FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
LUIS PHILLIP PONCE, No. 08-56218
Petitioner-Appellant, D.C. No.
v. CV-07-02705-
T. FELKER, Warden, ODW-RZ
Respondent-Appellee.
OPINION
Appeal from the United States District Court
for the Central District of California
Otis D. Wright, District Judge, Presiding
Argued and Submitted
February 2, 2010—Pasadena, California
Filed May 24, 2010
Before: Betty B. Fletcher, Harry Pregerson, and
Susan P. Graber, Circuit Judges.
Opinion by Judge Graber
7375
7376 PONCE v. FELKER
COUNSEL
Zandra L. Lopez, Law Office of Zandra L. Lopez, San Diego,
California, for the petitioner-appellant.
Stephanie C. Brenan, Deputy Attorney General, Office of the
Attorney General of California, Los Angeles, California, for
the respondent-appellee.
OPINION
GRABER, Circuit Judge:
Petitioner Luis Phillip Ponce was convicted in California
state court of burglary and murder. In this appeal, he chal-
lenges the district court’s denial of his habeas petition, argu-
ing that the admission of certain testimony violated his rights
under the Confrontation Clause. The California Court of
Appeal affirmed the convictions, reasoning that the testimony
fell within the “forfeiture by wrongdoing” exception to a
defendant’s right to confront the witnesses against him. The
Supreme Court later ruled, in Giles v. California, 128 S. Ct.
2678, 2693 (2008), that the forfeiture exception applies only
if a defendant specifically intended to prevent the witness
from testifying. Thus, Giles would have controlled Petition-
er’s case had Giles been decided while his convictions were
on direct appeal. However, in holding that forfeiture requires
proof of a defendant’s intent to prevent testimony, Giles
established a new rule that does not apply retroactively. At the
time of Petitioner’s appeal, it was neither contrary to, nor an
unreasonable application of, clearly established federal law
the California appellate courts to rule that the forfeiture
PONCE v. FELKER 7377
n did not require proof of an intent to make the witness
unavailable. Accordingly, we affirm.
FACTUAL AND PROCEDURAL HISTORY
In September 1998, Petitioner broke up with his girlfriend,
Eva Gooch, and got back together with a former girlfriend,
Christina Valencia. After Petitioner dumped Gooch, she
threatened to tell the police about Petitioner’s drug-dealing
activities. She also threatened to report Valencia to the wel-
fare authorities for living with a drug dealer, told Valencia
that Petitioner had declared that he did not love Valencia, and
told Valencia that Gooch had a video of herself and Petitioner
having sex. Gooch’s threats and taunts angered Petitioner.
At about 2 a.m. on December 6, 1998, Petitioner and a
companion, Alex Carballo, encountered a former friend of
Petitioner’s at a gas station. Petitioner told his former friend
that he had to “go kill some bitch.” Gooch was bartending
during the early morning hours of December 6, but her
employer sent her home at about 2:30 a.m. because she com-
plained of feeling ill. The following morning, Gooch failed to
show up at her sister’s house, as planned, to bake cookies
with her niece. Gooch’s sister called her repeatedly, but
Gooch did not answer her phone.
Later that day, Petitioner and Carballo were in a car acci-
dent. A bystander who witnessed the accident testified that
Petitioner had an injured hand wrapped in a white cloth cov-
ered in stains that looked like blood stains. The bystander
asked Petitioner if he had hurt himself in the accident; Peti-
tioner responded that he had injured his hand before the car
accident. The bystander also noticed that Petitioner was wear-
ing jeans that bore stains similar to those on the bandage on
his hand.
On December 9, 1998, Gooch’s body was discovered in her
apartment. She had been stabbed approximately 30 times, and
7378 PONCE v. FELKER
a broken knife blade was embedded in her throat. An uncap-
ped bleach bottle lay next to her body. DNA testing of blood
found on the bleach bottle and on the kitchen counter of the
apartment showed that the blood contained a mixture of
Gooch’s and Petitioner’s blood. DNA testing also showed that
saliva on two cigarette butts in the apartment had come from
Carballo.
