*1 CA, LLP, Myers, Angeles, Los veny jury must determine & affected Plaintiff-Appellee. injurious ef a “substantial and error had jury’s on the verdict. fect” Schoenberg, Esq., Burris & E. Randol 992. CA, LLP, Angeles, Los Rob- Schoenberg, Broth- Christopher, Esq., A. Coudert ert IV. Conclusion Lebow, LLP, Alto, CA, Mark D. ers Palo LLP, York, Carrerras New Esq., Sokolow the writ and remand for grant I would NY, Defendant-Appellant. for that was admitted trial. The evidence new limiting despite prejudicial sowas CA, Brick, Francisco, Esq., Ann San instructions, had a sub- the evidence still Amicus. injurious or influence effect stantial verdict, particularly determining jury’s other evidence

considering there was scant guilt. alleged of Castillo’s Un- presented ORDER AEDPA, the state court decision was der SCHROEDER, Judge: Chief Before: clearly contrary to established therefore majority vote of a of nonre- Upon the Therefore, I respect- precedent. federal regular judges cused active of this court fully DISSENT. case reheard it is ordered this be pursuant

the en banc court to Circuit Rule opinion three-judge panel 35-3. The shall by or to precedent not be cited as this any court or court of the Ninth district Circuit, adopted by to the extent except the en banc court. INC., corporation, a Delaware

YAHOO!

Plaintiff-Appellee, ET LA CONTRE LE RACISME LIGUE BOCKTING, Marvin Howard L’ANTISEMITISME, a French associ- Petitioner-Appellant, ation; Etudiants Juifs de L’Union des association, France, Defen- a French

dants-Appellants. BAYER, Respondent-Appellee. Robert

No. 01-17424. No. 02-15866. Appeals, United States Court Appeals, United States Court of Ninth Circuit. Ninth Circuit.

Feb. 2005. Argued and Submitted Jan. 2004. 22, 2005. Filed Feb. Traynor, Esq., Cooley, Michael God- ward, Tatum, Castro, Huddelson & San

Francisco, CA, Jahss, Esq., Neil S. O’Mel- Judges Pregerson and Wardlaw are recused. *2 Forsman,

Franny A. Federal Public De- fender, NV, Vegas, appellant. Las II, Deputy Attor- Victor-Hugo Schulze NV; General, Vegas, Rene L. ney Las General, Hulse, Attorney Las Ve- Deputy NV, gas, appellee. for the (9th Cir.2004) (per n. 22 F.3d curiam). If, Judge argues, Noonan longstand simply reiterates *3 WALLACE, NOONAN, and Before: ing rule and does not announce a new McKEOWN, Judges. Circuit rule, retroactivity then falls out of our McKEOWN; hand, If, by Judge analysis. on the other Opinion Crawford NOONAN; by Judge Concurrence rule,” is characterized as a “new then we by Judge Concurrence and Dissent retroactivity analyzing are faced with WALLACE. yet in an the framework of Crawford case, McKEOWN, Supreme other recent Schriro Judge: Circuit , — -, U.S. S.Ct. Summerlin Bockting’s Marvin conviction sexual (2004). New rules stem from a trial abuse and life sentences conduct, only apply retroactively only they place to the where which the witness six-year stepdaughter, old Autumn his primary, private “certain kinds of individ trial, testify Bockting, did not but whose beyond ual power conduct of the a detective was admitted as interview with law-making authority pro criminal key evidence. Autumn’s statements at the scribe,” “implic or where the new rule is contradicted her at a interview liberty.” concept of ordered hearing where she claimed not preliminary Lane, Teague v. happened what with her fa remember (1989). 103 L.Ed.2d 334 The ther. Admission the interview evidence category latter is “reserved for watershed without cross-examination violated Bockt- criminal procedure.” rules of Id. at 311. ing’s right constitutional “to be confronted against with the witnesses him.” U.S. The threshold question is whether Const. amend. VI. a constitutes “new rule” under Crawford Although this case has been before the Teague. Judge approach— Noonan’s Supreme Nevada Court twice and before namely that does announce Crawford the United States Court on one new rule but rather is a “correction of a occasion, interpre- resolution now rests on misinterpretation,” Concurrence at 2015— intervening Supreme tation of an appeal light has a certain of the Court’s Washington, case: Crawford Indeed, emphasis historical in Crawford. 158 L.Ed.2d 177 intimating one can read as Crawford In definitively the Court held longstanding. Unfortunately, the rule is that “[testimonial statements of witnesses analysis entirely Justice Scalia’s is not con- only from trial absent have been admitted Nonetheless, viewpoint. sistent with that where the declarant is unavailable and only where the prior defendant has had a characterizing something as less Crawford opportunity to cross-examine.” 124 S.Ct. rule, does, Judge than a new Noonan girl’s 1369. Because the little testimo- legitimate way one interpreting Craw- ny, subject which was not to cross-exami- To do so leads to the same result ford. nation,' conviction, was central to the its here —the application of Crawford hardly admission can be classified as Bockting’s pending habeas claims. harmless error. rever- dictates Crawford Despite appeal Judge sal. Noonan’s reasoning, application thorny issue is whether guidance Teague leads to the applies retroactively to this Crawford conclusion that announces case, appeal. state habeas an earlier “new rule.” Because the rule is question we reserved this for future con , sideration. See Leavitt v. 383 both a “watershed rule” and one “without Arave again an accurate convic Autumn was interviewed the likelihood of detec- which diminished,” Summerlin, repeated tive. She what she had seriously told her tion is — mother, at -, accurately describing positions of the sex acts. also She demonstrated retroactive. rule is anatomically

the acts with correct dolls. I. BACKGROUND FACTUAL Bockting’s preliminary hearing, At Au- wife, with his Marvin lived questions tumn was able to answer about Laura, daughters, Autumn and and his two lie, the difference between the truth and a Au- Honesty, Vegas. in a motel Las upset became but when she was asked *4 together had taken showers with tumn being by Bockting. Upon about touched Bockting. Laura had also seen and She questioning, further she said could not she sex, was accustomed having them and she remember what occurred with her father language. to the use of sexual and did not remember whether she had talked with the detective about the claimed Saturday night, Laura was at One when The Autumn judge assault. declared an children, Autumn home alone with the witness, and preliminary unavailable Bockting up crying. Her mother woke hearing proceeded with the just that looked like she had observed “she trial, judge Laura and Zinovitch. At a dream and she was up woken from bad found Autumn’s statements At she refused to tell quite upset.” first were admissible because she was effective- wrong. why Laura was Laura asked what ly for trial. having unavailable Without her, tell. Autumn told “Be- she wouldn’t Autumn, opportunity to cross-examine him daddy you would make cause said Bockting was convicted and sentenced to my if I leave and that he would beat butt prison. life in you.” told After reassurance from her Bockting appealed to the Nevada Su- mother, “daddy put pee- Autumn said his Court, preme which dismissed his claims. daddy put in his pee pee-pee, her and Supreme The United States Court later butt, daddy in and made her pee-pee her Supreme vacated the Nevada Court’s deci- like it was a sucker.” pee-pee suck on his sion, remanding light for consideration day, Laura confronted Bockt- The next Wright, of Idaho v. leave, him ing. asked which he did. She (1990). 1993, In 111 L.Ed.2d 638 later, days Tuesday, Two Laura called Supreme affirmed Bockt- Nevada rape hotline and was told to take crisis petition ing’s conviction. He filed second hospital, they Autumn to the were where relief, postconviction for which the state by met Detective Zinovitch. Zinovitch court in 1994. district denied Autumn, too tried to interview but she was later, years Three the Nevada upset. rape per- A examination was appeal. Bockt- again dismissed The doctor found that Autumn’s formed. court. He ing sought then relief federal torn sphincter rectal had been within timely petition filed a habeas that Autumn’s past week. She also found in 2000. The district which he amended rarity in a hymenal ring open, was wide Bockting petition, court denied the six-year old. The doctor determined present appeal. filed the “couldn’t determine what although she foreign body kind of instrument or was II. DISCUSSION hymen used to cause the laxness of the rectum,” petition filed his after it had been Because and the fissure later, date of the Antiterrorism days caused a blunt force. Two the effective final in Bockting’s conviction became Penalty Act of Death Effective any subsequent must evaluate whether (“AEDPA”), provisions apply. See we its Garceau, against new rule of constitutional law is Woodford year. 155 L.Ed.2d 363 of that benchmark AEDPA, to a state habeas relief Under A A. CRAWFORD ANNOUNCED only if the state available prisoner NEW RULE in a decision “resulted court’s decision to, an unreason or involved contrary us is whether question before of, clearly established application able principles Clause stated the Confrontation law, determined the Su Federal amount a new rule. States,” or was United preme Court Court considered determination an unreasonable “based on at trial of Washington State’s use whether pre light of the evidence of the facts to a tape-recorded a witness’s statement proceeding.” court in the State sented officer violated the Confrontation police 2254(d)(1)-(2). § U.S.C. Writing at 1357. Clause. *5 Court, engaged Justice Scalia also directs us Supreme The Court lengthy analysis historical of the Confron any analy performing “in to that addition Clause, noting principal that “the tation AEDPA, court by a federal required sis evil at which the Confrontation Clause was must conduct considering petition a habeas mode crimi directed was the civil-law analysis when the issue Teague a threshold its use of procedure, particularly nal and by See Horn properly is raised the state.” against parte examinations as evidence ex Banks, 266, 272, 122 536 U.S. S.Ct. (emphasis at add the accused.” Id. (2002). Indeed, as the L.Ed.2d 301 ed). emphasize He went on to “that the noted, post-AEDPA “if our cases Framers would not have allowed admission AEDPA’s relation suggest anything about of testimonial statements of witness who AEDPA and ship Teague, it is at trial he appear did not unless was un are distinct.” Id. Teague inquiries testify, the defendant had available and Teague’s application, explaining opportunity had a for cross-examina prior recently explained that Supreme Court added). (emphasis Id. at 1365 tion.” determining steps there are three procedure ap- criminal whether a rule of the rule in is new Whether Crawford review: plies on collateral on it depends whether “was dictated — First, must determine when the court Beard, then-existing precedent.” final. conviction became the defendant’s -, U.S. at S.Ct. 2511. To be Second, legal ascertain the land- it must sure, majority in is some- Crawford existed, and ask wheth- scape as then opaque categorization what as to the of its Constitution, interpreted by er the noted, holding. ultimate As the Court existing, compels the precedent then “[ajlthough the results of our decisions is, That the court must decide rule. generally original have faithful to the been actually rule is “new.” Fi- whether the Clause, meaning of the Confrontation new, nally, if the rule is the court must same cannot be said of our rationales.” whether it falls within either of consider puzzler 124 S.Ct. at 1369. The is whether exceptions nonretroactivity. two Supreme Court] the “results of deci- [the — Banks, U.S. -, -, the rules of 124 sions” are coextensive with Beard (2004) so, 2504, 2510, 159 those decisions. If then the S.Ct. L.Ed.2d Crawford (internal omitted). legitimately could be pronouncement citations Because concluding view that “the Court of viewed as continuation Roberts,” scrutiny of the course overrules Ohio v. jurisprudence. Careful id. criticizing for at the “Court’s opinion suggests adoption otherwise (1) of a interpretation new of the Confronta- reasons: deviates least two ....,” tion Clause id. at 1374. announced in v. Rob from the test Ohio erts, say To the outcomes or “results” (1980); reach simply L.Ed.2d 597 generally have been “faithful to origi- ing right “result” does not mean nal' meaning” is the same as saying the result flowed from a constant rule. there has been a consistent rule Indeed, throughout history. our the result observed, condi-

