Rust

*165 MEMORANDUM **

Frank A. Rust appeals the district court’s denial of one habeas corpus petition on the merits and the denial of another one as being second and successive. 28 U.S.C. §§ 2244 (b), 2254. We affirm in part and reverse and remand in part.

(1) Rust asserts that pursuant to “clearly established Federal law, as determined by the Supreme Court” 1 his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution were violated. 2 We disagree. At the time that Rust’s conviction became final on direct appeal, the principles set forth in Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2581 , 2589, 65 L.Ed.2d 597 (1980), controlled consideration of the admission of evidence. Now, the principles of Crawford v. Washington, 541 U.S. 36, 59 , 124 S.Ct. 1354, 1369 , 158 L.Ed.2d 177 (2004), control. While Crawford cannot be applied retroactively at the behest of a petitioner, 3 it can be applied retroactively at the behest of the state. 4 In any event, the result would be the same under either Roberts or Crawford .

In the first place, the state court’s determination that the witnesses in question— Rita Keith and Andre Thomas Barnett— were not…