Bockting v. Bayer

Volume 1 of 2

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,  No. 02-15866
Petitioner-Appellant, D.C. No.
v.
 CV-98-00764-ECR
ROBERT BAYER, ORDER AND
Respondent-Appellee. AMENDED
 OPINION

Appeal from the United States District Court
for the District of Nevada
Edward C. Reed, District Judge, Presiding

Argued and Submitted
January 14, 2004—San Francisco, California

Filed February 22, 2005
Amended June 1, 2005

Before: J. Clifford Wallace, John T. Noonan, and
M. Margaret McKeown, Circuit Judges.

Opinion by Judge McKeown;
Concurrence by Judge Noonan;
Partial Concurrence and Partial Dissent by Judge Wallace

5877
5880 BOCKTING v. BAYER

COUNSEL

Franny A. Forsman, Federal Public Defender, Las Vegas,
Nevada, for the appellant.

Victor-Hugo Schulze II, Deputy Attorney General, Las
Vegas, Nevada; Rene L. Hulse, Deputy Attorney General, Las
Vegas, Nevada, for the appellee.

ORDER

The opinion filed February 22, 2005, slip op. 1991, and
appearing at 399 F.3d 1010 (9th Cir. 2005), is amended as fol-
lows:

At 399 F.3d 1022, slip op. 2012, strike the last paragraph
of Part II. Substitute the following paragraph:

The final question is whether admission of Autumn’s
statement “had substantial and injurious effect or
 BOCKTING v. BAYER 5881
influence in determining the jury’s verdict.” See
Brecht v. Abrahamson, 507 U.S. 619, 623 (1993).
The detective’s testimony regarding Autumn’s inter-
view was a critical piece of evidence, particularly in
view of Autumn’s inconsistent testimony at the pre-
liminary hearing, and weaknesses in Laura Bock-
ting’s testimony. Even if Autumn’s statement to the
mother was, for argument’s sake, considered admis-
sible, the detective’s description of Autumn’s inter-
view was so significant as corroborating evidence
that its admission had a substantial and injurious
effect or influence in determining the jury’s verdict.
Thus, the admission of Autumn’s statement requires
reversal.

The petition for panel rehearing is DENIED. The petition
for rehearing en banc is pending before the Court. No further
petitions may be filed.

OPINION

McKEOWN, Circuit Judge:

Marvin Bockting’s conviction for sexual abuse and life sen-
tences stem from a trial in which the only witness to the con-
duct, his six-year old stepdaughter, Autumn Bockting, did not
testify at trial, but whose interview with a detective was
admitted as key evidence. Autumn’s statements at the inter-
view contradicted her testimony at a preliminary hearing
where she claimed not to remember what happened with her
father. Admission of the interview evidence without cross-
examination violated Bockting’s constitutional right “to be
confronted with the witnesses against him.” U.S. Const.
amend. VI.

Although this case has been before the Nevada Supreme
Court twice and before the United States Supreme Court on
5882 BOCKTING v. BAYER
one occasion, resolution now rests on interpretation of an
intervening Supreme Court case: Crawford v. Washington,
541 U.S. 36, 124 S. Ct. 1354 (2004). In Crawford, the Court
definitively held that “[t]estimonial statements of witnesses
absent from trial have been admitted only where the declarant
is unavailable and only where the defendant has had a prior
opportunity to cross-examine.” 124 S. Ct. at 1369. Because
the little girl’s testimony, which was not subject to cross-
examination, was central to the conviction, its admission can
hardly be classified as harmless error. Crawford dictates
reversal.

The thorny issue is whether Crawford applies retroactively
to this state habeas appeal. In an earlier case, we reserved this
question for future consideration. See Leavitt v. Arave, 383
F.3d 809, 830 n.22 (9th Cir. 2004) (per curiam). If, as Judge
Noonan argues, Crawford simply reiterates a longstanding
rule and does not announce a new rule, then retroactivity falls
out of our analysis. If, on the other hand, Crawford is charac-
terized as a “new rule,” then we are faced with analyzing the
retroactivity of Crawford in the framework of yet another
recent Supreme Court case, Schriro v. Summerlin, ___ U.S.
___, 124 S. Ct. 2519 (2004). New rules apply retroactively
only where they place “certain kinds of primary, private indi-
vidual conduct beyond the power of the criminal law-making
authority to proscribe,” or where the new rule is “implicit in
the concept of ordered liberty.” Teague v. Lane, 489 U.S. 288,
307 (1989). The latter category is “reserved for watershed
rules of criminal procedure.” Id. at 311.

The threshold question is whether Crawford constitutes a
“new rule” under Teague. Judge Noonan’s approach—namely
that Crawford does not announce a new rule but rather is a
“correction of a misinterpretation,” Concurrence at 5902—
has a certain appeal in light of the Court’s historical emphasis
in Crawford. Indeed, one can read Crawford as intimating
that the rule is longstanding. Unfortunately, Justice Scalia’s
analysis is not entirely consistent with that viewpoint. None-
 BOCKTING v. BAYER 5883
theless, characterizing Crawford as something less than a new
rule, as Judge Noonan does, is one legitimate way of inter-
preting Crawford. To do so leads to the same result here—the
application of Crawford to Bockting’s pending habeas claims.

Despite the appeal of Judge Noonan’s reasoning, applica-
tion of the Supreme Court’s guidance in Teague leads to the
conclusion that Crawford announces a “new rule.” Because
the Crawford rule is both a “watershed rule” and one “without
which the likelihood of an accurate conviction is seriously
diminished,” Summerlin, 124 S. Ct. at 2523, the rule is retro-
active.

I. FACTUAL BACKGROUND

Marvin Bockting lived with his wife, Laura, and his two
daughters, Autumn and Honesty, in a motel in Las Vegas.
Autumn had taken showers together with Laura and Bockting.
She had also seen them having sex, and she was accustomed
to the use of sexual language.

One Saturday night, when Laura was at home alone with
the children, Autumn Bockting woke up crying. Her mother
observed that “she looked like she had just woken up from a
bad dream and she was quite upset.” At first she refused to
tell Laura what was wrong. Laura asked why she wouldn’t
tell. Autumn told her, “Because daddy said that you would
make him leave and that he would beat my butt if I told you.”
After reassurance from her mother, Autumn said “daddy put
his pee-pee in her pee-pee, and that daddy put his pee-pee in
her butt, and daddy made her suck on his pee-pee like it was
a sucker.”

The next day, Laura confronted Bockting. She asked him
to leave, which he did. Two days later, a Tuesday, Laura cal-
led the rape crisis hotline and was told to take Autumn to the
hospital, where they were met by Detective Zinovitch.
Zinovitch tried to interview Autumn, but she was too upset.
5884 BOCKTING v. BAYER
A rape examination was performed. The doctor found that
Autum’s rectal sphincter had been torn within the past week.
She also found that Autumn’s hymenal ring was wide open,
a rarity in a six-year old. The doctor determined that although
she “couldn’t determine what kind of instrument or foreign
body was used to cause the laxness of the hymen and the fis-
sure of the rectum,” it had been caused by a blunt force. Two
days later, Autumn was again interviewed by a detective. She
repeated what she had told her mother, accurately describing
the positions of the sex acts. She also demonstrated the acts
with anatomically correct dolls.

At Bockting’s preliminary hearing, Autumn was able to
answer questions about the difference between the truth and
a lie, but became upset when she was asked about being
touched by Bockting. Upon further questioning, she said she
could not remember what occurred with her father and did not
remember whether she had talked with the detective about the
claimed assault. The judge declared Autumn an unavailable
witness, and the preliminary hearing proceeded with the testi-
mony of Laura and Zinovitch. At trial, the judge found that
Autumn’s hearsay statements were admissible because she
was effectively unavailable for trial. Without having the
opportunity to cross-examine Autumn, Bockting was con-
victed and sentenced to life in prison.

Bockting appealed to the Nevada Supreme Court, which
dismissed his claims. The United States Supreme Court later
vacated the Nevada Supreme Court’s decision, remanding for
consideration in light of Idaho v. Wright, 497 U.S. 805
(1990). In 1993, the Nevada Supreme Court affirmed Bock-
ting’s conviction. He filed a second petition for post-
conviction relief, which the state district court denied in 1994.
Three years later, the Nevada Supreme Court again dismissed
the appeal. Bockting then sought relief in federal court. He
timely filed a habeas petition in 1998, which he amended in
2000. The district court denied the petition, and Bockting
filed the present appeal.
 BOCKTING v. BAYER 5885
II. DISCUSSION

Because Bockting filed his petition after the effective date
of the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), its provisions apply. See Woodford v. Garceau,
538 U.S. 202, 207 (2003). Under AEDPA, habeas relief to a
state prisoner is available only if the state court’s decision “re-
sulted in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States,” or
was “based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(1)-(2).

The Supreme Court also directs us that “in addition to per-
forming any analysis required by AEDPA, a federal court
considering a habeas petition must conduct a threshold
Teague analysis when the issue is properly raised by the
state.” See Horn v. Banks, 536 U.S. 266, 272 (2002). Indeed,
as the Court noted, “if our post-AEDPA cases suggest any-
thing about AEDPA’s relationship to Teague, it is that the
AEDPA and Teague inquiries are distinct.” Id.

[1] In explaining Teague’s application, the Supreme Court
recently explained that there are three steps to determining
whether a rule of criminal procedure applies on collateral
review:

First, the court must determine when the defendant’s
conviction became final. Second, it must ascertain
the legal landscape as it then existed, and ask
whether the Constitution, as interpreted by precedent
then existing, compels the rule. That is, the court
must decide whether the rule is actually “new.”
Finally, if the rule is new, the court must consider
whether it falls within either of the two exceptions to
nonretroactivity.
5886 BOCKTING v. BAYER
Beard v. Banks, 124 S. Ct. 2504, 2510 (2004) (internal cita-
tions omitted). Because Bockting’s conviction became final in
1993, we must evaluate whether any subsequent rule of con-
stitutional law is new against the benchmark of that year.

A. CRAWFORD ANNOUNCED A NEW RULE

The question before us is whether the Confrontation Clause
principles stated in Crawford amount to a new rule. In Craw-
ford, the Supreme Court considered whether Washington
State’s use at trial of a witness’s tape-recorded statement to a
police officer violated the Confrontation Clause. 124 S. Ct. at
1357. Writing for the Court, Justice Scalia engaged in a
lengthy historical analysis of the Confrontation Clause, noting
that “the principal evil at which the Confrontation Clause was
directed was the civil-law mode of criminal procedure, and
particularly its use of ex parte examinations as evidence
against the accused.” Id. at 1363 (emphasis added). He went
on to emphasize “that the Framers would not have allowed
admission of testimonial statements of a witness who did not
appear at trial unless he was unavailable to testify, and the
defendant had had a prior opportunity for cross-examination.”
Id. at 1365 (emphasis added).

[2] Whether the rule in Crawford is new depends on
whether it “was dictated by the then-existing precedent.”
Beard, 124 S. Ct. at 2511. To be sure, the majority in Craw-
ford is somewhat opaque as to the categorization of its ulti-
mate holding. As the Court noted, “[a]lthough the results of
our decisions have generally been faithful to the original
meaning of the Confrontation Clause, the same cannot be said
of our rationales.” 124 S. Ct. at 1369. The puzzler is whether
the “results of [the Supreme Court] decisions” are coextensive
with the rules of those decisions. If so, then the Crawford pro-
nouncement could be legitimately viewed as a continuation of
Supreme Court jurisprudence. Careful scrutiny of the Craw-
ford opinion suggests otherwise for at least two reasons: (1)
Crawford deviates from the test announced in Ohio v. Rob-
 BOCKTING v. BAYER 5887
erts, 448 U.S. 56 (1980); and (2) simply reaching the right
“result” does not mean that the result flowed from a constant
rule.

As the Court observed, “Roberts conditions the admissibil-
ity of all hearsay evidence on whether it falls under a ‘firmly
rooted hearsay exception’ or bears particularized guarantees
of trustworthiness.” Crawford, 124 S. Ct. at 1369 (quoting
Roberts, 448 U.S. at 66). Roberts rests on evidentiary princi-
ples of reliability and trustworthiness rather than on the con-
stitutional principle of confrontation.

