Meras v. Sisto, No. 09-15399 (Kozinski with Gettleman, Sr. D.J.; Bea concurring).

"[The Petitioner] claims that testimony introduced during his trial violated his Sixth Amendment right to confrontation.  He's probably right, but he loses anyway." (4320).  This is in the first paragraph of the opinion, and pretty well sums up petitioner's plight, and fate.  He was charged with robbery, burglary, and assault in state court.  His first trial ended in a hung jury.  At the trial, a criminalist testified about DNA analysis.  At the second trial, the criminalist was busy (her mother had cancer) and so a supervisor testified about the lab results.  The supervisor had technically reviewed the findings and signed as a reviewer.  The petitioner's appeal was after Crawford, but before Melendiaz-Diaz and Bullcoming.   As a result, under AEDPA, the question is whether the state court reasonably decided the issue.  The 9th found it did, at the time, given the issues left open in Crawford, and the vigorous dissents in later cases.  The state court at that time was wrestling with open confrontation questions, and so, under AEDPA, and deference, he does not get relief.  The 9th writes that, "We therefore have a case here where the state court probably committed constitutional error, but we are not free to correct it."  (4327).  Moreover, the issue of whether a supervisor by reviewing can testify was not raised in cert petitions to the Supremes.  Bea, concurring, states that the majority is not conducting de novo review, and so should not say that petitioner's constitutional rights were violated.  The issue here is deference, and not a decision on the merits de novo.  The facts here, with the supervisor involvement, makes this still an open question, even after Bullcoming.