                                                                   FILED
                                                       United States Court of Appeals
                        UNITED STATES COURT OF APPEALS         Tenth Circuit

                                   TENTH CIRCUIT                             June 23, 2010
                                                                         Elisabeth A. Shumaker
                                                                             Clerk of Court

 FARRELL RAY JONES,

           Petitioner–Appellant,

 v.                                                          No. 09-6297
                                                      (D.C. No. 5:08-CV-01236-F)
 JUSTIN JONES, Director,                                     (W.D. Okla.)

           Respondent–Appellee.



               ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, EBEL, and LUCERO, Circuit Judges.


       Farrell Ray Jones requests a certificate of appealability (“COA”) to appeal the

district court’s denial of his 28 U.S.C. § 2254 habeas petition. We deny a COA and

dismiss the appeal.

       Jones was convicted in Oklahoma state court of first degree felony murder. On

direct appeal, the Oklahoma Court of Criminal Appeals (“OCCA”) affirmed his

conviction. Jones then filed a § 2254 petition in federal district court, which was denied.

       *
         This order is not binding precedent except under the doctrines of law of the case,
res judicata, and collateral estoppel. It may be cited, however, for its persuasive value
consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
The district court further denied Jones’ request for a COA.

       A habeas petitioner must obtain a COA before he is permitted to appeal a district

court’s denial of relief. § 2253(c)(1)(A). We will grant a COA only if Jones can

demonstrate “that reasonable jurists could debate whether (or, for that matter, agree that)

the petition should have been resolved in a different manner or that the issues presented

were adequate to deserve encouragement to proceed further.” Slack v. McDaniel, 529

U.S. 473, 484 (2000) (quotations omitted).

       Jones raises a single issue before this court 1: He contends the OCCA applied an

incorrect legal standard in rejecting his Confrontation Clause challenge. During trial, the

prosecutor questioned Jones about his knowledge of statements made by a codefendant to

police in an effort to show that Jones was “a little bit upset with” the codefendant. The

prosecutor explained that he was attempting to establish a motive for Jones to blame the

codefendant. Jones argued to the OCCA that this line of questioning violated his

Confrontation Clause rights because the codefendant was not subject to cross

examination. This claim was rejected by the OCCA, which cited a state case for the

proposition that the Confrontation Clause does not prohibit the use of testimonial

statements for purposes other than establishing the truth of the matter asserted.

       To obtain habeas relief, Jones must show that the OCCA’s adjudication of his

       1
         Jones frames this issue as two separate arguments. He claims that the OCCA
applied an incorrect legal standard and claims that, as a result, its determination is not
entitled to deference. Because the first contention is incorrect, the second necessarily
fails.

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claim either “resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented” or was “contrary to, or involved an

unreasonable application of, clearly established Federal law.” § 2254(d)(1), (2). He has

not done so. Under Crawford v. Washington, 541 U.S. 36 (2004), the Confrontation

Clause “does not bar the use of testimonial statements for purposes other than

establishing the truth of the matter asserted.” Id. at 59 n.9; accord United States v.

Faulkner, 439 F.3d 1221, 1226 (10th Cir. 2006). Further, the OCCA’s determination that

the prosecutor’s questions were aimed at demonstrating motive rather than establishing

the truth of the statements was reasonable.

       Jones request for a COA is DENIED and the appeal is DISMISSED. Jones’

motion for leave to proceed in forma pauperis is GRANTED.



                                                    Entered for the Court


                                                    Carlos F. Lucero
                                                    Circuit Judge




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