The State of California tried Petitioner for first-degree bur-
glary and first-degree murder. His first trial resulted in a mis-
trial on the burglary count, and the California Court of Appeal
reversed his murder conviction because of an erroneous jury
instruction. At Petitioner’s second trial, the prosecution intro-
duced the evidence summarized above, and the court also per-
mitted two witnesses to testify regarding Gooch’s statements
to them.1
Vikki Gibson, a private security guard in Gooch’s apart-
ment building, testified that she went to Gooch’s apartment
about two weeks before the murder because she heard loud
banging noises. Gooch came to the door with a hammer in her
hand and explained to Gibson that she was nailing boards
over her balcony window to keep “Louie” out.
In addition, Bruce Richards, the apartment leasing agent,
testified that Gooch called him on December 5 and asked him
to arrange for the security guards to patrol her floor more fre-
quently. Richards testified that Gooch said that she had
received a phone call from Petitioner and that Petitioner had
threatened, “I’m gonna kill you, bitch.”
The jury convicted Petitioner of both burglary and murder.
The court sentenced Petitioner to 25 years to life with the pos-
sibility of parole for the murder and four years for burglary.
The California Court of Appeal affirmed Petitioner’s convic-
1
The trial court found that those two statements were not “testimonial”
for Confrontation Clause purposes.
PONCE v. FELKER 7379
tions on January 25, 2006. The court held that the testimony
by Gibson and Richards regarding Gooch’s fears was proper
because Petitioner had forfeited his Confrontation Clause
rights by killing Gooch. The court also held that admission of
the testimony, if erroneous, was harmless error because there
was substantial evidence against Petitioner aside from the
challenged testimony. The California Supreme Court summa-
rily denied Petitioner’s petition for review on April 12, 2006.
Petitioner filed a petition in federal court for a writ of
habeas corpus, arguing, among other things, that the admis-
sion of the testimony regarding Gooch’s statements violated
his rights under the Confrontation Clause. On June 18, 2008,
the district court denied the petition, concluding that the state
court’s decision to affirm Petitioner’s conviction was neither
contrary to, nor an unreasonable application of, clearly estab-
lished federal law. The district court also ruled that the dis-
puted statements were not testimonial, an issue not reached by
the California Court of Appeal. On June 25, 2008, the
Supreme Court decided Giles, 128 S. Ct. at 2688, in which the
Court held that the forfeiture by wrongdoing exception
applies only to those cases in which a defendant secured the
unavailability of a witness with the intent to prevent the testi-
mony. Contending that the record does not show that he had
such an intent, Petitioner now appeals the district court’s
denial of his habeas petition.
STANDARDS OF REVIEW
We review de novo the district court’s denial of a petition
for a writ of habeas corpus. Lambert v. Blodgett, 393 F.3d
943, 964 (9th Cir. 2004). Because Petitioner filed his habeas
petition after the effective date of the Antiterrorism and Effec-
tive Death Penalty Act of 1996 (“AEDPA”), we apply
AEDPA’s standards. Accordingly, habeas relief is warranted
only if the state court’s decision was contrary to, or an unrea-
sonable application of, clearly established federal law as
determined by the Supreme Court, or rested on an unreason-
7380 PONCE v. FELKER
able determination of facts in light of the evidence presented
in the state court proceeding. 28 U.S.C. § 2254(d).
“ ‘[C]learly established Federal law’ . . . refers to the hold-
ings, as opposed to the dicta, of [the Supreme Court]’s deci-
sions as of the time of the relevant state-court decision.”
Williams v. Taylor, 529 U.S. 362, 412 (2000).