As the Court “Roberts in an may individual case well be consis- all admissibility tions the evi- tent with the Court’s new inter- ‘firmly dence on whether it falls under a pretation Crawford, but that does not hearsay exception’ particu- rooted or bears mean that the prior rule dictated the guarantees larized of trustworthiness.” necessarily result is consistent with Craw- (quoting at 1369 Rob- majority in fact underscores the 2531). erts, Rob- ford. dichotomy between outcomes and rules evidentiary of relia- principles erts rests on that, else, announcing nothing the test “[i]f bility and trustworthiness rather than on we announce an empirically accurate principle the constitutional of confronta- explanation of the results our cases have tion. reached.” Id. at 1369 n. 9. Rules and majority clearly quite The Crawford *6 wholly outcomes are neither the same nor from departs states that the Roberts “test overlapping. in principles” the historical that it is both Finally, pinpoint- the Court in Crawford “too broad” and “too narrow.” was, in-fact, “arguably ed a.situation that an- 124 S.Ct. at 1369. did not Crawford requiring in tension with the rule a prior nounce the same rule as Roberts. Where- opportunity for cross-examination when as Roberts countenanced the admission proffered the. statement is testimonial.” testimony trustworthy, if under witness Illinois, Citing Id. at 1368 n. 8. White v. if only the is admitted Crawford 346, 736, 502 112 U.S. S.Ct. subject the witnesses are to cross-exami- (1992), the Court described a case nation. The Court concluded that ours, remarkably in similar which applying cases Roberts have “remained an “statements of a child victim to investi- understanding,” faithful to the Framers’ gating police officer admitted as [were] id. at that testimonial statements are spontaneous declarations.” Id. White rest- only when criteria are met: admissible two unavailability ed on the issue of the re- unavailability opportunity for cross- Clause; quirement under the Confrontation “[wjhere words, In other examination. time, at had been the rule Crawford issue, are at testimonial statements lack of cross-examination would have only reliability indicium of sufficient to sat- fatal to of the been the admission evidence. isfy demands is the constitutional one actually prescribes: Although long confron- line of Confrontation Constitution Although original tation.” Id. at 1374. historical Clause cases is “faithful to the clause, at we principles meaning” are the bedrock for the Craw- id. decision, On getting back to the- bedrock cannot overlook Roberts and White. ford balance, analysis required appli- the Court to disavow the Roberts an of the historical cases test. The dissent mirrors this cation of the Confrontation Clause Crawford seriously is diminished.” an- rate conviction the conclusion leads to Crawford , — at -, put that must be U.S. rule nounces a new Summerlin If, (quoting Teague, 489 U.S. at strainer. on through the Summerlin 1060). hand, Viewing and Sum- does not an- S.Ct. the other Crawford Crawford together poses a conundrum. Jus taken merlin position nounce a new rule —the majority for the in both the Summerlin anal- tice Scalia wrote Judge Noonan—then Summerlin, the Court admon required. way, Either the re- cases. ysis is not ished that class of Bockting’s “[t]his [retroactive] the same. sult this case is narrow, extremely rules is is unlike granted. petition should be — any yet emerge.” ly that ha[s] THE B. CONTROLS SUMMERLIN -, (quoting 124 S.Ct. at 2523 U.S. RETROACTIVITY ANALYSIS Cain, Tyler v. 667 n. (2001)) (inter 2478, 150 L.Ed.2d announces a Because new Crawford omitted). Nonetheless, quotations nal

rule, it falls into one we must ask whether absolute and the rule bar is not Teague exceptions to the bar on the two Crawford criteria. Admonitions meets the Court’s retroactivity. Teague exception first The discourage such as Summerlin offer that cannot crim- primary is for conduct be job guidance. ment but no Because our is is for bedrock rules inalized. The second conjure up meaning, hidden not we sim criminal procedure. Teague, 489 U.S. ply warning analysis and our heed thus 1060. It is the second faithfully holding to the and ratio adheres exception play that is at this case. Viewing nale of Summerlin. Crawford rule does narrow Crawford light of Summerlin leads to the conclusion by interpreting a criminal statute scope of cross-examination re terms, its nor is it a constitutional determi quirement application. merits retroactive places particular nation that conduct or requirement That the fun- beyond is persons covered the statute — Summerlin, legal regime beyond damental to our power punish. State’s *7 Rather, dispute. eloquent Justice Scalia’s recita- at -, U.S. 124 S.Ct. at 2522. history, purpose, place tion of the and of procedural. the rule is See Crawford the Confrontation Clause and cross-exami- Crawford, (stating also 124 S.Ct. at 1370 question. Crawford, nation answers this provides pro the Confrontation Clause “a years 124 at 1359. of S.Ct. Hundreds guaran cedural rather than a substantive tee”). tradition have this notion as a Therefore, embedded merits retro Indeed, fundamental role. “[t]he Framers application only implicates active if it “the would astounded to learn that parte be ex accuracy fundamental fairness and Parks, against could be admitted proceeding,” criminal v. 494 Saffle 484, criminal 495, 1257, defendant because it was elicited 110 108 L.Ed.2d U.S. S.Ct. (1990), government ‘neutral’ officers.” Id. understanding 415 and reworks our procedure, Sawyer criminal v. bedrock Smith, 227, 2822, 242, 497 U.S. 110 S.Ct. question posed The next is whether the 111 L.Ed.2d 193 accuracy implicates rule of the criminal Summerlin, sure,

To be under proceeding. Juxtaposed, the lower Summerlin actu tightly ally why courts are constrained in determin- underscores rule ing implicates whether a new rule is a “watershed the “fundamental fairness and fundamental, only accuracy proceeding,” rule” that is not but one of the criminal Saf 495, fle, “without which the likelihood of an accu- 494 and alters our under- U.S. (“This procedural principles, open examination of standing of bedrock witnesses is much more conducive to sentencing clearing scheme in Sum whereas truth.”) Summerlin, up Blackstone, (quoting 3 Com- In the Court did not. merlin * 373); Illinois, Arizona, mentaries White v. v. 536 U.S. Ring concluded 346, 355, 736, U.S. 112 S.Ct. 116 L.Ed.2d 153 L.Ed.2d (1992) (evaluating Confrontation (2002), aggravating held that factors which against Clause claim the benchmark of proved case must be penalty a death Street, accuracy); Tennessee 471 U.S. judge, than to a was not a jury rather 409, 415, 105 S.Ct. 85 L.Ed.2d 425 rule. Summerlin asked retroactive (1985) (describing the “Confrontation judicial factfinding seriously so “whether very Clause’s mission” as “to advance accuracy that is an im- there diminished] accuracy of the truth-determining process permissibly large punishing risk of conduct , trials”) (internal quotation criminal — the law does not reach.” Summerlin omitted); Roberts, 56, 65, Ohio 448 U.S. (citations at -, 124 S.Ct. at 2525 (1980) (stat- 65 L.Ed.2d 597 omitted). The answer was quotations and ing, purpose of the Confrontation simply evidence is too “[t]he no because “augment accuracy Clause is to in the support that conclusion.” Id. equivocal factfinding process”); Parker v. Randolph, Summerlin, In the Court observed 62, 73, why juries every argument “for are more (1979) (“The (plurality) right of con- factfinders, why is another accurate there frontation conferred the Sixth Amend- contrast, they are less accurate.”1 safeguard ment is a to ensure the fairness seriously evidence that cross-examination trials.”); accuracy and of criminal Cham- of inaccurate con- possibility decreases the Mississippi, bers v. unequivocal. viction is (“The 35 L.Ed.2d 297 repeatedly Court has and right of cross-examination is more than a purpose held that procedure. without deviation desirable rule of trial It promote implicit right the Confrontation Clause is the constitutional of con- See, frontation, accuracy. e.g., helps ‘accuracy 124 S.Ct. at assure the rejected jury firmly implanted juris 1. The Court the notion that the confrontation is in the right seriously impacted accuracy part trial prudence European of other countries. For jury-free system because the civil law is so example, European on Convention Hu prevalent: (6)(1) (6)(3)(D), give Rights, man articles reception right jury ''[T]he mixed that the right "to examine or have examined wit *8 given trial has been in other countries ... against European nesses him.” The Court of surely implausible judicial makes it that fact- Rights right Human has established of confrontation: finding seriously accuracy diminished] so France, Saï di 17 Eur. Ct. H.R. produce impermissibly large to an risk of (1993) ("Neither stage 270 at the of the U.S. at -, injustice.” - 124 S.Ct. at 2525 ap investigation during trial nor omitted). (internal quotations plicant able to examine or have examined reception right Unlike the "mixed that the any witnesses concerned. The of con lack countries,” jury given trial has been in other deprived respects certain of frontation him in id., right of is well estab- confrontation trial”). v. Neth a fair See also Van Mechelen practice. lished in Justice Sca- international erlands, (1997); 25 Eur. Ct. H.R. 673 right lia noted in that "the to con- Switzerland, Lüdi v. Eur. Ct. H.R. 173 15 concept dates front one’s accusers is Austria, (1992); Ct. H.R. Windisch v. 13 Eur. Crawford, back to Roman times.” France, (1990); 281 Delta v. 16 Eur. Ct. H.R. at 1359. He then went on to chronicle the Netherlands, (1990); 12 Eur. 574 Kostovski v. England. Although history in not mentioned Ct. H.R. 448-49 Crawford, noting right in it bears that the of 1018 ”); wrote, point, more to the the Court truth-determining process.’ “[t]he Dut

of the Evans, 400 U.S. effect of these elements of con ton v. combined (1970) (“The (plurality) oath, 213 -physicalpresence, cross- frontation' — it of this Court make clear examination, decisions and observation of demeanor of the Confrontation Clause is the mission purposes the trier of fact—serves the of practical concern for the ac to advance by ensuring the Confrontation Clause curacy truth-determining process in against an evidence admitted accused is trials....”); Texas, Pointer v. criminal subject rigorous reliable and adver 400, 404, 85 S.Ct. testing Anglo- that is the norm of sarial one, (“[P]robably no L.Ed.2d proceedings.” American criminal Id. at in certainly experienced no one the trial of added). (emphasis S.Ct. 3157 lawsuits, deny of would the value cross- question itself answers the of exposing in falsehood and examination whether the absence of cross-examination bringing out the truth the trial of a seriously accuracy “so diminishe[s] States, case.”); criminal Mattox United there is an impermissibly large risk 237, 242-43, punishing conduct the law does not reach” (1895) (describing “primary L.Ed. 409 — Summerlin, at -, object” of the Confrontation Clause as “to (internal omitted): quotations prevent depositions parte or ex affidavits (cid:127) being against prisoner unpredictable used lieu “The framework is so of a examination and personal cross-exami provide meaningful pro- that it fails to witness, nation of the in which the accused from tection even core confrontation opportunity, only testing an has Crawford, 124 violations.” S.Ct. at sifting recollection and the conscience 1371. witness, him compelling but of to stand (cid:127) [general reliability] test is in- “[T]he jury in face to face with the order that herently, permanently, and therefore him, they may judge by look at and his unpredictable.” Id. at n. “It 10. upon demeanor and the stand manner imagine general is difficult to reli- [the gives which he his whether he ability providing any framework] belief’). Hale, worthy See also M. meaningful protection [politically History Analysis of the Common Law charged Id. at cases].” (1713) (adversarial of England testing (cid:127) view this “[W]e as one of those rare “beats and bolts out the Truth much bet cases in which the result below is so ter”) (quoted 124 S.Ct. at improbable that it reveals a fundamen- 1370). tal on our part interpret failure But accuracy reliability do not exist way in a Constitution secures its Rather,

in a vacuum. central con- “[t]he judicial intended constraint on discre- cern of the Confrontation Clause is to en- tion.” Id. at 1373. reliability against sure the of the evidence Thus, at the heart of the Court’s concerns a criminal defendant subjecting *9 in reliability was the of admitted rigorous in testing the context of an adver- Crawford evidence. admitted is un- sary Where evidence proceeding the trier of fact.” before reliable, ‘confront,’ all, accuracy of convictions is seri- “The word after also means ideas, ously a undermined. That the rule in clashing of forces or Craw- carrying thus accuracy one without with it the notion of adversariness.” Ma- is which ford 845, ryland 836, seriously v. undermined Craig, 497 U.S. 110 convictions would be 3157, 111 S.Ct. L.Ed.2d 666 Even is further born out the Court’s own

