Bockting v. Bayer ( 2007 )


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  •                 FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    MARVIN HOWARD BOCKTING,                  No. 02-15866
    Petitioner-Appellant,
    v.                           D.C. No.
    CV-98-00764-ECR
    ROBERT BAYER,
    OPINION
    Respondent-Appellee.
    
    Appeal from the United States District Court
    for the District of Nevada
    Edward C. Reed, District Judge, Presiding
    Argued and Submitted
    June 13, 2007—San Francisco, California
    Filed September 27, 2007
    Before: J. Clifford Wallace, John T. Noonan, and
    M. Margaret McKeown, Circuit Judges.
    Opinion by Judge Wallace;
    Dissent by Judge Noonan
    13303
    13306                 BOCKTING v. BAYER
    COUNSEL
    Franny A. Forsman, Federal Public Defender, Las Vegas,
    Nevada, for petitioner Marvin Howard Bockting.
    Victor-Hugo Schulze, II and Rene L. Hulse, Nevada State
    Attorney General’s Office, for respondent Robert Bayer.
    OPINION
    WALLACE, Senior Circuit Judge:
    Bockting appeals from the district court’s order denying his
    petition for a writ of habeas corpus. Bockting challenges his
    state convictions on charges associated with the alleged sex-
    ual abuse of his then-six-year-old step daughter. We have
    jurisdiction under 28 U.S.C. § 2253(a). Bockting has not dem-
    onstrated the state court’s adjudication on the merits:
    “(1) 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
    (2) resulted in a decision that was based on an unreasonable
    determination of the facts in light of the evidence presented
    in the State court proceedings,” 28 U.S.C. § 2254(d). There-
    fore, we affirm the district court’s order denying his petition
    for writ of habeas corpus.
    I.
    Prior to his arrest, Bockting lived with his wife, Laura
    Bockting (Laura), his six-year-old step daughter, Autumn
    BOCKTING v. BAYER                   13307
    Bockting (Autumn), and a three-year-old daughter, Honesty
    Bockting (Honesty), at the Paradise Motel in Las Vegas,
    Nevada. On Monday, January 11, 1988, Laura began attend-
    ing evening classes at a local business college, leaving
    Autumn and Honesty at home under Bockting’s exclusive
    care and supervision. The following Saturday evening, when
    Bockting was away, Autumn approached Laura, crying and
    “quite upset,” and told Laura that Bockting “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. . . .
    and he put his chin in her pee-pee.” Autumn informed Laura
    that all this had happened in the bathroom, and described the
    positions that Bockting used to accomplish the assault. She
    further stated that Bockting threatened to “beat [her] butt” if
    she revealed the assault to her mother.
    Laura awoke the next morning to find that Bockting had
    returned to the motel room. She obtained rent money from
    him and dropped by the motel office to pay the past week’s
    rent and have Bockting’s name removed from the couple’s
    rental papers. Returning to the motel room, she found Autumn
    in tears. Autumn explained that she had just told Bockting
    about their conversation from the previous evening and
    reported that “Daddy told me to tell you that I was lying. . . .
    I can’t do that, mommy.” Laura immediately confronted
    Bockting with Autumn’s abuse allegations and ordered him to
    pack his things and leave. Bockting accused Autumn of lying,
    but nevertheless complied with Laura’s request. Autumn
    wanted to give Bockting a hug and a kiss, but Bockting
    refused.
    The following Tuesday, Laura called a rape hotline and
    agreed to take Autumn to a local hospital where they met
    Detective Charles Zinovitch, a member of the Las Vegas Met-
    ropolitan Police Department’s sexual assault unit. Detective
    Zinovitch ordered an emergency room doctor to conduct a
    rape examination. The examining gynecologist-obstetrician,
    Dr. Stacy Rivers, discovered a fissure on Autumn’s rectum.
    13308                 BOCKTING v. BAYER
    Dr. Rivers estimated that the fissure, which was fresh but not
    actively bleeding, had occurred within the last week.
    Autumn’s hymenal ring—the thin film of skin covering her
    vaginal orifice—was gaping wide open, which was unusual
    for a girl Autumn’s age. Although Dr. Rivers testified that she
    could not be certain what kind of “instrument or foreign
    body” had caused the tear in Autumn’s rectum and the laxness
    of her hymen, she concluded that these injuries had been
    caused by a “blunt type of trauma” applied to the rectum and
    vagina.
    Two days later, Detective Zinovitch interviewed Autumn
    concerning the alleged sexual abuse. Although Autumn had
    been hysterical and uncommunicative at the hospital, she was
    now calm and cooperative. She described Bockting’s alleged
    assault, and stated once again that Bockting “put his pee-pee
    into her pee-pee . . . butt and . . . mouth” and put “his chin
    on her pee-pee.” She described the acts in vivid detail and
    reenacted the positions Bockting assumed during the assault
    with the aid of anatomically correct dolls, using age-
    appropriate terminology. Detective Zinovitch testified that the
    positions Autumn described were consistent with the relative
    body sizes of Autumn and Bockting.