DISCUSSION
[1] The Confrontation Clause of the Sixth Amendment to
the United States Constitution provides that, “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to be con-
fronted with the witnesses against him.” The “witnesses” to
which the Confrontation Clause refers include not only the
witnesses testifying in court, but also certain out-of-court
declarants. Crawford v. Washington, 541 U.S. 36, 50-51
(2004). For many years, the Supreme Court approved of the
admission of unconfronted out-of-court statements if they
bore adequate “ ‘indicia of reliability,’ ” and such indicia
were presumed if “a firmly rooted hearsay exception” applied.
Ohio v. Roberts, 448 U.S. 56, 66 (1980). However, in Craw-
ford, the Court rejected the Ohio v. Roberts approach. “The
Roberts test . . . replaces the constitutionally prescribed
method of assessing reliability with a wholly foreign one.”
Crawford, 541 U.S. at 62. Accordingly, hearsay exception or
not, the Confrontation Clause generally requires an opportu-
nity for confrontation. But this right may be forfeited by a
defendant’s wrongdoing. Id.
Here, Gibson and Richards testified against Petitioner by
recounting Gooch’s statements about her fear of Petitioner
and his threat to her. We assume, without deciding, that the
statements were testimonial.2 Gooch, the dead victim, was not
2
Not all out-of-court statements are “testimonial,” and the Confrontation
Clause does not apply to non-testimonial statements. Whorton v. Bockting,
549 U.S. 406, 420 (2007). The Supreme Court has yet to define precisely
what are “testimonial” and “non-testimonial” statements. See Davis v.
PONCE v. FELKER 7381
available for cross-examination. The California Court of
Appeal held that Petitioner had forfeited his right to confront
Gooch by murdering her.
[2] The Supreme Court had previously recognized the doc-
trine of forfeiture by wrongdoing, but the Court had not
defined the precise parameters of the doctrine before the Cali-
fornia Court of Appeal affirmed Petitioner’s convictions and
the California Supreme Court denied his petition for review
in 2006. Approximately two years later, in Giles, the Supreme
Court held that the forfeiture exception did not apply to every
instance in which a defendant’s wrongdoing prevented a wit-
ness from testifying. Rather, a defendant forfeits the right to
confront a witness only when the defendant’s conduct was
“designed” to prevent testimony. Giles, 128 S. Ct. at 2688.
The state courts here made no such finding. The crux of Peti-
tioner’s habeas petition, then, is that his convictions violated
clearly established federal law and that Giles proves it.
I. Retroactivity
The State of California argues that Petitioner seeks to apply
Giles retroactively to his convictions, in violation of Teague
v. Lane, 489 U.S. 288 (1989). “When a State raises the issue
Washington, 547 U.S. 813, 822 (2006) (“Without attempting to produce
an exhaustive classification of all conceivable statements—or even all
conceivable statements in response to police interrogation—as either testi-
monial or nontestimonial, it suffices to decide the present cases to hold as
follows . . . .”); Crawford, 541 U.S. at 68 (“We leave for another day any
effort to spell out a comprehensive definition of ‘testimonial.’ ”). The
Supreme Court is currently considering Michigan v. Bryant, No. 09-150,
in which it may provide us more guidance on this issue. The admission of
the disputed testimony here could not have violated Petitioner’s rights
under the Confrontation Clause unless the statements were testimonial.
However, we need not resolve whether the statements were actually testi-
monial, because we affirm the district court’s denial of the habeas petition
on other grounds. Accordingly, we assume for the sake of argument that
the statements were testimonial.
7382 PONCE v. FELKER
of retroactivity, federal habeas courts must apply Teague
before considering the merits of a claim.” Butler v. Curry, 528
F.3d 624, 633 (9th Cir.), cert. denied, 129 S. Ct. 767 (2008)
(internal quotation marks omitted). Thus, we turn first to the
Teague question.
[3] For purposes of analyzing a habeas claim, Teague
divided constitutional criminal procedure decisions into two
categories: new rules and old rules. “[A]n old rule applies
both on direct and collateral review, but a new rule is gener-
ally applicable only to cases that are still on direct review.”