The Crawford majority quite clearly states that the Roberts
“test departs from the historical principles” in that it is both
“too broad” and “too narrow.” Crawford, 124 S. Ct. at 1369.
Crawford did not announce the same rule as Roberts.
Whereas Roberts countenanced the admission of witness testi-
mony if trustworthy, under Crawford the testimony is admit-
ted only if the witnesses are subject to cross-examination. The
Court concluded that the cases applying Roberts have “re-
mained faithful to the Framers’ understanding,” id. at 1369,
that testimonial statements are admissible only when two
criteria are met: unavailability and opportunity for cross-
examination. In other words, “[w]here testimonial statements
are at issue, the only indicium of reliability sufficient to sat-
isfy constitutional demands is the one the Constitution actu-
ally prescribes: confrontation.” Id. at 1374. Although
historical principles are the bedrock for the Crawford deci-
sion, getting back to the bedrock required the Court to dis-
avow the Roberts test. The dissent in Crawford mirrors this
view by concluding that “the Court of course overrules Ohio
v. Roberts,” id. at 1378, and criticizing the “Court’s adoption
of a new interpretation of the Confrontation Clause. . . . ,” id.
at 1374.

To say that the outcomes or “results” have been generally
“faithful to the original meaning” is not the same as saying
that there has been a consistent rule throughout our history.
5888 BOCKTING v. BAYER
Indeed, the result in an individual case may well be consistent
with the Supreme Court’s new interpretation of Crawford, but
that does not mean that the rule that dictated the prior result
is necessarily consistent with Crawford. The majority in fact
underscores the dichotomy between outcomes and rules in
announcing that, “[i]f nothing else, the test we announce is an
empirically accurate explanation of the results our cases have
reached.” Id. at 1369 n.9. Rules and outcomes are neither the
same nor wholly overlapping.

Finally, the Court in Crawford pinpointed a situation that
was, in fact, “arguably in tension with the rule requiring a
prior opportunity for cross-examination when the proffered
statement is testimonial.” Id. at 1368 n.8. Citing White v. Illi-
nois, 502 U.S. 346 (1992), the Court described a case remark-
ably similar to ours, in which “statements of a child victim to
an investigating police officer [were] admitted as spontaneous
declarations.” Id. White rested on the issue of the unavaila-
bility requirement under the Confrontation Clause; had Craw-
ford been the rule at the time, the lack of cross-examination
would have been fatal to the admission of the evidence.

[3] Although the long line of Confrontation Clause cases is
“faithful to the original meaning” of the clause, id. at 1369,
we cannot overlook Roberts and White. On balance, an analy-
sis of the historical application of the Confrontation Clause
cases leads to the conclusion that Crawford announces a new
rule that must be put through the Summerlin strainer. If, on
the other hand, Crawford does not announce a new rule—the
position taken by Judge Noonan—then the Summerlin analy-
sis is not required. Either way, the result in this case is the
same. Bockting’s petition should be granted.

B. SUMMERLIN CONTROLS THE RETROACTIVITY ANALYSIS

Because Crawford announces a new rule, we must ask
whether it falls into one of the two Teague exceptions to the
bar on retroactivity. The first Teague exception is for primary
 BOCKTING v. BAYER 5889
conduct that cannot be criminalized. The second is for bed-
rock rules of criminal procedure. Teague, 489 U.S. at 307. It
is the second exception that is at play in this case.

[4] The Crawford rule does not narrow the scope of a crim-
inal statute by interpreting its terms, nor is it a constitutional
determination that places particular conduct or persons cov-
ered by the statute beyond the State’s power to punish. Sum-
merlin, 124 S. Ct. at 2522. Rather, the rule in Crawford is
procedural. See also Crawford, 124 S. Ct. at 1370 (stating the
Confrontation Clause provides “a procedural rather than a
substantive guarantee”). Therefore, Crawford merits retroac-
tive application only if it implicates “the fundamental fairness
and accuracy of the criminal proceeding,” Saffle v. Parks, 494
U.S. 484, 495 (1990), and reworks our understanding of bed-
rock criminal procedure, Sawyer v. Smith, 497 U.S. 227, 242
(1990).

[5] To be sure, under Summerlin, the lower courts are
tightly constrained in determining whether a new rule is a
“watershed rule” that is not only fundamental, but one “with-
out which the likelihood of an accurate conviction is seriously
diminished.” Summerlin, 124 S. Ct. at 2523 (quoting Teague,
489 U.S. at 313). Viewing Crawford and Summerlin together
poses a conundrum. Justice Scalia wrote for the majority in
both cases. In Summerlin, the Court admonished that “[t]his
class of [retroactive] rules is extremely narrow, and it is
unlikely that any . . . ha[s] yet to emerge.” 124 S. Ct. at 2523
(quoting Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001)) (inter-
nal quotations omitted). Nonetheless, the bar is not absolute
and the Crawford rule meets the Court’s criteria. Admonitions
such as in Summerlin offer discouragement but no guidance.
Because our job is not to conjure up hidden meaning, we sim-
ply heed the warning and our analysis thus adheres faithfully
to the holding and rationale of Summerlin. Viewing Crawford
in light of Summerlin leads to the conclusion that the Craw-
ford cross-examination requirement merits retroactive appli-
cation.
5890 BOCKTING v. BAYER
That the Crawford requirement is fundamental to our legal
regime is beyond dispute. Justice Scalia’s eloquent recitation
of the history, purpose, and place of the Confrontation Clause
and cross-examination answers this question. Crawford, 124
S. Ct. at 1359. Hundreds of years of tradition have embedded
this notion as a fundamental role. Indeed, “[t]he Framers
would be astounded to learn that ex parte testimony could be
admitted against a criminal defendant because it was elicited
by ‘neutral’ government officers.” Id. at 1373.

The question next posed is whether the rule implicates the
accuracy of the criminal proceeding. Juxtaposed, Summerlin
actually underscores why the Crawford rule implicates the
“fundamental fairness and accuracy of the criminal proceed-
ing,” Saffle, 494 U.S. at 495, and alters our understanding of
bedrock procedural principles, whereas the sentencing scheme
in Summerlin did not. In Summerlin, the Court concluded that
Ring v. Arizona, 536 U.S. 584 (2002), which held that aggra-
vating factors in a death penalty case must be proved to a jury
rather than to a judge, was not a retroactive rule. Summerlin
asked “whether judicial factfinding so seriously diminishe[s]
accuracy that there is an impermissibly large risk of punishing
conduct the law does not reach.” Summerlin, 124 S. Ct. at
2525 (citations and quotations omitted). The answer was no
because “[t]he evidence is simply too equivocal to support
that conclusion.” Id.

In Summerlin, the Court observed that “for every argument
why juries are more accurate factfinders, there is another why
they are less accurate.”1 In contrast, the evidence that cross-
1
The Court rejected the notion that the jury trial right seriously impacted
accuracy in part because the jury-free civil law system is so prevalent:
“[T]he mixed reception that the right to jury trial has been given in other
countries . . . surely makes it implausible that judicial factfinding so seri-
ously diminishe[s] accuracy as to produce an impermissibly large risk of
injustice.” 124 S. Ct. at 2525 (internal quotations omitted).
Unlike the “mixed reception that the right to jury trial has been given
in other countries,” id., the right of confrontation is well established in
 BOCKTING v. BAYER 5891
examination seriously decreases the possibility of inaccurate
conviction is unequivocal.

[6] The Supreme Court has repeatedly and without devia-
tion held that the purpose of the Confrontation Clause is to
promote accuracy. See, e.g., Crawford, 124 S. Ct. at 1370
(“This open examination of witnesses . . . is much more con-
ducive to the clearing up of truth.”) (quoting 3 Blackstone,
Commentaries * 373); White v. Illinois, 502 U.S. 346, 355
(1992) (evaluating a Confrontation Clause claim against the
benchmark of accuracy); Tennessee v. Street, 471 U.S. 409,
415 (1985) (describing the “Confrontation Clause’s very mis-
sion” as “to advance the accuracy of the truth-determining
process in criminal trials”) (internal quotation omitted); Ohio
v. Roberts, 448 U.S. 56, 65 (1980) (stating the purpose of the
Confrontation Clause is to “augment accuracy in the factfind-
ing process”); Parker v. Randolph, 442 U.S. 62, 73 (1979)
(plurality) (“The right of confrontation conferred by the Sixth
Amendment is a safeguard to ensure the fairness and accuracy
of criminal trials.”); Chambers v. Mississippi, 410 U.S. 284,
295 (1973) (“The right of cross-examination is more than a
desirable rule of trial procedure. It is implicit in the constitu-

international practice. Justice Scalia noted in Crawford that “the right to
confront one’s accusers is a concept that dates back to Roman times.”
Crawford, 124 S. Ct. at 1359. He then went on to chronicle the history in
England. Although not mentioned in Crawford, it bears noting that the
right of confrontation is firmly implanted in the jurisprudence of other
European countries. For example, the European Convention on Human
Rights, articles (6)(1) and (6)(3)(D), give the right “to examine or have
examined witnesses against him.” The European Court of Human Rights
has established a right of confrontation: Saïdi v. France, 17 Eur. Ct. H.R.
251, 270 (1993) (“Neither at the stage of the investigation nor during the
trial was the applicant able to examine or have examined the witnesses
concerned. The lack of any confrontation deprived him in certain respects
of a fair trial”). See also Van Mechelen v. Netherlands, 25 Eur. Ct. H.R.
647, 673 (1997); Lüdi v. Switzerland, 15 Eur. Ct. H.R. 173 (1992);
Windisch v. Austria, 13 Eur. Ct. H.R. 281 (1990); Delta v. France, 16 Eur.
Ct. H.R. 574 (1990); Kostovski v. Netherlands, 12 Eur. Ct. H.R. 434, 448-
49 (1989).
5892 BOCKTING v. BAYER
tional right of confrontation, and helps assure the ‘accuracy of
the truth-determining process.’ ”); Dutton v. Evans, 400 U.S.
74, 89 (1970) (plurality) (“The decisions of this Court make
it clear that the mission of the Confrontation Clause is to
advance a practical concern for the accuracy of the truth-
determining process in criminal trials . . . .”); Pointer v.
Texas, 380 U.S. 400, 404 (1965) (“[P]robably no one, cer-
tainly no one experienced in the trial of lawsuits, would deny
the value of cross-examination in exposing falsehood and
bringing out the truth in the trial of a criminal case.”); Mattox
v. United States, 156 U.S. 237, 242-43 (1895) (describing the
“primary object” of the Confrontation Clause as “to prevent
depositions or ex parte affidavits . . . being used against the
prisoner in lieu of a personal examination and cross-
examination of the witness, in which the accused has an
opportunity, not only of testing the recollection and sifting the
conscience of the witness, but of compelling him to stand face
to face with the jury in order that they may look at him, and
judge by his demeanor upon the stand and the manner in
which he gives his testimony whether he is worthy of belief”).
See also M. Hale, History and Analysis of the Common Law
of England 258 (1713) (adversarial testing “beats and bolts
out the Truth much better”) (quoted in Crawford, 124 S. Ct.
at 1370).

But accuracy and reliability do not exist in a vacuum.
Rather, “[t]he central concern of the Confrontation Clause is
to ensure the reliability of the evidence against a criminal
defendant by subjecting it to rigorous testing in the context of
an adversary proceeding before the trier of fact. “The word
‘confront,’ after all, also means a clashing of forces or ideas,
thus carrying with it the notion of adversariness.” Maryland
v. Craig, 497 U.S. 836, 845 (1990). Even more to the point,
the Court wrote, “[t]he combined effect of these elements of
confrontation—physical presence, oath, cross-examination,
and observation of demeanor by the trier of fact—serves the
purposes of the Confrontation Clause by ensuring that evi-
dence admitted against an accused is reliable and subject to
 BOCKTING v. BAYER 5893
the rigorous adversarial testing that is the norm of Anglo-
American criminal proceedings.” Id. at 846 (emphasis added).

Crawford itself answers the question of whether the
absence of cross-examination “so seriously diminishe[s] accu-
racy that there is an impermissibly large risk of punishing
conduct the law does not reach” Summerlin, 124 S. Ct. at
2525 (internal quotations omitted):

• “The framework is so unpredictable that it fails to
provide meaningful protection from even core
confrontation violations.” Crawford, 124 S. Ct. at
1371.

• “[T]he [general reliability] test is inherently, and
therefore permanently, unpredictable. Id. at 1374
n.10. “It is difficult to imagine [the general reli-
ability framework] providing any meaningful
protection in [politically charged cases].” Id. at
1374.

• “[W]e view this as one of those rare cases in
which the result below is so improbable that it
reveals a fundamental failure on our part to inter-
pret the Constitution in a way that secures its
intended constraint on judicial discretion.” Id. at
1373.