1019 495, (citing Saffle, as a “rare 494 U.S. at 110 S.Ct. prior of its doctrine description 1257, Id. at Taylor, “fundamental failure.” 508 case” of Gilmore U.S. pre- 2112, (1993) between The difference

1373. 113 S.Ct. L.Ed.2d 306 juris Clause Confrontation post-Crawford (Blackmun, J., dissenting)). Recognizing change that can is not the sort prudence procedural very that bedrock rules are few incremental. In merely as be dismissed number, it no leap is to conclude that stead, pre-requisite an “absolute it is right of cross-examination as an ad- Sawyer, 497 U.S. fundamental fairness.” junct right to the constitutional of confron- 2822. at S.Ct. joins very company tation limited faults the Crawford, the Court itself Gideon. under Roberts. Craw- previous regime join one other circuit that has con- We .Indeed, at 1371-73. ford, a cluded announces new Crawford reliability against Roberts benchmark rule, although retroactivity analysis its dif- the- central would undermine Crawford’s Uphoff, fers from ours. Brown v. See judicially-admin- on Roberts’ sis. Reliance (10th Cir.2004). F.3d 1219 The Second reliability gives illusory com- test istered directly did not Circuit address new ... fort, Clause as “[t]he [Confrontation] if rule issue but concluded even Craw- judgment a about how reliabil- reflects rule, a did announce new would not ford determined,” ity can be id. best Duncan, Mungo be retroactive. of Roberts in other legacy and “[t]he (2d Cir.2004). F.3d the Framers’ wisdom courts vindicates reliability exception,” rejecting general rule, question of a new Addressing the id. at 1371.2 the Tenth Circuit reasoned as follows: retroactivity inquiry is not conduct- The above, explained prior As we the deci Rather, analysis in a ed vacuum. Crawford, provided sion in Roberts requirements. modeled on Summerlin determining framework for appropriate if a “look to Roberts were But even back” state whether the admission Judge suggests, appropriate, Wallace ments violated the Confrontation Clause. would be retroactive. Crawford Court itself noted that the of Roberts was inconsistent with logic properly are considered

Rules that conclusion our under retroactive are those that “alter requires an the Confrontation Clause ele standing procedural of the bedrock before tes opportunity cross-examine pro to the fairness of ments essential hearsay may be admitted timonial Smith, Sawyer v. ceeding.” , — against the defendant. 2822, 111 L.Ed.2d 193 110 S.Ct. Crawford Thus, at -, omitted). 1369. (internal U.S. As the quotations did not dictate progeny Roberts and its stated, recently providing guid “[i]n and we conclude the result fall within this might ance as to what rule of constitu that it announces a new referred to exception, repeatedly we have at -, tional See law. Wainwright, 372 U.S. the rule of Gideon v. C.J., (1963).” (Rehnquist, dissent S.Ct. at 1374 L.Ed.2d 799 — majority’s holding

Beard, at -, (referring to the ing) at 2514 analysis admit untested testimonial Judge on of the courts that Wallace's effort to rest the reliability very factors test under Roberts forces reliability statements find false Id. that make reliability the statements testimonial.” dichotomy and cross-ex- between *10 1372. amination and overlooks the fact that “some judicial of intended constraint on discre- interpretation the Confron- its as a “new Clause”). nothing tion.” Id. at 1373. There is tation rule. “mere” about the Brown, Crawford analysis 1226. is 381 F.3d at Our in accord. mistakenly The Tenth con Circuit diverges from us

But the Tenth Circuit that cluded rules of constitutional law sub is retroactive holding ject to can harmless error review never be Crawford forth a watershed it does not set because procedure. considered bedrock rules of Stating Id. procedure. rule of criminal inquiries hinge ques The on two different rule “on the 2008 a new is unless a tions. Whether rule is bedrock rule of the rule announced Gide- magnitude of procedure depends on whether it 'increases it will not fit within the Wainwright,” on v. likelihood of accurate conviction. — exception, rule Teague watershed Summerlin, at -, S.Ct. at explained: court subject 2523. a rule harm Whether is Gideon, does not ‘al- analysis depends Unlike less error on whether the Crawford understanding of what consti- our impact ter[ ] of the error can be measured. See merely process,’ Fulminante, tutes due but sets basic Arizona v. 307- out new standards for the of 08, admission 113 L.Ed.2d 302 hearsay. certain of Confrontation kinds Therefore, a rule of constitutional law subject Clause violations are to harmless could essential to promote be accurate con analysis may thus be excused error victions, subject but still to harmless error depending on the state of the evidence if impact misapplication review the would, therefore, It be difficult trial. short, easily the rule were measurable. to conclude that the rule accuracy measurability because are Crawford rights pro- fundamental to due alters concepts, different whether a rule1of con cess. subject stitutional law is to harmless error (internal question review does not answer omitted). Id. at 1226-27 citations whether it procedure. is bedrock rule of Supreme Court’s Confrontation jurisprudence in cannot assuming Clause After an Crawford Crawford rule, tweak on be dismissed as mere the ad- nounced a new the Second Circuit Brown, missibility hearsay. rejected retroactivity, See reasoning that surely F.3d at 1226. The improve rule would not overall Crawford Rather, accuracy did not of it as such. likely improve conceive because “it is right accuracy of confrontation describes some circumstances and dimin procedural guarantee,” as a ish it in Mungo, “bedrock others.” 393 F.3d at 335. analysis notes that it “dates back to Roman times” The flaw in this the Second part and was of the common law known judgment to Circuit has substituted its founding generation. Crawford, 124 whether the rule is one without S.Ct. at 1359. The Court also contrasts which accuracy of conviction is serious diminished, ly “exclusion under the rules” with for the “the civil-law abuses the Confrontation judgment. considered The Court has targeted.” Crawford, 124 repeatedly Clause S.Ct. at purpose found that the In a rare culpa, mea the Court Confrontation promote Clause is to accura see, Street, faults itself for not enunciating cy, e.g., the Craw- Tennessee v. earlier, rule “it stating reveals a 85 L.Ed.2d 425

ford (1985), part rejected fundamental failure on our to inter- and thus pret the way Constitution in a that secures Roberts framework as reflective of “a fun- *11 interpret the claim relies on a part failure on our new rule of damental law, way in a that secures its the Constitution constitutional made retroactive to discretion,” judicial intended constraint on Supreme cases on collateral the review Viewing (cid:127)Court.”) Crawford, 124 S.Ct. Congress’ But even if intent is holdings together leads to the con- these unclear, the constitutional doubt canon of rule is one with- clusion the construction mandates that we read the Craivford of accurate convic- out which the likelihood incorporate statute to Teague excep- seriously tion is diminished. tions to avoid the serious constitutional problem by depriving raised individuals of MERITS RELIEF C. BOCKTING principles bedrock of Due Process. Fer- AEDPA UNDER Palmateer, (9th guson v. 321 F.3d Having determined Cir.2003). Crawford retroactive, remaining task is Supreme The Nevada Court relied on whether, AEDPA, under determine Roberts to conclude that Autumn was “un- analysis ei Supreme Nevada was available” and that her statements bore to, “contrary ther or involved an unreason requisite “particularized guarantees of of, clearly application able established State, trustworthiness.” 2254(d)(1)-(2). § law.” Federal 28 U.S.C. Nev. 847 P.2d 1367-70 Supreme yet Court has to address know, As we now but the Nevada directly AEDPA or whether was intended divined, Court could not have adopt Teague excep should be read to right dictates the to cross-examine the wit- Taylor, tions. Williams Roberts, progeny ness. The such as the 1495, 146 380, 120 S.Ct. L.Ed.2d 389 reliability developed multi-factor test in (“AEDPA (Stevens, J., justices) for four 805, 821-22, Wright, Idaho v. Teague Teague to the extent that codifies (9th Cir.1990), 111 L.Ed.2d S.Ct. deny requires federal habeas courts to re cannot override the of confrontation. right upon a rule of law contingent lief that is Thus, the Nevada Court’s deci- clearly not the time the established “contrary sion was to” established Su- final.”). Applica state conviction became preme precedent Teague tion of is the means which new Teague made retroactive under and Sum- rules are made retroactive. As noted ear merlin. lier, Teag the Court has clarified that the requires noting It bears inquiries separate.

ue and AEDPA are only cross-examination but unavailabil Horn, 2147. But 536 U.S. at ity. long acknowledged have the sen We directing inquiries us undertake both presented by the child wit sitive situation case, impli in an AEDPA has See, States, e.g., Tome v. ness. United edly application Teague endorsed the Further, appears the AEDPA context. (1995). Indeed, for child prosecutions Congress preserve intended rely heavily testimony. on such abuse often

