Reply Brief — Whorton v. Bockting

In the

Supreme Court of the United States

GLEN Wuorton, Director,

Nevada Department of Corrections,

Petitioner,

V.

MaArviIN HowarbD BOckTING,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER'S REPLY BRIEF ON THE MERITS

Georce J. CHANOS

Attorney General of the State of Nevada

GERALD GARDNER

Chief Deputy Attorney General

Counsel of Record

Victor-Huco Scuuuze, Il

Senior Deputy Attorney General

RENE L. HULSE

Senior Deputy Attorney General

555 E. Washington Avenue, Suite 3900

Las Vegas, NV 89101

(702) 486-3420

Counsel for Petitioner

October 20, 2006

Becker Gallagher - Cincinnati, OH - Washington, D.C. - 800.890.5001

“Supreme Cour, US. ]

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TABLE OF CONTENTS

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I. CRAWFORD IS NOT A RULE WITHOUT WHICH

THE LIKELIHOOD OF AN ACCURATE

CONVICTION IS SERIOUSLY DIMINISHED ... 3

Il. THE CRAWFORD RULE IS NOT A SWEEPING

EN. 0S 86 Keay wee ke ew ees ees es 5

Il]. CRAWFORD DIFFERS SUBSTANTIALLY FROM

GIDEON IN SCOPE AND OPERATION, AND IN

ITS HISTORICAL UNDERPINNINGS

IV.28 U.S.C. SECTION 2254(D) DOES NOT ADOPT

THE TEAGUE EXCEPTIONS FOR WATERSHED

ED pads co 6 A whe ae ee ee 14

RR io db i a es OE Oe ees ee we 20

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TABLE OF AUTHORITIES

Cases

Apprendi v. New Jersey,

A Be oe ee 12, 14

Beard v. Banks,

I re ey te eee 7

Betts v. Brady,

oe ER rr ee 10, 11

Blakely v. Washington,

542 U.S. 296,124 S.Ct. 2531,

ee Be eee 9,12

Bockting v. Bayer,

399 F.3d 1010 (9" Cir. 2005) ............. 4,15

Bockting v. Bayer,

et gg ee ere 11

Bockting v. State,

109 Nev. 103, 847 P.2d 1364 (Nev. 1993) ...... 15

Brown v. Uphoff,

1 A Bos Tt ge ae Eire 14

Crawford v. Washington,

ee cs SI us as oe hs a 08 6 eteee ans passim

Crespin v. New Mexico,

ee GE aK ees CRA a ee oe 14

Davis v. Washington, US. __,

Sea, SEED: 5 v9.9 00h s edb ree we awe 6

DeStefano v. Woods,

a ee ED 6 bo Nine Rhee a eee es 13

Dodd v. United States,

PE DEE i Ages Gackt db wipe eee 17

Duncan v. Louisiana,

391 U.S. 145 (1968) ....... Na Fhe no ated a ea 13

Georgia v. Brailsford,

f SAF Sf: | Ferree g

Gideon v. Wainwright,

es ED 6.63.5 ona b a 4o 3 8 passim

Hamdan v. Rumsfeld,

oF eee ee ee 17

Harlow v. Fitzgerald,

eT en, SED o's Gs 4d eh oe ee 18, 19

Idaho v. Wright,

Se OE oc 6 CRA bw aoe d en beams 15, 16

Lockyer v. Andrade,

Ee re cote er ae ae 17, 18, 19

O'Dell v. Netherland,

BR Se eer e Sn wae 7,12

Ohio v. Roberts,

a SED 6 eS 65 eo wee 4,6, 7, 12, 15

iV

Pointer v. Texas,

rp BOR MS Ot ere ee ee ee er 11

Powell v. Alabama,

p Be ee eT eee a riey 10

Sawyer v. Smith,

SOF Wa Bee COO 6 vei Sv obiewiaerraee 4,12

Schriro v. Summerlin,

SES ee SPO 6 eke be bo 9, 10, 12, 13, 15

Teague v. Lane,

Se ae REED 6.6 KE 6% ce wkee ee Lean passim

Tyler v. Cain,

kT Se PR ire merge aS pe

United States v. Mora, 293 F.3d 1213 (10" Cir.),

cert. denied, 537 U.S. 1098 (2002) ........... 14

Williams v. Taylor,

Ta Uae. SED: os vs ow re bea bee 19

Statutes:

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ae as Be OD oc i ee wees 2, 14, 16, 19, 20

Be USA. 3 SEPT GED 6 oe evi mkeees 14, 16, 17

Other Authorities:

Berry, Melissa M., Seeking Clarity in the Federal Habeas

Fog: Determining What Constitutes “Clearly Established”

Law Under the Antiterrorism and Effective Death Penalty Act,

Se hy te Ss OP UD oc erences cess 18

3 W. Blackstone, Commentaries on the Laws of England

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In the

Supreme Court of the United States

GLEN WHORTON, Director,

Nevada Department of Corrections,

Petitioner,

Vv.

