Bockting v. Bayer, 02-15866.

• Citation: 399 F.3d 1010
• Decision Date: 22 February 2005
• Docket Number: No. 02-15866.,02-15866.
• Parties: Marvin Howard BOCKTING, Petitioner-Appellant, v. Robert BAYER, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

399 F.3d 1010

Marvin Howard BOCKTING, Petitioner-Appellant, v. Robert BAYER, Respondent-Appellee.

No. 02-15866.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted January 14, 2004.

Filed February 22, 2005.

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

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

Appeal from the United States District Court for the District of Nevada; Edward

C. Reed, District Judge, Presiding. D.C. No. CV-98-00764-ECR.

Before: WALLACE, NOONAN, and McKEOWN, Circuit Judges.

Opinion by Judge McKEOWN; Concurrence by Judge NOONAN; concurrence and Dissent by Judge WALLACE.

McKEOWN, Circuit Judge:

Marvin Bockting's conviction for sexual abuse and life sentences stem from a trial in which the only witness to the conduct, 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 interview 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 one occasion, resolution now rests on interpretation of an intervening Supreme Court case: Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (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 characterized 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, 159 L.Ed.2d 442 (2004). New rules apply retroactively only where they place "certain kinds of primary, private individual 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, 109 S.Ct. 1060, 103 L.Ed.2d 334 (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 2015 — 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. Nonetheless, characterizing Crawford as something less than a new rule, as Judge Noonan does, is one legitimate way of interpreting 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, application 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, ___ U.S. at ___, 124 S.Ct. at 2523, the rule is retroactive.

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 called 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. A rape examination was performed. The doctor found that Autumn'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 fissure 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 testimony 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 convicted 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, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). In 1993, the Nevada Supreme Court affirmed Bockting's conviction. He filed a second petition for postconviction 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.

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, 123 S.Ct. 1398, 155 L.Ed.2d 363 (2003). Under AEDPA, habeas relief to a state prisoner is available only if the state court's decision "resulted in a decision that was contrary to, or involved an unreasonable 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 performing 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, 122 S.Ct. 2147, 153 L.Ed.2d 301 (2002). Indeed, as the Court noted, "if our post-AEDPA cases suggest anything about AEDPA's relationship to Teague, it is that the AEDPA and Teague inquiries are distinct." Id.

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.

Beard v. Banks, ___ U.S. ___, ___, 124 S.Ct. 2504, 2510, 159 L.Ed.2d 494 (2004) (internal citations omitted). Because Bockting's conviction became final in 1993, we must evaluate whether any subsequent rule of constitutional 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 Crawford, 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...