Teague exceptions explic because AEDPA Here, into Au inquiry the trial court’s itly provides application pro for their unavailability truncated and tumn’s ceedings petitions. state involving habeas 2254(e) (“If conclusory she refused to best. When § applicant See 28 U.S.C. her cooperate, simply the court declared develop has failed to the factual basis of Athough this issue is trou court unavailable. proceedings, claim State court necessary to reach this evidentiary hearing bling, on it is not shall not hold an of the constitutional er- applicant question claim shows that because unless *12 what the com- Sixth Amendment demands the lack of cross-examina- ror related to unavailability and a required: mon law tion. for cross-examination.” prior opportunity is whether admission question final The Id. at 1374. beyond is harmless Autumn’s statement of Neder v. United as unavail- a doubt. See Autumn was not found to be reasonable States, present in fact able as witness. She was (1999). most, The detective’s testi- courts L.Ed.2d 35 at the trial. At the Nevada willing interview Was a to mony regarding Autumn’s that Autumn was not determined evidence, particularly Bockting. The rea- piece against critical of be a witness testimony inconsistent at not ex- unwillingness view of Autumn’s sons for her were hearing. Even if her preliminary possibility The of measures short plored. was, for argu- open to the mother court appearance statement on stand admissible, sake, considered the de- fact that she had explored. ment’s were not The description hearing of Autumn’s interview Bockting’s preliminary tective’s testified at significant against so that the error could have was and had denied the accusations Thus, ad- materially ipse affected verdict. dixit ignored. him was On the mere by Autumn’s statement was not harm- mitting already disappointed of a prosecutor (cid:127) beyond testimony preliminary less reasonable doubt. Autumn’s hearing, disqualified she was as witness hearsay and the introduced. The Confron- III. CONCLUSION tation Clause of the Sixth Amendment ' majority Because concludes States, ap- the Constitution the United applied pending must be this Crawford by virtue of the Fourteenth plicable case, Bockting’s for a petition habeas writ Amendment, was violated. corpus is of habeas GRANTED.3 by opportunity No cross-examination was, course, NOONAN, Bockting ever He Judge, concurring: Circuit existed. spoke to her present when Autumn court, supreme The trial the state spoke mother or when she to Detective court, and the federal district court be Totally by Zinovitch. untested the method constitutional, that the lieved statute constitutionally required, the two testimo- procedure prop followed to have been tales, by nial Laura and the detec- retold er, Bockting’s conviction valid. It is tive, confronted at his trial. The that each of apparent now these courts Confrontation Clause demanded that he be was mistaken and that the statute ánd the against with the witness him. confronted under it are unconstitutional. procedure Const, amend. VI. Washington, supererogation praise L.Ed.2d 177 It is a work of entitled to a writ of the and to cele- Bockting is of habeas the wisdom Founders corpus. proce- of a misunderstanding the law brate the enforcement “bedrock governing the case in dural comprehensible guarantee.” is Nonetheless, light history set out in the circumstances of Craw 1359. ford; nontestimonial is not sub case demonstrate how wise it is to this ject by to an absolute bar. testimo ekclude untested cross-exam- “Where ’ declaration, issue, however, nial evidence is at ination. Autumn’s first re- misconduct, join vouching, part Judge concurring prior II of and inef- I Wallace’s sion of dissenting opinion respect with fective assistance of counsel. admis- mother, argued It is that to apply her was made only ported sleep cry- from apply retroactively. contrary, after Autumn awoke To the night It Court, her mother. ing questioned and was reviewing after its *13 spontaneous an excited or may have been decisions, own declared: made under circum- utterance but one have faithful Our cases thus remained less, not more credi- rendering it stances understanding: the Framers’ Testimoni- words, looked In her mother’s “She ble. al of statements witnesses absent from just up had woke from a bad like she only trial have been admitted where the It quite upset.” is dream and she was unavailable, only declarant is and where people for of all commonplace phenomenon prior opportuni- the defendant has had a and to awake in nightmares to have ages ty to cross-examine. they say then was bother- distress. What guarantee no of trustwor- ing them carries 124 Crawford, Crawford, S.Ct. at 1369. thiness; sleep, still they coming are out therefore, not does announce new rule. sleeping impres- to their state responding Retroactivity is not an issue. declaration was sions. Autumn’s second True, justice’s the chief declared dissent in police presence to a officer made interpretation” was “a new Crawford mother; psychological she was under her Roberts, that overruled Ohio v. not to let her mother down. compulsion 100 65 597 S.Ct. L.Ed.2d the dolls and her play As to her with out, But pointed Id. at 1374. as the Court mother testified experience, sexual her only Roberts itself admitted her and Bockt- that Autumn had observed subjected to had been cross-examination. in the having sexual intercourse one ing Undoubtedly, Id. at 1368. a number of family trailer in which the lived bedroom misinterpreted courts the Confrontation slept Autumn in a closet area and where in way Clause the same as the Nevada language Autumn off the bedroom. did. But correction of a misinter courts organs in to the sexual was used reference does not create a new rule. It is pretation her mother testified that she language literally dangerous in discussion with her. Autumn had to take a dissent. The used stepfather to accuse of crim- interpretation no motive her authentic of what the Court and, fact, af- inal assault demonstrated If from the itself. doing is comes him; (which a motive to fection for she did have I any there were doubt this case nightmare account for her and to tell the is), by deny completely dispelled there it is story the second time when she met same Court, through the au again speaking police. term in thor of the same Addressing decided. which was put further Autumn’s statements were rules without which the procedural new any accusa- repudiation in doubt her of an accurate conviction is seri likelihood against Bockting preliminary tion at his diminished, declared: ously the Court Further, hearing. report of her state- extremely narrow “This class of rules is contextualized ment of her mother must be unlikely any yet ... has and it is an by these facts: her mother was exotic , — emerge.” Schriro v. dancer, performed who sometimes front Summerlin -, -, Autumn; in conflict her mother was Cain, (quoting Tyler L.Ed.2d leaving with and on the brink of 667 n. him; S.Ct. report mother did not Autumn’s her (2001)) (alterations quota L.Ed.2d 632 days declaration until two after nighttime omitted). marks This declaration it. tion she said she heard determination, outlined Schriro Summer principles delivered an authoritative — lin, -, 124 Crawford, that U. months after than four less S . (2004), I would hold procedural rule L.Ed.2d bedrock Crawford’s change procedural in rationale is rule does not A new not a new rule. Crawford’s application qualify Court as retroactive treated analyze Bockting’s Confrontation change in rules. would pre-Crawford jurispru was there. under along, All the bedrock Clause claim so, reject I would doing dence. analy- foregoing to the As an alternative claim, remaining Bockting’s as well as *14 a for provide precedent in order to sis and claims, deferential standards under the court, Judge I also concur this and embodied the Antiterrorism review analysis opinion. and McKeown’s Act of Penalty Death 1996 Effective of the Nevada Su Because the action (AEDPA), court’s and affirm the district that in a decision preme Court resulted petition.1 I Bockting’s denial of habeas federal law as contrary to established respectfully dissent. therefore by Supreme determined 2254(d)(l), States, § 28 United U.S.C. I. issue to free corpus writ of habeas should unconstitutional confine Bockting from his Bockting’s I contention consider first ment. rights that the trial court violated his state Clause admit- under Confrontation WALLACE, Judge, Senior Circuit out-of-court statements. ting Autumn’s concurring dissenting: and McKeown and Noonan con- Judges Both A. recent Supreme clude that ar- weeks after this case was Several decision, Washing- v. landmark Crawford decision, gued before us and submitted ton, 36, 1354, 541 U.S. v. issued Crawford (2004), our consider- governs L.Ed.2d 177 36, 1354, Washington, 541 U.S. Bockting’s Clause ation of Confrontation (2004). Parting ways claim, although for different reasons. the constitutional test formulated with that Judge Noonan would hold ret- While Roberts, 56, v. 448 U.S. 100 S.Ct. Ohio an roactivity is “not issue” because Craw- 2531, (1980), held 65 L.Ed.2d 597 Crawford a “new rule” within did not establish ford “[tjestimonial proceedings, that in criminal Lane, meaning Teague statements of witnesses absent from trial L.Ed.2d 334 only where the defendant [are admissible] (1989), Ante at I concur with that unavailable, only where the defen- part Judge opinion holding McKeown’s opportunity a to cross- prior dant has had established a new rule Craiuford examine.” 124 S.Ct. at 1369 retroactively not con- apply does state added). (emphasis victions on habeas review unless it satisfies However, exceptions. Bockting argues Judge one of narrow I Noonan two —and agree agrees not fits within does not raise ret- do —that Crawford at all it does exceptions. roactivity either of those Guided concerns because misconduct, (b) (c) vouching, Judge part prior effec- McKeown concurs in II of this Therefore, opinion. counsel, See Ante at 1022 n. 3. tive assistance of do not warrant majority agrees Bockting’s of the court relief. habeas (a) challenges to the admission of evidence of Thus, Teague. under since overruled Roberts’s as a “new rule” qualify not great Court took test for the admission of evi- Although testimonial dence, result with to harmonize pains represents the decision also “new Crawford’s decisions, I Amendment previous retroactivity Sixth purposes. rule” for See id. at Judge (charac- McKeown that Craw- agree C.J., with (Rehnquist, concurring) a clear and ratio decidendi effected terizing majority’s opinion aas “new ford’s prior precedent. from See decisive break rule”); Collins, Graham (observing Crawford, 124 S.Ct. at 1369 L.Ed.2d 260 “[ajlthough the results of our decision (“[Tjhere dispute can be no that a decision original faithful to the generally have been if expressly announces a new rule over- Clause, the meaning of the Confrontation ”); prior Teague, rules a decision.... rationales”). cannot be said of our same (“[A] 109 S.Ct. 1060 case Crawford, controlling precedent Before if the announces new rule result was courts to admit evi- permitted by precedent dictated existing the time defendant when- against dence a criminal final.”). the defendant’s conviction became *15 declarant was “unavailable” and ever the “new” constitutional rule Crawford’s “adequate ‘indicia of reli- the evidence had only retroactively to final apply would con- ” i.e., “firmly a ability,’ fell within rooted victions on collateral review if it falls with- “particularized hearsay exception” or bore categories of rules. certain The Su- Roberts, guarantees of trustworthiness.” recently preme Court clarified the nature at 2531. 448 U.S. S.Ct. categories in scope and of these Summer- however, rejected Roberts’s emphatically lin: evidence, arguing approach to testimonial generally apply New substantive rules “unpardona- test demonstrated an its retroactively. This includes decisions to admit core testimonial capacity ble scope of a criminal stat- narrow that the Clause statements Confrontation terms, by its interpreting ute as well as at plainly meant to exclude.” S.Ct. place constitutional determinations that ex- 1371. As the Court Crawford particular persons by conduct or covered plained: beyond power the statute State’s applies is too It broad: [.Roberts] retroactively punish. apply Such rules analysis mode of whether or not same they “necessarily carry signifi- because hearsay parte consists of ex testimo- con- cant risk that a defendant stands ny. in close constitu- This often results act that the law does not victed of ‘an scrutiny in cases that are far re- tional ” punishment make criminal’ or faces a moved from the core concerns of the him. impose upon the law cannot time, however, At the Clause. same too It admits statements test is narrow: procedure, on the other New rules parte that do consist of ex hand, apply do not retroactive- generally reliability. upon finding a mere They produce not a class of ly. do law persons convicted of conduct the Responding at 1369. to .these con- Id. criminal, merely but raise does not make cerns, the Court limited Roberts’s reach that someone convicted possibility cases nontestimonial is “[w]here procedure with use of the invalidated involving issue.” Id. at 1374. cases acquitted have otherwise. evidence,” been replaced might, “testimonial speculative more connec- Because of this two re- Roberts with new test has innocence, retroactive give tion to we “unavailability prior op- and a quirements: “ only a set of ‘watershed Id. effect to small portunity cross-examination.” liberty” (quoting implicating concept in the of ordered procedure’ of criminal rules Connecticut, 319, 325, 58 accuracy Palko v. 302 U.S. -fairness and' fundamental (1937))). This 82 L.Ed. proceeding.” of the criminal Judge McKeown finds argument U.S. at -, —which 124 S.Ct. 2522- - intuitive persuasive admittedly has some (citations omitted), — Bousley v. quoting observes, Bockting the Su appeal; as 614, 620, States, 118 S.Ct. 523 U.S. United described “the Sixth preme Court has (1998), 140 L.Ed.2d 828 Saffle to con right Amendment’s of an accused Parks, him” as “funda against front the witnesses Texas, mental,” Pointer v. against Summerlin’s stan- Measured (1965), 1065, 13 L.Ed.2d 923 dards, is classified as best Crawford purports to effectuate the and Crawford does not rule. The rule “nar- procedural design and original Confrontation Clause’s a criminal' statute scope row thereby accuracy enhance the fairness terms”; “place its nor does interpreting proceedings. defendants’ criminal persons' or covered particular conduct However, Crawford, 124 1373. beyond power' the State’s the statute “ the fact that ‘fundamental’ Crawford Rather, by renego- punish.” Id. at enough” some abstract sense is admissible tiating the boundaries between entitle to habeas relief. Sum evidence, oper- and inadmissible — merlin, at -, S.Ct. at 2523. criminal solely pro- on a defendant’s ates Teague progeny, Under and its *16 a ceedings. characterization as Crawford’s a rule” does not constitute “watershed by supported rule is further procedural application suitable for retroactive unless By labeling itself. decision ‘seriously the Roberts test “so dimin procedural as “a Confrontation Clause accuracy ‘imper- that there is an ished’ ... guarantee a rather than substantive missibly large punishing risk’ of conduct ... judgment reflects a about how [that] 2525, the law does not reach.” Id. at can reliability evidence] testimonial [of 312-13, Teague, at 109 quoting 489 U.S. determined,” the endeav- best be (“This 1060; see also id. at 2523 class S.Ct. constitutionally ored to reinstitute “the narrow, extremely of rules is and ‘it is reliability.” prescribed assessing method unlikely ... any yet that to ha[s] (emphasis 124 S.Ct. at 1370 add- ” Cain, emerge.’ (quoting Tyler v. 533 U.S. ed). While, line between “substance” 656, 7, 2478, 667 n. 121 S.Ct. “procedure” may always crys- be (2001)) (internal quotation 632 marks and tal-clear, dispute there can be no serious omitted)). citation that restriction on testimonial Crawford’s “procedural” evidence is a rule. test, evaluating In the Roberts the Su- preme analysis contends that merits in Summerlin is application question presented here because it is a instructive. The there retroactivo “ Arizona, procedure’ Ring of criminal was whether 536 U.S. rule[ ] ‘watershed 584, 2428, 122 implicating the fundamental fairness and S.Ct. 153 L.Ed.2d 556 (2002), Saffle, juries criminal that accuracy proceeding.” of the the Court’s decision 495, 1257, citing any ag- at 110 the existence of U.S. S.Ct. must determine 494 1060; 311, Teague, gravating necessary imposition at 109 factor U.S. S.Ct. 307, penalty, applied retroactively at Teague see(cid:127) also 489 U.S. 109 S.Ct. death (describing exception applying already this as to cases final on direct review. implicit Ring represented ... whether a true procedures assessing to “those are rule, punishing conduct the the court re risk’ law does not procedural “watershed” — reach,” Summerlin, commentary relating at -, scholarly U.S. viewed accuracy judicial factfinding 2525, quoting Teague, at at S.Ct. “simply 312-13, the evidence concluded am I pre S.Ct. 1060. Nor justify Ring’s retroactive equivocal” too pared to assert that all testimonial “[w]hen, many presumably so application: opportunity evidence admitted without the disagree minds continue reasonable necessarily for cross-examination renders juries are better factfinders over whether inaccurate,” “impermissibly a criminal trial , confidently say judicial we cannot 2526, “unfair,” id. at or otherwise id. at accuracy.” factfinding seriously diminishes quoting DeStefano, 392 U.S. at , — at -, 124 S.Ct. at U.S. Summerlin assuming 2093. Even 88 S.Ct. Crawford’s this The Court also stressed reinterpretation the Confrontation from ob logically followed its conclusion Clause is some sense “fundamental” and Woods, servation DeStefano accuracy-enhancing, does not follow that 20 L.Ed.2d 1308 88 S.Ct. by right implemented values “[t]he [that] curiam), “that, right ‘the (per although by ... measurably would be served .... arbi jury generally prevent trial tends to requiring persons retrial of all convicted in ... would repression[,] [w]e trariness and past by procedures not consistent with every criminal trial —or not assert right” the Sixth Amendment as it is cur judge any particular trial —held before — Summerlin, rently understood. may that a defendant alone is unfair or at - - -, 2525-26, quot judge as he fairly treated never be ing DeStefano, 392 U.S. at ” — Summerlin, jury.’ would be simply 2093. There is no solid evidence -, quoting U.S. at seriously that Roberts has so undermined 633-34, DeStefano, 392 U.S. accuracy proceedings of criminal as to omitted). (internal quotation marks gen the host of final convictions discredit if “a trial held reasoned that pursuant authority. erated to its *17 entirely jury impermissi- was not without McKeown, however, inaccurate, Judge hard to see how a trial concludes bly is only retroactive, judge aggravating in which a finds that is because “the Crawford seriously could be.” Id. at 2526. Summer- factors that cross-examination evidence Ring retroactively not extend lin thus did possibility the of inaccurate con decreases notwithstanding to cases on habeas review In unequivocal.” Ante at 1017. viction is right that recognition “[t]he the Court’s view, the her itself answers “Crawford system to our jury trial is fundamental of cross- question of whether the absence Id. procedure.” criminal ac seriously diminished] examination” “so impermissibly large an curacy that there is directly Although Summerlin does the law does not punishing risk of conduct case, the close control the outcome of this 1017, quoting at reach.” Ante are between the two cases similarities Summerlin , — at -, at 2525. But 124 S.Ct. U.S. Summerlin, As in there is no compelling. Prior to Craw wrong question. that is the comparative ef- clear consensus over required not have ford, may courts 'been on might have fects Roberts Crawford witness’s out-of exclude an unavailable verdicts, jury see Craw- accuracy that was not statement C.J., court testimonial (Rehnquist, ford, 124 S.Ct. at 1377-78 cross-examination, they subject to but was that concurring), any much less evidence that to exclude statements required were ‘seriously accura- Roberts “so diminished’ of reliabili- “adequate not have indicia ‘impermissibly large did cy that there is an 1028 er, 66, Roberts, compared against 100 S.Ct. the Court Caldwell 448 U.S.

