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