Fleming

MEMORANDUM **

Leon Eugene Miller filed a federal petition for writ of habeas corpus, alleging that the state trial court’s decision to admit hearsay statements made by his seven-year-old victim violated his rights under the Sixth Amendment’s Confrontation Clause. The district court granted the petition, holding that admission of a hearsay statement made by the victim to a police officer violated Miller’s Confrontation Clause rights, as those rights are defined in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), and that such error was not harmless. The state appealed, and Miller cross-appealed the district court’s conclusion that his Confrontation Clause rights were not violated by the admission of hearsay statements made by the victim to a nurse and doctor. While the appeal was pending, the Supreme Court decided that Crawford does not apply to cases no longer on direct review. See Whorton v. Bockting, — U.S.—, 127 S.Ct. 1173 , 167 L.Ed.2d 1 (2007).

We hold that Miller properly exhausted his Confrontation Clause claim before the state courts. Because of Whorton , we vacate the order granting his petition and remand the matter to the district court…