(Concurring in part, dissenting in part):
In this case, my colleagues order a new trial for a man convicted of murdering his former wife and a friend. In my judgment, their ground for this errant order is nothing more than that he was not allowed to introduce in his defense stale, pointless, and untrustworthy hearsay evidence excluded by the trial court and Idaho’s Court of Appeals as inadmissable, irrelevant, and immaterial. Thus, although I agree with much of my colleagues’ otherwise excellent opinion, I respectfully dissent on the dis-positive issue.
I
Hearsay
My colleagues conclude that the trial judge and Idaho’s appellate courts were guilty of the asymmetrical application of state law evidentiary standards with respect to “parallel evidence.” I respectfully disagree.
1.
Betty Gray’s Statements
The trial court’s decision to allow some of victim Betty Gray’s out-of-court statements under Idaho’s residual hearsay exception did not violate William Gray’s Sixth Amendment right to confront witnesses. See U.S. Const, amend. VI; Idaho R. Evid. 803(24). In this respect, I agree with my colleagues. When a declar-ant is unavailable to testify, the Confrontation Clause countenances hearsay only if it demonstrates adequate indicia of reliability either by (1) falling within a firmly rooted hearsay exception; or (2) bearing particularized guarantees of trustworthiness. See e.g., Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990); Ohio v. Roberts, 448 U.S. 56, 62-63, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); California v. Green, 399 U.S. 149, 155-56, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).
Idaho’s residual hearsay exception, under which the challenged statements were admitted, is not a firmly rooted hearsay exception. Wright, 497 U.S. at 817, 110 S.Ct. 3139. However, Betty’s statements bore particularized guarantees of trustworthiness. The government presented the live testimony of Joanne Buceóla as to the situational background of Betty’s statements. Buceóla was subjected to intense cross-examination by Gray’s counsel. She testified that Betty spontaneously uttered the statements, repeated them several times, and was in an excited state when she made them. As the federal district court correctly observed, the trial court engaged in precisely the type of careful process that the Supreme Court suggested was necessary to protect the Defendant’s rights under the Confrontation Clause. Wnght, 497 U.S. at 814-16, 110 S.Ct. 3139. Moreover, the trial court analyzed the factors which tend to show that a statement bears particularized guarantees of trustworthiness, including spontaneity, consistent repetition, state of mind, and lack of motive to fabricate. Id. Furthermore, the Court of Appeals of Idaho reviewed this issue as a matter of the State’s rules regarding hearsay, and it concluded that the trial court’s decision had a basis in State law and was not an abuse of discretion. State v. Gray, 129 Idaho 784, 932 P.2d 907 (Ct.App.1997).
2.
Reeda Roundy’s Statements
The trial court’s decision to preclude Gray from introducing certain out-of-court statements made by Reeda Roundy about an alternative suspect did not violate Gray’s constitutional rights, and it was fully consonant with Idaho’s evidentiary rules *657regarding hearsay. In this respect, I disagree with my colleagues. To begin with, the Court of Appeals of Idaho concluded on direct review after a full analysis of the issue that under State lato, “Roundy’s statements regarding her concern about her ex-boyfriend are inadmissible because they fail to meet the test for relevancy.” 932 P.2d at 918 (emphasis added). In the main, a victim’s fear of an individual in Idaho is relevant only in certain circumstances, and none of them was present in this case; and “Roundy’s fear of a third person does not establish or disprove Gray’s guilt.” Id. The Court of Appeals then analyzed Dyer’s allegedly threatening behavior under its residual hearsay exception, Rule 803(24) and concluded here also that this evidence was properly excluded. Why? Because it bore “no guarantees of trustworthiness:”
The district court also considered I.R.E. 803(24) as an alternative theory of admissibility. As discussed earlier, I.R.E. 803(24) requires that the trustworthiness of the statement must be s hown from the totality of the circumstances that surround the making of the statement. Wright, 497 U.S. at 819, 110 S.Ct. 3139. In seeking the admission of the evidence at trial, Gray’s counsel presented to the district court the content of the statements. Defense counsel did not provide an offer of proof which indicated the circumstances surrounding Roundy’s declarations. The witnesses who allegedly heard Roudy’s statements were not called upon to provide a situational background for the statements. Hence, there is no record of the circumstances surrounding the statements. We cannot say that Roundy’s factual statements regarding her ex-boyfriend’s behavior and occupation bore the circumstantial guarantees of trustworthiness which would have justified admission under I.R.E. 803(24). The record does not support the assertion that the district court abused its discretion in excluding such evidence.