    At Bockting’s March 30, 1988, preliminary hearing,
    Autumn was called to the stand. Autumn testified that she
    knew the difference between a truth and a lie and answered
    preliminary questions about the alleged assault and subse-
    quent rape examination. Autumn was initially cooperative,
    and answered in the affirmative when asked whether Bockting
    had touched her inappropriately. She stated that the incident
    had occurred in the bathroom, when her mother was not
    home, and that Honesty was in the living room at the time.
    Her initial statements were consistent with what she told
    Laura and Detective Zinovitch, except in that she stated that
    Bockting left her pants on. Upon further questioning, how-
    ever, Autumn began to cry and averred that she could not
    remember basic facts as to what had occurred in the bathroom
    BOCKTING v. BAYER                    13309
    or the statements that she had told Laura and Detective
    Zinovitch. Laura encouraged Autumn to “be honest” and “tell
    the truth,” but Autumn refused to answer any further ques-
    tions, responding instead, “[y]ou already told them.”
    Bockting’s jury trial commenced on August 15, 1988. The
    government, represented by Deputy District Attorney Lukens,
    called Autumn as its first witness. Autumn was uncoopera-
    tive, however, and found unavailable.
    After hearing testimony from Laura and Detective
    Zinovitch outside the presence of the jury, the judge con-
    cluded that Autumn’s hearsay statements to Laura and the
    detective were credible and admissible. The court observed
    that there appeared no motive to fabricate, as there appeared
    to be no conflict between Autumn and Bockting. Further, the
    statements were neither irrational or implausible, they fol-
    lowed a chronological order, and they conveyed what
    appeared to be Autumn’s perception of the events. While the
    court conceded that Autumn’s statements at the preliminary
    hearing were not entirely consistent with the statements made
    to Detective Zinovitch and Laura, it noted that it was not
    uncommon for children to refuse to testify in similar circum-
    stances. The court thus concluded that it had “no difficulty”
    concerning the reliability of the statements.
    The court determined that Autumn’s hearsay statements
    were admissible under Nevada Revised Statute 51.385
    because Autumn was effectively unavailable for questioning:
    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.
    13310                  BOCKTING v. BAYER
    . . . . The little girl is obviously unavailable. And as
    far as these two statements, 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.
    Bockting was convicted of three sexual assault counts:
    Counts I-II, forcing vaginal and anal intercourse on a child;
    and Count III, compelling a victim to perform fellatio on him.
    The Nevada Supreme Court dismissed Bockting’s appeal on
    June 22, 1989, but the United States Supreme Court later
    vacated the state supreme court’s order and remanded for fur-
    ther consideration in light of Idaho v. Wright, 
    497 U.S. 805
    (1990). On March 8, 1993, the Nevada Supreme Court
    affirmed Bockting’s conviction. See Bockting v. State, 
    847 P.2d 1364
    (Nev. 1993) (per curiam) (Bockting).
    While his application for a writ of certiorari was pending
    before the United States Supreme Court, Bockting filed a peti-
    tion for post-conviction relief with Nevada’s Eighth Judicial
    District Court. The state district court denied Bockting’s peti-
    tion, and Bockting appealed to the Nevada Supreme Court.
    On December 24, 1997, the state supreme court dismissed the
    appeal, effectively putting an end to Bockting’s state court
    proceedings.
    Bockting next sought relief in federal court, filing a petition
    for habeas corpus on December 30, 1998, followed by a sec-
    ond amended petition on May 17, 2000. The district court,
    exercising jurisdiction pursuant to 28 U.S.C. § 2254, denied
    the petition on March 22, 2002, and issued a certificate of
    appealability on April 26, 2002. While the appeal was pend-
    ing, the Supreme Court issued its opinion in Crawford v.
    Washington, 
    541 U.S. 36
    (2004), overruling Ohio v. Roberts,
    
    448 U.S. 56
    (1980), which was then the governing precedent.
    See Whorton v. Bockting, 
    127 S. Ct. 1173
    , 1181 (2007) (Whor-
    ton). Crawford held that “[t]estimonial statements of wit-
    nesses absent from trial” are admissible “only where the
    BOCKTING v. BAYER                   13311
    declarant is unavailable, and only where the defendant has
    had a prior opportunity to cross-examine” the 
    witness. 541 U.S. at 59
    . We broadened the certificate of appealability, and
    Bockting timely appealed.
    Bockting’s original petition for relief rested primarily on
    his constitutional rights under the Confrontation Clause, pre-
    senting a question of first impression in our circuit: whether
    Crawford applies retroactively to state convictions on habeas
    review. A divided panel concluded that the procedural rule
    under Crawford applies retroactively to cases on collateral
    review, and granted relief. See Bockting v. Bayer, 
    399 F.3d 1010
    , 1021-22 (9th Cir. 2005).
    The Supreme Court granted certiorari. It held that Craw-
    ford had no retroactive application to cases on collateral
    review, and reversed and remanded for further proceedings.
    
    Whorton, 127 S. Ct. at 1177
    , 1184. We now consider Bock-
    ting’s remaining arguments on remand.
    II.