Whorton v. Bockting, 549 U.S. 406, 416 (2007). “[A] case
announces a new rule when it breaks new ground or imposes
a new obligation on the States or the Federal Government,”
or “if the result was not dictated by precedent existing at the
time the defendant’s conviction became final.” Teague, 489
U.S. at 301 (plurality opinion). “The explicit overruling of an
earlier holding no doubt creates a new rule; it is more diffi-
cult, however, to determine whether [the Supreme Court]
announce[s] a new rule when a decision extends the reasoning
of [the Court’s] prior cases.” Saffle v. Parks, 494 U.S. 484,
488 (1990). In such circumstances, a court is to “determine
whether a state court considering [the petitioner’s] claim at
the time his conviction became final would have felt com-
pelled by existing precedent to conclude that the rule [the
petitioner] seeks was required by the Constitution.” Id. Thus,
our task here is to determine whether the holding of Giles,
which did not overrule any earlier Supreme Court case, was
actually compelled by existing precedent.
[4] Petitioner contends that Giles restated an old rule
because Giles relied on the Supreme Court’s earlier opinions
in Reynolds v. United States, 98 U.S. 145 (1879); Crawford,
541 U.S. 36; and Davis v. Washington, 547 U.S. 813 (2006),
as well as on founding-era common law. As we explain
below, Petitioner is incorrect. Reynolds, 98 U.S. at 158, held
that a defendant could forfeit the protections of the Confronta-
tion Clause if the defendant wrongfully procured the unavaila-
PONCE v. FELKER 7383
bility of a witness. Crawford, 541 U.S. at 54, 62, held that the
right of confrontation is subject to the exceptions to that right
recognized at the time of the founding and confirmed that for-
feiture by wrongdoing is a viable exception. Davis, 547 U.S.
at 833, discussed the reason for the forfeiture exception and
stated that the exception was codified in the Federal Rules of
Evidence. None of those cases held that the exception
required proof of a specific intent to prevent testimony, and
none compelled that holding in Giles. Thus, we reject Peti-
tioner’s argument and hold that, under the Teague analysis,
Giles promulgated a new rule.
The Supreme Court first addressed the forfeiture exception
in Reynolds, 98 U.S. at 158. Reynolds involved a defendant,
on trial for bigamy, who kept his second wife away from a
deputy marshal seeking to serve a subpoena on her. Id. at 160.
Because the second wife did not appear to testify, the trial
court allowed the prosecution to read to the jury her testimony
from another trial. Id. at 160-61. The Supreme Court held that
the admission of this evidence did not violate the defendant’s
rights under the Confrontation Clause. Id. at 160. The Court
stated:
The Constitution gives the accused the right to a
trial at which he should be confronted with the wit-
nesses against him; but if a witness is absent by his
own wrongful procurement, he cannot complain if
competent evidence is admitted to supply the place
of that which he has kept away. The Constitution
does not guarantee an accused person against the
legitimate consequences of his own wrongful acts. It
grants him the privilege of being confronted with the
witnesses against him; but if he voluntarily keeps the
witnesses away, he cannot insist on his privilege. If,
therefore, when absent by his procurement, their evi-
dence is supplied in some lawful way, he is in no
condition to assert that his constitutional rights have
been violated.
7384 PONCE v. FELKER
Id. at 158 (emphases added).
The Supreme Court next referred to forfeiture by wrongdo-
ing in Crawford, 541 U.S. at 62. Crawford did not involve the
forfeiture exception directly. But the Court in Crawford stated
that “the rule of forfeiture by wrongdoing (which we accept)
extinguishes confrontation claims on essentially equitable
grounds; it does not purport to be an alternative means of
determining reliability.” Id. Crawford also instructed the
courts that the Confrontation Clause “is most naturally read as
a reference to the right of confrontation at common law,
admitting only those exceptions established at the time of the
founding.” Id. at 54.