%,

MARVIN HOWARD BOCKTING,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

PETITIONER’S REPLY BRIEF

SUMMARY OF ARGUMENT

Respondent Bockting argues in his Merits Brief that this

Court’s decision in Crawford v. Washington, 541 U.S. 36

(2004), should apply retroactively to cases on collateral

review under the standards set forth in Teague v. Lane, 489

U.S. 288 (1989). This argument is premised on two points.

First, Bockting asserts that Crawford increases accuracy in

criminal proceedings because it replaced an unpredictable rule

with one that addresses the issue of reliability in the manner

envisioned by the framers. Second, Bockting argues that

Crawford is like Gideon v. Wainwright, 372 U.S. 335 (1963),

in several particular ways. This Court has held that Gideon

exemplifies a new rule that would qualify under the second

2

Teague exception for retroactive application of new

procedural rules as a watershed rule. Bockting equates

Crawford to Gideon arguing that both cases replaced an

existing rule that utilized an unreliable and unpredictable case-

by-case assessment with an explicit rule. Bocting also asserts

both cases changed our understanding of a constitutional right

at a conceptual level, but did not create a new right.

According to Bockting, then, the perceived similarities lead

to the conclusion that Crawford should be applied

retroactively to cases on collateral review, such as the case at

hand.

Respondent Bockting’s argument completely misses the

mark in a number of fundamental ways. The argument both

includes points previously rejected by this Court as irrelevant

to the retroactivity analysis, and at the same time excludes

important, and essential, points that are central to the

retroactivity analysis. Because Bockting’s argument strays

from the strict analytical process set forth in Teague and its

progeny, he fails to address those essential points of Iegal

relevance to the retroactivity analysis.

Likewise, Bockting’s argument on whether 28 U.S.C.

Section 2254(d) adopts the Teague exceptions for private

conduct beyond criminal proscription and watershed rules is

premised on a tortured reading of Section 2254(d) and a

wholly unnecessary statutory construction analysis. The

statute’s language is plain on its face, and constitutes a clear

statement of the intent of Congress to change existing law.

The Court has settled the question by deciding that it is the

law existing at the time of the relevant state court decision

that controls the question of whether the state court decision

is contrary to established federal law.

3

ARGUMENT

I. CRAWFORD IS NOT A RULE WITHOUT WHICH

THE LIKELIHOOD OF AN ACCURATE

CONVICTION IS SERIOUSLY DIMINISHED.

In his Merits Brief, Bockting fails to address the central

issue of whether the new rule of Crawford is a rule without

which the likelihood of an accurate conviction is seriously

diminished. By neglecting this most central point, Bockting

imperils his entire position.

The Petitioner argued extensively in the Merits Brief that

the new rule of Crawford was not a watershed rule, because

it was not a rule without which the likelihood of an accurate

conviction is seriously diminished. Thus, the rule of

Crawford is not amenable to retroactive application. But for

the Ninth Circuit, all of the many circuit courts and state

courts that have addressed whether Crawford applies

retroactively agree with Petitioner’s position. The Petitioner

supported this argument with holdings from this Court and

other courts, along with detailed analysis. The existence of

this first prong of the two-pronged watefshed standard, like

the second for bedrock principles, is mandatory if a rule is to

receive retroactive application. Tyler v. Cain, 533 U.S. 656,

665 (2001). Yet, Bockting neither argues nor shows that the

Crawford rule meets this specific accuracy test. Bockting

appears to briefly argue that Crawford may affect accuracy

because it “created a new standard for accuracy,” and that the

Crawford rule is directed toward reliability. Resp.Br. 14, 21.

This analysis is beside the point in the Teague analysis, as it

fails to address the seminal issue of accuracy in the manner

that Teague did.