[7] Thus, at the heart of the Court’s concerns in Crawford
was the reliability of admitted evidence. Where admitted evi-
dence is unreliable, the accuracy of convictions is seriously
undermined. That the rule in Crawford is one without which
the accuracy of convictions would be seriously undermined is
further born out by the Court’s own description of its prior
doctrine as a “rare case” of “fundamental failure.” Id. at 1373.
The difference between pre- and post-Crawford Confrontation
Clause jurisprudence is not the sort of change that can be dis-
5894 BOCKTING v. BAYER
missed as merely incremental. Instead, it is an “absolute pre-
requisite to fundamental fairness.” Sawyer, 497 U.S. at 244.

In Crawford, the Court itself faults the previous regime
under Roberts. Crawford, 124 S. Ct. at 1371-73. Indeed, to
benchmark reliability against Roberts would undermine
Crawford’s central thesis. Reliance on Roberts’ judicially-
administered reliability test gives illusory comfort, as “[t]he
[Confrontation] Clause . . . reflects a judgment . . . about how
reliability can best be determined,” id. at 1370, and “[t]he leg-
acy of Roberts in other courts vindicates the Framers’ wisdom
in rejecting a general reliability exception,” id. at 1371.2

The retroactivity inquiry is not conducted in a vacuum.
Rather, the analysis is modeled on the Summerlin require-
ments. But even if a “look back” to Roberts were appropriate,
as Judge Wallace suggests, Crawford would be retroactive.

[8] Rules that are properly considered retroactive are those
that “alter our understanding of the bedrock procedural ele-
ments essential to the fairness of a proceeding.” Sawyer v.
Smith, 497 U.S. 227, 242 (1990) (internal quotations omitted).
As the Court recently stated, “[i]n providing guidance as to
what might fall within this exception, we have repeatedly
referred to the rule of Gideon v. Wainright, 372 U.S. 335
(1963).” Beard, 124 S. Ct. at 2514 (citing Saffle, 494 U.S. at
495, Gilmore v. Taylor, 508 U.S. 333, 364 (1993) (Blackmun,
J., dissenting)). Recognizing that bedrock procedural rules are
very few in number, it is no leap to conclude that the right of
cross-examination as an adjunct to the constitutional right of
confrontation joins the very limited company of Gideon.
2
Judge Wallace’s effort to rest the analysis on the reliability test under
Roberts forces a false dichotomy between reliability and cross-
examination and overlooks the fact that “some of the courts that admit
untested testimonial statements find reliability in the very factors that
make the statements testimonial.” Id. at 1372.
 BOCKTING v. BAYER 5895
We join one other circuit that has concluded that Crawford
announces a new rule, although its retroactivity analysis dif-
fers from ours. See Brown v. Uphoff, 381 F.3d 1219 (10th Cir.
2004). The Second Circuit did not directly address the new
rule issue but concluded that even if Crawford did announce
a new rule, it would not be retroactive. Mungo v. Duncan, 393
F.3d 327, 336 (2d Cir. 2004).

Addressing the question of a new rule, the Tenth Circuit
reasoned as follows:

As we explained above, prior to the decision in
Crawford, Roberts provided the appropriate frame-
work for determining whether the admission of hear-
say statements violated the Confrontation Clause.
The Supreme Court itself noted that the logic of
Roberts was inconsistent with the Court’s conclusion
in Crawford that the Confrontation Clause requires
an opportunity to cross-examine before testimonial
hearsay may be admitted against the defendant.
Crawford, ___ U.S. at ___, 124 S. Ct. at 1369. Thus,
Roberts and its progeny did not dictate the result in
Crawford and we conclude that it announces a new
rule of constitutional law. See Crawford, at ___, 124
S. Ct. at 1374 (Rehnquist, C.J., dissenting) (referring
to the majority’s holding as a “new interpretation of
the Confrontation Clause”).

Brown, 381 F.3d at 1226. Our analysis is in accord.

But the Tenth Circuit diverges from us in holding that
Crawford is not retroactive because it does not set forth a
watershed rule of criminal procedure. Id. Stating that unless
a new rule is “on the magnitude of the rule announced in Gid-
eon v. Wainright,” it will not fit within the Teague watershed
rule exception, the court explained:

Unlike Gideon, Crawford does not ‘alter[ ] our
understanding of what constitutes basic due process,’
5896 BOCKTING v. BAYER
but merely sets out new standards for the admission
of certain kinds of hearsay. Confrontation Clause
violations are subject to harmless error analysis and
thus may be excused depending on the state of the
evidence at trial. It would, therefore, be difficult to
conclude that the rule in Crawford alters rights fun-
damental to due process.

Id. at 1226-27 (internal citations omitted).

The Supreme Court’s Confrontation Clause jurisprudence
in Crawford cannot be dismissed as a mere tweak on the
admissibility of hearsay. See Brown, 281 F.3d at 1226. The
Supreme Court surely did not conceive of it as such. Rather,
the Court describes the right of confrontation as a “bedrock
procedural guarantee,” notes that it “dates back to Roman
times” and was part of the common law known to the found-
ing generation. Crawford, 124 S. Ct. at 1359. The Court also
contrasts “exclusion under the hearsay rules” with “the civil-
law abuses the Confrontation Clause targeted.” Crawford, 124
S. Ct. at 1364. In a rare mea culpa, the Court faults itself for
not enunciating the Crawford rule earlier, stating that “it
reveals a fundamental failure on our part to interpret the Con-
stitution in a way that secures its intended constraint on judi-
cial discretion.” Id. at 1373. There is nothing “mere” about
the Crawford rule.

The Tenth Circuit mistakenly concluded that rules of con-
stitutional law subject to harmless error review can never be
considered bedrock rules of procedure. The two inquiries
hinge on different questions. Whether a rule is a bedrock rule
of procedure depends on whether it increases the likelihood of
accurate conviction. Summerlin, 124 S. Ct. at 2523. Whether
a rule is subject to harmless error analysis depends on whether
the impact of the error can be measured. See Arizona v. Ful-
minante, 499 U.S. 279, 307-08 (1991). Therefore, a rule of
constitutional law could be essential to promote accurate con-
victions, but still subject to harmless error review if the
 BOCKTING v. BAYER 5897
impact of misapplication of the rule were easily measurable.
In short, because accuracy and measurability are different
concepts, whether a rule of constitutional law is subject to
harmless error review does not answer the question whether
it is a bedrock rule of procedure.

[9] After assuming that Crawford announced a new rule,
the Second Circuit rejected retroactivity, reasoning that the
Crawford rule would not improve overall accuracy because
“it is likely to improve accuracy in some circumstances and
diminish it in others.” Mungo, 393 F.3d at 335. The flaw in
this analysis is that the Second Circuit has substituted its
judgment of whether the Crawford rule is one without which
the accuracy of conviction is seriously diminished, for the
Supreme Court’s considered judgment. The Court has found
repeatedly that the purpose of the Confrontation Clause is to
promote accuracy, see, e.g., Tennessee v. Street, 471 U.S.
409, 415 (1985), and thus Crawford rejected the Roberts
framework as reflective of “a fundamental failure on our part
to interpret the Constitution in a way that secures its intended
constraint on judicial discretion,” Crawford, 124 S. Ct. at
1373. Viewing these holdings together leads to the conclusion
that the Crawford rule is one without which the likelihood of
accurate conviction is seriously diminished.

C. BOCKTING MERITS RELIEF UNDER AEDPA

Having determined that Crawford is retroactive, the
remaining task is to determine whether, under AEDPA, the
Nevada Supreme Court’s analysis was either “contrary to, or
involved an unreasonable application of, clearly established
Federal law.” 28 U.S.C. § 2254(d)(1)-(2). The Supreme Court
has yet to address directly whether AEDPA was intended or
should be read to adopt the Teague exceptions. Williams v.
Taylor, 529 U.S. 362, 380 (2000) (Stevens, J., for four jus-
tices) (“AEDPA codifies Teague to the extent that Teague
requires federal habeas courts to deny relief that is contingent
upon a rule of law not clearly established at the time the state
5898 BOCKTING v. BAYER
conviction became final.”). Application of Teague is the
means by which new rules are made retroactive. As noted ear-
lier, the Court has clarified that the Teague and AEDPA
inquiries are separate. Horn, 536 U.S. at 272. But in directing
us to undertake both inquiries in an AEDPA case, the Court
has impliedly endorsed the application of Teague in the
AEDPA context. Further, it appears that Congress intended to
preserve the Teague exceptions because AEDPA explicitly
provides for their application in proceedings involving state
habeas petitions. See 28 U.S.C. § 2254(e) (“If the applicant
has failed to develop the factual basis of a claim in State court
proceedings, the court shall not hold an evidentiary hearing on
the claim unless the applicant shows that . . . the claim relies
on a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court.”) But even if Con-
gress’ intent is unclear, the constitutional doubt cannon of
construction mandates that we read the statute to incorporate
the Teague exceptions to avoid the serious constitutional
problem raised by depriving individuals of bedrock principles
of Due Process. Ferguson v. Palmateer, 321 F.3d 820, 823
(9th Cir. 2003).

[10] The Nevada Supreme Court relied on Roberts to con-
clude that Autumn was “unavailable” and that her statements
bore the requisite “particularized guarantees of trustworthi-
ness.” Bockting v. State, 847 P.2d 1364, 1367-70 (Nev. 1993).
As we now know, but the Nevada Supreme Court could not
have divined, Crawford dictates the right to cross-examine the
witness. The progeny of Roberts, such as the multi-factor reli-
ability test developed in Idaho v. Wright, 497 U.S. 805, 821-
22 (9th Cir. 1990), cannot override the right of confrontation.
Thus, the Nevada Supreme Court’s decision was “contrary to”
established Supreme Court precedent in Crawford, as made
retroactive under Teague and Summerlin.

It bears noting that Crawford requires not only cross-
examination but unavailability. We have long acknowledged
the sensitive situation presented by the child witness. See,
 BOCKTING v. BAYER 5899
e.g., Tome v. United States, 513 U.S. 150, 166 (1995). Indeed,
prosecutions for child abuse often rely heavily on such testi-
mony. Here, the trial court’s inquiry into Autumn’s unavaila-
bility was truncated and conclusory at best. When she refused
to cooperate, the court simply declared her unavailable.
Although this issue is troubling, it is not necessary to reach
this question because of the constitutional error related to the
lack of cross-examination.

[11] The final question is whether admission of Autumn’s
statement “had substantial and injurious effect or influence in
determining the jury’s verdict.” See Brecht v. Abrahamson,
507 U.S. 619, 623 (1993). The detective’s testimony regard-
ing Autumn’s interview was a critical piece of evidence, par-
ticularly in view of Autumn’s inconsistent testimony at the
preliminary hearing, and weaknesses in Laura Bockting’s tes-
timony. Even if Autumn’s statement to the mother was, for
argument’s sake, considered admissible, the detective’s
description of Autumn’s interview was so significant as cor-
roborating evidence that its admission had a substantial and
injurious effect or influence in determining the jury’s verdict.
Thus, the admission of Autumn’s statement requires reversal.

III. CONCLUSION

Because a majority concludes that Crawford must be
applied in this pending habeas case, Bockting’s petition for a
writ of habeas corpus is GRANTED.3

3
I join part II of Judge Wallace’s concurring and dissenting opinion
with respect to admission of prior misconduct, vouching, and ineffective
assistance of counsel.
5900 BOCKTING v. BAYER
NOONAN, Circuit Judge, concurring:

The trial court, the state supreme court, and the federal dis-
trict court believed that the statute was constitutional, the pro-
cedure followed to have been proper, and Bockting’s
conviction valid. It is now apparent that each of these courts
was mistaken and that the statute and the procedure under it
are unconstitutional. Crawford v. Washington, 124 S. Ct.
1354 (2004). Bockting is entitled to a writ of habeas corpus.
The misunderstanding of the law governing the case is com-
prehensible in the light of the history set out in Crawford;
nontestimonial hearsay is not subject to an absolute bar.
“Where testimonial evidence is at issue, however, the Sixth
Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”
Id. at 1374.

Autumn was not found to be as unavailable as a witness.
She was in fact present at the trial. At most, the Nevada courts
determined that Autumn was not willing to be a witness
against Bockting. The reasons for her unwillingness were not
explored. The possibility of measures short of appearance on
the stand in open court were not explored. The fact that she
had testified at Bockting’s preliminary hearing and had denied
the accusations against him was ignored. On the mere ipse
dixit of a prosecutor already disappointed by Autumn’s testi-
mony at the preliminary hearing, she was disqualified as a
witness and the hearsay introduced. The Confrontation Clause
of the Sixth Amendment to the Constitution of the United
States, applicable by virtue of the Fourteenth Amendment,
was violated.

