dissenting.
I see the problem somewhat differently, and therefore see neither any reason to remand nor anything to be gained by an evidentiary hearing. The issue before us is whether application of California Penal Code § 803(g) to Crummel in 1999 was contrary to, or an objectively unreasonable application of, clearly established federal law as pronounced by the United States Supreme Court as of that date. 28 U.S.C. § 2254(d); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir.2003). This is an issue that can be resolved on the record as it is because, despite the byzantine procedural history of this case, the operative fact is that Crummel was prosecuted pursuant to a retroactive extension of his statute of limitations. It is quite clear that this would be impermissible today in light of Stogner v. California, 539 U.S. 607, 123 S.Ct. 2446, 156 L.Ed.2d 544 (2003). However, this appeals requires us to decide (and requires us only to decide) whether the rule articulated in Stogner was also the law in 1999. Either it was, or it wasn’t, and this does not turn on what Crummel was charged with in superceded pleadings. To the extent that it matters, Crummel concedes that he committed the two molestations for which he was convicted in 1988. Accordingly, I would simply decide whether the rule articulated in Stogner was clearly established as of 1999, not impose on the parties or the district court the burden of determining a fact that won’t matter to the outcome anyway.