    Our review of Bockting’s state convictions is governed by
    the Antiterrorism and Effective Death Penalty Act of 1996
    (AEDPA). See Bell v. Cone, 
    535 U.S. 685
    , 693 (2002). Under
    AEDPA, habeas relief is warranted only where the state
    court’s adjudication of the merits: “(1) 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 (2) resulted in a deci-
    sion that was based on an unreasonable determination of the
    facts in light of the evidence presented in the State court pro-
    ceedings.” 28 U.S.C. § 2254(d)(1)-(2). A state court convic-
    tion “can involve an ‘unreasonable application’ of federal law
    if it either 1) correctly identifies the governing rule but then
    applies it to a new set of facts in a way that is objectively
    unreasonable, or 2) extends or fails to extend a clearly estab-
    lished legal principle to a new context in a way that is objec-
    13312                 BOCKTING v. BAYER
    tively unreasonable.” Van Tran v. Lindsey, 
    212 F.3d 1143
    ,
    1150 (9th Cir. 2000), overruled on other grounds by Lockyer
    v. Andrade, 
    538 U.S. 63
    (2003). State court findings of fact
    are presumed correct unless the presumption is rebutted with
    clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
    [1] Since the Supreme Court has concluded that Crawford
    has no retroactive application to cases on collateral review,
    we apply the law as it stood before that case. Prior to Craw-
    ford, an out-of-court statement against a criminal defendant
    was admissible at trial if two conditions were met. See Rob-
    
    erts, 448 U.S. at 65-66
    . First, “in order to introduce relevant
    statements at trial, state prosecutors [must] either produce the
    declarants of those statements as witnesses at trial or demon-
    strate their unavailability.” Bains v. Cambra, 
    204 F.3d 964
    ,
    973 (9th Cir. 2000), citing Rob
    erts, 448 U.S. at 65-66
    . Sec-
    ond, even if prosecutors succeed in demonstrating unavaila-
    bility, the statements are only admissible if they bear
    “adequate indicia of reliability.” 
    Roberts, 448 U.S. at 66
    (internal quotation marks omitted). The “indicia of reliability”
    requirement is met if the statements fall within a “firmly
    rooted hearsay exception” or contain “particularized guaran-
    tees of trustworthiness.” 
    Id. In Bockting’s
    state proceedings, the Nevada Supreme Court
    determined that the government satisfied these two require-
    ments. See 
    Bockting, 847 P.2d at 1366-70
    . Bockting chal-
    lenges these determinations on federal habeas review.
    Mindful of our duty to defer to the state supreme court’s fac-
    tual determinations and reasonable applications of Supreme
    Court precedent, 28 U.S.C. § 2254(d)(1)-(2), we consider
    Bockting’s arguments.
    III.
    Bockting contends that relief is warranted because the
    Nevada Supreme Court decision conflicts with Idaho v.
    Wright, 
    497 U.S. 805
    (1990), and applies the wrong standards
    BOCKTING v. BAYER                 13313
    in determining the admissibility of Autumn’s hearsay state-
    ments. He argues that the state court decision involved an
    unreasonable application of clearly established federal law
    and was based on an unreasonable determination of the facts.
    [2] Whether Autumn’s hearsay statements “were suffi-
    ciently reliable to be admitted without violating [Roberts] is
    a mixed question” of law and fact. Swan v. Peterson, 
    6 F.3d 1373
    , 1379 (9th Cir. 1993). We 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 determi-
    nation of “particularized guarantees of trustworthiness” rests
    on findings of fact, we must consider whether it “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)(2). We presume that the state court’s findings are
    correct unless the presumption is rebutted with clear and con-
    vincing evidence. See 
    id. § 2254(e)(1).
    In Wright, the Supreme Court examined whether the admis-
    sion at trial of certain hearsay statements made by a child
    declarant to an examining doctor violated the defendant’s
    rights under the Confrontation 
    Clause. 497 U.S. at 808
    .
    Wright reiterated the Roberts test, confirming that hearsay
    statements made by an unavailable witness are admissible
    only where the statements bear “adequate indica of reliabili-
    ty.” 
    Id. at 815
    (internal quotation marks omitted), quoting
    
    Roberts, 448 U.S. at 65
    . Reliability may be “inferred without
    more” where the statements fall within a firmly rooted hear-
    say exception. 
    Id. at 815
    . Where no hearsay exception applies,
    however, the statements are “presumptively unreliable” and
    meet Confrontation Clause reliability standards only if “sup-
    13314                  BOCKTING v. BAYER
    ported by a showing of particularized guarantees of trustwor-
    thiness.” 
    Id. at 817,
    quoting Lee v. Illinois, 
    476 U.S. 530
    , 543
    (1986) (internal quotation marks omitted).
    [3] Wright held that the “ ‘particularized guarantees of
    trustworthiness’ required for admission [of hearsay state-
    ments] under the Confrontation Clause must . . . be drawn
    from the totality of circumstances that surround the making of
    the statement and that render the declarant particularly worthy
    of belief.” 
    Id. at 820.
    Relevant factors in child sexual abuse
    cases include: (1) spontaneity and consistent repetition, (2)
    the mental state of declarant, (3) use of terminology unex-
    pected of a child of similar age, and (4) lack of motive to fab-
    ricate. 
    Id. at 821-22.