ty.” Thus, DeChristoforo, not whether question [Donnelly is “the rule of subject 637, 1868, to cro'ss- testimony that has been 40 L.Ed.2d 431 likely more to be reliable (1974), examination is place [at was the time which] Rather, the testimony that has not. than petitioner’s appeal] protect trial and question is whether admissible any pros- defendant who could show that a much more under Roberts is so unreliable pro- ecutor’s remarks had fact made a than that admissible under fundamentally Sawyer, Crawford unfair.” ceeding rule is “one without which 243, Although 497 U.S. at 110 S.Ct. 2822. an accurate conviction is the likelihood of the Court’s “concern Caldwell was with — Summerlin, seriously diminished.” ‘unacceptable misleading risk’ that re- (internal at -, 124 S.Ct. at 2523 U.S. reliability marks could affect the of the omitted). quotation marks sentence,” merely Caldwell had been “add- existing guarantee process ed to an of due Sawyer decision in protection against fundamental unfair- Smith, 227, 2822, Thus, ness.” Id. 110 S.Ct. 2822. principle L.Ed.2d 193 illustrates the say in Sawyer the Court could not qualifies new rule “watershed “systemic enhancing Caldwell’s rule relia- procedure,” Teague, of criminal rule[ ] bility prerequisite an ‘absolute funda- only if it U.S. fairness,’ type may miental represents improvement a substantial over Teague’s exception.” come within second existing Sawyer, rule. previously Id., quoting Teague, 489 U.S. at question the Court addressed whether S.Ct. 1060. petitioner a habeas could claim the benefit Mississippi, of Caldwell v. Here, too, new rule must be Crawford’s (1985), judged against background in which it petitioner’s

which was decided after the decided, by comparing it to the rule of final conviction became and which “held Although language Roberts. certain Eighth prohibits that the Amendment Judge opinion suggests McKeown’s imposition of a death sentence a sen- so, purports she to do see Ante at 1018-19 tencer that has to the been led false belief (“The post- difference between pre- responsibility determining that the jurispru Confrontation Clause appropriateness capital of the defendant’s sort, change dence is not the that can be Sawyer, sentence rests elsewhere.” *18 incremental.”), merely dismissed as she U.S. at After S.Ct. 2822. conclud actually never question upon asks the rule,” ing that Caldwell a “new established retroactivity which turns: Does 233-41, 2822, id. at Crawford’s testimony of admission which has been fit addressed whether Caldwell within ei judicially in- “adequate determined to bear But, of Teague’s exceptions. ther in ad (as reliability” dicia of required), Roberts dressing qualified whether Caldwell as a “ subject necessarily but which has not been proce ‘watershed of criminal rule[ ] ” (as to cross-examination re dure,’ 241, 2822, 110 quoting id. S.Ct. quires), seriously accuracy “so 1257, diminish[] Saffle, 494 110 U.S. S.Ct. that an impermissibly large there is risk of simply did not ask whether sen punishing conduct the law not reach”? imposed tences in violation of Caldwell does — Summerlin, -,at were much less accurate than those im U.S. S.Ct. at (internal omitted). posed compliance with quotation Caldwell. Rath- marks above, protection vagaries of the rules of to that answer explained As evidence, amorphous much less to notions affirmative. not be question should ”). True, ‘reliability.’ of the Court stated Judge MeKeown’s another flaw Yet ... that Clause re- “[t]he [Confrontation] language her focus on Craw analysis is judgment reliability flects a about how an that the new rule suggesting ford determined,” 1370; that can best be id. that is truer to the Fram nounced in case legacy of Roberts in other courts “[t]he quotes she design. example, For ers’ reject- the Framers’ wisdom in vindicates that Framers “[t]he statement ing general reliability exception,” id. at parte to learn that ex would be astounded 1371; “Reliability that is an and even against a testimony could be admitted subjective, amorphous, entirely if not con- because it was elicited criminal defendant But, even if cept.” Id. one assumes officers.” Craw government ‘neutral’ empirical the Framers were correct as an Ante at 1016. ford, 124 S.Ct. at 1373. See matter that cross-examination is the best not, however, wheth question here is “The way reliability testimony, to ensure the of the Framers believed [cross-exami er any that does not mean that other method of provides [means more accurate a] nation impermissibly punishing threatens the in- than reliability testimony] testing the nocent. ‘reliability’ pur [judicial determinations Finally, Judge analysis is McKeown’s ],” Rob [the suant to Roberts but “whether that of other circuits that contrary to three accura seriously so test] erts diminished not fit have held that rule does Crawford’s large cy impermissibly that there is an risk Teague’s exceptions. within either of See conduct the law does punishing v. 381 F.3d 1225-27 Uphoff, Brown — Summerlin, at -, reach.” (10th Luebbers, Cir.2004); Evans (internal quotation marks at 2525 S.Ct. (8th Cir.2004); Mungo F.3d 444-45 omitted). par That Framers made a (2d Duncan, 393 F.3d 335-36 Cir. way to judgment ticular about the best 2004). Although Judge McKeown criti reliability does not ensure ground “[t]he cizes Brown on the they than the one any mean that rule other mistakenly concluded that Tenth Circuit impermissibly high an envisioned creates subject to harm rules of constitutional law conviction. risk of inaccurate considered error review can never be less analysis in The focus of Justice Scalia’s Ante at procedure,” bedrock rules of see fidelity on Roberts’ 1020, that attack is not well-founded. Our intentions, than Framers’ rather the accu- States v. Sanchez- own decision United racy obtained under (9th of convictions Cir.2002), Cervantes, 282 F.3d See, Crawford, 124 regime. e.g., Roberts Apprendi Jersey, v. New which held (“Petitioner argues that [the at 1359 strays original from the retroactively, ] Roberts test not apply does meaning of the Confrontation Clause very reasoning Judge employed the it.”); id. at 1369 urges objectionable. *19 us to reconsider See San McKeown finds chez-Cervantes, (“Although (“By ap the results of our decisions at 670 282 F.3d original generally analysis plain been faithful to the or plying have harmless error claims, Clause, we have meaning Apprendi of the Confrontation review to error rationales.”); do necessarily Apprendi our errors same cannot be said of held (“Where fundamentally unfair. a trial at 1370 testimonial statements not render id. Therefore, illogical to hold involved, Framers it would seem we do not think the are rule that an error is a watershed that such to leave the Sixth Amendment’s meant probed deeply more into prosecutor the fundamental fairness of As the ‘implicate^ ” assault, Teague, alleged 489 U.S. at (quoting Bockting’s the trial’ the details 1060) (footnote omitted)). began cry Autumn and averred that she reasoning in Brown is The Tenth facts such as Circuit’s could not remember basic our own in entirely consistent with San- what occurred the bathroom with her chez-Cervantes, yet provides another fa- father and whether she discussed her analysis why Judge McKeown’s reason alleged assault with Detective Zino- ther’s unpersuasive. judge vitch. The asked Laura to take stand, Autumn on the seat next to witness reasons, I conclude foregoing

For the Autumn to hon- encouraged and Laura “be qualify does not as a “wa- Responding est” and “tell the truth.” procedure” ap- tershed of criminal rule[] them,” “[y]ou already Autumn told refused propriate application retroactive any questions. to answer further already final on direct review. convictions Autumn as a judge declared unavailable 109 S.Ct. 1060. Teague, 489 U.S. witness. in Mungo, Like the Second Circuit see 393 334-35, Judge and unlike F.3d Bockting’s jury trial on Au- commenced McKeown, 2010-11,1 see Ante at therefore gust government, repre- 1988. The question

would not reach the whether Attorney Deputy sented District John Teague exceptions, AEDPA “nullifies” the Lukens, called Autumn as its first witness. fitting such that no “new rule”—even one transcript The trial reads as follows: exceptions may within one of those serve — as the basis for habeas relief. Very Luk- good The Court: then. Mr. ens, your first witness.

