FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT APRIL 20, 2011 JOHN LEY

CLERK [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

________________________ No. 10-14986 Non-Argument Calendar

________________________ D.C. Docket No. 2:10-cv-00973-IPJ-TMP DEANDRE COOPER, llllllllllllllllllllllllllllllllllllllll Petitioner-Appellant,

versus DAVID WISE, ATTORNEY GENERAL, STATE OF ALABAMA, llllllllllllllllllllllllllllllllllllllll Respondents-Appellees.

________________________ Appeal from the United States District Court for the Northern District of Alabama

________________________ (April 20, 2011) Before BARKETT, MARCUS and FAY, Circuit Judges. PER CURIAM:DeAndre Cooper, an Alabama prisoner serving a term of life without parole for two counts of capital murder and one count of attempted murder, appeals the district court’s order denying his petition for a writ of habeas corpus, 28 U.S.C. § 2254. The district court granted a certificate of appealability (“COA”) on the issue of whether the admission of out-of-court statements made by an alleged co-conspirator, LaTonya “Punkin” Jacks on, violated Cooper’s Sixth Amendment right to confrontation. For the reasons stated below, we affirm. I. In April 2010, Cooper filed a pro se 28 U.S.C. § 2254 petition in the district court. Cooper’s petition raised six grounds, but only Ground Five is at issue in this appeal. In that ground, Cooper argued that the state trial court should not have admitted out-of-court statemen ts made by a co-conspirator because the state had failed to establish the existence of a cons piracy. He explained that the witnesses who had testified regarding the conspir acy had changed their stories many times.

During Cooper’s trial, the state intr oduced evidence that Cooper, Jackson, and Rodrequiz Woods had entered into a plan to rob a marijuana dealer, Willie Kelly. On the evening of June 9, 2004, Jackson called Kelly and asked if he had marijuana she could buy. They agreed to meet at the house of Jackson’s friend

2Angela Williams. When Kelly and his cousin, Anthony Kelly, arrived at Williams’s house, Cooper and Woods park ed their Suburban directly behind Kelly’s vehicle. Kelly looked in his rearview mirror and saw two men with guns get out of the Suburban. He heard them say, “Give it up.” Kelly “just hit the gas” and attempted to flee. Cooper and W oods both fired multiple shots at Kelly’s vehicle. As Kelly drove away from Williams’s house, the shooting stopped. Kelly looked at his cousin, Anthony Kelly, and observed that Anthony was slumped forward and was bleeding. Kelly immediately drove to the hospital, but Anthony died of his wounds. Willie Kelly received a gunshot wound to his shoulder. He was treated for his injury and released. Willie Kelly was able to identify Woods and Cooper from photographic lineups as the shooters. On his direct appeal, Cooper argued, among other things, that the trial court erred in allowing the state’s witnesses to testify regarding certain out-of-court statements made by Jackson. Specifi cally, he objected to: (1) Willie Kelly’s testimony that Jackson called him and told him to go to Williams’s house; (2) Angela Williams’s testimony that J ackson spoke to Willie Kelly on the phone, and that Jackson later told Williams not to inform the police that Jackson was Cooper’s girlfriend; and (3) Woods’s testimony that Jackson and Cooper were

3dating, and that Jackson was involved in the planning of the robbery. He argued that Jackson’s statements were inadmi ssible hearsay under the Alabama Rules of Evidence. He also assertedthat the admission of Jacks on’s statements violated his right to confrontation under the Sixth Amendment. The Alabama Court of Criminal Appeals affirmed Cooper’s convictions. The court concluded that Jackson’s out-o f-court statements were properly admitted as non-hearsay co-conspirator statemen ts because the evidence showed that Cooper, Woods, and Jackson had entered in to a conspiracy to rob Willie Kelly. The court also held that the admission of Jackson’s statements did not violate the Confrontation Clause. The Court of Criminal Appeals noted that the United States Supreme Court, in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), had determined that th e Confrontation Clause only bars the admission of out-of-court statements that are testimonial. The Court of Criminal Appeals observed that Crawford had cited Bourjaily v. United States , 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987), as an example of the type of statements that are not te stimonial in nature. In Bourjaily, the Supreme Court upheld the admission of a co-conspirator’s out-of-court statements against a criminal defendant even though the defendant did not have a prior opportunity to cross-examine the declaran t. The Court of Criminal Appeals concluded that