    The Court observed, however, that these
    factors were “not exclusive, and courts have considerable lee-
    way in their consideration of appropriate factors.” 
    Id. at 822.
    It “therefore decline[d] to endorse a mechanical test for deter-
    mining ‘particularized guarantees of trustworthiness’ under
    the Clause,” stating instead that the “unifying principle is that
    these factors relate to whether the child declarant was particu-
    larly likely to be telling the truth when the statement was
    made.” 
    Id. A. We
    first consider whether the Nevada court’s decision was
    based on an unreasonable determination of the facts. See 28
    U.S.C. § 2254(d)(2).
    [4] In Bockting’s underlying state case, the Nevada
    Supreme Court determined that while Autumn’s statements
    did not fall within any “firmly rooted hearsay exception,” they
    were nevertheless admissible because the statements bore the
    “particularized guarantees of trustworthiness” required under
    Roberts. 
    Bockting, 847 P.2d at 1367-70
    . Applying the test
    outlined in 
    Wright, 497 U.S. at 821-22
    , the court identified
    several facts supporting the trustworthiness of Autumn’s
    statements, including (1) the “spontaneity and consistent repe-
    BOCKTING v. BAYER                   13315
    tition” of her statements, (2) Autumn’s “agitation and fear,”
    reflected by “the fact that she was visibly shaken and crying,”
    (3) her “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,” which was “indicative
    of love rather than hate.” 
    Bockting, 847 P.2d at 1369
    .
    These findings are not unreasonable based on the record.
    On two different occasions, Autumn made spontaneous state-
    ments to her mother concerning the alleged assault: on July
    16, 1988, when Autumn first complained of the assault; and
    again on the morning of July 17, 1988, when she cried and
    told her mother that “Daddy told me to tell you that I was
    lying . . . I can’t do that, mommy.” Second, when taken as a
    whole, Autumn’s statements of abuse are consistent.
    Autumn’s initial allegations of abuse, on July 16, 1988, are in
    accord with the abuse that she described to Detective
    Zinovitch. Her demonstration with the dolls, in front of
    Detective Zinovitch, further supported her statements. Her
    outburst to her mother on July 17, 1988, that Bockting told
    her to say that she was lying, also corroborated her allegations
    of abuse. Finally, Autumn’s testimony at the preliminary
    hearing is more consistent than not: (1) Autumn answered
    “yes” when asked whether Bockting had touched her inappro-
    priately, and (2) she testified that her mother had not been
    home, that Honesty was in the living room, and that the inci-
    dent occurred in the bathroom. Although Autumn’s statement
    that her pants were on at the time of the assault is inconsistent
    with her prior statements, her preliminary hearing testimony
    as a whole corroborates her previous description of the
    alleged assault.
    The other Wright factors similarly cut in favor of the rea-
    sonableness of the Nevada Supreme Court’s determination on
    trustworthiness. When Autumn initially described the alleged
    assault to Laura, she was “quite upset” and crying. She cried
    again when she told Laura that Bockting told her to deny the
    13316                 BOCKTING v. BAYER
    story the next day. The vivid descriptions that Autumn gave
    to both Laura and Detective Zinovitch also reflect an unusual
    knowledge of sex for a child her age, even given the fact that
    Autumn had on occasion walked in on intercourse between
    Bockting and Laura. Further, the terminology used by
    Autumn in her statements both to Laura and Detective
    Zinovitch was consistent with what may be expected from a
    child her age: she described the alleged assault to Laura and
    Detective Zinovitch with reference to her own “butt” and
    “pee-pee” and Bockting’s “pee-pee,” and stated that “white
    bubbly stuff” came out of Bockting’s penis. Finally,
    Autumn’s affection for Bockting evidenced a lack of motive
    to fabricate.
    Bockting contends that the Nevada court created facts not
    present in the record in determining that the “veteran detec-
    tive conducted the recorded interview with the child in a man-
    ner that was not suggestive, leading, or indicative of a
    predetermined resolve to produce evidence of child abuse,”
    
    Bockting, 847 P.2d at 1368-69
    . Not so. Detective Zinovitch
    testified that he was employed by the Las Vegas Metropolitan
    Police Department for sixteen years, and had been assigned to
    the sexual assault unit for four years. He stated that he was
    “very careful” when interviewing a child, and that he would
    try to “have the child describe what had happened in her own
    words.” He further testified that after Autumn stated that
    Bockting had hurt her, he asked her “What do you mean he
    hurt you? How did he hurt you?” Detective Zinovitch’s testi-
    mony reflects that he was experienced at interviewing chil-
    dren and that he used open-ended questions during his
    interview with Autumn. This record supports the Nevada
    Supreme Court’s finding that the detective did not use sugges-
    tive or leading questions during his interview with Autumn,
    and we thus disagree that the court created facts not present
    in the record.
    We also disagree with the assertion that the Nevada court’s
    reliance on Autumn’s use of the dolls in her interview with
    BOCKTING v. BAYER                  13317
    Detective Zinovitch somehow rendered the decision an “un-
    reasonable determination of the facts.” Bockting cites one
    study in support of his argument that “considerable disagree-
    ment” exists regarding the propriety of using the dolls. Bock-
    ting’s reference to a single study on doll evidence, without
    more, is not enough to suggest that the Nevada court’s opin-
    ion was “based on an unreasonable determination of the facts
    in light of the evidence presented,” see 28 U.S.C.
