                            NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              SEP 07 2010

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

JERRY L. HARRIS,                                 No. 09-35613

              Petitioner - Appellant,            D.C. No. 2:05-cv-00885-JLR

  v.
                                                 MEMORANDUM*
SCOTT FRAKES, Superintendent,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Western District of Washington
                     James L. Robart, District Judge, Presiding

                       Argued and Submitted August 4, 2010
                               Seattle, Washington

Before: NOONAN, THOMPSON and BERZON, Circuit Judges.

       Jerry L. Harris appeals from the district court’s judgment dismissing his 28

U.S.C. § 2254 petition for writ of habeas corpus. We affirm.

       The district court granted a Certificate of Appealability as to the following

issues: “(1) [whether] the portion of the claim relying upon Ohio v. Roberts, 448



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
U.S. 56 (1980), is unexhausted, and (2) [whether] Crawford v. Washington, 541

U.S. 36 (2004), may not be applied retroactively in this case.”

      The first issue is uncontested because the government conceded on appeal

that Harris’s claim was exhausted.

      We affirm the district court’s decision not to apply Crawford v. Washington,

541 U.S. 36 (2004) despite the State’s possible waiver of the non-retroactivity bar

announced in Teague v. Lane, 489 U.S. 288 (1989), and made applicable to

Crawford by Whorton v. Bocking, 549 U.S. 406, 409 (2007). The dispositive

Confrontation Clause issue in this case is whether Sawyer’s redacted statement, not

admitted against Harris, was nonetheless so prejudicial as to Harris as to violate the

protective rule announced in Bruton v. United States, 391 U.S. 123 (1968), and

refined in Richardson v. Marsh, 481 U.S. 200 (1987) and Gray v. Maryland, 523

U.S. 185 (1998). As to this issue, both Crawford and Roberts are inapposite

because those cases addressed admission of a declarant’s statements as substantive

evidence against a defendant. Retroactive application of Crawford, therefore,

would not affect the disposition of this case. Accordingly, we hold that there was

no Roberts or Crawford error, without deciding whether we would apply Crawford

retroactively given the procedural background of this case were it otherwise

applicable.


                                         -2-
      We construe Harris’s argument in his brief that there was Bruton error in this

case as a motion to expand the certificate of appealability. See 9th Cir. R. 22-1(e).

So construing the briefs, we grant the certificate, as Harris has made a “substantial

showing of the denial of a constitutional right” as that term has been interpreted.1

28 U.S.C. § 2253(c)(2); see Miller-El v. Cockrell, 537 U.S. 322, 336 (2003) (“A

petitioner must show that reasonable jurists could debate whether . . . the petition

should have been resolved in a different manner or that the issues presented were

adequate to deserve encouragement to proceed further.” (internal quotations

omitted)).

      We cannot conclude, however, that the state court’s decision as to the

Bruton argument was “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court.” 28 U.S.C.

§ 2254(d)(1). The form of redaction used at trial in this case falls squarely between

that approved in Richardson and that disapproved in Gray. There is therefore no

“clearly established Federal law, as determined by the Supreme Court” to apply.

See Lockyer v. Andrade, 538 U.S. 63, 74–75 (2003).




      1
         Ordinarily, we afford an opportunity to respond when expanding a
certificate of appealability. See 9th Cir. R. 22-1(f). No response is necessary in
this case , however, as the State thoroughly addressed the Bruton issue in its brief.

                                         -3-
      We decline to expand the certificate of appealability as to the other

uncertified issues Harris raises in his brief. See 9th Cir. R. 22-1(e). The arguments

on those issues do not meet the standard for granting a certificate of appealability.

      AFFIRMED.




                                         -4-