State v. Gray, 129 Idaho at 795, 932 P.2d at 918 (emphasis added).
My colleagues’ lengthy protestations notwithstanding, we have a loud, clear, and unambiguous statement from Idaho’s Court of Appeals that this disputed piece of evidence lacked the guarantees of trustworthiness. This certainly differentiates it from the evidence mistakenly used by Judge Berzon as a comparison.
“It is not the province of a federal habe-as court to reexamine state-court determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Therefore, even if I were to agree with Gray that the trial judge erred as a matter of Idaho evidentiary law by not admitting Roundy’s statements — which I do not — we would be forbidden from granting Gray’s federal ha-beas petition, unless his resulting “conviction violated the Constitution, laws, or treaties of the United States.” Id.
Recognizing our habeas limitations, Gray attempts to force a constitutional slipper onto his state evidentiary claim by arguing that the trial court’s decision not to allow him to introduce Roundy’s irrelevant out-of-court statements violated his due process right to present a defense. This is a strained refrain we hear far too often. Gray claims that the trial court arbitrarily applied the state’s residual hearsay exception, Idaho R. Evid. 803(24), because it allowed the state to introduce Betty’s statements about why she feared her husband, but precluded Gray from introducing Reeda’s statements about why she feared a particular alternative suspect. This application, says Gray, deprived him of the opportunity to put on a defense. See e.g., Rock v. Arkansas, 483 U.S. 44, 54, *658107 S.Ct. 2704, 97 L.Ed.2d 37 (1987); Chambers v. Mississippi, 410 U.S. 284, 302, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Washington v. Texas, 388 U.S. 14, 22, 87 S.Ct. 1920, 18 L.Ed.2d 1019 (1967).
Although the trial court came to different conclusions regarding the two women’s somewhat similar statements, I am satisfied that a substantial distinction between the parties’ offers of proof as articulated clearly by the Idaho Court of Appeals demonstrates that the trial court did not act arbitrarily. The majority is mistaken in its claim that the two victims’ hearsay statements were “parallel,” as Judge Wood’s and the Court of Appeals’ decisions demonstrate. Thus, no asymmetrical treatment amounting to a constitutional violation occurred.
As part of its offer of proof, the state presented a witness, Joanne Buceóla, who testified in person out of the presence of the jury about the situational background of Betty’s statements. Buceóla described for the trial judge Betty’s harried state-of-mind, her consistent repetition of the statements, and the fact that Betty spontaneously uttered the statements, not in response to any leading questions. The trial judge specifically relied on Buccola’s demeanor and detailed testimony in concluding that Betty’s out-of-court statements bore sufficient particularized guarantees of trustworthiness to be admitted under the residual hearsay exception. I underscore here that the trial judge observed this witness on the stand, listened to her testimony, and made a determination of relevancy and admissibility that is entitled to deference. More about relevance later.
Gray’s offer of proof, in contrast, included no witness to provide a situational background for Roundy’s statements. Indeed, Gray never asked the trial court if he could call such a witness out of the presence of the jury to provide such a background. Instead, Gray’s counsel relied wholly on his own oral proffer as to what the witnesses would say to if allowed to testify. At one point, Gray’s trial counsel stated for the record that he was requesting “the opportunity to call these witnesses.” During oral argument, Gray’s appellate counsel forthrightly admitted that trial counsel’s request referred to calling these witnesses to testify in front of the jury, not to calling them in front of the judge to provide the situational background of the statements. The record supports appellate counsel’s characterization of the events.