    § 2254(d)(2).
    [5] Our review of the record evidence satisfies us that the
    Nevada Supreme Court’s opinion was not “based on an unrea-
    sonable determination of the facts in light of the evidence
    presented in the State court proceeding.” 28 U.S.C.
    § 2254(d)(2). We presume that the state court findings of fact
    are correct unless rebutted by clear and convincing evidence,
    
    id. § 2254(e)(1),
    and Bockting has failed to overcome that
    presumption.
    B.
    We turn to Bockting’s contention that the Nevada opinion
    was “contrary to, or involved an unreasonable application of,
    clearly established Federal law, as determined by the Supreme
    Court of the United States,” see 28 U.S.C. § 2254(d)(1).
    Bockting asserts that the state courts misapplied Roberts in
    two ways. First, he argues that the trial court misapplied Rob-
    erts by applying a presumption in favor of admissibility.
    However, no such burden is evident from the trial record.
    Somewhat more interesting is Bockting’s second argument,
    that the Nevada Supreme Court’s failure to state that the “pre-
    sumptive[ ] unreliab[ility]” of Autumn’s hearsay statements is
    contrary to Wright.
    [6] The Nevada Supreme Court considered Bockting’s
    appeal on remand, with the express instruction from the
    United States Supreme Court to consider the case under
    13318                  BOCKTING v. BAYER
    Wright. In the resulting opinion, the Nevada court recited the
    proper test under Roberts, that hearsay statements made by an
    unavailable witness are admissible only in two circumstances:
    (1) where the statement fits a “firmly rooted” hearsay excep-
    tion, or (2) the statement “reflects particularized guarantees of
    
    trustworthiness.” 847 P.2d at 1367
    (internal quotation marks
    and citation omitted). In evaluating the admissibility of
    Autumn’s hearsay statements, the Nevada Supreme Court
    made a “careful comparison of the factors accorded signifi-
    cance in Idaho v. Wright with those present in the instant
    case.” 
    Bockting, 847 P.2d at 1369
    . The court raised and dis-
    cussed the relevant Wright factors (spontaneity, repetition,
    mental state, terminology, and motive to fabricate) before
    determining that, “[i]n viewing the totality of the circum-
    stances surrounding the child’s out-of-court statements, as
    defined in Wright, we conclude that the [trial] court did not
    err in finding sufficient ‘particularized guarantees of trust-
    worthiness’ to admit the proffered statements.” 
    Id. at 1369-70.
    In light of the Nevada court’s extensive discussion and reli-
    ance on Wright, we do not agree with Bockting that the
    Nevada Supreme Court’s failure to mention that Autumn’s
    hearsay statements were “presumptively unreliable” renders it
    contrary to Wright.
    [7] Wright did refer to a statement from Lee v. Illinois that
    hearsay evidence not within a firmly rooted exception is “pre-
    sumptively unreliable,” but then states that such hearsay
    meets the Confrontation Clause if it is supported by a “show-
    ing of particularized guarantees of trustworthiness.” Lee, 
    476 U.S. 530
    , 543 (1986) (quotation marks and citation omitted).
    But it is this guarantee of trustworthiness that overcomes the
    presumption. As the Nevada Supreme Court’s analysis of
    these factors was not an unreasonable application of Wright,
    it was unnecessary to mention the word “presumption.”
    Bockting also mistakenly argues that the Nevada Supreme
    Court’s decision involved an unreasonable application of
    clearly established federal law because evidence confirming
    BOCKTING v. BAYER                  13319
    the unreliability of Autumn’s statements was rejected or
    ignored. In its opinion, the Nevada Supreme Court recognized
    some inconsistencies in Autumn’s statements. It observed that
    during the preliminary hearing, Autumn stated that her pants
    were not removed during the alleged assault, that she was
    unable to remember how Bockting touched her, and that she
    could not remember what she had told her mother or Detec-
    tive Zinovitch. 
    Bockting, 847 P.2d at 1366-67
    . It concluded,
    however, after considering the “totality of the circumstances
    surrounding the child’s out-of-court statements, as defined in
    Wright” that the trial court properly admitted the statements.
    
    Id. at 1369-70.
    After evaluating the court’s discussion of the
    Wright factors, we do not agree that the Nevada Supreme
    Court’s opinion was defective merely because it failed to
    mention every fact that Bockting believes supports his case.
    [8] Finally, Bockting argues that Crawford did not change
    the rule with respect to testimonial statements, and suggests
    that confrontation would be required in this case under either
    Roberts or Crawford. This argument is foreclosed by Whorton
    v. Bockting, which stated that Crawford “overruled Roberts”
    and “announced a new rule.” 
    127 S. Ct. 1181
    (“The Crawford
    rule is flatly inconsistent with the prior governing precedent,
    Roberts, which Crawford overruled”).
    AFFIRMED.