Finally, in Davis,3 the Supreme Court again discussed the
forfeiture exception. The Court explained the underlying
rationale for the exception, stating:
[W]hen defendants seek to undermine the judicial
process by procuring or coercing silence from wit-
nesses and victims, the Sixth Amendment does not
require courts to acquiesce. While defendants have
no duty to assist the State in proving their guilt, they
do have the duty to refrain from acting in ways that
destroy the integrity of the criminal-trial system. We
reiterate what we said in Crawford: that “the rule of
forfeiture by wrongdoing . . . extinguishes confronta-
tion claims on essentially equitable grounds.” That
3
The Teague inquiry looks to the state of the law at the time that a peti-
tioner’s conviction became final. Saffle, 494 U.S. at 488. Here, Petitioner’s
conviction became final on July 11, 2006, when “a judgment of conviction
ha[d] been rendered, the availability of appeal exhausted, and the time for
a petition for certiorari elapsed.” Griffith v. Kentucky, 479 U.S. 314, 321
n.6 (1987). The Supreme Court decided Davis after the California
Supreme Court denied review of the state appellate decision, but approxi-
mately three weeks before Petitioner’s convictions became final. Thus, we
consider Davis to determine whether, for purposes of Petitioner’s case,
Giles established a new rule.
PONCE v. FELKER 7385
is, one who obtains the absence of a witness by
wrongdoing forfeits the constitutional right to con-
frontation.
547 U.S. at 833 (emphases added) (citations and emphasis
omitted). Furthermore, the Court suggested that the Federal
Rules of Evidence might describe the contours of the excep-
tion. It stated:
We take no position on the standards necessary to
demonstrate such forfeiture, but federal courts using
Federal Rule of Evidence 804(b)(6), which codifies
the forfeiture doctrine, have generally held the Gov-
ernment to the preponderance-of-the-evidence stan-
dard.
Id. (emphasis added). Federal Rule of Evidence 804(b)(6)
provides a hearsay exception for “[a] statement offered
against a party that has engaged or acquiesced in wrongdoing
that was intended to, and did, procure the unavailability of
the declarant as a witness.” (Emphasis added.)
In Giles, the Supreme Court examined whether the forfei-
ture exception applies to cases in which there is no showing
that a defendant’s wrongdoing was intended specifically to
secure the unavailability of a witness. The Court determined
that the terms used to define the rule at common law “suggest
that the exception applied only when the defendant engaged
in conduct designed to prevent the witness from testifying.”
Giles, 128 S. Ct. at 2683. Furthermore, in early cases, “[t]he
manner in which the rule was applied makes plain” this limi-
tation. Id. at 2684. During the founding era, courts uniformly
excluded testimony in cases—such as many murder
prosecutions—in which the defendant had apparently caused
a person to be absent, but without the specific intent to pre-
vent testimony. Id. at 2684-86. Finally, the Court noted that
“American courts never—prior to 1985—invoked forfeiture
outside the context of deliberate witness tampering.” Id. at
7386 PONCE v. FELKER
2687. Accordingly, despite the more recent cases in lower
courts, the Supreme Court “decline[d] to approve an excep-
tion to the Confrontation Clause unheard of at the time of the
founding or for 200 years thereafter.” Id. at 2693.
Reynolds and Crawford are insufficient to dictate the rule
that a defendant forfeits Confrontation Clause rights only if
the intent of the wrongdoing was specifically to prevent testi-
mony. Those cases describe the exception in general terms
and establish merely that a defendant’s deliberate wrongdoing
may forfeit the right to confrontation. They do not themselves
impose an intent requirement.
Nor does the Court’s reference in Crawford to founding-era
exceptions to the right of confrontation compel the rule
announced in Giles. Although Giles relied heavily on com-
mon law cases, 128 S. Ct. at 2683-86, 2688, both Justice Sou-
ter’s concurrence in Giles and Justice Breyer’s dissent show
that the common law cases and treatises can be read in differ-
ent ways. See id. at 2694 (Souter, J. concurring) (concluding
that “the early cases on the exception were not calibrated
finely enough to answer the narrow question here”); id. at
2696-97, 2700-07 (Breyer, J., dissenting) (analyzing common
law sources). Thus, Reynolds and Crawford are consistent
with Giles but do not compel it.