No opportunity for cross-examination by Bockting ever
existed. He was, of course, not present when Autumn spoke
to her mother or when she spoke to Detective Zinovitch.
Totally untested by the method constitutionally required, the
two testimonial tales, retold by Laura and the detective, con-
fronted Bockting at his trial. The Confrontation Clause
 BOCKTING v. BAYER 5901
demanded that he be confronted with the witness against him.
U.S. Const. amend. VI.

It is a work of supererogation to praise the wisdom of the
Founders and to celebrate the enforcement of a “bedrock pro-
cedural guarantee.” Crawford, 124 S. Ct. at 1359. Nonethe-
less, the circumstances of this case demonstrate how wise it
is to exclude testimony untested by cross-examination.
Autumn’s first declaration, reported only by her mother, was
made at night after Autumn awoke from sleep crying and was
questioned by her mother. It may have been an excited or
spontaneous utterance but one made under circumstances ren-
dering it less, not more credible. In her mother’s words, “She
looked like she had just woke up from a bad dream and she
was quite upset.” It is a commonplace phenomenon for people
of all ages to have nightmares and to awake in distress. What
they then say was bothering them carries no guarantee of
trustworthiness; they are coming out of sleep, still responding
to their sleeping state impressions. Autumn’s second declara-
tion was made to a police officer in the presence of her
mother; she was under psychological compulsion not to let
her mother down. As to her play with the dolls and her sexual
experience, her mother testified that Autumn had observed
her and Bockting having sexual intercourse in the one bed-
room trailer in which the family lived and where Autumn
slept in a closet area off the bedroom. The language Autumn
used in reference to the sexual organs was language her
mother testified that she used in discussion with her. Autumn
had no motive to accuse her stepfather of criminal assault and,
in fact, demonstrated affection for him; she did have a motive
to account for her nightmare and to tell the same story the sec-
ond time when she met the police.

Autumn’s statements were further put in doubt by her repu-
diation of any accusation against Bockting at his preliminary
hearing. Further, the report of her statement of her mother
must be contextualized by these facts: her mother was an
exotic dancer, who sometimes performed in front of Autumn;
5902 BOCKTING v. BAYER
her mother was in conflict with Bockting and on the brink of
leaving him; her mother did not report Autumn’s nighttime
declaration until two days after she said she heard it.

It is argued that to apply Crawford is to apply it retroac-
tively. To the contrary, the Supreme Court, after reviewing its
own decisions, declared:

Our cases have thus remained faithful to the Fram-
ers’ understanding: Testimonial statements of wit-
nesses absent from trial have been admitted only
where the declarant is unavailable, and only where
the defendant has had a prior opportunity to cross-
examine.

Crawford, 124 S. Ct. at 1369. Crawford, therefore, does not
announce a new rule. Retroactivity is not an issue.

True, the chief justice’s dissent declared that Crawford was
“a new interpretation” that overruled Ohio v. Roberts, 448
U.S. 56 (1980). Id. at 1374. But as the Court pointed out, Rob-
erts itself only admitted testimony that had been subjected to
cross-examination. Id. at 1368. Undoubtedly, a number of
courts misinterpreted the Confrontation Clause in the same
way as the Nevada courts did. But correction of a misinterpre-
tation does not create a new rule. It is dangerous to take liter-
ally a dissent. The authentic interpretation of what the Court
is doing comes from the Court itself. If there were any doubt
in this case (which I deny there is), it is completely dispelled
by the Court, again speaking through the author of Crawford
in the same term in which Crawford was decided. Addressing
new procedural rules without which the likelihood of an accu-
rate conviction is seriously diminished, the Court declared:
“This class of rules is extremely narrow and it is unlikely that
any . . . has yet to emerge.” Schriro v. Summerlin, 124 S. Ct.
2519, 2522 (2004) (quoting Tyler v. Cain, 533 U.S. 656, 667
n.7 (2001)) (alterations and quotation marks omitted). This
declaration is an authoritative determination, delivered less
 BOCKTING v. BAYER 5903
than four months after Crawford, that Crawford’s bedrock
procedural rule was not a new rule. A change in rationale is
not treated by the Supreme Court as a change in rules. Craw-
ford, 124 S. Ct. 1369. All along, the bedrock was there.

As an alternative to the foregoing analysis and in order to
provide a precedent for this court, I also concur in Judge
McKeown’s analysis and opinion.

Because the action of the Nevada Supreme Court resulted
in a decision that was contrary to established federal law as
determined by the Supreme Court of the United States, 28
U.S.C. § 2254 (d)(l), the writ of habeas corpus should issue
to free Bockting from his unconstitutional confinement.
5904 BOCKTING v. BAYER
Volume 2 of 2
 BOCKTING v. BAYER 5905
WALLACE, Senior Circuit Judge, concurring and dissenting:

Both Judges McKeown and Noonan conclude that the
Supreme Court’s recent landmark decision, Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004), governs our
consideration of Bockting’s Confrontation Clause claim,
although for different reasons. While Judge Noonan would
hold that retroactivity is “not an issue” because Crawford did
not establish a “new rule” within the meaning of Teague v.
Lane, 489 U.S. 288 (1989), Ante at 5902, I concur with that
part of Judge McKeown’s opinion holding that Crawford
established a new rule that does not apply retroactively to
state convictions on habeas review unless it satisfies one of
two narrow exceptions. However, I do not agree that Craw-
ford fits within either of those exceptions. Guided by the prin-
ciples outlined in Schriro v. Summerlin, ___ U.S. ___, 124
S. Ct. 2519 (2004), I would hold that Crawford’s new proce-
dural rule does not qualify for retroactive application and
would analyze Bockting’s Confrontation Clause claim under
pre-Crawford jurisprudence. In doing so, I would reject that
claim, as well as Bockting’s remaining claims, under the def-
erential standards of review embodied in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), and
affirm the district court’s denial of Bockting’s habeas petition.1
I therefore respectfully dissent.

I.

I consider first Bockting’s contention that the state trial
court violated his rights under the Confrontation Clause by
admitting Autumn’s out-of-court statements.
1
Judge McKeown concurs in part II of this opinion. See Ante at 5899
n.3. Therefore, a majority of the court agrees that Bockting’s challenges
to (a) the admission of evidence of prior misconduct, (b) vouching, and (c)
effective assistance of counsel, do not warrant habeas relief.
5906 BOCKTING v. BAYER
A.

Several weeks after this case was argued before us and sub-
mitted for decision, the Supreme Court issued Crawford v.
Washington, 541 U.S. 36, 124 S. Ct. 1354 (2004). Parting
ways with the constitutional test formulated in Ohio v. Rob-
erts, 448 U.S. 56 (1980), Crawford held that in criminal pro-
ceedings, “[t]estimonial statements of witnesses absent from
trial [are admissible] only where the defendant is unavailable,
and only where the defendant has had a prior opportunity to
cross-examine.” Crawford, 124 S. Ct. at 1369 (emphasis
added).

Bockting argues—and Judge Noonan agrees—that Craw-
ford does not raise retroactivity concerns at all because it does
not qualify as a “new rule” under Teague. Although the
Supreme Court took great pains to harmonize Crawford’s
result with previous Sixth Amendment decisions, I agree with
Judge McKeown that Crawford’s ratio decidendi effected a
clear and decisive break from prior precedent. See Crawford,
124 S. Ct. at 1369 (observing that “[a]lthough the results of
our decision have generally been faithful to the original mean-
ing of the Confrontation Clause, the same cannot be said of
our rationales”). Before Crawford, controlling precedent per-
mitted courts to admit hearsay evidence against a criminal
defendant whenever the declarant was “unavailable” and the
evidence had “adequate ‘indicia of reliability,’ ” i.e., fell
within a “firmly rooted hearsay exception” or bore “particu-
larized guarantees of trustworthiness.” Roberts, 448 U.S. at
66. Crawford, however, emphatically rejected Roberts’s
approach to testimonial evidence, arguing that its test demon-
strated an “unpardonable . . . capacity to admit core testimo-
nial statements that the Confrontation Clause plainly meant to
exclude.” 124 S. Ct. at 1371. As the Court in Crawford
explained:

[Roberts] is too broad: It applies the same mode of
analysis whether or not the hearsay consists of ex
 BOCKTING v. BAYER 5907
parte testimony. This often results in close constitu-
tional scrutiny in cases that are far removed from the
core concerns of the Clause. At the same time, how-
ever, the test is too narrow: It admits statements that
do consist of ex parte testimony upon a mere finding
of reliability.

Id. at 1369. Responding to these concerns, the Court limited
Roberts’s reach to cases “[w]here nontestimonial hearsay is at
issue.” Id. at 1374. In cases involving “testimonial evidence,”
the Court replaced Roberts with a new test that has two
requirements: “unavailability and a prior opportunity for
cross-examination.” Id. Thus, since Crawford overruled Rob-
erts’s test for the admission of testimonial evidence, the deci-
sion also represents a “new rule” for retroactivity purposes.
See id. at 1378 (Rehnquist, C.J., concurring) (characterizing
the majority’s opinion as a “new rule”); Graham v. Collins,
506 U.S. 461, 467 (1993) (“[T]here can be no dispute that a
decision announces a new rule if it expressly overrules a prior
decision . . . .”); Teague, 489 U.S. at 301 (“[A] case
announces a new rule if the result was not dictated by prece-
dent existing at the time the defendant’s conviction became
final.”).

Crawford’s “new” constitutional rule would only apply
retroactively to final convictions on collateral review if it falls
within certain categories of rules. The Supreme Court recently
clarified the nature and scope of these categories in Summer-
lin:

New substantive rules generally apply retroactively.
This includes decisions that narrow the scope of a
criminal statute by interpreting its terms, as well as
constitutional determinations that place particular
conduct or persons covered by the statute beyond the
State’s power to punish. Such rules apply retroac-
tively because they “necessarily carry a significant
risk that a defendant stands convicted of ‘an act that
5908 BOCKTING v. BAYER
the law does not make criminal’ ” or faces a punish-
ment that the law cannot impose upon him.

New rules of procedure, on the other hand, gener-
ally do not apply retroactively. They do not produce
a class of persons convicted of conduct the law does
not make criminal, but merely raise the possibility
that someone convicted with use of the invalidated
procedure might have been acquitted otherwise.
Because of this more speculative connection to inno-
cence, we give retroactive effect to only a small set
of “ ‘watershed rules of criminal procedure’ impli-
cating the fundamental fairness and accuracy of the
criminal proceeding.”

124 S. Ct. at 2522-23 (citations omitted), quoting Bousley v.
United States, 523 U.S. 614, 620 (1998), and Saffle v. Parks,
494 U.S. 484, 495 (1990).

Measured against Summerlin’s standards, Crawford is best
classified as a procedural rule. The rule does not “narrow the
scope of a criminal statute by interpreting its terms”; nor does
it “place particular conduct or persons covered by the statute
beyond the State’s power to punish.” Id. at 2522. Rather, by
renegotiating the boundaries between admissible and inadmis-
sible evidence, Crawford operates solely on a defendant’s
criminal proceedings. Crawford’s characterization as a proce-
dural rule is further supported by the Crawford decision itself.
By labeling the Confrontation Clause as “a procedural rather
than a substantive guarantee . . . [that] reflects a judgment . . .
about how reliability [of testimonial evidence] can best be
determined,” the Court endeavored to reinstitute “the constitu-
tionally prescribed method of assessing reliability.” Crawford,
124 S. Ct. at 1370 (emphasis added). While, the line between
“substance” and “procedure” may not always be crystal-clear,
there can be no serious dispute that Crawford’s restriction on
testimonial evidence is a “procedural” rule.
 BOCKTING v. BAYER 5909
Bockting contends that Crawford merits retroactive appli-
cation here because it is a “ ‘watershed rule[ ] of criminal pro-
cedure’ implicating the fundamental fairness and accuracy of
the criminal proceeding.” Saffle, 494 U.S. at 495, citing
Teague, 489 U.S. at 311; see also Teague 489 U.S. at 307
(describing this exception as applying to “those procedures
that . . . are implicit in the concept of ordered liberty” (quot-
ing Palko v. Connecticut, 302 U.S. 319, 325 (1937))). This
argument—which Judge McKeown finds persuasive—
admittedly has some intuitive appeal; as Bockting observes,
the Supreme Court has described “the Sixth Amendment’s
right of an accused to confront the witnesses against him” as
“fundamental,” Pointer v. Texas, 380 U.S. 400, 403 (1965),
and Crawford purports to effectuate the Confrontation
Clause’s original design and thereby enhance the fairness and
accuracy of defendants’ criminal proceedings. Crawford, 124
S. Ct. at 1373. However, the fact that Crawford is “ ‘funda-
mental’ in some abstract sense is not enough” to entitle Bock-
ting to habeas relief. Summerlin, 124 S. Ct. at 2523. Under
Teague and its progeny, Crawford does not constitute a “wa-
tershed rule” suitable for retroactive application unless the
Roberts test “so ‘seriously diminishe[s]’ accuracy that there is
an ‘impermissibly large risk’ of punishing conduct the law
does not reach.” Id. at 2525, quoting Teague, 489 U.S. at 312-
13; see also id. at 2523 (“This class of rules is extremely nar-
row, and ‘it is unlikely that any . . . ha[s] yet to emerge.’ ”
(quoting Tyler v. Cain, 533 U.S. 656, 667 n.7 (2001)) (inter-
nal quotation marks and citation omitted)).