Nonetheless, to determine whether I can result, concur in the I must evaluate Bockting. Mr. Lukens: Autumn Bockting’s Confrontation Clause claim ac- * * * cording to the standards articulated in pre-Crawford Roberts and our own deci- you doing, The Court: How Au- are sions. Autumn, okay? tumn? All you right. C83110, Continuation of case State of B. Nevada versus Marvin Howard Bockt- Judge opinion Because McKeown’s does ing. pres- The record reflect will get application pre-Crawford not to the defendant; counsel, ence of his Mr. Bockting’s law to Confrontation Clause Blaskey; Mr. representing Lukens claim, necessary go for her to State[;] jury. the absence of the And we regarding into detail the facts of this case have on the stand Autumn Jean Tresler analysis, are relevant to such there- Bockting. fore I add them here. ahead, All right. Go counsel. At Bockting’s prelimi- March nary Laura hearing, described Autumn’s Autumn, you Mr. Lukens: this is when allegations leading abuse and other events have to up stand to be sworn.

up Bockting’s arrest. Prosecutors then you up, The Court: Can stand Autumn? called Autumn to the stand. Autumn tes- you up your Can stand and raise hand tified she knew the difference be- for me? tween the truth and a lie and answered Autumn, preliminary questions about alleged up your stand now and raise *20 us, subsequent okay. assault and rape examination. hand for Honor, I would that the State has com- Your I think under submit Mr. Lukens: conditions, plied that witness with that and that such notice was I think the these 2nd, styled testify. August filed on 1988 and is unable to is Notice Pursuant to Revised [Nevada Well, apparent I think it The is Court: gave 51.385 wherein I notice of Statute] jury get anything if we can’t without the the three individuals who I intend to call this, likely it is not when the more than as to Autumn’s statements. any do better. Go jury is here we will assist, Very The Court: well.... you please. ahead and will bench, please. the approach Counsel Laura hearing After from (Discussion presence not Detective Zinovitch outside the at the bench which was jury, judge concluded that Au- reported.) were admissi- tumn’s statements Honor, Your at this time Mr. Lukens: ble under Nevada Revised Statutes 51.385 has for itself since the Court observed effectively because Autumn was unavail- Bockting to tes- inability of Autumn questioning: for able tify to the emotional conflict due her, very to purpose intends this statute was goes on within State problem today avoid the we have here pursuant Statute] to Revised [Nevada girl willing the state- where a little either is not to 51.385 to offer into evidence testify or for some reason is unable to or made Autumn ments mother, Laura, in an inconsistent manner and Detective testifies such both her means, essence, and, extent, it in tes- a more limited their Zinovitch worthless; timony is and because of the Diane Donovan. in testifying open fact that she is court pursuant made to [Nevada This offer is things all the strangers front of with 51.385 which states Statute] Revised that kind of a set- surrounds that, any “In addition to pertinent part obviously un- ting. girl The little admissibility, for a state- provision other state- available. And as far as these two age a child under the ment made ments, one to the meaning I am any act of sexual years, describing Zino- mother and the one Detective child, with or on the performed conduct vitch, they they I think are are proceeding in a criminal is admissible allowed— to be allowed to be re- enough credible if, A, that sexual conduct regarding jury. lated to the pres- hearing Court finds outside time, content jury that the ence preconditions two Roberts outlines pro- of the statement circumstances out-of-court .statements introduction of guaran- First, vides sufficient circumstantial against a criminal defendant. B, trustworthiness, and, the child tees of the declarant’s government must establish is unavail- proceeding testifies at the or testify as a “unavailability” to witness testify.” I Cambra, able or unable to submit 204 F.3d trial. Bains v. B met.

portion Roberts, has been (9th Cir.2000), citing Second, 65-66, gov addition, And, provision under [the [2], that the hear must demonstrate formerly Subsection ernment designated] indicia of “adequate bear say or un- statements says, “If the child is unavailable they either fall reliability” by showing that must be testify, able to written notice hearsay exception” firmly rooted days before “within given to the defendant guarantees “particularized or contain prosecution trial if the intends Roberts, at 65- trustworthiness.” offer the evidence.” statements *21 un Bockting’s ing” In state addition to when the child “is 2531. I Supreme testify”). the Nevada Court available or unable to would proceedings, reject satisfied government Bockting’s argument determined that the therefore Bockting v. requirements, unavailability these two see de supreme the state court’s State, 1364, 1366-70 109 Nev. 847 P.2d termination is not' entitled to deference (1993) curiam), chal (per Bockting because the trial court to ascertain failed on federal ha- lenges these determinations testify Autumn whether was available beas review. Mindful of federal court’s trial. duty supreme to defer to the state court’s question A more difficult is whether the ap factual determinations and reasonable Supreme Nevada substantive una Court’s precedent, plications Supreme to, vailability “contrary determination was 2254(d)(1)-(2), § I consider each U.S.C. of, application or involved an unreasonable in turn. requirement

Roberts law, clearly as deter established Federal by the of the Supreme mined United 2254(d)(1). § past 28 U.S.C. States.”. Bockting first asserts that the Nevada decisions, Court has Supreme Court’s decision is not entitled to necessary found it to decide whether a deference AEDPA under because child witness is “unavailable” for Confron court failed to review whether Autumn was tation Clause purposes when the child is testify at trial. available The record merely emotionally developmentally or in support does not this characterization of capable of in that forum. testifying See supreme findings. the state court’s When 805, 815-16, Wright, Idaho v. 497 U.S. cooperate Autumn refused to a trial L.Ed.2d 638 As witness, prosecution moved to intro matter, however, general the Court held hearsay duce her through statements Roberts that “a witness not ‘unavailable’ mother, testimony of her Detective Zino- n prosecutorial unless the authorities vitch, and Doctor1 pursuant Donovan good-faith have made a to obtain effort 51.385, Nevada Revised pro Statute which Roberts, presence at trial.” [her] vides for the introduction of a child’s hear , quoting Barber v. 75 say they if statements are “unavailable or 724-25, Page, testify.” unable to NEV. REV. STAT. added). (emphasis L.Ed.2d 255 51.385. Before granting prosecution’s motion, clear, the trial court partic Seizing good require- made on Roberts’s faith ment, finding ularized plausible argu- Autumn’s refusal makes a cooperate on the stand had rendered her ment that child witnesses who refuse to “obviously testify unavailable.” The Nevada Su in a courtroom setting should not Court, preme observing while that Nevada be considered “unavailable” unless the Revised require government Statute 51.385 “does not first a good-faith makes at- unavailability hearsay of a tempt declarant as to secure their through a prerequisite admissibility to the closed circuit television or some me- other statements,” declarant’s ex dium I nonetheless amenable to cross-examination. plicitly affirmed the trial court’s determi need not consider the Bockting’s merits of however, nation “that the proposal, child was unavailable as a my because task here is 4; best; instead, witness.” Bockting, 847 P.2d at 1366 n. not to decide might what be (allow see also my NEV. REV. STAT. 51.385 review.is limited to whether the Neva- ing the introduction of application statements da Roberts when child proceed “[t]he testifies unreasonable. See 28 U.S.C.

1033 face, procuring contempora- for Autumn’s 2254(d). requires dures its Roberts § On testimony to obtain not involve an unrea- good-faith “a effort neous did more than no Roberts, trial,” Roberts, Craig, at or presence application sonable witness’s] [a 75, (emphasis 2531 at 100 S.Ct. Coy. 448 U.S. Barber,

removed), at 390 U.S. quoting Bockting’s Setting aside assertions 724-25, 1318, government and the 88 S.Ct. error, I legal must decide whether requirement this here satisfied arguably Supreme unavailability Nevada Court’s (1) “pres- securing physical Autumn’s on an finding “was based unreasonable (2) making good-faith “a at trial and ence” in light determination of the facts of the testimony in that fo- to elicit her effort” presented pro- evidence in the State court rum. 2254(d)(2); § ceeding.” see also 28 U.S.C. recent deci Court’s more Supreme Maddox, (9th F.3d Taylor v. 999 procedures with alternative dealing sions Cir.2004) (holding subsection testimony do not materi obtaining for trial 2254(d)(2) ... “applies to situations where Bockting’s petition. habeas ally advance petitioner challenges the state court’s find- permit has Although record”). ings entirely on the state based one-way closed cir to substitute ted states review, this standard of Under deferential testimony for in-court child cuit television may I that the state-court “determine circumstances, Mary see under certain factfinding process is defective in some Craig, 497 land v. U.S. way” any appel- unless I am “satisfied that (1990), it has never pointed late court to whom the defect is requires the Constitution intimated holding out would be unreasonable attempt such alterna government fact-finding process the state court’s for an precondition as a procedures tive Taylor, 366 F.3d at 1000. adequate.” unavailability finding. Wright, . Cf. Bockting’s support The record does not (“Out-of-court 818, 110 at claim that the Nevada regarding made children statements unavailability reliance on the trial court’s variety arise a wide sexual abuse on an unreasonable finding “was based circumstances, and we do not believe light determination of the facts imposes proce a fixed set of Constitution pro- in the State court presented evidence to the admission prerequisites dural 2254(d)(2); § see ceeding.” 28 U.S.C. trial.”). To the con such statements n. 5 342 F.3d Ayers, also Gill v. rejected emphatically has trary, the Court Cir.2003) (9th that when a (explaining Craig, 497 U.S. the assertion summarily adopts a court supreme state Iowa, Coy and look finding of fact “we lower court’s 1012, 1021, 108 L.Ed.2d ... decision to through unexplained (1988), to demon require government ... as the basis reasoned decision the last “necessity” introducing pre before strate (internal judgment” court’s for the state hearsay statements. See White trial marks, brackets, citation quotation Illinois, 346, 358, 112 S.Ct. omitted)). Bockting’s preliminary At (“There no L.Ed.2d 848 initially responded to the hearing, Autumn ‘necessity require importing basis or incomplete with prosecution’s inquiries Coy into [Craig ] announced in ment’ answers, into quickly broke then evasive much different context of out-of-court _”). any further and refused to answer hold, tears I there would declarations Efforts to elicit her questions. fore, Supreme Court’s the Nevada fruitful, she less trial were even upon proce- alternative failure to insist proceeding,” or to raise in the court id. 'so much as to stand State refused 2254(d)(2). dm a § hand to be sworn as witness. her *23 paint not transcript’