Davis edges closer to the rule in Giles by discussing defen-
dants who “seek to undermine the judicial process” and by
describing Federal Rule of Evidence 804, which contains the
intent requirement, as “codif[ying] the forfeiture doctrine.”
547 U.S. at 833. But even Davis does not impose an intent
requirement, and it still fails to compel the rule in Giles.
A new rule is one “over which reasonable jurists could dis-
agree.” Caspari v. Bohlen, 510 U.S. 383, 395 (1994) (brackets
and internal quotation marks omitted). Thus, the existence of
conflicting decisions among other courts before the Supreme
Court’s articulation of a rule, or of a dissent accompanying
PONCE v. FELKER 7387
that articulation, weighs against a conclusion that precedent
compelled a decision. See id. (noting a conflict among federal
and state courts); Sawyer v. Smith, 497 U.S. 227, 236-37
(1990) (noting the dissent accompanying a decision promul-
gating a rule). Here, both of those circumstances combine to
demonstrate that Giles represented more than just the restate-
ment of an old rule. There was a seven-to-three split among
lower courts after Davis and before Giles, with the predomi-
nant view being that the forfeiture exception did not require
an intent to prevent testimony. Compare United States v.
Garcia-Meza, 403 F.3d 364, 370-71 (6th Cir. 2005) (holding
that forfeiture does not require proof of intent); People v.
Giles, 152 P.3d 433, 443 (Cal. 2007) (same), vacated, 128 S.
Ct. at 2693; State v. Moua Her, 750 N.W.2d 258, 270-74
(Minn. 2008) (same), vacated, 129 S. Ct. 929 (2009); State v.
Sanchez, 177 P.3d 444, 456 (Mont. 2008) (same); State v.
Mason, 162 P.3d 396, 404 (Wash. 2007) (same); State v.
Mechling, 633 S.E.2d 311, 326 (W.Va. 2006) (same); and
State v. Jensen, 727 N.W.2d 518, 535 (Wis. 2007) (same),
with People v. Moreno, 160 P.3d 242, 247 (Colo. 2007) (hold-
ing that forfeiture requires proof of intent); People v. Stechly,
870 N.E.2d 333, 353 (Ill. 2007) (same); and State v. Romero,
156 P.3d 694, 703 (N.M. 2007) (same). Furthermore, Justices
Breyer, Stevens, and Kennedy dissented from the Court’s
opinion in Giles. 128 S. Ct. at 2695. Looking to the judgments
of “reasonable jurists,” Caspari, 510 U.S. at 395, and to our
own assessment of what a state court would have understood
Davis to require, we conclude that Davis did not compel the
result in Giles.
Moreover, although Giles itself traced the intent require-
ment back to common law, it also acknowledged that post-
1985 forfeiture cases and state evidence codes do not all
require proof of intent. 128 S. Ct. at 2687-88 & n.2. Giles thus
represented a departure from this more modern trend regard-
ing the forfeiture exception. The holding of Giles is a new
rule for Teague purposes.
7388 PONCE v. FELKER
[5] Even a new rule may be applied retroactively if the rule
is substantive or if it is a watershed rule. Teague, 489 U.S. at
311. Neither exception applies here. Giles promulgated a rule
of criminal procedure, not a substantive rule. Furthermore,
Giles did not announce a watershed rule. The Supreme Court
determined in Whorton, 549 U.S. at 421, that Crawford did
not announce a watershed rule. Crawford represented a dra-
matic shift in Confrontation Clause law, overturning the “in-
dicia of reliability” test that had been in use for decades.
Giles, by contrast, clarified a subsidiary aspect of the rule
announced by Crawford. If Crawford was not a watershed
rule, then Giles cannot have been one either. We hold that
Giles does not apply retroactively to state court convictions
that became final before the Supreme Court issued Giles.