4Jackson’s statements were not testimonial because they were not made in the context of a police investigation or a pretrial examination. The Court of Criminal Appeals denied Cooper’s request for reh earing, and the Alabama Supreme Court declined to grant a writ of certiorari
. A magistrate prepared a report and recommendation concluding that Cooper’s habeas petition should be denied. Regarding Jackson’s out-of-court statements, the magistrate observed thatCooper’s petition appeared to argue that the admission of those statements vi olated Alabama law. The magistrate recognized that a state-law evidentiary ruling can give rise to a federal constitutional violation if the erroneous ly admitted evidence rendered the trial fundamentally unfair. Nevertheless, th e magistrate observed that, in Cooper’s case, the Alabama Court of Criminal Appeals had authoritatively decided that no error of state law occurred. To the extent that Ground Five of the petition could be construed as a Confrontation Clause claim, the magistratedetermined that the Court of Criminal Appeals’ rejection of that claim was not contrary to, or an unreasonable application of, clearly established federal law. The magistrate observed that, under Bourjaily and Crawford , statements made by a co-conspirator during the course of a conspiracy are not testimonial. The magistrate noted that Cooper did not challenge

5the Court of Criminal Appeals’ application of those decisions, nor did he dispute the factual basis of the court’s holding. Accordingly, the magistrate recommended that Ground Five of Cooper’s petition be denied. The district court adopted the magi strate’s report and dismissed Cooper’s habeas petition with prejudice. As noted above, the district court granted a COA on the issue of whether the admission of Jackson’s out-of-court statements violated Cooper’s Sixth Amendment right to confrontation. II. We review a district court’s denial of a 28 U.S.C. § 2254 habeas petition de

novo . McNair v. Campbell , 416 F.3d 1291, 1297 (11th Cir. 2005). A federal court may not grant habeas relief on a claim that has been considered and rejected by a state court unless the state court’s decision “was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States,” or unless the state court made “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). A state court decision is contrary to clearly established federal law if the state court reached a legal conclusion opposite to that reached by the United States Supreme Court on the same question, or if the state court was presented with facts that were “materially

6indistinguishable” from relevant Supreme Court precedent, but arrived at the opposite result. Williams v. Taylor , 529 U.S. 362, 405-06, 120 S.Ct. 1495, 1519-20, 146 L.Ed.2d 389 (2000). A state court’s decision is an unreasonable application of clearly established federal law if the court unreasonably applied the established law to the facts of the case. Id. at 407-09, 120 S.Ct. at 1520-21. The Sixth Amendment protects a criminal defendant’s right to confront the witnesses against him. U.S. Const. amend VI. In Crawford , the Supreme Court explained that the Sixth Amendment prohibits the introduction of out-of-court testimonial statements unless the declarant is unavailable to testify and the defendant had a prior opportunity to cross-examine the declarant. Crawford , 541 U.S. at 68, 124 S.Ct. at 1374. A statement is testimonial if it was “made under circumstances which would lead an objectiv e witness reasonably to believe that the statement would be available for use at a later trial.” Id. at 52, 124 S.Ct. at 1364 (quotation omitted). In this case, the Alabama Court of Criminal Appeals’ rejection of Cooper’s Confrontation Clause claim was neither c ontrary to, nor an unreasonable application of, clearly established federal law. J ackson’s out-of-court statements were made during the course of the conspiracy to rob Willie Kelly, rather than in response to the police investigation into Anthony Kelly’s mu rder. Thus, the statements were not made

7under circumstances that would lead a reas onable person to believe that they would be introduced at trial. See Crawford , 541 U.S. at 52, 124 S.Ct. at 1364. Accordingly, the Alabama Court of Criminal Appeals corr ectly concluded that Jackson’s statements were not testimonial and that their admission did not violate Cooper’s right to confrontation. The Court of Criminal App eals’ decision was consistent with the legal principles announced in Crawford . In light of the fact th at Jackson’s statements were not testimonial, the state was not required to show that Jackson was unavailable to testify. In addition to his Sixth Amendment arguments, Cooper also contends that Jackson’s statements were inadmissible under the Alabam a Rules of Evidence because the state failed to prove the existence of a conspiracy. Although state-law errors generally are not a grounds for federal habeas relief, a hab eas court may review a state court’s evidentiary rulings in order to de termine whether those rulings violated the petitioner’s right to due process by deprivi ng him of a fundamentally fair trial. Felker v. Turpin , 83 F.3d 1303, 1311-12 (11th Cir. 1996). Here, however, the COA granted by the district court only addresses Cooper’s right to confrontation under the Sixth Amendment, not any due process claim th at he may have. Because our review is limited to the issues specified in the C OA, we may not consider Cooper’s contention that the admission of Jackson’s st atements violated Alabama law. See Murray v.

8United States , 145 F.3d 1249, 1250-51 (11th Cir. 1998). Because the Alabama Court of Criminal Appeals’ decision rejecting Cooper’s Sixth Amendment claim was neither contrary to, nor an unreasonable application of, clearly established federal law, we affirm the denial of Cooper’s habeas petition. AFFIRMED.

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