In evaluating the Roberts test, the Supreme Court’s analysis
in Summerlin is instructive. The question presented there was
whether Ring v. Arizona, 536 U.S. 584 (2002), the Court’s
decision that juries must determine the existence of any
aggravating factor necessary for imposition of the death pen-
alty, applied retroactively to cases already final on direct
review. In assessing whether Ring represented a true “water-
shed” procedural rule, the court reviewed scholarly commen-
tary relating to the accuracy of judicial factfinding and
5910 BOCKTING v. BAYER
concluded that the evidence was “simply too equivocal” to
justify Ring’s retroactive application: “[w]hen so many pre-
sumably reasonable minds continue to disagree over whether
juries are better factfinders . . . , we cannot confidently say
that judicial factfinding seriously diminishes accuracy.” Sum-
merlin, 124 S. Ct. at 2525. The Court also stressed that this
conclusion followed logically from its observation in DeSte-
fano v. Woods, 392 U.S. 631 (1968) (per curiam), “that,
although ‘the right to jury trial generally tends to prevent arbi-
trariness and repression[,] . . . [w]e would not assert . . . that
every criminal trial—or any particular trial—held before a
judge alone is unfair or that a defendant may never be as
fairly treated by a judge as he would be by a jury.’ ” Summer-
lin, 124 S. Ct. at 2525, quoting DeStefano, 392 U.S. at 633-34
(internal quotation marks omitted). The Court reasoned that if
“a trial held entirely without a jury was not impermissibly
inaccurate, it is hard to see how a trial in which a judge finds
only aggravating factors could be.” Id. at 2526. Summerlin
thus did not extend Ring retroactively to cases on habeas
review notwithstanding the Court’s recognition that “[t]he
right to jury trial is fundamental to our system of criminal
procedure.” Id.

Although Summerlin does not directly control the outcome
of this case, the close similarities between the two cases are
compelling. As in Summerlin, there is no clear consensus over
the comparative effects Roberts and Crawford might have on
the accuracy of jury verdicts, see Crawford, 124 S. Ct. at
1377-78 (Rehnquist, C.J., concurring), much less any evi-
dence that Roberts “so ‘seriously diminishe[s]’ accuracy that
there is an ‘impermissibly large risk’ of punishing conduct the
law does not reach,” Summerlin, 124 S. Ct. at 2525, quoting
Teague, 489 U.S. at 312-13. Nor am I prepared to assert that
all testimonial hearsay evidence admitted without the oppor-
tunity for cross-examination necessarily renders a criminal
trial “impermissibly inaccurate,” id. at 2526, or otherwise
“unfair,” id. at 2525, quoting DeStefano, 392 U.S. at 634.
Even assuming Crawford’s reinterpretation of the Confronta-
 BOCKTING v. BAYER 5911
tion Clause is in some sense “fundamental” and accuracy-
enhancing, it does not follow that “[t]he values implemented
by [that] right . . . would . . . measurably be served by requir-
ing retrial of all persons convicted in the past by procedures
not consistent with the Sixth Amendment right” as it is cur-
rently understood. Summerlin, 124 S. Ct. at 2525-26, quoting
DeStefano, 392 U.S. at 634. There is simply no solid evidence
that Roberts has so seriously undermined the accuracy of
criminal proceedings as to discredit the host of final convic-
tions generated pursuant to its authority.

Judge McKeown, however, concludes that Crawford is
retroactive, because “the evidence that cross-examination
seriously decreases the possibility of inaccurate conviction is
unequivocal.” Ante at 5890-91. In her view, “Crawford itself
answers the question of whether the absence of cross-
examination “so seriously diminishe[s] accuracy that there is
an impermissibly large risk of punishing conduct the law does
not reach.” Ante at 5880, quoting Summerlin, 124 S. Ct. at
2525. But that is the wrong question. Prior to Crawford,
courts may not have been required to exclude an unavailable
witness’s out-of court testimonial statement that was not was
subject to cross-examination, but they were required to
exclude statements that did not have “adequate indicia of reli-
ability.” Roberts, 448 U.S. at 66. Thus, the question is not
whether testimony that has been subject to cross-examination
is more likely to be reliable than testimony that has not.
Rather, the question is whether testimony admissible under
Roberts is so much more unreliable than that admissible under
Crawford that the Crawford rule is “one without which the
likelihood of an accurate conviction is seriously diminished.”
Summerlin, 124 S. Ct. at 2523 (internal quotation marks omit-
ted).

The Supreme Court’s decision in Sawyer v. Smith, 497 U.S.
227 (1990) illustrates the principle that a new rule qualifies as
a “watershed rule[ ] of criminal procedure,” Teague, 489 U.S.
at 311, only if it represents a substantial improvement over
5912 BOCKTING v. BAYER
the previously existing rule. In Sawyer, the Court addressed
the question whether a habeas petitioner could claim the bene-
fit of Caldwell v. Mississippi, 472 U.S. 320 (1985), which was
decided after the petitioner’s conviction became final and
which “held that the Eighth Amendment prohibits the imposi-
tion of a death sentence by a sentencer that has been led to the
false belief that the responsibility for determining the appro-
priateness of the defendant’s capital sentence rests else-
where.” Sawyer, 497 U.S. at 233. After concluding that
Caldwell established a “new rule,” id. at 233-41, the Court
addressed whether Caldwell fit within either of Teague’s
exceptions. But, in addressing whether Caldwell qualified as
a “ ‘watershed rule[ ] of criminal procedure,’ ” id. at 241,
quoting Saffle, 494 U.S. at 495, the Court did not simply ask
whether sentences imposed in violation of Caldwell were
much less accurate than those imposed in compliance with
Caldwell. Rather, the Court compared Caldwell against “the
rule of [Donnelly v. DeChristoforo, 416 U.S. 637 (1974),
which] was in place [at the time of the petitioner’s trial and
appeal] to protect any defendant who could show that a prose-
cutor’s remarks had in fact made a proceeding fundamentally
unfair.” Sawyer, 497 U.S. at 243. Although the Court’s “con-
cern in Caldwell was with the ‘unacceptable risk’ that mis-
leading remarks could affect the reliability of the sentence,”
Caldwell had merely been “added to an existing guarantee of
due process protection against fundamental unfairness.” Id. at
244. Thus, the Court in Sawyer could not say that Caldwell’s
“systemic rule enhancing reliability is an ‘absolute prerequi-
site to fundamental fairness,’ of the type that may come
within Teague’s second exception.” Id., quoting Teague, 489
U.S. at 314.

Here, too, Crawford’s new rule must be judged against the
background in which it was decided, by comparing it to the
rule of Roberts. Although certain language in Judge Mc-
Keown’s opinion suggests that she purports to do so, see Ante
at 5893-94 (“The difference between pre- and post-Crawford
Confrontation Clause jurisprudence is not the sort of change
 BOCKTING v. BAYER 5913
that can be dismissed as merely incremental.”), she never
actually asks the question upon which Crawford’s retroactiv-
ity turns: Does the admission of testimony which has been
judicially determined to bear “adequate indicia of reliability”
(as Roberts required), but which has not necessarily been sub-
ject to cross-examination (as Crawford requires), “so seri-
ously diminish[ ] accuracy that there is an impermissibly large
risk of punishing conduct the law does not reach”? Summer-
lin, 124 S. Ct. at 2525 (internal quotation marks omitted). As
explained above, the answer to that question should not be in
the affirmative.

Yet another flaw in Judge McKeown’s analysis is her focus
on language in Crawford suggesting that the new rule
announced in that case is truer to the Framers’ design. For
example, she quotes the Court’s statement that “[t]he Framers
would be astounded to learn that ex parte testimony could be
admitted against a criminal defendant because it was elicited
by ‘neutral’ government officers.” Crawford, 124 S. Ct. at
1373. See Ante at 5890. “The question here is not, however,
whether the Framers believed that [cross-examination pro-
vides a] more accurate [means of testing the reliability of tes-
timony] than [judicial determinations of ‘reliability’ pursuant
to Roberts],” but “whether [the Roberts test] so seriously
diminishe[s] accuracy that there is an impermissibly large risk
of punishing conduct the law does not reach.” Summerlin, 124
S. Ct. at 2525 (internal quotation marks omitted). That the
Framers made a particular judgment about the best way to
ensure the reliability of testimony does not mean that any rule
other than the one they envisioned creates an impermissibly
high risk of inaccurate conviction.

The focus of Justice Scalia’s analysis in Crawford was on
Roberts’ fidelity to the Framers’ intentions, rather than the
accuracy of convictions obtained under the Roberts regime.
See, e.g., Crawford, 124 S. Ct. at 1359 (“Petitioner argues that
[the Roberts] test strays from the original meaning of the Con-
frontation Clause and urges us to reconsider it.”); id. at 1369
5914 BOCKTING v. BAYER
(“Although the results of our decisions have generally been
faithful to the original meaning of the Confrontation Clause,
the same cannot be said of our rationales.”); id. at 1370
(“Where testimonial statements are involved, we do not think
the Framers meant to leave the Sixth Amendment’s protection
to the vagaries of the rules of evidence, much less to amor-
phous notions of ‘reliability.’ ”). True, the Court stated that
“[t]he [Confrontation] Clause . . . reflects a judgment . . .
about how reliability can best be determined,” id. at 1370; that
“[t]he legacy of Roberts in other courts vindicates the Fram-
ers’ wisdom in rejecting a general reliability exception,” id. at
1371; and even that “[r]eliability is an amorphous, if not
entirely subjective, concept.” Id. But, even if one assumes that
the Framers were correct as an empirical matter that cross-
examination is the best way to ensure the reliability of testi-
mony, that does not mean that any other method impermiss-
ibly threatens punishing the innocent.

Finally, Judge McKeown’s analysis is contrary to that of
three other circuits that have held that Crawford’s rule does
not fit within either of Teague’s exceptions. See Brown v.
Uphoff, 381 F.3d 1219, 1225-27 (10th Cir. 2004); Evans v.
Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004); Mungo v.
Duncan, 393 F.3d 327, 335-36 (2d Cir. 2004). Although
Judge McKeown criticizes Brown on the ground that “[t]he
Tenth Circuit mistakenly concluded that rules of constitu-
tional law subject to harmless error review can never be con-
sidered bedrock rules of procedure,” see Ante at 5896, that
attack is not well-founded. Our own decision in United States
v. Sanchez-Cervantes, 282 F.3d 664 (9th Cir. 2002), which
held that Apprendi v. New Jersey, 530 U.S. 466 (2000) does
not apply retroactively, employed the very reasoning that
Judge McKeown finds objectionable. See Sanchez-Cervantes,
282 F.3d at 670 (“By applying harmless error analysis or
plain error review to Apprendi claims, we have necessarily
held that Apprendi errors do not render a trial fundamentally
unfair. Therefore, it would seem illogical to hold that such an
error is a watershed rule that ‘implicate[s] the fundamental
 BOCKTING v. BAYER 5915
fairness of the trial’ ” (quoting Teague, 489 U.S. at 312) (foot-
note omitted)). The Tenth Circuit’s reasoning in Brown is
entirely consistent with our own in Sanchez-Cervantes, and
provides yet another reason why Judge McKeown’s analysis
is unpersuasive.

For the foregoing reasons, I conclude that Crawford does
not qualify as a “watershed rule[ ] of criminal procedure”
appropriate for retroactive application to convictions already
final on direct review. Teague, 489 U.S. at 311. Like the Sec-
ond Circuit in Mungo, see 393 F.3d at 334-35, and unlike
Judge McKeown, see Ante at 5897-98, I therefore would not
reach the question whether AEDPA “nullifies” the Teague
exceptions, such that no “new rule”—even one fitting within
one of those exceptions—may serve as the basis for habeas
relief.

Nonetheless, to determine whether I can concur in the
result, I must evaluate Bockting’s Confrontation Clause claim
according to the standards articulated in Roberts and our own
pre-Crawford decisions.

