                     United States Court of Appeals
                              FOR THE EIGHTH CIRCUIT
                                 ________________

                                    No. 09-2269
                                 ________________

Lennell M. Martin,                          *
                                            *
             Appellant,                     *
                                            *      Appeal from the United States
      v.                                    *      District Court for the
                                            *      District of Minnesota.
Robert Fanies, Warden of Rush               *
City Minnesota Correctional                 *      [UNPUBLISHED]
Facility,                                   *
                                            *
             Appellee.                      *

                                 ________________

                             Submitted: February 8, 2010
                                 Filed: February 19, 2010
                                ________________

Before WOLLMAN, HANSEN, and MELLOY, Circuit Judges.
                      ________________

PER CURIAM.

       Lennell M. Martin appeals from the district court's1 denial of his application for
a writ of habeas corpus. See 28 U.S.C. § 2254. He claims that the state court violated
his clearly established rights under the Sixth Amendment's Confrontation Clause when


      1
       The Honorable Paul A. Magnuson, United States District Judge for the District
of Minnesota, adopting the report and recommendation of the Honorable Jeffrey J.
Keyes, United States Magistrate Judge for the District of Minnesota.
it admitted evidence of a dying declaration, and that it violated his clearly established
Fourteenth Amendment Due Process right to be present at every critical stage of the
criminal proceedings when the trial judge answered four jury questions outside of his
presence. We affirm.

                                            I.

       Martin was convicted in Minnesota state court of first degree murder following
the shooting death of Curtis Anthony, for which he is serving a life sentence.
Relevant to Martin's Confrontation Clause claim, the state trial court allowed
Anthony's girlfriend to testify that immediately after Anthony was shot he said to her,
"Call the Police. Jeff and Lenair." (Appellant's Br. at 9.) Martin did not object to the
testimony during trial, but he challenged the testimony on direct appeal to the
Minnesota Supreme Court as violating his Sixth Amendment Confrontation Clause
rights. Reviewing the claim for plain error, the Minnesota Supreme Court avoided the
issue of whether the statement was testimonial or nontestimonial for purposes of
Crawford v. Washington, 541 U.S. 36 (2004), and concluded that there was no
constitutional violation because a dying declaration is an exception to the Crawford
rule.

        Martin's second issue on appeal relates to four questions presented by the jury
to the judge during deliberations. Prior to sending the case to the jury, the trial judge,
the prosecutor, and Martin's defense counsel all agreed that the judge would not
summon the attorneys for jury questions unless the question was "of real substance."
The trial judge told the prosecutor and Martin's defense counsel that she would deny
any jury requests for definitions, unless the question presented was complicated, in
which case she would summon the attorneys and Martin. Martin was present during
this discussion of how to handle the jury questions, his counsel agreed to the proposed
procedure, and Martin did not object.



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        The jury subsequently asked the trial judge four questions, two related to what
time they would return to the hotel, one requesting a dictionary, and one asking,
"[d]oes [the] rule of law define rash impulse? What is it?" (Appellant's Br. at 34.)
The judge denied the request for the dictionary, and she responded to the question
about defining rash impulse with a note stating, "[y]ou have the law the Judge has
given you. That is the only law that applies to this case." (Id.) On direct appeal,
Martin argued that the judge's interactions with the jury outside of his presence
violated his right under the Fourteenth Amendment's Due Process Clause to be present
at all critical stages of his criminal trial. The Minnesota Supreme Court rejected the
claim, concluding that the jury questions all fell within the agreement with the trial
court that the parties need not be summoned for non-substantive questions, and that
Martin, through his attorney, had waived any right he had to be present for the jury
questions.

       In Martin's habeas action, the district court concluded that the Minnesota
Supreme Court did not unreasonably apply any clearly established federal law. The
court concluded that the relevant Supreme Court precedents supported the Minnesota
Supreme Court's conclusion that the admission of a dying declaration is an exception
to the Confrontation Clause as discussed in Crawford, and that no Supreme Court
precedent required that a criminal defendant personally waive the right to be present
during non-substantive jury questions. Martin appeals.

                                           II.

       As relevant to Martin's claims, a state prisoner is entitled to habeas relief only
if his state court proceedings "(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). On
appeal, "we review the district court's findings of fact for clear error and its



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conclusions of law de novo." Garcia v. Bertsch, 470 F.3d 748, 752 (8th Cir. 2006)
(internal marks omitted).

