                             NOT FOR PUBLICATION

                     UNITED STATES COURT OF APPEALS                            FILED
                             FOR THE NINTH CIRCUIT                              MAR 20 2013

                                                                           MOLLY C. DWYER, CLERK
                                                                             U .S. C O U R T OF APPE ALS

JEFFREY JONES,                                     No. 11-35760

               Petitioner - Appellant,             D.C. No. 1:07-cv-01473-CL

  v.
                                                   MEMORANDUM *
JEFF PREMO,

               Respondent - Appellee.



                   Appeal from the United States District Court
                            for the District of Oregon
                  Owen M. Panner, Senior District Judge, Presiding

                        Argued and Submitted March 7, 2013
                                 Portland, Oregon

Before: TASHIMA, CLIFTON, and BEA, Circuit Judges.

       Petitioner Jeffrey Jones appeals the district court’s denial of his petition for a

writ of habeas corpus. We affirm.

       We review the denial of a habeas corpus petition brought under 28 U.S.C.

§ 2254 de novo. Arredondo v. Ortiz, 365 F.3d 778, 781 (9th Cir. 2004). We



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
cannot grant a habeas petition unless the state court decision was (1) “contrary to,

or involved an unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States,” or (2) “based on an

unreasonable determination of the facts in light of the evidence presented in the

State court proceeding.” 28 U.S.C. § 2254(d)(1)–(2).

      The Oregon Court of Appeals refused to apply the Supreme Court’s decision

in Lilly v. Virginia, 527 U.S. 116 (1999), to Jones’s challenge under the Sixth

Amendment and held that the confession of Jones’s accomplice was admissible at

trial. We have previously held that Lilly was clearly established federal law. See

Forn v. Hornung, 343 F.3d 990, 995 n.4 (9th Cir. 2003).

      Under then-controlling Supreme Court precedent,1 out-of-court statements

not within a firmly rooted hearsay exception were inadmissible under the

Confrontation Clause unless they contained particularized guarantees of

trustworthiness. Ohio v. Roberts, 448 U.S. 56, 66 (1980). Lilly held that

accomplice confessions implicating a defendant on trial are presumptively

unreliable. Lilly, 527 U.S. at 131. Also, it is “highly unlikely” that the

presumption can be overcome when the accomplice’s confession spreads blame to


      1
         Crawford v.Washington, 541 U.S. 36 (2004), overruled Ohio v. Roberts,
448 U.S. 56 (1980), under which Lilly was decided. But the parties do not dispute
that the pre-Crawford cases apply to this claim.

                                           2
another and the government is involved in the confession’s production. Id. at 137.

The confession of Jones’s accomplice implicated Jones in the murder and was

given while the accomplice was in police custody. The Oregon court’s decision to

refuse to apply Lilly to Jones’s Confrontation Clause claim was therefore contrary

to clearly established federal law. See Forn, 343 F.3d at 996.

      But that does not end our inquiry. A violation of the Confrontation Clause is

subject to harmless error analysis. Welchel v. Washington, 232 F.3d 1197, 1205

(9th Cir. 2000). Accordingly, we must determine whether the admission of the

confession “had substantial and injurious effect or influence in determining the

jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 637 (1993) (internal quotations

omitted). An error has substantial and injurious effect when the error “had or

reasonably may be taken to have had [effect] upon the jury’s decision.” Whelchel,

232 F.3d at 1206 (internal quotations and citation omitted).

      Here, the other evidence that implicated Jones was substantial. See

Delaware v. Van Arsdall, 475 U.S. 673, 684 (1986) (articulating non-exclusive list

of factors to consider when determining substantial influence). Even without the

accomplice’s confession, it seems unlikely that the jury would have believed

Jones’s implausible testimony, which included self-incriminating statements and

contradicted several inconsistent tales he told the police. See id. We conclude that


                                          3
the jury’s decision would not have been affected had the confession been excluded

from trial, so the erroneous admission of the confession did not have a substantial

and injurious effect.

      AFFIRMED.




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