concurring in the judgment:

I agree with the majority’s ultimate conclusion that Mason is not entitled to habe-as relief. Because I disagree with much of the majority’s analysis, I write separately. Under the applicable Supreme Court precedents, Fenton was not a “witness against” Mason, and thus Mason’s allegations fall *697 entirely outside of the protections of the Confrontation Clause of the Sixth Amendment. However, unlike the majority, I do not believe that Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968), Richardson v. Marsh, 481 U.S. 200 , 107 S.Ct. 1702 , 95 L.Ed.2d 176 (1987), and Gray v. Maryland, 523 U.S. 185 , 118 S.Ct. 1151 , 140 L.Ed.2d 294 (1998) are applicable to this appeal.

I.

The Confrontation Clause guarantees “the accused the right ... to be confronted with the witnesses against him....” U.S. Const. Amend. VI. Thus, as a threshold matter, there must be a “witness[ ] against” the accused for the Confrontation Clause to be invoked properly. In the most recent Supreme Court precedent, Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), the Supreme Court considered three possible meanings of this clause. The Court stated that “[o]ne could plausibly read ‘witnesses against’ a defendant to mean those who actually testify at trial, those whose statements are offered at trial, or something in-between. ...” Id. at 42-43 , 124 S.Ct. 1354 (citations omitted). Notably, not even the most expansive possibility (“those whose statements are offered at trial”) includes situations where the fact that a person made a statement, without any content of that statement, was admitted into evidence. The Court ultimately settled on a definition that was “something in-between” and held “ ‘witnesses’ against the accused ... [means] those who ‘bear testimony.’ ” Id. at 51 , 124 S.Ct. 1354 (citation omitted). “ ‘Testimony,’ in turn, is typically ‘[a] solemn declaration or affirmation made for the purpose of establishing or proving some fact.’ ” Id. (citation omitted).

Although Crawford was decided after Mason’s conviction became final, intervening precedents are applied retroactively against habeas petitioners. See Lockhart v. Fretwell, 506 U.S. 364, 372-73 , 113 S.Ct. 838 , 122 L.Ed.2d 180 (1993). This is because “[a] federal habeas petitioner has no interest in the finality of the state-court judgment under which he is incarcerated: Indeed, the very purpose of his habeas petition is to overturn that judgment.” Id. at 373 , 113 S.Ct. 838 . Furthermore, this court has held that Crawford is fully retroactive. See Bockting v. Bayer, 399 F.3d 1010, 1012-13 (9th Cir.2005), amended by 408 F.3d 1127 , reh’r en banc denied, 418 F.3d 1055 (2005); but see id. at 1024-30 (Wallace, J. dissenting).

If Fenton’s statement to the police had been admitted into evidence, it would unambiguously have been testimonial under Crawford , requiring Mason to have an opportunity to cross-examine Fenton regardless of whether a hearsay exception applied. Crawford, 541 U.S. at 52, 68 , 124 S.Ct. 1354 . However, because the content of Fenton’s statement was never admitted into evidence, the California Court of Appeal did not unreasonably apply Supreme Court precedents when it held that Mason’s claim lacked merit because “Alder Fenton’s confession was not admitted into evidence.” [ER tab 8, page 9] It is not an unreasonable application of federal law, as set out by Crawford , to hold that a person did not “bear testimony” when none of his words were ever introduced into evidence. Therefore, Mason cannot obtain habeas relief under 28 U.S.C. § 2254 (d).

The majority appears to concede that this analysis is feasible when it states that “there is a real question whether the Confrontation Clause protections apply to Detective Salsedo’s testimony.” Maj. op. at 695. I go further: I believe this is the only proper basis to decide this appeal. As I discuss below, the majority’s application of Bruton, Richardson, and Gray to *698 single defendant trials creates a grave danger that our jurisprudence will permit admission of evidence in clear violation of Crawford , as long as it is not “powerfully incriminating” or only “incriminate[s] inferentially.” I now explain why.

II.

I do not concur in the majority’s application of Bruton, Richardson, and Gray . All of these cases address the issue of whether an admission admitted against one defendant is also deemed to be a “witness[] against” the co-defendant, thus invoking the protections of the Confrontation Clause. Because Mason was tried alone, these precedents plainly do not apply. The admission of the fact of Fenton’s statement must either not, by itself, make Fenton a “witness[] against” Mason, or else it is a testimonial statement by Fen-ton requiring a full opportunity for cross-examination. See Crawford, 541 U.S. at 52, 68 , 124 S.Ct. 1354 . The majority cannot use Bruton, Richardson, and Gray to hold that the statement was admitted only against a co-defendant, because there were none at Mason’s trial.