The trial does de Autumn’s demeanor on portrait

tailed of 2. occasion, strong but there are latter Turning “adequate to Roberts’s indicia of distraught was and un hints that Autumn reliability” requirement, the Nevada Su- start, leading the communicative from the preme acknowledged Autumn’s trial court to conclude there state hearsay any did not fit statements within questioning further pursuing no use “firmly hearsay exception” rooted but held am not “con jury. before the I therefore requisite that her statements bore the appellate panel, applying an vinced that “particularized guarantees of trustworthi- review, appellate of normal standards ness” for admission under Roberts. Bockt- reasonably conclude” that Au not could ing, Applying 847 P.2d 1367-70. emotionally incapable testify tumn was of Wright, multifactor test outlined in 497 at 1000. To ing Taylor, at trial. 366 F.3d 821-22, the court contrary, deference to state courts is which, identified several circumstances particularly appropriate in a case such as view, its buttressed the “trustworthiness” this, fact turn findings where of on trial allegations, including: of Autumn’s abuse of a eyewitness court’s evaluation child (1) “spontaneity and consistent repeti- Wainwright witness’s demeanor. Cf (2) statements, tion” of “agitation her Witt, 412, 428, 469 U.S. recounting expe- and fear” before first (1985) (“[Djeterminations L.Ed.2d 841 of rience to her mother as evinced “the demeanor .... entitled to deference [are] visibly cry- fact that she was shaken and review; respect paid even on direct ‘[t]he (3) ing,” her apparent “knowledge of sexu- findings proceeding such in a habeas present al conduct not in most children six ”) (quoting' should be no less.’ Patton v. (4) years of age,” her “child-like terminolo- Yount, gy” which “was reflective of candor rather (1984)). As Bockt- than coaching,” “display her ing present any did not evidence in feder Bockting affection for ... indicative of love challenge al district court to trial state Bockting, rather than hate.” 847 P.2d at findings, presume court’s I that the trial findings court’s are correct. See 28 2254(e)(1); § Taylor, U.S.C. 366 F.3d at Bockting argues that the Nevada Su- (“Once fact-finding the state court’s preme Court evaluated the trustworthiness satisfies this intrinsic review the rec [on of Autumn’s statements based on an un- ord,] ... findings the state court’s are reasonable application dressed .in a presumption of correct precedent, mistakenly because it interpret- ”). .... ness Wright prohibit any ed consideration of support evidence that did not sum, trustworthi- Bockting has not established Wright ness. held that in evaluating the Nevada unavail- to, whether a declarant’s ability statement bears “contrary determination was or “ of, ‘particularized guarantees of trustworthi- involved an- -application unreasonable ness[,]’ clearly law, relevant established Federal circumstances include deter- that, only making mined those surround the Supreme Court of the United States,” 2254(d)(1), statement,” § corroborating 28 U.S.C. or “was evidence based on an determination of the substance of a declarant’s unreasonable light the facts in presented (e.g., physical the evidence statements evidence of sexu- abuse). Bockting, P.2d against the husband.” Wright, al added). Although Although at 1369 n. 8. these statements (emphasis S.Ct. 3139 may whether courts suggest might not decide the court have misinter- Wright did noncorroborating evidence that they preted Wright degree, consider to some do not substance of a declarant’s refutes clearly misapplied that the court establish evidence contra- (e.g., physical statements by. refusing Wright this case consider - allegations), see dicting an accuser’s abuse critical,- admissible evidence such as the - (9th discord, Peterson, 6 F.3d Swan marital between *24 Cir.1993) before us here— issue not body opinion, Laura. In the of its the —an suggests reasoning strongly the Court’s court stated reached its trustworthiness any at least consider that courts must totality determination based on “the of making of surrounding the circumstances surrounding circumstances the child’s out- challenge an out-of-court statement of-court statements” and asserted that in- (e.g., trustworthiness the statement’s “[njeither factors the'[five] [listed above] fabricate). consistencies, motives to See record evidence any aspect nor other of 825-27, 3139; Wright, 497 U.S. insights into a motive for dissem- provides (9th Lewis, 44 F.3d v.Webb part on the of the child.” Id. at bling Cir.1994) not Wright “does (holding added). True, (emphasis 1369-70 that con- recourse to other evidence forbid expressly discuss the Bock- court did not unreliability of the presumptive firms the certain other tings’ marital discord and (rea- Swan, n. 7 hearsay”); 6 F.3d at 1381 the trustworthiness damaging evidence Wright in soning “[b]ecause dicta statements, it did refer to of Autumn’s but consistency of a child wit- that the holds “had seen Laura’s that Autumn reliability of allegations bears on ness’s show- organs past, adult sexual had statement, arguably a hearsay an initial Bockting, ered with both her mother be statement should also later inconsistent stepfather and had seen her mother and making reliability deter- evaluated entering the bed- having intercourse after mination”). Id. at 1369 room unnoticed the adults.” however, decide, categori- if I need not Supreme n. 7. Given the Nevada Court’s challenging cal refusal to consider evidence all “record that it considered assertion out-of- of Autumn’s the trustworthiness claims, it assessing Bockting’s evidence” an would constitute ob- court statements “totality the cir- that its of appear would application jectively unreasonable did, fact, analysis embrace cumstances” support Wright, for the record does and other Bocktings’ problems marital that the Nevada Su- Bockting’s assertion Au- surrounding relevant circumstances “explicitly refused to consid- preme Court I statements. would tumn’s out-of-court unreliability establishing the er evidence” that the reject Bockting’s contention thus in this case. of Autumn’s accusations unreasonably ap- Supreme Nevada supreme court’s Footnote 8 of the state restrictions on corroborat- plied Wright’s excluding opinion Wright characterizes ing evidence. determining A . in evidence “corroborative “[wjhether The ultimate determination reliability hearsay statements” and were statements [Autumn’s] suffb might require hypothesizes Wright vio admitted without ciently reliable to be marital “to evidence of dis- courts exclude question” of is a mixed lating ] possi- [Roberts as a part parents on the cord Swan, fact, so.I 6 F.3d law and having mother for ble motive relia- Supreme Court’s review the Nevada charges of- sexual abuse child fabricate state, bility spontaneity, to ascertain whether it Autumn’s mental determination to, contrary motive, 2254(d)(2), § or involved an unreason presume “was I U.S.C. of, 2254(e)(1). clearly correct, established application § able findings these are id. law, as determined the Su Federal Taylor, See 366 F.3d at 1000. preme the United States.” 28 Court of compelling Bockting’s Somewhat more 2254(d)(1); § see also Davis v. U.S.C. challenge to the Nevada Court’s (9th Cir.2003) Woodford, 333 F.3d reliance on “knowledge Autumn’s of sexual 2254(d)(1) (stating applies that subsection usually acts that a child six would not be fact”) (cit questions “to of law and mixed personal experience.” aware absent 407-09, Taylor, ing Williams Bockting, 847 P.2d at 1369. Laura con- (2001)). 146 L.Ed.2d 389 ceded trial that Autumn had seen adult To the extent the Nevada organs, sexual had showered with each of “particularized guarantees of trustworthi parents, prac- her had watched her mother fact, findings of I ness” rest on must de dancing, tice exotic and had observed her *25 cide whether the determination “was based parents in engaging sexual intercourse af- on an unreasonable determination of the ter entering the bedroom unnoticed. in light presented facts of the evidence testimony, elaborated on Laura’s proceeding.” the State court 28 U.S.C. alleging that Autumn had witnessed her 2254(d)(2). § parents engage in oral sex and was herself Bockting argues that sponta- neither the “interested” in sex. For these reasons neity intensity and emotional of Autumn’s alone, supreme the state court had reason allegations apparent nor her lack of motive suspect familiarity that Autumn’s with truthfulness, to fabricate are indicative of adult acts sexual would exceed that of the they easily explained away because can be hand, average six-year-old. On the other First, one of two alternative theories. supreme the state court concluded the Autumn he observes that delivered her parents of Autumn’s did not ad- original shortly account arising abuse after equately ability account for Autumn’s sleep from and contends that she could through the “demonstrate[ ] use recounting have night- been fantastical dolls positions that would have been “nightmare” theory mare. entirely This necessary place for the acts to take be- speculative appears implausible and given large tween a adult male and a small fe- graphic specificity allega- of Autumn’s male child” and to describe “how she held Second, tions. Bockting posits that Laura onto the sink while Bockting [bathroom] might allega- have fabricated the abuse was press behind her and ‘would real hard tions herself and coached Autumn through ” and it hurt.’ Id. The substance Au- police “night- interviews. Like the allegations tumn’s disclosed knowledge of theory, mare” this “coaching” theory is sexual gained personal acts from direct record, utterly unsubstantiated and experience, Thus, not remote observation. it fails to account for spontane- Autumn’s it was not for unreasonable the state su- ous use of dolls to describe the assault find, preme did, court to as it that Au- during her interview with Zinovitch and prior exposure tumn’s to adult sexual acts the child-like terminology Autumn used to adequately explain familiarity did not her Bockting, describe her abuse. See specific with the acts described her P.2d at Bockting’s specula- 1368. Because allegations. abuse conjecture

tion and do not establish that Supreme Arguably Nevada Court’s factual find- the weakest link in the Neva- ings were respect “unreasonable” with da Supreme “particularized Court’s guar- ments, Wright.” as defined Id. 1369- determination of trustworthiness” antees such, reject Bockting’s I would consistent 70. As finding that “sufficient is its supreme various state court existed assertion repetition [Autumn’s] allega weigh Id. Autumn’s and relevant abuse to consider “fail[ed] statements.” Zino- her mother Detective properly presented.” tions to was evidence that identical, it was substantially so were vitch at 1001. Taylor, 366 F.3d supreme for the state not .unreasonable Moreover, testimony at Autumn’s “restate that Autumn’s court to conclude hearing compel does not preliminary Zino- travails [to of her Detective ment Supreme conclusion that the Nevada details she consistent with vitch] analysis “contrary runs reliability Court’s Id. at told to her mother.” previously had to, applica or an unreasonable involve[s] hand, the court did On the other of,” Wright. tion or Roberts U.S.C. Autumn’s out-of-court state mention 2254(d)(1). recently explained, § As we testimony at the contradicted her ments Supreme specifically “the has. ‘de material re hearing several preliminary a mechanical cline[d] endorse test in Nevada spects. The ‘particularized guarantees determining in Au inconsistencies attention to these ”],’ under [Roberts trustworthiness’ significant potentially statements is tumn’s “ leeway considerable in their ‘courts have AEDPA; Court has under ” factors.’ appropriate consideration held, have section and we observed (9th *26 Runnels, Parle v. 387 F.3d 2254(d)(2) “where the allows habeas relief Cir.2004), quoting Wright, 497 U.S. at it, ignores, yet apparently state has before case, In this the state 110 S.Ct. 3139. petitioner’s supports [a] evidence on good court had reason to focus supreme (para F.3d at 1001 Taylor, 366 claim.” consistency of Autumn’s statements to the Cockrell, 53 U.S. Miller-El v. phrasing and Detective Zinovitch and her mother reliability of her in-court discount the (2003)). reliability in its anal statements as factors Although Supreme the Nevada Court prelimi ysis. testimony at the Autumn’s state- expressly discuss Autumn’s did not evasive, per nary hearing patently was hearing when preliminary at the ments state, her haps reflecting her emotional consistency out-of- evaluating the of her stepfather, harm to her desire to minimize statements, these it did not ignore court being asked and her embarrassment clearly court altogether. The statements in an graphic details discuss the assault’s Autumn’s inconsistencies in the recognized Doctor Donovan’s ex open public forum. statements, the section because “Facts” Au indicated pert testimony also testimony Autumn’s relevant summarized preliminary the equivocation tumn’s Bockting, preliminary hearing. See at the the with denial hearing consistent (“At preliminary at 1365 847 P.2d commonly victims en phase abuse child that her hearing,.... stated [Autumn] Considering a sexual assault. dure after [during the al- were never removed pants totality the circumstances surround of that she could not re- leged and abuse] statements, see id. her.”). ing Autumn’s Bockting how touched member persuaded- I am not Thus, testimony “aspect was an of this Supreme applied the Nevada supreme record evidence” state unreasonably by hold Wright Roberts into of incorporated its evaluation court testimony prelim at the ing that Autumn’s “totality sur- circumstances tip singlehandedly inary hearing does.not state- rounding the child’s out-of-court reliability against past allegations the admis- to consider of sexual as scale sault as evidence that he committed the statements. sion of her out-of-court subsequent assault for which he sexual the Nevada Since trial was convicted. The state court and “adequate indicia of “unavailability” upheld court ad supreme evidence’s AED- satisfy reliability” determinations mission, holding that the trial court’s deci review, stringent PA’s standard of Bockt- sion was consistent with state evidence claim fails. ing’s Confrontation Clause 48.045(1) law. See NEV. REV. STAT. (“Evidence person’s of a or a character II. trait of his character is not admissible for to his Confrontation Clause addition purpose proving that he acted claim, other claims Bockting raises several conformity on a particular therewith occa Al- support petition. of his habeas sion, accused, except by offered an [as] Judge Judge McKeown nor though neither prose and similar evidence offered issues, why I explain Noonan discuss these ”); cution to rebut such evidence .... id. arguments require these should not rever- (“In 48.055 all cases in which evidence of sal. per character or a trait of character of a admissible, proof may son be made A. reputation as to or in the form trial Bockting contends state cross-examination, opinion. inquiry On right process by court violated his to due may specific be made into instances of testimony regarding a admitting witness conduct.”).

