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466 F. App'x 709
10th Cir.
2012
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Background

  • Gregor was convicted March 29, 2007 of attempted grand larceny; trial admitted statements by co-defendant Rackley obtained during interrogation.
  • On direct appeal the Oklahoma Court of Criminal Appeals held Rackley’s statements did not expressly implicate Gregor and thus found no Crawford violation; this claim was deemed procedurally barred in post-conviction proceedings.
  • Post-conviction proceedings in district court and magistrate judge concluded a Crawford violation existed for the purposes of evaluating ineffective assistance of counsel, but the district court ultimately deferred to the OCCA’s determinations.
  • The district court and magistrate judge concluded the OCCA’s results on ineffective assistance were entitled to deference under Strickland and 28 U.S.C. § 2254(d).
  • Petitioner sought a certificate of appealability; the district court denied, and this court also denies COA but grants in forma pauperis status.
  • Concurrences discuss whether Rackley’s statements were testimonial and whether admission could be harmless error.

Issues

Issue Plaintiff's Argument Defendant's Argument Held
Whether the OCCA’s Crawford ruling was an unreasonable application of clearly established law Gregor: Crawford violation occurred; OCCA misapplied law State: OCCA reasonably concluded no Crawford violation because statements did not expressly implicate Gregor No; denial of COA affirmed
Whether appellate counsel was ineffective for not raising Crawford Gregor: appellate counsel deficient for not raising Crawford State: no deficiency because Crawford claim lacked merit No; OCCA's result reasonable under Strickland
Whether federal habeas review properly defered to state court under Strickland Gregor: deference allowed error to be remedied on federal review State: deferential standard applied correctly under § 2254(d) Yes; deference maintained

Key Cases Cited

  • Crawford v. Washington, 541 U.S. 36 (2004) (testimonial statements and Confrontation Clause scope)
  • Davis v. Washington, 547 U.S. 813 (2006) (testimonial vs. non-testimonial under interrogation context)
  • Bruton v. United States, 391 U.S. 123 (1968) (co-defendant statements must directly implicate defendant)
  • United States v. Smalls, 605 F.3d 765 (10th Cir. 2010) (testimony vs. hearsay and testimonial analysis)
  • Lambert v. Workman, 594 F.3d 1260 (10th Cir. 2010) (clearly established law and deferential review standard)
  • Harrington v. Richter, 131 S. Ct. 770 (2011) (Stringent standard for unreasonable determinations under § 2254(d))
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Case Details

Case Name: Gregor v. Franklin
Court Name: Court of Appeals for the Tenth Circuit
Date Published: Mar 7, 2012
Citations: 466 F. App'x 709; 11-6244
Docket Number: 11-6244
Court Abbreviation: 10th Cir.
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