Marvin Howard Bockting v. Robert Bayer

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: 1 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…

concurring:

The trial court, the state supreme court, and the federal district court believed that the statute was constitutional, the procedure 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 ánd the procedure under it are unconstitutional. Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004). Bockting is entitled to a writ of habeas corpus. The misunderstanding of the law governing the case is comprehensible 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…

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 , 158 L.Ed.2d 177 (2004), governs our consideration of Bockting’s Confrontation Clause claim, although for different reasons. While Judge Noonan would hold that ret-roactivity is “not an issue” because Crawford did not establish a “new rule” within the meaning of Teague v. Lane, 489 U.S. 288 , 109 S.Ct. 1060 , 103 L.Ed.2d 334 (1989), Ante at 1023, I concur with that part of Judge McKeown’s opinion holding that Craiuford 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 Crawford fits within either of those exceptions. Guided by the principles outlined in Schriro v. Summerlin, — U.S. -, 124 S.Ct. 2519 , 159 L.Ed.2d 442 (2004), I would hold that Crawford’s new procedural 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…

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

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 Bockt-ing’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 “[testimonial 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…