Zamora

MEMORANDUM *

Javier Zamora was convicted in California Superior Court of the attempted murder of Hugo Cruz and related offenses. On direct appeal, the California Court of Appeal affirmed all counts, and the California Supreme Court denied Zamora’s petition for review.

I

Zamora then petitioned for a writ of habeas corpus in federal district court, claiming, among other things, that his Sixth Amendment right to confront Cruz had been violated and that he had been denied the effective assistance of counsel because his attorney had failed to object to the admission of Cruz’s out-of-court statements on Confrontation Clause grounds. The magistrate judge recommended that the petition be granted on both grounds. The district court adopted the magistrate judge’s report and recommendation and ordered a new trial. The State filed a timely notice of appeal and a motion to stay the decision pending appeal, which was granted.

In Bockting v. Bayer, 899 F.3d 1010 , 1012-13 (9th Cir.2005), we held that the Confrontation Clause rule announced by the U.S. Supreme Court in Crawford v. Washington, 541 U.S. 36 , 124 S.Ct. 1354 , 158 L.Ed.2d 177 (2004), applies retroactively under Teague v. Lane,…

dissenting.

In Idaho v. Wright, 497 U.S. 805 , 110 S.Ct. 3139 , 111 L.Ed.2d 638 (1990), the Supreme Court adopted an exceptionally high standard for determining when an out-of-court statement bears the “particularized guarantees of trustworthiness” required for admission under the Confrontation Clause test set forth in Ohio v. Roberts, 448 U.S. 56, 66 , 100 S.Ct. 2531 , 65 L.Ed.2d 597 (1980). Under this standard, if a defendant is to be denied the right of cross-examination, the party seeking admission of a statement must demonstrate that “the declarant’s truthfulness is so clear from the surrounding circumstances that the test of cross-examination would be of marginal utility.... ” Wright, 497 U.S. at 820 , 110 S.Ct. 3139 (emphasis added). The record before the state court in this case fails to establish that the witness’s truthfulness was “so clear” that cross-examination would have been of only “marginal utility.” Three of the six reasons relied on by the state court are wrong as a matter of law. Three were based on facts that the state court clearly misperceived. As to the latter, contrary to the state court’s finding: 1) the witness wavered in recounting the events of the…