B.

Because Judge McKeown’s opinion does not get to the
application of pre-Crawford law to Bockting’s Confrontation
Clause claim, it was not necessary for her to go into detail
regarding the facts of this case that are relevant to such analy-
sis, therefore I add them here.

At Bockting’s March 30, 1988, preliminary hearing, Laura
described Autumn’s abuse allegations and other events lead-
ing up to Bockting’s arrest. Prosecutors then called Autumn
to the stand. Autumn testified that she knew the difference
between the truth and a lie and answered preliminary ques-
tions about the alleged assault and subsequent rape examina-
tion. As the prosecutor probed more deeply into the details of
Bockting’s alleged assault, Autumn began to cry and averred
5916 BOCKTING v. BAYER
that she could not remember basic facts such as what occurred
in the bathroom with her father and whether she discussed her
father’s alleged assault with Detective Zinovitch. The judge
asked Laura to take a seat next to Autumn on the witness
stand, and Laura encouraged Autumn to “be honest” and “tell
the truth.” Responding that “[y]ou already told them,”
Autumn refused to answer any further questions. The judge
declared Autumn unavailable as a witness.

Bockting’s jury trial commenced on August 15, 1988. The
government, represented by Deputy District Attorney John
Lukens, called Autumn as its first witness. The trial transcript
reads as follows:

The Court: Very good then. Mr. Lukens, your
first witness.

Mr. Lukens: Autumn Bockting.

* * *

The Court: How are you doing, Autumn?
Autumn, you okay? All right. Contin-
uation of case C83110, State of
Nevada versus Marvin Howard
Bockting. The record will reflect the
presence of defendant; his counsel,
Mr. Blaskey; Mr. Lukens represent-
ing the State[;] the absence of the
jury. And we have on the stand
Autumn Jean Tresler Bockting.

All right. Go ahead, counsel.

Mr. Lukens: Autumn, this is when you have to
stand up to be sworn.

The Court: Can you stand up, Autumn? Can you
stand up and raise your hand for me?
 BOCKTING v. BAYER 5917
Autumn, stand up now and raise your
hand for us, okay.

Mr. Lukens: Your Honor, I think under these con-
ditions, I think that the witness is
unable to testify.

The Court: Well, I think it is apparent without
the jury if we can’t get anything more
than this, it is not likely when the
jury is here we will do any better. Go
ahead and assist, will you please.

Counsel approach the bench,
please.

(Discussion at the bench which
was not reported.)

Mr. Lukens: Your Honor, at this time since the
Court has observed for itself the
inability of Autumn Bockting to tes-
tify due to the emotional conflict that
goes on within her, the State intends
pursuant to [Nevada Revised Statute]
51.385 to offer into evidence the
statements made by Autumn Bock-
ting to both her mother, Laura, and
Detective Zinovitch and, to a more
limited extent, Diane Donovan.

This offer is made pursuant to
[Nevada Revised Statute] 51.385
which states in pertinent part that, “In
addition to any other provision for
admissibility, a statement made by a
child under the age of 10 years,
describing any act of sexual conduct
5918 BOCKTING v. BAYER
performed with or on the child, is
admissible in a criminal proceeding
regarding that sexual conduct if, A,
the Court finds in hearing outside the
presence of the jury that the time,
content and circumstances of the
statement provides sufficient circum-
stantial guarantees of trustworthiness,
and, B, the child testifies at the pro-
ceeding or is unavailable or unable to
testify.” I submit that portion B has
been met.

And, in addition, under [the provi-
sion formerly designated] Subsection
[2], it says, “If the child is unavail-
able or unable to testify, written
notice must be given to the defendant
10 days before the trial if the prose-
cution intends to offer the statements
in evidence.”

I would submit that the State has
complied with that and that such
notice was filed on August 2nd, 1988
and is styled Notice Pursuant to
[Nevada Revised Statute] 51.385
wherein I gave notice of the three
individuals who I intend to call as to
Autumn’s statements.

The Court: Very well. . . .

After hearing testimony from Laura and Detective
Zinovitch outside the presence of the jury, the judge con-
cluded that Autumn’s hearsay statements were admissible
under Nevada Revised Statutes 51.385 because Autumn was
effectively unavailable for questioning:
 BOCKTING v. BAYER 5919
The very purpose of this statute was to avoid the
problem we have here today where a little girl either
is not willing to testify or for some reason is unable
to or testifies in such an inconsistent manner that it
means, in essence, that their testimony is worthless;
and because of the fact that she is testifying in open
court in front of strangers with all the things that sur-
rounds that kind of a setting. . . . The little girl is
obviously unavailable. And as far as these two state-
ments, I am meaning the one to the mother and the
one to Detective Zinovitch, I think they are allowed
—they are credible enough to be allowed to be
related to the jury.

Roberts outlines two preconditions for the introduction of
out-of-court statements against a criminal defendant. First, the
government must establish the declarant’s “unavailability” to
testify as a witness at trial. Bains v. Cambra, 204 F.3d 964,
973 (9th Cir. 2000), citing Roberts, 448 U.S. at 65-66. Sec-
ond, the government must demonstrate that the hearsay state-
ments bear “adequate indicia of reliability” by showing that
they either fall “within a firmly rooted hearsay exception” or
contain “particularized guarantees of trustworthiness.” Rob-
erts, 448 U.S. at 65-66. In Bockting’s state proceedings, the
Nevada Supreme Court determined that the government satis-
fied these two requirements, see Bockting v. State, 847 P.2d
1364, 1366-70 (Nev. 1993) (per curiam), and Bockting chal-
lenges these determinations on federal habeas review. Mind-
ful of a federal court’s duty to defer to the state supreme
court’s factual determinations and reasonable applications of
Supreme Court precedent, 28 U.S.C. § 2254(d)(1)-(2), I con-
sider each Roberts requirement in turn.

1.

Bockting first asserts that the Nevada Supreme Court’s
decision is not entitled to deference under AEDPA because
the court failed to review whether Autumn was available to
5920 BOCKTING v. BAYER
testify at trial. The record does not support this characteriza-
tion of the state supreme court’s findings. When Autumn
refused to cooperate as a trial witness, the prosecution moved
to introduce her hearsay statements through the testimony of
her mother, Detective Zinovitch, and Doctor Donovan pursu-
ant to Nevada Revised Statute 51.385, which provides for the
introduction of a child’s hearsay statements if they are “un-
available or unable to testify.” NEV. REV. STAT. 51.385.
Before granting the prosecution’s motion, the trial court made
a clear, particularized finding that Autumn’s refusal to coop-
erate on the stand had rendered her “obviously unavailable.”
The Nevada Supreme Court, while observing that Nevada
Revised Statute 51.385 “does not require the unavailability of
a hearsay declarant as a prerequisite to the admissibility of the
declarant’s statements,” nonetheless explicitly affirmed the
trial court’s determination “that the child was unavailable as
a witness.” Bockting, 847 P.2d at 1366 n.4; see also NEV. REV.
STAT. 51.385 (allowing the introduction of hearsay statements
when “[t]he child testifies at the proceeding” in addition to
when the child “is unavailable or unable to testify”). I would
therefore reject Bockting’s argument that the state supreme
court’s unavailability determination is not entitled to defer-
ence because the trial court failed to ascertain whether
Autumn was available to testify at trial.

A more difficult question is whether the Nevada Supreme
Court’s substantive unavailability determination was “con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). In past deci-
sions, the Supreme Court has not found it necessary to decide
whether a child witness is “unavailable” for Confrontation
Clause purposes when the child is merely emotionally or
developmentally incapable of testifying in that forum. See
Idaho v. Wright, 497 U.S. 805, 815-16 (1990). As a general
matter, however, the Court held in Roberts that “a witness is
not ‘unavailable’ . . . unless the prosecutorial authorities have
made a good-faith effort to obtain [her] presence at trial.”
 BOCKTING v. BAYER 5921
Roberts, 448 U.S. at 75, quoting Barber v. Page, 390 U.S.
719, 724-25 (1968) (emphasis added).

Seizing on Roberts’s good faith requirement, Bockting
makes a plausible argument that child witnesses who refuse
to testify in a courtroom setting should not be considered “un-
available” unless the government first makes a good-faith
attempt to secure their testimony through closed circuit televi-
sion or some other medium amenable to cross-examination. I
need not consider the merits of Bockting’s proposal, however,
because my task here is not to decide what might be best;
instead, my review is limited to whether the Nevada Supreme
Court’s application of Roberts was unreasonable. See 28
U.S.C. § 2254(d). On its face, Roberts requires no more than
“a good-faith effort to obtain [a witness’s] presence at trial,”
Roberts, 448 U.S. at 75 (emphasis removed), quoting Barber,
390 U.S. at 724-25, and the government arguably satisfied
this requirement here by (1) securing Autumn’s physical
“presence” at trial and (2) making “a good-faith effort” to
elicit her testimony in that forum.

The Supreme Court’s more recent decisions dealing with
alternative procedures for obtaining trial testimony do not
materially advance Bockting’s habeas petition. Although the
Supreme Court has permitted states to substitute one-way
closed circuit television for in-court child testimony under
certain circumstances, see Maryland v. Craig, 497 U.S. 836,
855 (1990), it has never intimated that the Constitution
requires the government to attempt such alternative proce-
dures as a precondition for an unavailability finding. Cf.
Wright, 497 U.S. at 818 (“Out-of-court statements made by
children regarding sexual abuse arise in a wide variety of cir-
cumstances, and we do not believe the Constitution imposes
a fixed set of procedural prerequisites to the admission of
such statements at trial.”). To the contrary, the Court has
emphatically rejected the assertion that Craig, 497 U.S. at
855, and United States v. Coy, 487 U.S. 1012, 1021 (1988),
require the government to demonstrate “necessity” before
5922 BOCKTING v. BAYER
introducing pretrial hearsay statements. See White v. Illinois,
502 U.S. 346, 358 (1992) (“There is . . . no basis for import-
ing the ‘necessity requirement’ announced in [Craig and Coy]
into the much different context of out-of-court declarations
. . . .”). I would hold, therefore, that the Nevada Supreme
Court’s failure to insist upon alternative procedures for pro-
curing Autumn’s contemporaneous testimony did not involve
an unreasonable application of Roberts, Craig, or Coy.

Setting aside Bockting’s assertions of legal error, I must
decide whether the Nevada Supreme Court’s unavailability
finding “was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceeding.” 28 U.S.C. § 2254(d)(2); see also Taylor v. Maddox,
366 F.3d 992, 999 (9th Cir. 2004) (holding that subsection
2254(d)(2) “applies . . . to situations where petitioner chal-
lenges the state court’s findings based entirely on the state
record”). Under this deferential standard of review, I may not
“determine that the state-court factfinding process is defective
in some way” unless I am “ satisfied that any appellate court
to whom the defect is pointed out would be unreasonable in
holding that the state court’s fact-finding process was ade-
quate.” Taylor, 366 F.3d at 1000.

The record does not support Bockting’s claim that the
Nevada Supreme Court’s reliance on the trial court’s
unavailability finding “was based on an unreasonable deter-
mination of the facts in light of the evidence presented in the
State court proceeding.” 28 U.S.C. § 2254(d)(2); see also Gill
v. Ayers, 342 F.3d 911, 917 n.5 (9th Cir. 2003) (explaining
that when a state supreme court summarily adopts a lower
court’s finding of fact “we look through the unexplained . . .
decision to the last reasoned decision . . . as the basis for the
state court’s judgment” (internal quotation marks, brackets,
and citation omitted)). At Bockting’s preliminary hearing,
Autumn initially responded to the prosecution’s inquiries with
incomplete or evasive answers, then quickly broke into tears
and refused to answer any further questions. Efforts to elicit
 BOCKTING v. BAYER 5923
her testimony at trial were even less fruitful, as she refused so
much as to stand or to raise her hand to be sworn in as a wit-
ness. The trial transcript does not paint a detailed portrait of
Autumn’s demeanor on the latter occasion, but there are
strong hints that Autumn was distraught and uncommunica-
tive from the start, leading the state trial court to conclude that
there was no use pursuing further questioning before the jury.
I therefore am not “convinced that an appellate panel, apply-
ing the normal standards of appellate review, could not rea-
sonably conclude” that Autumn was emotionally incapable of
testifying at trial. Taylor, 366 F.3d at 1000. To the contrary,
deference to state courts is particularly appropriate in a case
such as this, where findings of fact turn on a trial court’s eye-
witness evaluation of a child witness’s demeanor. Cf. Wain-
wright v. Witt, 469 U.S. 412, 428 (1985) (“[D]eterminations
of demeanor . . . . [are] entitled to deference even on direct
review; ‘[t]he respect paid such findings in a habeas proceed-
ing should be no less.’ ” (quoting Patton v. Yount, 467 U.S.
1025, 1038 (1984))). As Bockting did not present any evi-
dence in federal district court to challenge the state trial
court’s findings, I presume that the trial court’s findings are
correct. See 28 U.S.C. § 2254(e)(1); Taylor, 366 F.3d at 1000
(“Once the state court’s fact-finding satisfies this intrinsic
review [on the record,] . . . the state court’s findings are
dressed in a presumption of correctness . . . .”).