In Bruton , an out-of-court admission by Bruton’s co-defendant, Evans, was admitted into evidence in the joint trial. Bru-ton, 391 U.S. at 124 , 88 S.Ct. 1620 . That admission “powerfully incriminat[ed]” Bru-ton by name. Id. at 135-36 , 88 S.Ct. 1620 . Although the jury was given a limiting instruction that it could only consider the confession against Evans, the Supreme Court held that “the introduction of Evans’ confession posed a substantial threat to [Bruton’s] right to confront the witnesses against him, and this is a hazard [the Court] cannot ignore.” Id. at 137 , 88 S.Ct. 1620 . Thus, Evans was effectively deemed to be a witness against Bruton, as well as himself, and because of the nature of the confession, this could not be overcome by a limiting instruction. As such, Bruton’s Confrontation Clause rights were violated. Id. at 135-37 , 88 S.Ct. 1620 .

Richardson also involved a joint trial of two defendants (Marsh and Williams). Richardson, 481 U.S. at 202 , 107 S.Ct. 1702 . The confession of the co-defendant, Williams, was introduced into evidence. Id. at 203 , 107 S.Ct. 1702 . That confession, unlike the one at issue in Bruton , was redacted so that it contained no reference to Marsh. Id. In addition, the jury was “admonished not to use it in any way against respondent.” Id. at 204 , 107 S.Ct. 1702 .

The Court in Richardson held that “[o]r-dinarily, a witness whose testimony is introduced at a joint trial is not considered to be a witness ‘against’ a defendant if the jury is instructed to consider that testimony only against a codefendant.” Id. at 206 , 107 S.Ct. 1702 (emphasis added). The Court based this holding in part on “the almost invariable assumption of the law that jurors follow their instructions.... ” Id. (citations omitted). Thus, the Court held that the redaction and limiting instructions effectively prevented Williams from being a “witness against” Marsh, and therefore the protections of the Confrontation Clause were not at issue.

Gray also addressed a confession by one defendant in a joint trial. Gray, 523 U.S. at 188 , 118 S.Ct. 1151 . The redacted admission of Gray’s co-defendant (Bell) was introduced into evidence and a limiting instruction was given. Id. at 188-89 , 118 S.Ct. 1151 . However, the redaction merely “substituted] for the defendant’s name in the confession a blank space or the word ‘deleted.’” Id. at 188 , 118 S.Ct. 1151 . There the Court held that “[t]he blank space in an obviously redacted confession also points directly to the defendant, and it accuses the defendant in a manner similar to Evans’ use of Bruton’s name or to a *699 testifying codefendant’s accusatory finger.” Id. at 194 , 118 S.Ct. 1151 . Thus, the confession fell “within the class of statements to wiiich Bruton’s protections apply.” Id. at 197 , 118 S.Ct. 1151 . Therefore, the Supreme Court implicitly held that Bell’s confession made Bell a witness against Gray, entitling him, under Bruton , to confront Bell.

Read properly, Bruton, Richardson, and Gray all address the question of when an admission by one defendant can be considered a “witness” against another defendant. In the case before us, however, there cannot be any doubt against whom the evidence was introduced, as Mason was the only defendant on trial. If Fen-ton’s redacted statement had been entered into evidence, he unquestionably would have been a “witness against” Mason. Here, because Fenton’s statement was made to the police during the course of interrogation, it would clearly be testimonial, see Crawford, 541 U.S. at 52 , 124 S.Ct. 1354 , and, if admitted into evidence, would require an opportunity for cross-examination, regardless of whether any hearsay exceptions applied. Id. at 68-69 , 124 S.Ct. 1354 . This is not the case, however, because Fenton’s statement (redacted or otherwise) was never entered into evidence.

Because Mason was tried separately, Bruton, Richardson, and Gray do not apply. Any evidence produced at trial was introduced against Mason. Because Fen-ton did not “bear testimony” of any kind against Mason, he was a “witness[ ] against” Mason. As such, the protections of the Confrontation Clause are not at issue, and the state courts did not unreasonably apply Supreme Court precedent in holding as much.

If Fenton had been a witness against Mason, however, neither redaction nor a limiting instruction could have relieved the state of its obligation to provide Mason an opportunity to cross-examine Fenton. The majority’s application of Richardson would appear to be squarely at odds with Cra/w-ford by potentially allowing testimonial statements to be admitted without cross-examination against a defendant tried separately, as long as the statement was not facially incriminating.

III.

Because Fenton did not “bear testimony,” he was not a “witness[ ] against” Mason, and hence the protections of the Confrontation Clause do not apply. This should be the end of the analysis. The majority errs in relying upon Bruton, Richardson, and Gray , which do not apply to this appeal as Mason was tried alone. Mason’s claim must stand or fall on whether Fenton was a witness against him.

Because I agree that the district court properly denied habeas relief, I concur in the judgment.