                                                                            FILED
                     UNITED STATES COURT OF APPEALS                          JAN 07 2011

                                                                        MOLLY C. DWYER, CLERK
                             FOR THE NINTH CIRCUIT                        U.S . CO U RT OF AP PE A LS




CARLIS A. GRAGG,                                  No. 09-17268

              Petitioner - Appellant,             D.C. No. 2:08-cv-02162-GGH
                                                  Eastern District of California,
  v.                                              Sacramento

K. PROSPER,
                                                  ORDER
              Respondent - Appellee.



Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

       The memorandum disposition filed December 9, 2010, and appearing at

2010 WL 5030093, is withdrawn and replaced with the accompanying

memorandum disposition. With this amendment, the panel has voted to deny the

petition for panel rehearing. The petition for panel rehearing is denied and the

panel will entertain no further petitions for rehearing.
                                                                             FILED
                            NOT FOR PUBLICATION                               JAN 07 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                        U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



CARLIS A. GRAGG,                                  No. 09-17268

              Petitioner - Appellant,             D.C. No. 2:08-cv-02162-GGH

  v.
                                                  MEMORANDUM *
K. PROSPER,

              Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                  Gregory G. Hollows, Magistrate Judge, Presiding

                           Submitted December 7, 2010**
                             San Francisco, California

Before: D.W. NELSON, THOMPSON, and McKEOWN, Circuit Judges.

       Carlis A. Gragg appeals from the district court's denial of his petition for

habeas corpus filed pursuant to 28 U.S.C. y 2254. We have jurisdiction under 28

U.S.C. y 1291, and we affirm.


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      Gragg was found guilty of maµing a criminal threat in violation of California

Penal Code y 422. The California Court of Appeal affirmed the conviction in a

reasoned decision. People v. Gragg, No. C053681, 2008 WL 933554 (Cal. Ct.

App. Apr. 8, 2008). The California Supreme Court denied review without

comment. The district court denied prisoner's federal habeas corpus petition, and

issued a certificate of appealability under 28 U.S.C. y 2253(c).

      The certified issue is whether admission of Jade Spricµman's statements in

the 911 recordings violated Gragg's rights under the Confrontation Clause of the

Sixth Amendment. To obtain relief under y 2254, Gragg must show that the state

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

established Federal law, as determined by the Supreme Court of the United States;

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. y 2254(d); see Williams v. Taylor, 529 U.S. 362, 412-13 (2000). We

review the decision of the California Court of Appeal, as the 'last reasoned

decision' of the state court. Ylst v. Nunnemaµer, 501 U.S. 797, 804-06 (1991).

      We hold that the California Court of Appeal's characterization of the

statements in both 911 calls as non-testimonial under Davis v. Washington, 547

U.S. 813 (2006), and thus not subject to the Confrontation Clause, was not an


                                          2
unreasonable application of clearly established Federal law nor an unreasonable

determination of the facts presented. Davis establishes that a statement is non-

testimonial when made 'under circumstances objectively indicating that the

primary purpose of the interrogation is to enable police . . . to meet an ongoing

emergency.' Id. at 822.

      Gragg argues that the state court unreasonably applied Davis when it failed

to consider the evidence of Spricµman's alleged revengeful intent. However,

Spricµman's alleged subjective intentions at the time she made the calls are

irrelevant because the circumstances surrounding the calls objectively indicated an

ongoing emergency situation. See id. Next, Gragg argues the state court failed to

recognize the point at which the second call produced testimonial statements. The

district court drew a line distinguishing the point at which it believed the second

call began to produce testimonial statements, but concluded that because Gragg

had a sufficient opportunity to cross-examine Spricµman, his Confrontation Clause

rights were not violated. We taµe no position on these questions because, even

assuming the portion of the second call was testimonial, and even if Gragg had, as

he argues, an insufficient ability to cross-examine Spricµman, we must deny

Gragg's habeas petition because he has failed to show the 'substantial and

injurious effect or influence' of these statements. See Brecht v. Abrahamson, 507


                                           3
U.S. 619, 627 (1993). The threats that were the basis of the conviction were not

discussed during the disputed portions of the call.

      AFFIRMED.




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