                                                                              FILED
                           NOT FOR PUBLICATION                                SEP 16 2013

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                           FOR THE NINTH CIRCUIT


CAESAR GABRIEL COTA,                             No. 11-55171

              Petitioner - Appellant,            D.C. No. 8:09-cv-00613-DMG-
                                                 VBK
  v.

ANTHONY HEDGPETH, Warden,                        MEMORANDUM*
Salinas Valley State Prison, CDC,

              Respondent - Appellee.


                   Appeal from the United States District Court
                      for the Central District of California
                     Dolly M. Gee, District Judge, Presiding

                      Argued and Submitted August 27, 2013
                              Pasadena, California

Before: O’SCANNLAIN and CHRISTEN, Circuit Judges, and COGAN, District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
       **
             The Honorable Brian M. Cogan, District Judge for the U.S. District
Court for the Eastern District of New York, sitting by designation.

                                          1
      Petitioner Caesar Gabriel Cota was convicted of kidnaping to commit a sex

offense and forcible oral copulation. He appeals the district court’s denial of his

petition for habeas corpus. Cota claims that the admission of testimony concerning

out-of-court statements made by the victim to her aunt shortly after the attack

violated the Confrontation Clause of the Sixth Amendment.

      The California Court of Appeal held that such admission did not violate the

Confrontation Clause because the victim’s statements were not testimonial. The

petition cannot be granted unless this ruling 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). “That statutory

phrase refers to the holdings, as opposed to the dicta, of” the Supreme Court’s

decisions. Williams v. Taylor, 529 U.S. 362, 412 (2000).

      The state court’s ruling was not contrary to or an unreasonable application of

the Supreme Court’s Confrontation Clause cases. Neither Crawford v.

Washington, 541 U.S. 36 (2004), nor Davis v. Washington, 547 U.S. 813 (2006),

addressed “whether and when statements made to someone other than law

enforcement personnel are ‘testimonial.’” Davis, 547 U.S. at 823 n.2. Despite

Cota’s arguments to the contrary, the Supreme Court’s brief description of King v.

Brasier, 1 Leach 199, 168 Eng. Rep. 202 (1779), in Davis, 547 U.S. at 828, did not

                                          2
clearly establish federal law regarding whether statements made to a relative are

testimonial.

      AFFIRMED




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