Simply because the trial court precluded Reeda’s statements and admitted Betty’s statements does not demonstrate that the trial court violated Gray’s constitutional rights, far from it. Gray’s opportunity to lay a proper foundation was in the trial court. He did not avail himself of that opportunity, and it is not for the federal courts to remedy his failure. The notable qualitative difference between the government’s offer of proof and Gray’s offer of proof as well as the manifest legal differences between the two submissions satisfy me that the trial court did not act arbitrarily so as to deprive Gray of his due process right to present a defense. As Judge Wood correctly noted in response to Gray’s attempt to use this evidence, the right to defend does not include the right to do so with inadmissible evidence. This is the short answer to Gray’s meritless claim that he was not allowed to defend himself.
II
Substantial and Injurious Effect or Influence
Even were I to start from the flawed proposition that Judge Berzon’s constitutional analysis regarding the exclusion of *659Reeda Roundy’s alleged statements is correct, which respectfully I do not, I conclude nevertheless that Judge Wood’s decision to preclude the disputed statements absolutely did not have a “substantial and injurious effect or influence” on the jury’s verdict. Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Here, I have no doubt whatsoever about this conclusion. When one examines the excluded evidence and asks what impact it would have had on the jury, the answer in my view is at best “not much.” Among other problems, one needs to consider here what the whole package would have been had the evidence been admitted and then countered as promised by the prosecution. It is not enough to examine the disputed evidence divorced from its context and the rest of the record.
The police had investigated Dyer and concluded that he had a valid alibi. This neutralizing evidence of Dyer’s alibi would have been admissible, as recognized in Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995), to demonstrate that the investigation conducted by the police was comprehensive and not shoddy. Gray’s counsel- admitted at trial that if he introduced the allegedly inculpa-tory evidence, the prosecution would call the officers to testify about Dyer’s alibi. E.R. 120, p. 259. Counsel did not attack Dyer’s alibi or suggest that it was a fraud. In fact, Gray’s counsel referred to Dyer as just a “suspect” and even admitted that Dyer was not the best “alternative suspect.” Indeed, he argued that other suspects were more likely than Dyer, and that he just wanted the jurors to have a “complete picture” of the situation. According to counsel, Dyer was just the third on the list of “possibles.” Suspect # 1 was Betty Gray’s current lover, Leavitt, who discovered the bodies and called the police. Suspect # 2 was Roundy’s current lover, Hugh Riley.
To demonstrate how flimsy the excluded Dyer evidence was, one need only to look to Gray’s own counsel’s description of it and the irrelevant purpose for which it was being offered to the trial court:
MR. RADIN: Thank you. Judge, our defense, the key to our defense is to discuss the other suspects. We haven’t made this up, Judge. They were suspects — J.W. Dier, LeRoy Leavitt, and Hugh Riley' — were all suspects in the minds of the police officers.
They’re all investigated. The alibis of all three were checked. So it’s important for us, and I hope you understand, if I can express any one thing in this morning’s hearing, is that the key to our defense is to at least discuss with the jury the other suspects.
They can draw their own conclusion as to each one. But we have to at least make the whole picture known to them.
THE COURT: But you can’t do it through inadmissible evidence.
MR. RADIN: Let me get to that. The testimony regarding J.W. Dier is very important. We’re asking the court to let it in under Rule 80324(sic). That’s the catchall.
MR. RADIN: It’s part of the story. Dier is one of those individuals. His name was brought to Mr. Rodriguez’s attention by Vada Roberts, Hugh Riley, Ruth Ann Roundy, and Clayton Roundy.
THE COURT: What’s Dier’s full name?
MR. RADIN: J.W. Dier.