    NOONAN, Circuit Judge, dissenting:
    This appeal, as Judge Wallace accurately puts it, turns on
    whether the Supreme Court of Nevada unreasonably applied
    Idaho v. Wright, 
    497 U.S. 805
    (1990) to the facts of this case.
    In its first remand of the case, the United States Supreme
    Court had asked the Nevada Supreme Court to consider its
    affirmance of Bockting’s conviction in the light of Wright.
    Bockting v. Nevada, 
    497 U.S. 1021
    (1990). Our court must
    13320                 BOCKTING v. BAYER
    ask whether the Nevada Supreme Court has reasonably done
    so.
    To apply Wright reasonably, the Nevada Supreme Court
    had to decide whether Autumn was not available as a witness
    and whether her statements as reported by her mother and by
    the detective bore such particularized guarantees of truth-
    worthiness that cross-examination of her would be only mar-
    ginally useful.
    Both issues mixed fact and law. There had to be a factual
    basis for finding that Autumn could not take the stand. There
    had to be a factual basis for finding that such particularized
    guarantees of Autumn’s truthworthiness existed that cross-
    examination would be of marginal utility. Instructed by
    Wright, the Nevada Supreme Court knew the rule that it must
    apply in each instance. It could not make the rule applicable
    by imagining the facts or by abbreviating the rule to the point
    of misunderstanding it.
    The position in which the Nevada Supreme Court was put
    by the remand may be illustrated by an analogy from baseball.
    The home plate umpire decides if a runner is out when there
    is a close call at the plate. The umpire’s melding of what he
    sees with the rule he knows cannot reasonably be challenged.
    But when the runner is stealing second, and the third base
    umpire calls him out because he did not reach third, the third
    base umpire is subject to reversal. He has either not under-
    stood the facts or not understood the rule he purports to apply,
    or he has understood neither. Is the Nevada Supreme Court in
    the position of the supposed home plate umpire or in that of
    the imagined third base umpire?
    Was Autumn not available as a witness? The Nevada
    Supreme Court devoted footnote four of its opinion to this
    question and stated:
    Although NRS 51.385 does not require the unavaila-
    bility of the hearsay declarant as a prerequisite to the
    BOCKTING v. BAYER                   13321
    admissibility of the declarant’s statements, we are
    satisfied on this record that the trial judge correctly
    determined that the child was unavailable as a wit-
    ness. The record reveals, as described by the prose-
    cutor, that the child “froze” and would not even
    stand or communicate to take the oath. Moreover,
    defense counsel did not contest the district court’s
    ruling concerning the child’s unavailability as a wit-
    ness.
    This single paragraph, central to the Nevada Supreme Court’s
    finding that Autumn was not available, first endorses the trial
    judge’s conclusion to that effect and secondly accepts the
    prosecutor’s claim that Autumn “froze.” Neither the first nor
    the second point establish Autumn’s unavailability. The trial
    judge did not make any finding at all as to Autumn’s
    unavailability. To rely on what the trial court did is to rely on
    nothing except his decision to let in her hearsay statements.
    The trial judge identified no basis for this result.
    What the trial judge did say was something that showed
    him to be confused about the relevant rule. He said, “The very
    purpose of this statute [governing the testimony of a child
    under ten] 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 [her] testimony is worthless.”
    In the trial judge’s mind, the child witness is unavailable, if,
    as in Autumn’s case, her testimony is inconsistent so that it
    becomes “worthless.” That is surely a misstatement of the rule
    determining a witness’s unavailability.
    The second leg on which the Nevada Supreme Court stood
    begins with the prosecutor’s characterization of what Autumn
    did; supplements this reference by a reference to what the
    record shows; and adds that defense counsel did not object.
    To take the last point first, there was no ruling to which
    defense counsel could make a record; the trial judge simply
    13322                 BOCKTING v. BAYER
    assumed that Autumn, inconsistent as she was in her state-
    ments, was not available. What the record reveals as to her
    unavailability is her nonresponsiveness to a colloquy between
    her and the judge that could not have consumed more than a
    minute. The record reveals no effort by the judge to make her
    more at home or to consider measures that could be taken to
    lessen her reluctance. Autumn “froze” as the prosecutor said.
    A momentary freezing is insufficient ground to find unavaila-
    bility established especially when the witness is already pres-
    ent and the conclusion is reached by a judge confused as to
    the relevant rule.
    The “Sixth Amendment establishes a rule of necessity.”
    Ohio v. Roberts, 
    448 U.S. 56
    , 65 (1980). “In the usual case
    . . . the prosecution must either produce, or demonstrate the
    unavailability of, the declarant . . .” 
    Id. No necessity
    was
    proved to justify the introduction of the hearsay. Neither the
    trial judge nor the Nevada Supreme Court in cursory fashion
    referencing the record have taken seriously the first require-
    ment of Wright. The witness whose words will be reported by
    someone else must actually be not available. We owe defer-
    ence to the state court’s findings of fact. We do not owe def-
    erence to the Nevada Supreme Court’s endorsement of a
    ruling never made and of a statement by the prosecutor.
    Did the judicial umpire, the Nevada Supreme Court, do any
    better in its fusing of facts with law to find particularized
    guarantees of trustworthiness making cross-examination, if
    not unnecessary, at least of little use?
