Case o' The Week: Bockting, Crawford Retroactive for Habeas

Nevada Federal Defender Franny Forsman garners a great defense win in Bockting v. Bayer, __ F.3d __, 2005 WL 406284 (9th Cir. Feb. 22, 2005), available here. In Bockting, the Ninth Circuit holds that Crawford is retroactive for federal habeas petitions.

Players: A tremendous victory by Nevada Federal Defender Franny Forsman.

Facts: Petitioner Bockting was convicted in Nevada state court for sexual abuse of his six-year old stepdaughter, and received life in prison. 2005 WL 406284, * 1-*2. The girl was declared an unavailable witness at trial, and her hearsay statements were admitted against the defendant. Id. at *2. Bockting went through a long appellate road, with appeals to the Nevada State Supreme Court, with the U.S. Supreme Court vacating and remanding the decision, reaffirmance in the state courts, appeals, and a second petition for habeas relief which ultimately ended up in the Ninth. Id.

Issue: "The question before us is whether the Confrontation Clause principles stated in Crawford amount to a new rule [in the context of habeas review]." Id. at *3.

Held: "[A]pplication of the Supreme Court’s guidance in Teague leads to the conclusion that Crawford announces a ‘new rule.’ Because the Crawford rule is both a ‘watershed rule’ and one ‘without which the likelihood of an accurate conviction is seriously diminished" . . . the rule is retroactive." Id. at *2 (citations omitted) (emphasis in original).

Of Note: The Court first concludes that "an analysis of the historical application of the Confrontation Clause cases leads to the conclusion that Crawford announces a new rule that must be put through the Summerlin strainer." Id. at *5. After sifting through this strainer, the Court concludes, "Viewing Crawford in light of Summerlin leads to the conclusion that the Crawford cross-examination requirement merits retroactive application." Id. at *5. The decision is a product of a concurrence, with Judge Noonan articulating an alternative rationale and concurring in the majority reasoning as well. Id. at *11. Judge Wallace concurs and dissents. Id. at *12.

How to Use: This brief memo is not the place for an in-depth habeas discussion. Nonetheless, practitioners should look back over prior convictions after trials, and focus whether hearsay evidence of any type was admitted – if those cases meet the myriad AEDPA hurdles discussed in depth in Bockting, a habeas petition may be in order. Particularly strong candidates for a Bockting petition are sex abuse cases, where hearsay child witness statements were admitted. Those statements don’t fall within an arguably non-testimonial hearsay category, and are almost always central to the conviction.

For Further Reading: As the Court itself notes, Bockting furthers a circuit split on the retroactivity of Crawford. Id. at *8. Nevada state prosecutors are planning further (unspecified) appellate action. See article here. Supreme Court action seems likely – if not on Bockting, then to resolve the issue using another case within the next term or two.

Steven Kalar, Senior Litigator N.D. Cal. FPD.