MR. MULLIGAN: James.
THE COURT: All right.
MR. RADIN: As a result of what these four witness said, Mr. Rodriguez in his department looked into Mr. Dier. They checked his alibi They spoke to him *660directly. In fact, they tape-recorded that conversation.
So we intend to ask Mr. Rodriguez, with your permission, whether there were other possible suspects. Now, he may say, We eliminated him. And why? And that would be very proper for Mr. Kane [the prosecutor] to bring out.
But we would like to ask Mr. Rodriguez if there were other possible suspects and what they did or didn’t do to investigate those other suspects.
Dier was one of them. We have not made his name up. It came forward by the police and by these other individuals.
Mr. McCandless, while he’s on the stand, he was the one who actually checked the alibi. He’s the one who actually interviewed Mr. Riley.
So I would like to ask him: As part of your investigation did you check into any other possible suspects including Mr. Dier?
Yes.
What did you do?
Well, I did check on his alibi.
I don’t want to get into hearsay, but I at least want to bring out that he was a possible suspect and the reasons why.
If you want to reconsider your other decision [regarding Betty Gray’s statements], that’s, of course, always up to you. But the point being that I just don’t know how we can keep from the jury a possible suspect that was investigated by the sheriffs office itself. It’s like not telling them the entire story. If you look at Vada Roberts, if I could encourage you, I’m sure you’ll read all of them, but Vada Roberts is very specific. It occurred just nine short months prior to her death. It’s very detailed as to Reeda Roundy’s concerns and the reasons for her concerns. And like I said, he [the prosecutor] can bring out on cross the length of time. He can bring out that Mr. Dier was investigated. He did have an alibi.
They can bring all of this out. We’re not saying that he’s the best suspect or that we can show that he committed the crime.
But the jury is entitled to know that that there were other suspects, that they were investigated by the sheriffs office, and why they were investigated.
(Emphasis added.) [May 12 & 14 hearings]
To fill out this picture, here is part of the prosecutor’s response to Gray’s offer of proof.
MR. KANE: Finally, if I could make an offer of proof, we are prepared to prove and would prove that Mr. Dier was in a different state at the time the killings went down. I don’t think [the evidence] is relevant for that reason.
[June 2,1993]
I note here that Judge Wood’s pre-trial hearsay relevancy ruling left the door open for Gray’s counsel to pursue his attempt to show that Dyer was one of the other suspects. However, for tactical reasons, the defense did not take advantage of this opportunity. In explaining why during a motion for a new trial, the lack of probative value of this evidence again becomes apparent. I note also that Gray’s counsel had the opportunity to call Dyer himself to the stand but decided not to do so. This is yet another reason that undercuts my colleagues claim that Gray was somehow not allowed to defend himself.
MR. RADIN: Now, I am fully aware and the court did tell the defense through counsel that we could mention the name of Mr. Dyer. We could have asked Detective Rodriguez if such a suspect existed, and expecting that he *661would have been honest, he would have said, “Yes, we did have a suspect. We were ware of Mr. Dyer. His name did come up. We checked it out, and eventually we discounted him as a suspect.” But as defense strategy, Judge, we were obviously trying to convince the jury that aside from Mr. Gray there were other suspects. There’s Mr. Hugh Riley, who was the lover of Mrs. Roundy, and there was Mr. LeRoy Leavitt, who was the lover of Mrs. Gray. And we had some testimony. Those gentlemen were here to testify.
To bring in Dyer and simply have him deny it, or have Rodriguez simply come in and say, “Yeah this guy existed. We checked him out, but it didn’t come to anything,” would have been in effect to have created a vacuum for the jury of facts, and it would have been like just kind of trying to throw out another little tidbit, and I think it would have taken away the effective aspect of our defense, well, you’d better take a hard look at LeRoy Leavitt, and you’d better take a hard look at Hugh Riley as alternate suspects.
