Mensing

MEMORANDUM **

Andrew C. Mensing appeals from the district court’s order denying his 28 U.S.C. § 2254 habeas petition challenging his state conviction of sexual intercourse without consent in violation of Montana Code Annotated section 45-5-508(1) (1995). We have jurisdiction pursuant to 28 U.S.C. § 2253 .

As a prehminary matter, we reject the government’s contention that Mensing’s federal habeas petition was untimely filed. See 28 U.S.C. § 2244 (d)(1)(C).

Citing Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), Mensing argues that his Sixth Amendment right to confrontation was violated when two police officers testified to prior statements made by the victim on the night of the attack. Under ,the Confrontation Clause, out-of-court testimonial statements are inadmissible unless (1) the declarant is unavailable, and (2) the defendant had a prior opportunity for erossexamination. Id. at 53-59 , 124 S.Ct. 1354 . Nevertheless, “when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of [her] prior testimonial statements .... The Clause does not bar admission of a statement so long as the…