                                                                                FILED
                            NOT FOR PUBLICATION                                 JAN 22 2013

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



                            FOR THE NINTH CIRCUIT


THOMAS DOUGLAS SCOTT,                            No. 11-55250

              Petitioner - Appellant,            D.C. No. 5:07-cv-00909-SVW-
                                                 PJW
  v.

MULE CREEK STATE PRISON; SUBIA,                  MEMORANDUM*
Warden,

              Respondents - Appellees.


                    Appeal from the United States District Court
                        for the Central District of California
                    Stephen V. Wilson, District Judge, Presiding

                       Argued and Submitted January 7, 2013
                               Pasadena, California

Before: CANBY, REINHARDT, and WARDLAW, Circuit Judges.

       Thomas Scott appeals the district court’s denial of his petition for habeas

relief from his California state court convictions for possession of cocaine,

robbery, and being a felon in possession of a firearm. The district court issued a

certificate of appealability on the issue of whether Scott’s Confrontation Clause


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
rights were violated by the introduction of laboratory results without the

opportunity to cross-examine the technician who performed the analysis. See 28

U.S.C. § 2253(c); U.S. Const. amend. VI; Crawford v. Washington, 541 U.S. 36

(2004). We have jurisdiction under 28 U.S.C. § 2253(a), and we affirm.

      Over Scott’s objection, the trial court allowed a forensic analyst to testify

about the contents of a laboratory report prepared by an analyst he supervised. The

laboratory report indicated that the substance found on Scott contained cocaine

consistent with base form, in a usable quantity of .26 grams. On direct appeal,

Scott argued that the introduction of this evidence violated his Sixth Amendment

Confrontation Clause rights under Crawford v. Washington, 541 U.S. 36 (2004).

      Rejecting Scott’s Confrontation Clause claim, the California Court of

Appeal did not apply Crawford in an objectively unreasonable manner, see 28

U.S.C. § 2254(d)(1), because Crawford did not clearly establish that forensic

laboratory reports were testimonial. See Meras v. Sisto, 676 F.3d 1184, 1190 (9th

Cir. 2012) (holding that the state appellate court’s application of Crawford was not

unreasonable where it concluded that forensic laboratory reports introduced into

evidence through the testimony of the analyst’s supervisor were non-testimonial




                                          2
“[i]n light of the extensive, reasoned disagreement between the lower courts . . .

and between the Justices when they reached the issue”).1

      We construe Scott's remaining argument as a motion to expand the

certificate of appealability. So construed, the motion is denied. See 9th Cir. R.

22-1(e); Hiivala v. Wood, 195 F.3d 1098, 1104-05 (9th Cir. 1999) (per curiam).

      AFFIRMED.




      1
        The California Court of Appeal’s decision was issued in 2006, before the
Supreme Court’s decision in Melendez-Diaz v. Massachusetts, 557 U.S. 305
(2009), holding that such reports are testimonial and its later decision that the
analyst who prepared the report must testify to avoid a Confrontation Clause
violation. Bullcoming v. New Mexico, 131 S. Ct. 2705, 2715-16 (2011). We are
required to examine the last reasoned decision of the state court under the law then
established. See Greene v. Fisher, 132 S. Ct. 38, 44 (2011); 28 U.S.C. §
2254(d)(1).

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