But just to mention Dyer’s name, I feel, would have done us no good. It would have been presented in a vacuum.
[Aug. 10,1993]
The Dyer evidence was in my opinion a grasping attempt based on flimsy evidence to make something out of nothing. The idea that “Dyer did it” was rank speculation, clearly excludable as not probative. There is no other direct or circumstantial evidence adequately supporting or corroborating this view, to the contrary. Certainly no disrespect meant to trial counsel, but it was flak hearsay evidence. Shoot it into the air and maybe we’ll get lucky and something will hit it. Judge Wood correctly pointed out the difficulty of deciphering one person’s intentions and behavior, Dyer’s, from the statements of another, Roundy. Judge Wood was correct. On the other hand, the record was loaded with evidence that Betty Gray, not Reeda Roundy was the target of this killing.
Let me put it this way.
Of what relevance at the trial is the fact that X was a suspect, until it was discovered on investigation that he was dead at the time of the crime and could not have committed it? Of what relevance at the trial is the fact that X was a suspect, until it was discovered that he was in jail at the time of the murder? Similarly, of what relevance is it at this trial that X was a suspect, until it was discovered that he was out of state at the time of the murder? The obvious answer is that the fact that X was a suspect is not relevant because it proves nothing for the defense. He may have been a suspect, but he was cleared. It follows as night the day that having been eliminated as the murderer, nothing he said nine months earlier could be used to suggest that he might have committed the crime. So of what value under these circumstances was either the fact that he was a suspect or that nine months earlier, he said anything nasty about one of the victims? All this evidence does by eliminating one of the suspects is increase the probability that Gray was guilty.
Given these circumstances, because Dyer had a confirmed alibi which Gray’s counsel acknowledged and did not dispute, any inference from the excluded statements that Dyer may have killed the women would have been absolutely misleading. Misleading evidence is not admissible any where in our system. If this is true, then the simple fact as pushed by Gray’s attorney that Dyer was at one time a suspect, is clearly irrelevant. What does it prove? How does the fact that another suspect existed but that he was cleared help the defense. If anything, it hurts the defense.
*662The SODDIT defense (some-other-dude-did-it), of which this is a weak variant, in my experience of 23 years in the criminal courts only works when the evidence pointing to that dude is plausible. Here, it simply wasn’t. In fact, Gray’s counsel was obviously aware that the evidence was useless to show that Dyer was the killer. This explains why it was only offered to show “other suspects.” Measured against the inculpatory eyewitness testimony and the other evidence of Gray’s guilt, I believe this exclusion was resoundingly harmless. The jury was not going to believe that Dyer was the killer, the evidence that at one time he was a “suspect,” but out-of-state when the murder happened, was irrelevant; and the excluded evidence viewed in the light of the rest of the case was not sufficient to raise a reasonable doubt based on the pointless claim that these were “other suspects.” Given the verdict, the jury obviously credited Mack-ley’s testimony putting Gray, not Dyer, in a position to kill his former wife and her friend.
In fact, a defense attorney can seriously damage his case when he suggests or insinuates or offers to prove without substantial evidence that someone other than the defendant committed the crime. When the prosecution then proves that the surrogate suspect is innocent, which it is certainly entitled to do, the loud backfiring that occurs tears a hole in the defense’s credibility and strengthens the prosecution’s case. This is what we have here-a desperate albeit understandable attempt by the defense to muddy the waters. This case may have been close, but the excluded evidence, including “the whole picture” of which it was necessarily a part, would not have made it any closer. In fact, it very well could have made it better for the State and worse for Gray.