       The Supreme Court held in Crawford that the Confrontation Clause 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. The Supreme Court drew these
limitations (unavailability and prior opportunity for cross-examination) from the
common law established at the time of the Constitution's framing. Id. at 54. The
Court concluded that the "right . . . to be confronted with the witnesses against him"
as guaranteed by the Sixth Amendment was "most naturally read as a reference to the
right of confrontation at common law, admitting only those exceptions established at
the time of the founding." Id. In rejecting the dissent's argument that there were
exceptions for hearsay evidence that were also well established in 1791, the majority
distinguished between testimonial and nontestimonial statements, responding that
there was "scant evidence that exceptions were invoked to admit testimonial
statements against the accused in a criminal case." Id. at 56. The Supreme Court
noted however, that "[t]he one deviation we have found involves dying declarations."
Id. at 56 n.6. The Supreme Court noted this historic exception to the exclusion of
testimonial statements again in Giles v. California, 128 S. Ct. 2678, 2682-83 (2008)
("We have previously acknowledged that two forms of testimonial statements were
admitted at common law even though they were unconfronted. The first of these were
declarations made by a speaker who was both on the brink of death and aware that he
was dying." (internal citation omitted)).

      "To obtain habeas relief, [Martin] must . . . be able to point to a Supreme Court
precedent that he thinks the [Minnesota] state courts acted contrary to or unreasonably
applied." See Buchheit v. Norris, 459 F.3d 849, 853 (8th Cir. 2006) (internal marks
omitted). The state court's application of federal law "must be shown to be not only
erroneous, but objectively unreasonable." Middleton v. McNeil, 541 U.S. 433, 436

                                         -4-
(2004) (per curiam) (internal marks omitted). Martin relies on Crawford, arguing that
the "express reasoning of Crawford indicates" that the Confrontation Clause does not
provide an exception for testimonial dying declarations (Appellant's Br. at 26),
making the Minnesota Supreme Court's holding that there was such an exception
unreasonable. Crawford did not involve a dying declaration, and Martin recognizes
that there is no clear Supreme Court precedent on point. In fact, Martin offers no
federal authority to support his position beyond the general holding of Crawford,
which itself noted the likely exception for dying declarations. "[A] state court does
not act contrary to or unreasonably apply clearly established federal law if there is no
controlling Supreme Court holding on the point." Losh v. Fabian, No. 09-1394, 2010
WL 6100, at * 2 (8th Cir. Jan. 4, 2010). Given the state of the federal law, the
Minnesota Supreme Court's decision to apply the United States Supreme Court's dicta
as stated in Crawford itself and repeated in Giles was not objectively unreasonable.
Cf. Jones v. St. Paul Cos., 495 F.3d 888, 893 (8th Cir. 2007) ("[F]ederal courts are
bound by the Supreme Court's considered dicta almost as firmly as by the Court's
outright holdings, particularly when the dicta is of recent vintage and not enfeebled
by any later statement." (internal marks omitted)).

       We also reject Martin's argument that the Minnesota courts' conclusion that his
attorney could waive whatever right he had to be present for the jury questions was
objectively unreasonable. Martin relies on the general rule that the Due Process
Clause guarantees a criminal defendant the right to be present "at any stage of the
criminal proceeding that is critical to its outcome if his presence would contribute to
the fairness of the procedure." Kentucky v. Stincer, 482 U.S. 730, 745 (1987). Yet,
no Supreme Court case holds that a judge's receipt of and response to non-substantive
jury questions2 during deliberation is one of those critical stages. Further, with the

      2
        The Minnesota Supreme Court concluded that the four questions posed by the
jury were non-substantive and fell within the agreement that the trial court would
handle all non-substantive jury questions without summoning the attorneys or Martin.
This is a factual determination we take as true absent clear and convincing evidence
to the contrary. See 28 U.S.C. § 2254(e)(1). Martin offers no such evidence, and we
presume that this fact finding is correct.

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exception of certain fundamental rights that may only be waived by the defendant
personally, see New York v. Hill, 528 U.S. 110, 114 (2000) (listing as examples of
those fundamental rights the right to counsel and the right to plead not guilty), a
defendant's constitutional rights "may be effected by action of counsel." Id. Again,
Martin concedes that there is no Supreme Court case directly on point that holds that
the right to be present during the discussion of jury questions is one of the
fundamental rights that cannot be waived by defense counsel. The Minnesota
Supreme Court's decision was not an objectively unreasonable application of clearly
established Supreme Court precedent. See Losh, 2010 WL 6100, at * 2.

                                         III.

      The district court's denial of Martin's application for habeas relief is affirmed.
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