                                                                           FILED
                              NOT FOR PUBLICATION                           MAY 14 2010

                                                                        MOLLY C. DWYER, CLERK
                       UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



MARIO GUERRA,                                     No. 07-55891

                Petitioner - Appellant,           D.C. No. CV 05-8313-CJC (RNB)

  v.
                                                  MEMORANDUM *
THOMAS FELKER,

                Respondent - Appellee.



                      Appeal from the United States District Court
                         for the Central District of California
                      Cormac J. Carney, District Judge, Presiding

                           Argued and Submitted May 3, 2010
                                 Pasadena, California

Before: O’SCANNLAIN and TALLMAN, Circuit Judges, and LEFKOW,**
District Judge.

       Petitioner-Appellant Mario Guerra appeals the district court’s denial of his

28 U.S.C. § 2254 petition, which alleged he was denied his right to confrontation

under the Sixth Amendment by the admission of his co-defendant Jairo Andrade’s

            *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
            The Honorable Joan H. Lefkow, United States District Judge for the
Northern District of Illinois, sitting by designation.
out-of-court statement. Because the parties are familiar with the facts and

procedural history, we do not restate them here except as necessary to explain our

disposition. We have jurisdiction pursuant to 28 U.S.C. § 2253. We review de

novo the district court’s denial of a § 2254 petition, Washington v. Lampert, 422

F.3d 864, 869 (9th Cir. 2005), and we affirm.

      Habeas relief is warranted only if the State court’s decision “was contrary to,

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

determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or

“was based on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding,” id. § 2254(d)(2). Guerra’s Confrontation

Clause challenge is governed by Ohio v. Roberts, 448 U.S. 56 (1980), overruled in

part by Crawford v. Washington, 541 U.S. 36 (2004), and Lilly v. Virginia, 527

U.S. 116 (1999).1

      Under Roberts, the admission of an accomplice’s out-of-court statement

inculpating a criminal defendant does not violate the Confrontation Clause if the

witness is unavailable and the statement bears particularized guarantees of

trustworthiness. Roberts, 448 U.S. at 66. Here, it is uncontested that Andrade was


      1
       Although Crawford abrogated the Roberts test, Roberts applies to this case
because Crawford was decided after Guerra’s conviction became final. Whorton v.
Bockting, 549 U.S. 406, 409 (2007).

                                          2
unavailable to testify at trial. A statement may be admitted “[w]hen a court can be

confident . . . that ‘the declarant’s truthfulness is so clear from the surrounding

circumstances that the test of cross-examination would be of marginal utility.’”

Lilly, 527 U.S. at 136 (quoting Idaho v. Wright, 497 U.S. 805, 820 (1990)).

      In evaluating the trustworthiness of Andrade’s statements, the California

Court of Appeal considered extrinsic evidence presented at Guerra’s trial. By

taking into account this corroborating evidence, the California Court of Appeal’s

decision was contrary to clearly established federal law. See Lilly, 527 U.S. at

137–38; Wright, 497 U.S. at 822–23. Thus, we review de novo whether the

admission of Andrade’s out-of-court statement violated Guerra’s confrontation

right. Frantz v. Hazey, 533 F.3d 724, 739 (9th Cir. 2008) (en banc).

      After de novo review, we conclude that Andrade’s statement contains

sufficient indicia of reliability to demonstrate its trustworthiness. Andrade’s

statement to Cesar Mariscal, a fellow gang member, was not made under coercive

conditions. Andrade identified Guerra as the other shooter involved in the incident

prior to inquiring whether Mariscal was cooperating with the police. Even after

expressing his suspicion that the police were involved, Andrade persisted in

confiding in Mariscal and continued to provide detailed information about the

shooting that only a participant in the crime would know. Although Andrade did


                                           3
implicate Guerra as the other shooter, in doing so he was not attempting to foist

blame on Guerra while minimizing his own responsibility. Instead, Andrade was

“unabashedly inculpating himself while making no effort to mitigate his own

conduct,” Padilla v. Terhune, 309 F.3d 614, 619 (9th Cir. 2002) (quoting United

States v. Boone, 229 F.3d 1231, 1234 (9th Cir. 2000) (internal quotation marks

omitted), even wishing that he could take more credit. That Andrade told Mariscal

in the course of conversation that another gang member, Scrappy, was in jail for

murder instead of vandalism does not detract from the reliability of Andrade’s

statements regarding the shooting given their highly detailed nature and Andrade’s

willingness to take credit for what had occurred. Thus, we conclude that

Andrade’s statements bear sufficient indicia of reliability and that their admission

at Guerra’s trial did not violate Guerra’s confrontation right.

         Guerra presented an uncertified issue in his opening brief, arguing that the

district court erred in denying his claim of ineffective assistance of trial counsel for

failure to interview potential alibi witnesses and present an alibi defense. We

construe its inclusion as a motion to expand the certificate of appealability.

Because reasonable jurists would not find the uncertified issue debatable, we deny

that motion. 28 U.S.C. § 2253(c)(2); Doe v. Woodford, 508 F.3d 563, 567 (9th Cir.

2007).


                                            4
AFFIRMED.




            5
