                                                                                FILED
                            NOT FOR PUBLICATION                                 MAR 26 2014

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



                            FOR THE NINTH CIRCUIT


JEFFREY ALAN SMITH,                               No. 11-55211

              Petitioner - Appellant,             D.C. No. 8:07-cv-00471-PA-JC

  v.
                                                  MEMORANDUM*
FRANK X. CHAVEZ, Warden, High
Desert State Prison,

              Respondent - Appellee.


                    Appeal from the United States District Court
                       for the Central District of California
                     Percy Anderson, District Judge, Presiding

                             Submitted March 4, 2014**
                                Pasadena, California

Before: PAEZ, N.R. SMITH, and HURWITZ, Circuit Judges.

       Jeffrey Alan Smith appeals the district court’s denial of his petition for

habeas relief under 28 U.S.C. § 2254 from convictions of first degree murder with

special circumstances, first degree burglary, and attempted robbery. 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).
1.    Smith argues that the trial court violated Bruton when it admitted an out-of-

court statement by his non-testifying co-defendant, Mark Taffolla, which directly

implicated Smith. See Bruton v. United States, 391 U.S. 123 (1968). Bruton,

however, applies to statements that violate the Confrontation Clause of the Sixth

Amendment. Id. at 126. In Crawford v. Washington, 541 U.S. 36, 51 (2004), the

United States Supreme Court held that the Confrontation Clause only bars

“testimonial” out-of-court statements. Although Crawford did not establish a

singular definition of “testimonial,” the Court explained that “[a]n accuser who

makes a formal statement to government officers bears testimony in a sense that a

person who makes a casual remark to an acquaintance does not.” Id. The disputed

statement—an account of the crime Taffolla gave to his girlfriend in a motel

room—was clearly not testimonial. Given that Bruton’s core holding relies on the

Confrontation Clause, the California Court of Appeal’s decision was not “contrary

to, [nor did it] involve[] an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States.” See 28 U.S.C. §

2254(d)(1).

2.    We decline to expand the Certificate of Appealability to incorporate Smith’s

additional, related argument that admission of Taffolla’s statement violated his due




                                          2
process rights. Smith has not made “a substantial showing of the denial of a

constitutional right.” See 28 U.S.C. § 2253(c)(2); 9th Cir. R. 22-1(e).

AFFIRMED.




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