In sum, Bockting has not established that the Nevada
Supreme Court’s unavailability determination was “contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States,” 28 U.S.C. § 2254(d)(1), or “was based on
an unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding,” id.
§ 2254(d)(2).

2.

Turning to Roberts’s “adequate indicia of reliability”
requirement, the Nevada Supreme Court acknowledged that
5924 BOCKTING v. BAYER
Autumn’s hearsay statements did not fit within any “firmly
rooted hearsay exception” but held that her statements bore
the requisite “particularized guarantees of trustworthiness” for
admission under Roberts. Bockting, 847 P.2d at 1367-70.
Applying the multifactor test outlined in Wright, 497 U.S. at
821-22, the court identified several circumstances which, in
its view, buttressed the “trustworthiness” of Autumn’s abuse
allegations, including: (1) the “spontaneity and consistent rep-
etition” of her statements, (2) the “agitation and fear” before
first recounting the experience to her mother as evinced by
“the fact that she was visibly shaken and crying,” (3) her
apparent “knowledge of sexual conduct not present in most
children six years of age,” (4) her “child-like terminology”
which “was reflective of candor rather than coaching,” and (5)
her “display of affection for Bockting . . . indicative of love
rather than hate.” Bockting, 847 P.2d at 1369.

Bockting argues that the Nevada Supreme Court evaluated
the trustworthiness of Autumn’s statements based on an
unreasonable application of Supreme Court precedent,
because it mistakenly interpreted Wright to prohibit consider-
ation of any evidence that did not support trustworthiness.
Wright held that in evaluating whether a declarant’s statement
bears “ ‘particularized guarantees of trustworthiness[,]’ . . .
relevant circumstances include only those that surround the
making of the statement,” not evidence corroborating the sub-
stance of a declarant’s hearsay statements (e.g., physical evi-
dence of sexual abuse). Wright, 497 U.S. at 819 (emphasis
added). Although Wright did not decide whether courts may
consider noncorroborating evidence that refutes the substance
of a declarant’s statements (e.g., physical evidence contradict-
ing an accuser’s abuse allegations), see Swan v. Peterson, 6
F.3d 1373, 1381 (9th Cir. 1993)—an issue not before us here
—the Court’s reasoning strongly suggests that courts must at
least consider any circumstances surrounding the making of
an out-of-court statement that challenge the statement’s trust-
worthiness (e.g., inconsistencies, motives to fabricate). See
Wright, 497 U.S. at 825-27; Webb v. Lewis, 44 F.3d 1387,
 BOCKTING v. BAYER 5925
1392 (9th Cir. 1994) (holding that Wright “does not forbid
recourse to other evidence that confirms the presumptive
unreliability of the hearsay”); Swan, 6 F.3d at 1381 n.7 (rea-
soning in dicta that “[b]ecause Wright holds that the consis-
tency of a child witness’s allegations bears on the reliability
of an initial hearsay statement, arguably a later inconsistent
statement should also be evaluated in making the reliability
determination”).

I need not decide, however, if a categorical refusal to con-
sider evidence challenging the trustworthiness of Autumn’s
out-of-court statements would constitute an objectively unrea-
sonable application of Wright, for the record does not support
Bockting’s assertion that the Nevada Supreme Court “explic-
itly refused to consider evidence” establishing the unreliabil-
ity of Autumn’s accusations in this case. Footnote 8 of the
state supreme court’s opinion characterizes Wright as exclud-
ing “corroborative evidence . . . in determining the reliability
of hearsay statements” and hypothesizes that Wright might
require courts “to exclude evidence of marital discord on the
part of the parents as a possible motive in the mother for hav-
ing the child fabricate charges of sexual abuse against the hus-
band.” Bockting, 847 P.2d at 1369 n.8. Although these
statements suggest the court might have misinterpreted
Wright to some degree, they do not clearly establish that the
court misapplied Wright in this case by refusing to consider
critical, admissible evidence such as the marital discord
between Bockting and Laura. In the body of its opinion, the
court stated it reached its trustworthiness determination based
on “the totality of the circumstances surrounding the child’s
out-of-court statements” and asserted that “[n]either the [five]
factors [listed above] nor any other aspect of the record evi-
dence provides insights into a motive for dissembling on the
part of the child.” Id. at 1369-70 (emphasis added). True, the
court did not expressly discuss the Bocktings’ marital discord
and certain other evidence damaging to the trustworthiness of
Autumn’s statements, but it did refer to Laura’s testimony that
Autumn “had seen adult sexual organs in the past, had show-
5926 BOCKTING v. BAYER
ered with both her mother and Bockting, and had seen her
mother and stepfather having intercourse after entering the
bedroom unnoticed by the adults.” Id. at 1369 n.7. Given the
Nevada Supreme Court’s assertion that it considered all the
“record evidence” in assessing Bockting’s claims, it would
appear that its “totality of the circumstances” analysis did, in
fact, embrace the Bocktings’ marital problems and other rele-
vant circumstances surrounding Autumn’s out-of-court state-
ments. I would thus reject Bockting’s contention that the
Nevada Supreme Court unreasonably applied Wright’s restric-
tions on corroborating evidence.

The ultimate determination “[w]hether [Autumn’s] hearsay
statements were sufficiently reliable to be admitted without
violating [Roberts] is a mixed question” of law and fact,
Swan, 6 F.3d at 1379, so I review the Nevada Supreme
Court’s reliability determination to ascertain whether it “was
contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1); see also
Davis v. Woodford, 333 F.3d 982, 990 (9th Cir. 2003) (stating
that subsection 2254(d)(1) applies “to mixed questions of law
and fact” (citing Williams v. Taylor, 529 U.S. 362, 407-09
(2001)). To the extent the Nevada Supreme Court’s “particu-
larized guarantees of trustworthiness” rest on findings of fact,
I must decide whether the determination “was based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2).

Bockting argues that neither the spontaneity and emotional
intensity of Autumn’s allegations nor her apparent lack of
motive to fabricate are indicative of truthfulness, because they
can easily be explained away by one of two alternative theo-
ries. First, he observes that Autumn delivered her original
abuse account shortly after arising from sleep and contends
that she could have been recounting a fantastical nightmare.
This “nightmare” theory is entirely speculative and appears
 BOCKTING v. BAYER 5927
implausible given the graphic specificity of Autumn’s allega-
tions. Second, Bockting posits that Laura might have fabri-
cated the abuse allegations herself and coached Autumn
through the police interviews. Like the “nightmare” theory,
this “coaching” theory is utterly unsubstantiated by the
record, and it fails to account for Autumn’s spontaneous use
of dolls to describe the assault during her interview with
Zinovitch and the child-like terminology Autumn used to
describe her abuse. See Bockting, 847 P.2d at 1368. Because
Bockting’s speculation and conjecture do not establish that
the Nevada Supreme Court’s factual findings were “unreason-
able” with respect to Autumn’s spontaneity, mental state, and
motive, 28 U.S.C. § 2254(d)(2), I presume these findings are
correct, id. § 2254(e)(1). See Taylor, 366 F.3d at 1000.

Somewhat more compelling is Bockting’s challenge to the
Nevada Supreme Court’s reliance on Autumn’s “knowledge
of sexual acts that a child of six would not usually be aware
of absent personal experience.” Bockting, 847 P.2d at 1369.
Laura conceded at trial that Autumn had seen adult sexual
organs, had showered with each of her parents, had watched
her mother practice exotic dancing, and had observed her par-
ents engaging in sexual intercourse after entering the bedroom
unnoticed. Bockting elaborated on Laura’s testimony, alleging
that Autumn had witnessed her parents engage in oral sex and
was herself “interested” in sex. For these reasons alone, the
state supreme court had reason to suspect that Autumn’s
familiarity with adult sexual acts would exceed that of the
average six-year-old. On the other hand, the state supreme
court concluded that the testimony of Autumn’s parents did
not adequately account for Autumn’s ability to “demon-
strate[ ] through the use of the dolls the positions that would
have been necessary for the acts to take place between a large
adult male and a small female child” and to describe “how she
held onto the [bathroom] sink while Bockting was behind her
and ‘would press real hard and it hurt.’ ” Id. The substance of
Autumn’s allegations disclosed knowledge of sexual acts
gained from direct personal experience, not remote observa-
5928 BOCKTING v. BAYER
tion. Thus, it was not unreasonable for the state supreme court
to find, as it did, that Autumn’s prior exposure to adult sexual
acts did not adequately explain her familiarity with the spe-
cific acts described in her abuse allegations.

Arguably the weakest link in the Nevada Supreme Court’s
“particularized guarantees of trustworthiness” determination
is its finding that “sufficient . . . consistent repetition existed
in [Autumn’s] various statements.” Id. Autumn’s abuse alle-
gations to her mother and Detective Zinovitch were substan-
tially identical, so it was not unreasonable for the state
supreme court to conclude that Autumn’s “restatement of her
travails [to Detective Zinovitch] was consistent with the
details she had previously told to her mother.” Id. at 1368. On
the other hand, the court did not mention that Autumn’s out-
of-court statements contradicted her testimony at the prelimi-
nary hearing in several material respects. The Nevada
Supreme Court’s inattention to these inconsistencies in
Autumn’s statements is potentially significant under AEDPA;
as the Supreme Court has observed and we have held, section
2254(d)(2) allows habeas relief “where the state has before it,
yet apparently ignores, evidence that supports [a] petitioner’s
claim.” Taylor, 366 F.3d at 1001 (paraphrasing Miller-El v.
Cockrell, 537 U.S. 322, 346 (2003)).

Although the Nevada Supreme Court did not expressly dis-
cuss Autumn’s statements at the preliminary hearing when
evaluating the consistency of her out-of-court statements, it
did not ignore these statements altogether. The court clearly
recognized the inconsistencies in Autumn’s statements,
because the “Facts” section summarized Autumn’s relevant
testimony at the preliminary hearing. See Bockting, 847 P.2d
at 1365 (“At the preliminary hearing, . . . . [Autumn] stated
that her pants were never removed [during the alleged abuse]
and that she could not remember how Bockting touched
her.”). Thus, this testimony was an “aspect of the record evi-
dence” that the state supreme court incorporated into its eval-
uation of the “totality of the circumstances surrounding the
 BOCKTING v. BAYER 5929
child’s out-of-court statements, as defined in Wright.” Id. at
1369-70. As such, I would reject Bockting’s assertion that the
state supreme court “fail[ed] to consider and weigh relevant
evidence that was properly presented.” Taylor, 366 F.3d at
1001.

Moreover, Autumn’s testimony at the preliminary hearing
does not compel the conclusion that the Nevada Supreme
Court’s reliability analysis runs “contrary to, or involve[s] an
unreasonable application of,” Roberts or Wright. 28 U.S.C.
§ 2254(d)(1). As we recently explained, “the Supreme Court
has specifically ‘decline[d] to endorse a mechanical test for
determining ‘particularized guarantees of trustworthiness’
under [Roberts],’ ” and “ ‘courts have considerable leeway in
their consideration of appropriate factors.’ ” Parle v. Runnels,
387 F.3d 1030, 1039 (9th Cir. 2004), quoting Wright, 497
U.S. at 822. In this case, the state supreme court had good rea-
son to focus on the consistency of Autumn’s statements to her
mother and Detective Zinovitch and discount the reliability of
her in-court statements as factors in its reliability analysis.
Autumn’s testimony at the preliminary hearing was patently
evasive, perhaps reflecting her emotional state, her desire to
minimize harm to her stepfather, and her embarrassment at
being asked to discuss the assault’s graphic details in an open
public forum. Doctor Donovan’s expert testimony also indi-
cated that Autumn’s equivocation at the preliminary hearing
was consistent with the denial phase child abuse victims com-
monly endure after a sexual assault. Considering the totality
of the circumstances surrounding Autumn’s hearsay state-
ments, see id. at 820, I am not persuaded that the Nevada
Supreme Court applied Roberts and Wright unreasonably by
holding that Autumn’s testimony at the preliminary hearing
does not singlehandedly tip the scale of reliability against the
admission of her out-of-court statements.

