Tidwell

MEMORANDUM **

Petitioner Harold Tidwell appeals the district court order denying his habeas petition. We review the district court’s decision to deny a 28 U.S.C. § 2254 habeas petition de novo, Taylor v. Maddox, 366 F.3d 992, 997 (9th Cir.), cert. denied, — U.S. —, 125 S.Ct. 809 , 160 L.Ed.2d 605 (2004), and we reverse. Because the parties are familiar with the factual and procedural history of the case, we will not recount it here.

I

The state court erred in admitting a tape-recorded statement from an available witness, who later recanted her story. Under the Supreme Court standard operative at the time of the California Court of Appeal’s decision, the testimony of an unavailable witness “is admissible only if it bears adequate ‘indicia of reliability.’ ” Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). Admission of testimonial statements that “fall[ ] within a firmly rooted hearsay exception” or bear “particularized guarantees of trustworthiness” meets the Roberts test. 1 Id. In Lilly v. Virginia, 527 U.S. 116 , 119 S.Ct. 1887 , 144 L.Ed.2d 117 (1999), also issued before the state appellate decision, the Supreme Court clarified that “accomplices’…