    To begin with, the Nevada Supreme Court missed the prin-
    ciple overarching any admission of this sort of hearsay: cross-
    examination of the child, the declarant herself, would not
    materially increase a jury’s confidence that she had said what
    the retailers of the hearsay said she said. The overarching
    principle is put with great clarity by Wright quoting Wigmore:
    “The theory of the hearsay rule . . . is that the many
    possible sources of inaccuracy and untrustworthiness
    BOCKTING v. BAYER                   13323
    which may lie underneath the bare untested assertion
    of a witness can best be brought to light and
    exposed, if they exist, by the test of cross-
    examination. But this test or security may in a given
    instance be superfluous; it may be sufficiently clear,
    in that instance, that the statement offered is free
    enough from the risk of inaccuracy and untrust-
    worthiness, so that the test of cross-examination
    would be a work of supererogation.” 5 J. Wigmore,
    Evidence § 1420, p. 251 (J. Chadborn rev. 1974).
    
    Wright, 497 U.S. at 819
    .
    The Supreme Court of the United States, embracing this
    “theory of the hearsay rule” went on to restate the rule’s ratio-
    nale in its own terms and to illustrate it in application:
    In other words, if the declarant’s truthfulness is so
    clear from the surrounding circumstances that the
    test of cross-examination would be of marginal util-
    ity, then the hearsay rule does not bar admission of
    the statement at trial. The basis for the “excited utter-
    ance” exception, for example, is that such statements
    are given under circumstances that eliminate the pos-
    sibility of fabrication, coaching, or confabulation,
    and that therefore the circumstances surrounding the
    making of the statement provide sufficient assurance
    that the statement is trustworthy and that cross-
    examination would be superfluous.
    
    Id. at 820.
    As the Court declared: “Our precedents have recognized
    that statements admitted under a ‘firmly rooted’ hearsay
    exception are so trustworthy that adversarial testing would
    add little to their reliability.” 
    Id. at 820-21.
    The Court went on
    to say that:
    13324                  BOCKTING v. BAYER
    “the particularized guarantees of trustworthiness”
    must be at least as reliable as evidence admitted
    under a firmly rooted hearsay exception . . .
    
    Id. at 821.
    The Nevada Supreme Court handicapped itself severely by
    not stating, or apparently grasping, the rationale that would let
    into a trial the nontestimonial statements of a child. The
    Nevada Supreme Court noted that the Supreme Court had not
    endorsed any mechanical test. The Nevada Supreme Court
    then proceeded in mechanical fashion to find three particular-
    ized guarantees. Let us look at them.
    The first is that Autumn awoke from sleep, distressed and
    sobbing, and after being reassured by her mother, gave details
    of Bockting’s alleged acts. This statement did not qualify as
    an “excited utterance” under the firmly-rooted exception to
    the hearsay rule. The Nevada Supreme Court made a half-
    effort to bring the statement within this exception (“the
    child’s outpouring . . . reflected a natural spontaneity indica-
    tive of truth”); but the court did not invoke the firmly-rooted
    exception. Instead, the court expressed incredulity that a child
    “would conjure up the parade of horribles she related about
    her stepfather.” What the hearsay reported was a “parade of
    horribles” — does that make the story more or less credible?
    Are you more trustworthy when you let your imagination go?
    The court overlooked the totality of the circumstances in
    which the horribles were paraded. 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 respond-
    ing to their sleeping-state impressions.
    Autumn’s second declaration was made to the police offi-
    cer in the presence of her mother. The Nevada Supreme Court
    BOCKTING v. BAYER                   13325
    found that its guarantee of trustworthiness was that it was
    “consistent with the details she had previously told to her
    mother.” That consistency carries little weight unless her
    nighttime declaration to her mother was trustworthy. The
    Nevada Supreme Court did not note that two days earlier,
    Autumn had refused to speak to the detective. Neither did the
    court note the psychological compulsion not to let down her
    mother who was counting on her to confirm what the mother
    had reported.
    The Nevada Supreme Court treated Autumn’s arrangement
    of the dolls as her “third consistent description of the events.”
    At the preliminary hearing, Detective Zinovitch gave an
    account of Autumn and the dolls: Before he began to question
    her, he told her that he had some dolls he might show her.
    After he had finished his questions, she asked, “Can I see the
    dolls now?” Zinovitch showed her the dolls. As he testified:
    First I had her look at the dolls, take the clothing off
    the dolls, so we could identify what she feels would
    be the adult dolls, what would be the juvenile dolls,
    male, female, to be sure she knew what she was talk-
    ing about when she talks about the suspect’s penis or
    pee-pee, what the vagina is or what she calls her pee-
    pee. And, you know, we went through that type of
    questioning.
    After I was sure that she was aware of the specific
    body parts, then I asked her to show me — I asked
    her if she could show me what positions had actually
    taken place in the different acts.
    Zinovitch’s tape recorder, which he had turned off when he
    was identifying body parts, was turned on to record what
    Autumn then said. According to his testimony, she described
    what had happened, illustrating it by reference to the dolls,
    using a male adult doll and a young female doll to show “the
    13326                 BOCKTING v. BAYER
    exact positions that had occurred.” He added, “She was happy
    throughout the interview.”