If counsel had succeeded in convincing the judge to admit this evidence and then watched the prosecution demolish Dyer as a suspect, I’m sure it would have been now called blatant Strickland error on the ground that it hurt his client’s defense. Opening this door allows the police to show what a thorough job they did, and that they eliminated other suspects. This hardly helps the defense. This concern is not as far-fetched as it might seem. Appellate counsel during the direct appeal to the Idaho courts accused trial counsel of numerous counts of constitutionally defective representation. Mr. Radin has already been put on trial. Moreover, in Phillips v. Woodford, 267 F.3d 966 (9th Cir.2001), we recently concluded that a defense attorney had provided ineffective assistance of counsel by introducing evidence of an alibi for his client, evidence suggested and vouched for by the client, under circumstances where the attorney should have known-given the rest of the evidence — -that the alibi defense was “hopeless.” Because the attorney harmed the defendant with a defective claim of alibi, we granted the defendant a new trial. It is not a great stretch to move from Phillips to this case where it appears that the defense attorney was attempting to use a SODDIT defense that was certain to fail because of a valid and unchallenged alibi. Defense lawyers in this circuit appear now to be Strickland damned if they don’t, but also damned if they do.
Ill
Conclusion
Our circuit tends doggedly to repeat its mistakes in habeas cases even though we have been corrected many times by the Supreme Court. Indeed, it is not beyond the pale to say that we have been mildly castigated for abusing our habeas authori*663ty. Here is what the Court told us in 1991 in Estelle v. McGuire:
We first consider whether the admission of the prior injury evidence justified habeas relief. In ruling that McGuire’s due process rights were violated by the admission of the evidence, the Court of Appeals relied in part on its conclusion that the evidence was “incorrectly admitted ... pursuant to California law.” Id., [McGuire v. Estelle, 902 F.2d 749] at 754 [(9th Cir.1990)]. Such an inquiry, however, is no part of a federal court’s habeas review of a state conviction. We have stated many times that “federal habeas corpus relief does not lie for errors of state law.” Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606, (1990); see also Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984). Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam). [N.2]
Id. 112 S.Ct. at 479-480 (footnote in original).
One can hardly miss the implications of the Court’s references to Lewis v. Jeffers and to Pulley v. Harris. In those cases, we exceeded our authority and were reversed. Footnote 2 from this passage in Estelle is also instructive about another of our unsuccessful cases. It references Blair v. McCarthy, 881 F.2d 602 (9th Cir.1989), cert. granted, 498 U.S. 807, 111 S.Ct. 39, 112 L.Ed.2d 16, vacated as moot and remanded, 498 U.S. 954, 111 S.Ct. 377, 112-L.Ed.2d 391 (1990) and says about that case, that “the court of Appeals based its grant of habeas relief solely on a ground of state law that prejudged the defendant. As our discussion above makes clear, such state-law violations provide no basis for federal habeas relief.” 881 F.2d at 603-604.
We attempt to avoid this clear constitutional restriction, however, by claiming that the state-law violation we falsely perceive is so serious that it violates due process, and we do so even as here, when the state courts have definitively examined the issue under state law and declared that no state law violation or lapse has occurred. With all respect to my colleagues, not even legal legerdemain can accomplish such a result. To pull a rabbit out of a hat, the hat must contain a rabbit before the trick starts. Here, Gray’s hat has no rabbit, but we pull one out of it at the State’s unwarranted expense nevertheless. Dyer was not in there. With all respect to my colleagues I believe we have far exceeded our authority in ordering a new trial in this case based on the exclusion of irrelevant hearsay. In my respectful judgment, not only have we mistreated Idaho in refusing to apply the relevant habeas test and taking liberties with its handling of its evidentiary rules, but we have accomplished exactly what the Supreme Court warned against in Brecht when it noted that unnecessarily retrying old cases “imposes significant ‘social costs’ that, among other things, frustrate society’s interest in the prompt administration of justice.” Id., 507 U.S. at 637, 113 S.Ct. 1710. Our order here simply orders a new trial at which it will be proved that Dyer could not have committed the murder, thus tightening the noose.around Gray.
Thus, although I concur in the excellent remainder of Judge Berzon’s opinion, I *664respectfully dissent from the part that results in the granting of this petition.