II. Clearly Established Federal Law
Petitioner argues that the state court’s admission of Gibson
and Richards’ testimony regarding Gooch’s statements was
contrary to or an unreasonable application of clearly estab-
lished federal law because it was clearly established that the
forfeiture exception applied only if it could be shown that his
purpose in killing Gooch was to prevent her from testifying.
We are not persuaded.
[6] The “clearly established” inquiry is related to our
examination of whether Giles constituted a new rule or an old
rule under Teague. An “old rule” under Teague generally con-
stitutes clearly established law for purposes of AEDPA. Wil-
liams, 529 U.S. at 412. But, because we determined that Giles
announced a new rule, we must consider whether Reynolds
and Crawford clearly established that the forfeiture exception
requires proof of a defendant’s intent to prevent testimony.
We do not consider Davis here because the Supreme Court
did not decide Davis until after the California Court of Appeal
affirmed Petitioner’s convictions and the California Supreme
Court denied review of his appeal. See Stokes v. Schriro, 465
F.3d 397, 401-02 (9th Cir. 2006) (holding that we assess
PONCE v. FELKER 7389
clearly established law as of the date of the last reasoned state
court decision).
[7] If Supreme Court cases “give no clear answer to the
question presented,” the state court’s decision cannot be an
unreasonable application of clearly established federal law.
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (per curiam);
accord Carey v. Musladin, 549 U.S. 70, 77 (2006). On the
other hand, “ignoring the fundamental principles established
by [the Supreme Court’s] most relevant precedents” may be
contrary to or an unreasonable application of clearly estab-
lished federal law. Abdul-Kabir v. Quarterman, 550 U.S. 233,
258 (2007). Here, neither Reynolds nor Crawford clearly
established the crucial principle such that the state court’s
decision was contrary to or an unreasonable application of
federal law at the time.
The fundamental principle of Reynolds seems to be that a
defendant forfeits the right to confrontation if a witness is
“absent by his procurement.” 98 U.S. at 158. This holding
does not resolve the question of what constitutes “procure-
ment.” Even in Giles, the Supreme Court acknowledged that
there are conflicting definitions of that term. 128 S. Ct. at
2683. Thus, Reynolds “give[s] no clear answer,” Wright, 552
U.S. at 126, to the question presented in Giles.
Petitioner claims, however, that Crawford indirectly estab-
lished the necessary rule. Crawford established the fundamen-
tal principle that the Confrontation Clause incorporates those
exceptions recognized by founding-era common law. 541
U.S. at 54. Giles then held that the founding-era forfeiture
exception contained the intent requirement and, indeed, that
“[t]he manner in which the rule was applied makes plain” this
limitation. 128 S. Ct. at 2684. But that statement falls short of
proving that the scope of the forfeiture requirement at com-
mon law was clear enough—before Giles—to constitute
“clearly established” federal law in 2006. See id. at 2694
(Souter, J., concurring) (concluding that “the early cases on
7390 PONCE v. FELKER
the exception were not calibrated finely enough to answer the
narrow question here”). Indeed, the dissent in Giles, id. at
2696-97, 2700-07 (Breyer, J., dissenting), demonstrates that
the common law cases and treatises can be read another way.
Giles teaches that this alternative reading is wrong, but this
does not mean that, before Giles, the alternative reading was
an unreasonable application of clearly established law.