    The question must be asked whether Autumn’s arrange-
    ment of the dolls was a guarantee of the trustworthiness of
    what she had told Zinovitch. Five things mark this part of his
    interview. First, he initiated the conversation about the sex
    organs of the dolls. Second, he instructed Autumn to take off
    the dolls’ clothes. Third, he turned off the tape while he pre-
    pared her. He asked her a leading question: “When he put his
    pee-pee in your vagina, show me how you were laying.”
    Fifth, she was happy as she reenacted the events.
    The dolls would be an unconventional way of guaranteeing
    the truth of what Autumn is reported to have said. The imme-
    diate circumstances of what she said at this time are far from
    giving confidence in Zinovitch’s report. Not only did he tes-
    tify to the leading question he asked her, but he conceded that
    he conducted the preliminary conversation about the sex
    organs of the dolls, and he directed the removal of the dolls’
    clothes. Although he had been taping the interview, he chose
    not to tape his preliminary conversation that primed Autumn
    on the body parts. And throughout this reliving of what is por-
    trayed by the prosecution as a fearful trauma, Autumn seemed
    happy! Her happiness is part of the totality of the circum-
    stances of her statement. Her happiness must undermine con-
    fidence in the credibility of what she is said to have said.
    We own no deference to the Nevada Supreme Court as to
    its understanding of governing constitutional principle. Like
    the third base umpire of the analogy, the Nevada Supreme
    Court has misunderstood the relevant rule. That court has not
    understood why a statement can qualify as an exception to the
    requirements of the Confrontation Clause. That court has not
    grasped that the governing principle is: would cross-
    examination be of significant value.
    The Nevada Supreme Court failed to apply Wright reason-
    ably to Autumn’s availability as a witness and to the value of
    BOCKTING v. BAYER                   13327
    cross-examination in testing the trustworthiness of the state-
    ments attributed to her, and so has not asked the question it
    had to answer: Would cross-examination have materially
    increased confidence in Autumn’s reported statements? It is
    difficult to imagine a lawyer or a judge who would answer the
    question No. Bockting’s right to confront the only percipient
    witness against him was grievously violated.
    AEDPA and the Nevada Supreme Court
    AEDPA directs us to determine whether the state decision
    “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)(2). So far this analysis has proceeded as
    though the highest state court to rule on the case had the
    power to determine the facts. But this is not so.
    The constitution of the State of Nevada prohibits the
    Nevada Supreme Court from finding facts in the course of a
    criminal appeal. Nev. Const. art. 6, § 4; Lane v. Second Judi-
    cial Dist. Court, 
    760 P.2d 1245
    , 1261 (Nev. 1988) (Steffen,
    J., concurring). It must be assumed the Nevada Supreme
    Court obeyed or, that if it did not, its findings were unlawful
    and may be disregarded.
    In terms of the analogy with baseball, this split between the
    ability to determine the facts and the ability to state the law
    constitute a distinct problem. It is as though the home plate
    umpire could only find the facts — the catcher touched the
    runner; the runner had not crossed home plate; while a super-
    umpire would have the power to review the application of the
    rules and pronounce the runner to be out. Certainly, the super-
    umpire could not invent facts and say, “The runner crossed
    the plate. He’s not out.”
    Out of an abundance of caution, it has been assumed that
    some facts could be determined by the Nevada Supreme
    Court. Now, however, as an alternative approach, the analysis
    13328                 BOCKTING v. BAYER
    is founded on what was found by the only Nevada court that
    had power to find facts, the trial court.
    As to Autumn’s unavailability as a witness, as already
    noted, the trial court made no finding of fact. Consequently,
    there is nothing for us to review or to treat with deference and
    no guarantee of the statement’s trustworthiness shown. Nor is
    anything shown by the statement’s plausibility. The prosecu-
    tor wouldn’t be trying to introduce it if it were implausible.
    Chronological order seems to be characteristic of any narra-
    tive. The judge found that Autumn had no motive to fabricate.
    This negative conclusion was scarcely a guarantee of trust-
    worthiness. That the trial judge thought the statements
    reflected Autumn’s perceptions and that he found the account
    “credible” merely presents the trial judge’s view of the evi-
    dence. At the end of his brief analysis, he acknowledges that
    Autumn spoke differently at the preliminary hearing. Plausi-
    bility, rationality, chronological order, absence of motive to
    lie, and credibility create no exception to the constitutional
    requirement set by the Sixth Amendment. The writ of habeas
    corpus must be issued.
    As to the other requirements of Wright, the trial court found
    the hearsay statements “not irrational or not plausible. They
    follow chronologically the events. They tell what the little
    girl’s perception of it was and it seems to be credible,
    although I grant that at the preliminary hearing there is a dif-
    ferent version.” That a statement does not appear irrational
    and that it appears plausible and credible to the judge — none
    of these are particularized guarantees. And when the judge
    concedes that Autumn’s testimony is not consistent, how
    could anyone conclude that cross-examination of her would
    be of little utility? No findings as to the necessary guarantees
    have been made. For this reason, too, the writ should issue.