Richard Lee MASON, Petitioner-Appellant, v. M. YARBOROUGH, Respondent-Appellee, 447 F.3d 693

MICHAEL DALY HAWKINS, Circuit Judge. Petitioner-Appellant Richard Lee Mason (“Mason”) seeks habeas corpus review of his state court convictions arising out of two separate shooting incidents in Stockton, California, one resulting in first-degree murder charges. Mason’s fundamental contention here is that the admission of the fact that a co-participant made a statement to law-enforcement, but not the content of that statement, violated his confrontation rights. Exercising our jurisdiction under 28 U.S.C. § 1291, as constrained by 28 U.S.C. § 2254(d)(1), we affirm the district court’s denial of habeas relief.

In the early morning hours of May 26, 1996, and twice again later that night, the home of Debra Aguilera was struck by gunfire. A few days prior, Mason was seen in the passenger seat of a maroon BMW owned by Alder Fenton, displaying a handgun and bragging to Fenton’s brother Jeremiah: “Tell Ray I have something for him.” Jeremiah knew “Ray” referred to Raymond Munoz, Ms. Aguilera’s oldest son, who was in the house at the time of the shooting and who had been involved in an altercation with Mason some six months earlier.

Later the same evening, neighbors of Sally Purcell heard a man yelling, “Mike,” outside the Purcell house, followed by several gunshots fired in rapid succession and then a car speeding away. Michael Kolk-hurst, a man Mason believed had molested his stepsister, was living with Ms. Purcell. Startled awake by the gunfire, Purcell, who had been asleep in another room, found Kolkhurst lying in bed and covered in blood. Efforts by paramedics called to the scene failed to revive Kolkhurst, and he died from his wounds.

A few weeks later, Valerie Cole, the mother of one of Mason’s friends, found Mason asleep in her son’s car outside her home. Mason explained that he was sleeping there out of fear that the police were looking for him. Mason asked Cole o call a friend of hers at the sheriffs department to see if there were any warrants out for his arrest. When Cole asked why, Mason said he had shot someone in Stockton, aiming for the man’s knees and instead hitting him in the chest. Mason added that there was someone with him that night who may have “snitched” on him.

Cole made the requested call, which eventually led to Mason’s arrest. At Mason’s trial, the prosecution called Stockton Police Detective Richard Salsedo. The detective had interviewed Alder Fen-ton in the course of the investigation. Critical to Mason’s claim is the following passage from Detective Salsedo’s testimony: Q. And did you take a — -did you take a statement from him [Alder Fenton]? A. Yes, I took a seven-hour statement from him. Q. And after you took the seven-hour statement did you place him [Alder Fen-ton] under arrest? A. Yes I did. Mr. Himelblau [the prosecutor]: No further questions. Mr.

Hickey [defense counsel]: I’m going to object to the last, it’s irrelevant and hearsay and ask it to be stricken from the record. The Court: Overruled. Mr. Hickey: Thank you. It is this testimony that Mason claims violated his confrontation rights. Specifically, he claims that the admission of the fact of Fenton’s statement, under these circumstances, was essentially the same as admitting its content, thus violating the clearly established principle of Bruton v.

United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968), that the admission of a non-testifying codefendant’s “powerfully incriminating extrajudicial statement” violates a defendant’s Sixth Amendment right to confront his accuser. Id. at 135-36, 88 S.Ct. 1620. Bruton’s protection, however, does not extend to all such statements. Richardson v. Marsh, 481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987), specifically exempts a statement, not incriminating on its face, that implicates the defendant only in connection to other admitted evidence.

On the other hand, the mere removal of a codefendant’s name from a statement that obviously refers to the defendant, does not insulate the statement from Bruton scrutiny. Gray v. Maryland, 523 U.S. 185, 193-96, 118 S.Ct. 1151, 140 L.Ed.2d 294 (1998). The statement here seems closer to Richardson than Gray for at least two reasons. First, Fenton’s statement to Detective Salsedo does not mention Mason at all. In fact, because its content never came into evidence, as far as the jury was concerned, it mentioned no one at all.

For all the jury knew, Fenton confessed to his own involvement in the shootings and was arrested. Second, as Gray itself notes, the facts that would have allowed the jury to infer that Fenton’s statement implicated Mason came through other, properly admitted evidence, particularly through Cole’s testimony of what Mason told her. Gray, 523 U.S. at 195, 118 S.Ct. 1151 (“Richardson placed outside the scope of Bruton’s rule those statements that incriminate inferentially.”); see also United States v.

Sherlock, 962 F.2d 1349, 1360-61 (9th Cir.1992) (as amended) (codefendant’s statement redacted to exclude defendant’s name and incriminating only in light of other evidence). We are not persuaded to the contrary by Mason v. Scully, 16 F.3d 38, 40-41 [2d Cir.1994), a pre-AEDPA decision, where the officer testified that, after a conversation with a codefendant, the police began looking for the defendant. There, the Second Circuit determined that the only inference the jury could draw is that the statement implicated the defendant and thus violated Bruton. Id. at 43-44.

Here, the only immediate step taken by the officer hearing the statement was to arrest its maker. In another pre-AEDPA decision, Foy v. Donnelly, 959 F.2d 1307, 1313 (5th Cir.1992), the Fifth Circuit found no Bru-ton violation where the officer testified he sought an arrest warrant for the defendant after conducting an investigation that included taking a codefendant’s statement.

Moreover, there is a real question whether the Confrontation Clause protections apply to Detective Salsedo’s testimony, because it is not at all clear that Alder Fenton was a “witness against” Mason as that term has been defined by the Supreme Court. In Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court evaluated the meaning of the Clause, concluding that “ ‘witnesses’ against the accused ... [means] those who ‘bear testimony.’ ‘541 U.S. at 51.’ ‘Testimony,’ in turn, is typically, ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. at 51, 124 S.Ct. 1354 (citation omitted). Because Fenton’s words were never admitted into evidence, he could not “bear testimony” against Mason.

For all these reasons, we cannot say that the California Court of Appeal’s application of Bruton to these facts was contrary to clearly established Supreme Court law or that it applied that law in an objectively unreasonable way. We therefore affirm the district court’s denial of habeas relief. AFFIRMED. .

To grant habeas relief, a federal court must find that 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." Anti-Terrorism and Effective Death Penalty Act of 1996 ("AEDPA”), 28 U.S.C. § 2254(d)(1). . Mason argues that Richardson's exception of inferentially incriminating statements from the application of Bruton is expressly conditioned on the giving of a limiting instruction to the jury.

Whatever strength that argument might ordinarily have, we cannot consider it here because Mason never requested such an instruction at trial and the Certificate of Ap-pealability he obtained for this appeal does not raise the issue of a state trial court's sua sponte duty to give a limiting instruction in such a circumstance. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir.2005).