[8] Our conclusion that the scope of the forfeiture excep-
tion was “an open question in [Supreme Court] jurispru-
dence,” Carey, 549 U.S. at 76, is also confirmed by the
pronounced split among other courts on the scope of the
exception after Crawford and before Giles. See Boyd v. New-
land, 467 F.3d 1139, 1152 (9th Cir. 2006) (“[I]n the face of
authority [from one state and three federal circuits] that is
directly contrary to Tighe, and in the absence of explicit direc-
tion from the Supreme Court, we cannot hold that the Califor-
nia courts’ use of Petitioner’s juvenile adjudication as a
sentencing enhancement was contrary to, or involved an
unreasonable application of, Supreme Court precedent.”); see
also Holland v. Anderson, 583 F.3d 267, 282 (5th Cir. 2009)
(“This clear split among federal—and state—courts . . . indi-
cates that the Mississippi Supreme Court’s denial of [the peti-
tioner’s] claim that he had such a right cannot possibly be
‘contrary to or involve[ ] an unreasonable application of,
clearly established Federal law.’ ”), cert. denied, 2010 WL
545503 (U.S. Apr. 19, 2010) (No. 09-9002); Evenstad v. Car-
lson, 470 F.3d 777, 783 (8th Cir. 2006) (“When the federal
circuits disagree as to a point of law, the law cannot be con-
sidered ‘clearly established’ under 28 U.S.C. § 2254(d)(1).”).
There was an eight-to-four split among courts after Craw-
ford on whether forfeiture required proof of intent.4 Compare
4
The conflicting cases include two pre-Davis cases in addition to the
post-Davis ones listed in the Teague analysis above. In the Teague analy-
sis, the pre-Davis cases were not relevant to the question whether Davis
would have compelled a state court to hold that the forfeiture by wrongdo-
ing exception requires proof of a defendant’s intent to prevent testimony.
Here, by contrast, the cases after Crawford and before Davis—as well as
the cases after Davis—confirm that the scope of the exception was an
open question at the time of Petitioner’s appeal and, indeed, until Giles.
PONCE v. FELKER 7391
Garcia-Meza, 403 F.3d at 370-71 (holding that forfeiture does
not require proof of intent); Giles, 152 P.3d at 443 (same);
State v. Meeks, 88 P.3d 789, 794 (Kan. 2004) (same), over-
ruled in part on another ground by State v. Davis, 158 P.3d
317, 322 (Kan. 2006); Moua Her, 750 N.W.2d at 270-74
(same); Sanchez, 177 P.3d at 456 (same); Mason, 162 P.3d at
404 (same); Mechling, 633 S.E.2d at 326 (same); and Jensen,
727 N.W.2d at 535 (same), with Moreno, 160 P.3d at 247
(holding that forfeiture requires proof of intent); Stechly, 870
N.E.2d at 353 (same); Commonwealth v. Edwards, 830
N.E.2d 158, 170 (Mass. 2005) (same); and Romero, 156 P.3d
at 703 (same). Those conflicting cases weigh very strongly
against a conclusion that the intent requirement was clearly
established before Giles.
[9] Before Giles, no holding from the Supreme Court
required state courts to restrict the forfeiture exception to
those cases in which a defendant intended to prevent a witness
from testifying. Cf. Carey, 549 U.S. at 77 (“No holding of this
Court required the California Court of Appeal to apply the test
of Williams and Flynn to the spectator’s conduct here.”).
Therefore, the state court’s decision in Petitioner’s case was
neither contrary to, nor an unreasonable application of, clearly
established federal law.
[10] Furthermore, even if the admission of the testimony
was contrary to or an unreasonable application of clearly
established federal law, the state court’s decision that the error
would have been harmless was not an unreasonable determi-
nation. See Fry v. Pliler, 551 U.S. 112, 119 (2007) (“[A] fed-
eral court may not award habeas relief under § 2254 unless
the harmlessness determination itself was unreasonable.”).
There was weighty evidence against Petitioner independent of
the unconfronted statements, including testimony by Petition-
er’s former friend that Petitioner said he was going to “go kill
some bitch”; testimony that, on the day of the murder, Peti-
tioner’s hand was injured other than in the car accident; and
DNA evidence of Petitioner’s blood in Gooch’s kitchen and
7392 PONCE v. FELKER
on the bleach bottle next to her body. In light of this evidence,
it was not unreasonable for the state courts to determine that
the additional testimony about Gooch’s fear of Petitioner and
his threat did not have a “substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v.
Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation
marks omitted).
For the foregoing reasons, the district court properly denied
the habeas petition.
AFFIRMED.