Since the Nevada Supreme Court’s “unavailability” and
“adequate indicia of reliability” determinations satisfy
5930 BOCKTING v. BAYER
AEDPA’s stringent standard of review, Bockting’s Confron-
tation Clause claim fails.

II.

In addition to his Confrontation Clause claim, Bockting
raises several other claims in support of his habeas petition.
Although neither Judge McKeown nor Judge Noonan discuss
these issues, I explain why these arguments should not require
reversal.

A.

Bockting contends that the state trial court violated his right
to due process by admitting witness testimony regarding a
prior accusation of sexual misconduct. Bockting takes issue
with the following exchange between Deputy District Attor-
ney Lukens and Laura, which took place during the state’s
rebuttal to defense character evidence:

Q: Without going into the details underlying this,
I am going to ask you the following question.
Between July of 1987 and October of 1987, did
you have occasion to confront the defendant
with allegations of sexual contact between him
and Autumn?

A: Yes.

Q: What was his response at the time?

A: He denied it, said he wouldn’t do anything like
that, he was crying so at that time I didn’t
believe what she said.

Bockting did not object to these questions or request a limit-
ing instruction, and the state trial court did not give such an
instruction.
 BOCKTING v. BAYER 5931
During his “post conviction relief” hearing, Bockting
argued that Laura’s testimony impermissibly allowed the jury
to consider past allegations of sexual assault as evidence that
he committed the subsequent sexual assault for which he was
convicted. The state trial court and supreme court upheld the
evidence’s admission, holding that the trial court’s decision
was consistent with state evidence law. See NEV. REV. STAT.
48.045(1) (“Evidence of a person’s character or a trait of his
character is not admissible for the purpose of proving that he
acted in conformity therewith on a particular occasion, except
. . . [as] offered by an accused, and similar evidence offered
by the prosecution to rebut such evidence . . . .”); id. 48.055
(“In all cases in which evidence of character or a trait of char-
acter of a person is admissible, proof may be made by testi-
mony as to reputation or in the form of opinion. On cross-
examination, inquiry may be made into specific instances of
conduct.”).

I do not consider at this stage whether the Nevada Supreme
Court misinterpreted Nevada law by refusing to grant post-
conviction relief based on the trial court’s decision to admit
Laura’s testimony without providing a limiting instruction sua
sponte. “Incorrect state court evidentiary rulings cannot serve
as a basis for habeas relief unless federal constitutional rights
are affected.” Whelchel v. Washington, 232 F.3d 1197, 1211
(9th Cir. 2000) (internal quotation marks and citation omit-
ted). Thus, my task is limited to deciding whether the evi-
dence’s admission violated Bockting’s clearly established
federal rights as defined by the Supreme Court. See 28 U.S.C.
§ 2254(d)(1).

The Supreme Court has never decided whether due process
prohibits the admission of prior bad acts evidence, see Estelle
v. McGuire, 502 U.S. 62, 75 n.5 (1991) (declining to decide
whether due process prohibits prior bad acts evidence to show
propensity to commit a crime); Bugh v. Mitchell, 329 F.3d
496, 512 (6th Cir. 2003), cert. denied, 124 S. Ct. 345 (2003)
(mem.) (“There is no clearly established Supreme Court pre-
5932 BOCKTING v. BAYER
cedent which holds that a state violates due process by permit-
ting propensity evidence in the form of other bad acts
evidence.”), but it has said that defendants who challenge a
state court’s admission of relevant evidence on due process
grounds “must sustain the usual heavy burden that a due pro-
cess claim entails: . . . ‘it [must] offend[ ] some principle of
justice so rooted in the traditions and conscience of our people
as to be ranked as fundamental.’ ” Montana v. Egelhoff, 518
U.S. 37, 43 (1996) (plurality), quoting Patterson v. New York,
432 U.S. 197, 202 (1977) (internal footnote omitted).

In this case, the admission of Laura’s unobjected-to testi-
mony did not meet this “heavy burden” for a valid due pro-
cess claim. The trial court admitted Laura’s testimony during
the state’s rebuttal case as a response to the testimony of three
defense witnesses who testified concerning Bockting’s
alleged good reputation and character. Laura’s rebuttal testi-
mony was relevant to impeach the defense’s reputation evi-
dence. The prosecutor touched on Laura’s previous
allegations only briefly, deliberately skirted the allegations’
underlying details to minimize prejudice, and fully disclosed
Bockting’s vehement denial of the allegations. Moreover, the
testimony arguably advanced Bockting’s defense by introduc-
ing his emotional denial of the previous allegations, as well
as Laura’s concession that she “didn’t believe” the allega-
tions. Given that this evidence came in response to defense
character evidence and taking into account the lack of objec-
tion, the brevity, and limited scope of the government’s ques-
tioning relating to Laura’s previous confrontation with
Bockting, it was not unreasonable for the Nevada Supreme
Court to conclude that the admission of this evidence did not
transgress a “principle of justice so rooted in the traditions
and conscience of our people as to be ranked as fundamental.”
Id. (internal quotation marks omitted).

B.

Bockting asserts that the government violated his due pro-
cess right to a fair trial by vouching for Laura’s credibility
 BOCKTING v. BAYER 5933
during closing argument. See United States v. Necoechea, 986
F.2d 1273, 1276 (9th Cir. 1993) (“Vouching consists of plac-
ing the prestige of the government behind a witness through
personal assurances of the witness’s veracity, or suggesting
that information not presented to the jury supports the wit-
ness’s testimony.”). As examples of vouching, Bockting cites
the prosecutor’s statements that Laura “testified as candidly as
I think is possible” and “had one motive and it was to tell you
the truth.” He also faults the prosecutor for characterizing
Laura’s testimony as “unembellished, . . . straightforward, and
. . . candid.”

Even if these statements arguably constituted “vouching,”
Bockting does not qualify for habeas relief under AEDPA’s
deferential standard if the Nevada Supreme Court’s failure to
grant post-conviction relief on this basis was neither “contrary
to,” nor “involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States.” 28 U.S.C. § 2254(d)(1). According to
the Supreme Court, “[t]he relevant question” in evaluating a
prosecutorial vouching claim “is whether the prosecutors’
comments so infected the trial with unfairness as to make the
resulting conviction a denial of due process.” Darden v.
Wainwright, 477 U.S. 168, 181 (1986).

Several factors work to Bockting’s disadvantage here. First,
the prosecutor did not ask the jury to accept Laura’s credibil-
ity based on his endorsement alone; rather, he explained that
“[t]he evidence shows that [Laura] was candid” (emphasis
added), and he identified several specific instances where
Laura made no attempt to conceal facts damaging to
Autumn’s allegations (e.g., Autumn observing her parents
engaged in sexual relations) or to her own reputation and
credibility as a government witness (e.g., her drug and alcohol
problems, her occupation as a nude dancer). See Necoechea,
986 F.2d at 1276 (recognizing “that prosecutors must have
reasonable latitude to fashion closing arguments, and thus can
argue reasonable inferences based on the evidence, including
5934 BOCKTING v. BAYER
that one of the two sides is lying”). Second, the trial court sig-
nificantly diminished the risk of prejudice by instructing the
jury that “[s]tatements, arguments and opinions of counsel are
not evidence in the case.” As in Davis v. Woodford, 333 F.3d
982 (9th Cir. 2003), “[t]his was not a case in which there was
an ‘overwhelming probability that the jury [would] be unable
to follow the court’s instructions’ and ‘a strong likelihood that
the effect of the [vouching] would be devastating to the defen-
dant,’ ” id. at 997 (second alteration in original), quoting
Greer v. Miller, 483 U.S. 756, 766 n.8 (1987). Third and per-
haps most important, the prosecutor’s statements did not ren-
der the trial fundamentally unfair because the record
confirmed Laura’s testimony, including: testimony by Doctor
Rivers (who conducted Autumn’s rape examination) that
Autumn had suffered penetration injuries to her vagina and
rectum during the previous week, Bockting’s admission that
he was the only adult male who was alone with Autumn dur-
ing the week when she sustained her injuries, and Detective
Zinovitch’s testimony substantially corroborating Laura’s
description of Bockting’s sexual assault. In sum, under the
circumstances of this case, Bockting has not demonstrated
that the Nevada Supreme Court applied the principle in Dar-
den unreasonably by holding that the prosecutor’s vouching
did not “so infect[ ] the trial with unfairness as to make the
resulting conviction a denial of due process.” Davis, 333 F.3d
at 996-97, quoting Darden, 477 U.S. at 181.

C.

Lastly, I consider Bockting’s assertion that his representa-
tion at trial was constitutionally deficient. The Supreme Court
has held that a claimant “must show that counsel’s perfor-
mance was deficient” and that such “performance prejudiced
the defense” to prevail on a Sixth Amendment ineffective
assistance of counsel claim. Strickland v. Washington, 466
U.S. 668, 687 (1984). To establish prejudice, a claimant must
demonstrate “a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
 BOCKTING v. BAYER 5935
been different. A reasonable probability is a probability suffi-
cient to undermine confidence in the outcome.” Id. at 694.
The question to be answered is whether the Nevada Supreme
Court’s denial of post-conviction relief was “contrary to, or
involved an unreasonable application of,” these principles. 28
U.S.C. § 2254(d)(1).

I confine my ineffective assistance analysis to the three
issues addressed in our October 16, 2002 order granting
Bockting’s first motion to broaden the Certificate of Appeala-
bility (COA): (1) trial counsel’s failure to object to inadmissi-
ble hearsay evidence at trial, (2) trial counsel’s failure to
object to repeated instances of prosecutorial vouching, and (3)
appellate counsel’s failure to research adequately and present
these appealable issues to the Nevada Supreme Court. Bock-
ting’s second motion to broaden the COA, which is currently
before this court, raises a fourth ineffective assistance of
counsel issue: his “trial counsel’s failure to conduct any
investigation of the facts which would undermine the reliabil-
ity of the child’s hearsay statements.” The second motion for
broader certification was filed on June 17, 2003—more than
a year after the district court declined to certify Bockting’s
ineffective assistance of counsel claim and eight months after
we granted his first motion to broaden the COA. Pursuant to
Circuit Rule 22-1(d), Bockting should have raised any and all
grievances relating to the COA’s scope “within thirty-five
days of the district court’s entry of its order denying[, in part,
his] certificate of appealability.” 9TH CIR. R. 22-1(d). His
“[f]ailure to comply with the Circuit Rule’s procedure is a
ground for denying” the second motion, “which [I would] do
here.” Griffin v. Johnson, 350 F.3d 956, 960 (9th Cir. 2003).

With respect to the remaining Sixth Amendment claims,
the Nevada Supreme Court invoked Strickland’s standard and
held that Bockting “has not demonstrated that counsel’s per-
formance was unreasonable, or that counsel’s errors were so
severe that they rendered the jury’s verdict unreliable.” I need
not consider the first part of this holding, because the record
5936 BOCKTING v. BAYER
as a whole does not support Bockting’s claim that the state
supreme court unreasonably applied Strickland’s prejudice
inquiry. Cf. Kennedy v. Lockyer, 379 F.3d 1041, 1053 (9th
Cir. 2004) (observing that “[i]n making a harmless error
determination in a habeas case,” federal courts have “an obli-
gation” to consult the full record), quoting O’Neal v.
McAninch, 513 U.S. 432, 435 (1995).

Bockting faults his trial counsel for failing to object to the
government’s prior bad acts evidence, but he has not demon-
strated that he suffered any prejudice from his counsel’s alleg-
edly deficient performance. A timely objection by Bockting’s
counsel likely would have been futile, because Laura’s testi-
mony was admissible under state law. In addition, even set-
ting aside Laura’s testimony concerning Bockting’s prior bad
acts evidence, the evidence against Bockting was overwhelm-
ing. Similar logic dooms Bockting’s other arguments. His trial
counsel’s failure to register a timely objection to the prosecu-
torial vouching did not clearly prejudice his defense, because
the trial court gave a cautionary instruction and there was
overwhelming evidence corroborating Laura’s testimony.

In sum, Bockting has not shown that the Nevada Supreme
Court applied Strickland unreasonably to the facts of this case
by holding that his “counsel’s errors were [not] so serious as
to deprive [him] of a fair trial, a trial whose result is reliable.”
Strickland, 466 U.S. at 687. I would therefore hold that we
lack authority under AEDPA to grant Bockting’s petition for
habeas relief on this ineffective assistance of counsel claim.

For the foregoing reasons, I would affirm the district
court’s denial of Bockting’s petition for habeas corpus. I
therefore respectfully dissent.