prior accusation of sexual misconduct. I stage do not consider at this whether following issue with the takes misinterpreted the Nevada exchange Deputy between District Attor- by refusing grant post- Nevada law Laura, ney place which took Lukens and conviction relief based on the trial court’s *27 during rebuttal to defense char- the state’s to testimony decision admit Laura’s with acter evidence: out a providing limiting instruction sua Q: going Without into the details un- sponte. evidentiary “Incorrect state court this, you I am derlying going to ask rulings cannot serve as a basis for habeas question. July following Between of relief rights unless federal constitutional 1987, you 1987 and October of did have are Washington, affected.” Whelchel v. with occasion confront the defendant (9th (internal Cir.2000) 1197, 1211 232 F.3d allegations of sexual contact between omitted). quotation marks and citation him and Autumn? Thus, my deciding task is limited to wheth

A: Yes. er the evidence’s admission violated Bockt- Q: response ing’s clearly rights What was his the time? established as federal Supreme defined Court. See 28 it, A: He denied said he wouldn’t do 2254(d)(1). § U.S.C. that, anything crying like he was so that time I didn’t believe what she said. The Court has never decided Bockting object questions process prohibits did not to these whether due the admis- instruction, request evidence, or a limiting prior and the sion of bad acts see Estelle McGuire, 62, 5, give state trial court did not an in- 112 such v. 75 n. S.Ct. (1991) 475, During struction. “post (declining his conviction re- 116 L.Ed.2d 385 hearing, lief’ Bockting argued process prohibits prior that Laura’s decide whether due testimony impermissibly jury propensity allowed the bad acts evidence to show

1039 Mitchell, unreasonable for the it was not Nevada crime); 329 Bugh v. commit denied, (6th Cir.2003), to conclude that the admis- 496, cert. 512 F.3d transgress L.Ed.2d of evidence did not sion this U.S. (“There (2003) (mem.) clearly no justice so' in the tradi- “principle rooted of precedent Supreme Court established people tions and conscience of our as to be pro.- due (internal that a state violates holds which as fundamental.” Id. ranked propensity by permitting evidence omitted). cess quotation marks evidence.”), acts but of other bad the form challenge a that defendants who

it has said B. admission relevant evi state court’s “must sus grounds process due dence on Bockting government asserts that a due heavy usual burden that tain the process right to a trial violated due fair his ... ‘it of [must] claim entails: process credibility during for Laura’s by vouching rooted justice so principle ] some fend[ closing See United States argument. of our and conscience in the traditions (9th Necoechea, F.2d Cir. ” ranked as fundamental.’ as be people 1993) (“Vouching placing consists 37, 43, 116 Egelhoff, Montana a wit prestige government of the behind (plurali L.Ed.2d 361 through personal assurances ness York, 432 v. New ty), Patterson quoting in veracity, suggesting or witness’s L.Ed.2d jury presented sup not' to the formation omitted). (1977) (internal footnote testimony.”). witness’s As ex ports the case, admission of Laura’s this vouching, Bockting cites amples this testimony did not meet unobjected-to “testi statements Laura prosecutor’s process a valid “heavy burden” for due possible” and candidly as as I think is fied Laura’s trial court admitted claim. The you the and it was to tell “had one motive case during the state’s rebuttal testimony prosecutor also truth.” He faults testimony of three response to the as “un- characterizing Laura’s concerning who testified witnesses defense embellished, .. straightforward, and reputation and Bockting’s alleged good candid.” testimony was rebuttal character. Laura’s arguably con- Even if these statements reputa- impeach the defense’s relevant to “vouching,” does stituted on touched prosecutor tion evidence. relief under AEDPA’s *28 qualify for habeas briefly, allegations only previous Laura’s if standard the Nevada Su- deferential under- deliberately allegations’ the skirted post-convic- grant failure to preme Court’s and prejudice, minimize lying to details “con- was relief on this basis neither tion denial Bockting’s vehement fully disclosed to,” “involved an unreasonable trary nor Moreover, testimo- the allegations. of the of, clearly Federal established application defense ny arguably Bockting’s advanced law, Supreme Court the as determined introducing his emotional denial 28 U.S.C. the United States.” of Laura’s allegations, as well as previous 2254(d)(1). the According § to the that she “didn’t believe” concession Court, question” relevant evaluat- “[t]he came that this allegations. Given evidence “is vouching claim ing prosecutorial a evidence response to defense character so in- comments prosecutors’ the objec- whether of into account the lack taking and as make trial with unfairness fected the tion, brevity, scope limited the and the of due conviction a denial resulting the to Lau- relating questioning government’s Wainwright, Darden v. Bockting, process.” with confrontation previous ra’s 2464, injuries, 106 S.Ct. 91 L.Ed.2d week when she sustained her and (1986). Detective Zinovitch’s substan- tially corroborating description Laura’s Bockting’s factors work to dis- Several Bockting’s sum, sexual assault. under First, advantage prosecutor the here. did case, circumstances of this jury accept not credibil- ask Laura’s has not that demonstrated the Nevada Su- alone; ity based on his endorsement rath- preme applied principle in Dar- er, explained he evidence “[t]he shows den unreasonably by holding that was candid” (emphasis [Laura] add- prosecutor’s ed), vouching did not “so infectf] in- specific and he identified several the trial with unfairness as to no make the attempt stances where Laura made resulting damaging pro- conceal facts to Autumn’s conviction denial of due alle- Davis, gations (e.g., observing 996-97, Autumn cess.” par- her 333 F.3d at quoting relations) Darden, engaged 181, ents in sexual or to her 477 U.S. at 106 S.Ct. 2464. credibility own and reputation govern- as (e.g., drug

ment witness her and alcohol C. problems, occupation her nude danc- er). Necoechea, See 986 F.2d at 1276 Lastly, I Bockting’s consider assertion (recognizing prosecutors “that must have that his representation trial was consti- closing argu- reasonable latitude fashion tutionally deficient. The ments, argue and thus can in- reasonable has held that a claimant “must show evidence, based on including ferences performance counsel’s was deficient” of the two sides lying”). one Sec- that such “performance prejudiced the de- ond, the court significantly trial diminished prevail fense” to on a Sixth Amendment prejudice by instructing risk ineffective assistance of counsel claim. jury “[statements, arguments Strickland v. Washington, 466 U.S. opinions of counsel are not evidence (1984). 80 L.Ed.2d 674 Woodford, case.” As in Davis 333 F.3d To prejudice, establish a claimant must (9th Cir.2003), was a case in “[t]his “a probability demonstrate reasonable which there was an ‘overwhelming proba- that, but counsel’s unprofessional er- bility jury that the [would] be unable to rors, the proceeding result of the would follow the court’s instructions’ and ‘a have been different. A reasonable proba- strong likelihood that effect bility is a probability sufficient to under- [vouching] would be to the de- devastating mine confidence the outcome.” Id. ” (second fendant,’ id. at 997 alteration question S.Ct. 2052. The to be Miller, original), quoting Greer v. answered is whether the Nevada Supreme n. 97 L.Ed.2d Court’s post-conviction denial of relief Third and perhaps most im- to, “contrary or involved an unreasonable portant, prosecutor’s statements did of,” application these principles. 28 U.S.C. not render the trial fundamentally unfair *29 2254(d)(1). § because the record confirmed Laura’s tes- I timony, my confine including: testimony by analy- ineffective Doctor assistance (who Rivers sis to the rape conducted Autumn’s three issues ex- addressed in our amination) that Autumn October pen- granting had suffered 2002 order Bockting’s injuries to vagina etration her first to and rectum motion broaden the Certificate of week, (COA): during previous (1) Bockting’s Appealability ad- trial counsel’s only mission he was the object adult male failure to to inadmissible who (2) was alone with during trial, Autumn evidence at trial counsel’s failure fail- faults his trial counsel for Bockting prosecu- instances object repeated to to object government’s prior counsel’s to the bad appellate ing to vouching, and torial evidence, present not adequately but he has demonstrated failure to research acts Su to the Nevada any prejudice issues from his appealable these that he suffered motion Bockting’s second performance. Court. preme allegedly counsel’s deficient COA, currently be which is objection by Bockting’s broaden counsel timely A court, ineffective a fourth this raises futile, fore Lau- likely would have been because coun his “trial of counsel issue: assistance under state testimony was admissible ra’s any investigation of to conduct failure sel’s addition, Lau- setting In even aside law. relia undermine facts which would .the Bocktirig’s prior testimony concerning ra’s hearsay statements.” the child’s bility of evidence, against the evidence bad acts motion for broader The second certifica overwhelming. logic Similar Bockting was than on 2003-—more tion was filed June arguments. other His Bockting’s dooms court declined after the district year a register timely a trial counsel’s failure assistance of Bockting’s ineffective certify vouching did objection prosecutorial to the after we eight months counsel claim and defense, his because clearly prejudice to broaden the his first motion granted cautionary instruc- gave trial court 1(d), Rule to Circuit Pursuant COA. 22— overwhelming tion and there was evidence any and all raised Bockting should have testimony. .corroborating Laura’s scope the COA’s relating to grievances sum, that the has not shown days of the district thirty-five “within applied Strickland Nevada denying[, part, entry of its order court’s this case unreasonably to the facts of 9TH appealability.” certificate his] “[f|ailure 22-1(d). errors were holding that his “counsel’s comply R. His CIR. of a deprive [him] as to .procedure is so serious [not] Rule’s with the Circuit .motion, trial, reliable.” a trial whose result is denying” the second fair ground for Strickland, here.” do' [I would] “which Griffin (9th Cir.2003): Johnson, author- hold that we lack I would therefore F.3d Bockting’s peti- grant AEDPA to ity under remaining Sixth respect to the With ineffective on this tion for habeas relief claims, the Nevada Amendment counsel claim. assistance of standard invoked Strickland’s Bockting “has not demonstrated held that reasons, I af- would foregoing For unreason- performance was that counsel’s Boekt- denial of firm district court’s so se- able, that counsel’s errors were or I there- corpus. for habeas ing’s petition jury’s verdict they rendered vere respectfully dissent. fore the first I not consider unreliable.” need holding, the record of this because part claim Boekting’s support does not whole unreasonably supreme court

that the state inquiry. prejudice

applied Strickland’s Cf. Lockyer, 379 F.3d

Kennedy Cir.2004)

(9th making (observing “[i]n in a habeas error

a harmless determination obligation”

case,” have “an federal courts record), quoting O’Neal *30 the full

to consult McAninch, 432, 435, 115 S.Ct. L.Ed.2d 947