of Crawford. See 541 U.S. at 59 n.9

(noting that the Confrontation Clause “does not bar the use of testimonial

statements for purposes other than establishing the truth of the matter asserted”);

see also United States v. Pablo, 625 F.3d 1285, 1291 (10th Cir. 2010) (“A

defendant’s confrontation rights are implicated by the admission of testimonial

statements against him, however, only when they are admitted to establish the

truth of the matter asserted in the statement.”). As the State has repeatedly

asserted in this litigation, the co-defendants’ statements “were not offered to

establish the truth of what the co-defendants said,” R., Vol. 1, at 254 (Resp. to

Suppl. Br. of Pet’r, dated Nov. 19, 2010), and, in particular, co-defendant

Rackley’s statements were “offered only to show that the statements were made,

and that they were inconsistent,” id. Accordingly, the admission of those

                                          -3-
statements—in particular, co-defendant Rackley’s statements—did not implicate

the protections of Crawford and, consequently, Mr. Gregor’s appellate counsel

could not be deemed constitutionally ineffective for failing to assert a Crawford

claim. The OCCA’s rejection of Mr. Gregor’s claim for ineffective assistance of

appellate counsel was thus not an unreasonable application of Strickland, and

reasonable jurists could not debate this outcome. Accordingly, on this claim, I

would deny Mr. Gregor a COA.




                                        -4-