4

Bockting errs in precisely the same way that the Ninth

Circuit erred when it discussed the general benefits of

confrontation, rather than the relevant core question— whether

the new rule substantially increases the likelihood of an

accurate conviction when compared to the former rule.

Bockting has repackaged Judge McKeown’s erroneous

conclusion in Bockting v. Bayer, 399 F.3d 1010 (9" Cir.

2005) (Bockting 1) that confrontation is designed to promote

accuracy. JA 128. As the dissent in Bockting | observed,

Judge McKeown asked the wrong question in reaching her

conclusion that Crawford applies retroactively because

confrontation generally fosters accuracy. JA 149. Bockting’s

argument adopts the same error.

As Judge Wallace pointed out, the question is not whether

testimony that has been subject to cross-examination is more

likely to be reliable than that which was admissible under the

regime of Ohio v. Roberts, 448 U.S. 56 (1980), but whether

testimony admissible under Roberts is so much more

unreliable than that admissible under Crawford that the

Crawford rule is one without which the likelihood of an

accurate conviction is seriously diminished. JA 149-150. It

is the differential benefit to accuracy of the new rule that must

be assessed, and yet neither the circuit court majority, nor

Bockting, addressed this mandatory analytical component of

the watershed standard.

Moreover, Bockting makes the same mistake previously

rejected by the Court in Sawyer v. Smith, 497 U.S. 227

(1990). Bockting argues only that Crawford “is entirely

directed toward reliability under the Teague standard...”

Resp.Br. 21. Bockting forwards the same argument rejected

by this Court in Sawyer that it is enough under Teague's

watershed rule that a new rule be aimed at improving the

accuracy of trial. Sawyer, 497 U.S. at 242. This argument

5

fails to properly address the correct standard because

increased accuracy alone is not sufficient. The correct test is

whether the new rule is one without which the likelihood of

an accurate conviction is seriously diminished, along with the

second mandatory prong—that the new rule must be sweeping

and fundamentally groundbreaking so as to alter our

understanding of bedrock procedural elements. Bockting, like

the majority below, is attempting to lower the standard for

watershed rules.

Il. THE CRAWFORD RULE IS NOT A SWEEPING

RULE.

Bockting also fails to address the petitioner’s argument

that the Crawford rule is not a sweeping rule. Instead,

Bockting argues that Crawford is like Gideon and unlike any

case in recent constitutional jurisprudence. Resp.Br. 29.

Although this argument points to no more than immaterial

similarities, it does hint ai 2 point quite the opposite from that

Bockting seeks to make. In fact, the new rule of Crawford is

unique in its effect on trial practice and the rights of criminal

defendants. New procedural rules generally increase the

scope of constitutional protections available to criminal

defendants. Crawford, however, announced a new rule that

at once created a new burden on states by requiring an actual

opportunity for cross examination of a witness rather than

allow his or her testimonial hearsay through another witness,

and yet substantially limited the scope and reach of the

Confrontation Clause. For the first time, Crawford now

excludes non-testimonial hearsay from Sixth Amendment

protection.

Post-Crawford confrontation, as a legal concept, is an

entirely different animal than pre-Crawford confrontation,

because the right to confront under the Sixth Amendment has

6

been limited to the single context of testimonial hearsay.

Prior to Crawford, the Sixth Amendment right to

confrontation implicated any hearsay evidence that the

prosecutor wanted to introduce. Ohio v. Roberts, 448 U.S.

56, 65-66 (1980). Within the context of testimonial hearsay,

Crawford increased the states’ burden to provide an

opportunity for cross examination or to find such testimony

excluded. The Sixth Amendment bars the admission of

testimonial hearsay statements of a witness who did not

appear at trial unless he was unavailable to testify and the

defendant has a prior opportunity for cross examination.

Davis v. Washington, _U.S. __, 126 S. Ct. 2266, 2273

(2006). The flexibility offered by the former Roberts rule has

been taken from the states and replaced by a rigid rule

requiring actual, rather than substituted, cross examination.

Crawford, however, also significantly narrowed the scope

of Sixth Amendment protection to exclude most hearsay.

Now, only testimonial hearsay is protected by the Sixth

Amendment. In separating general hearsay concepts from

Sixth Amendment confrontation principles, the Court held in

Crawford and Davis that the Confrontation Clause no longer

implicates non-testimonial hearsay evidence: “It is the

testimonial character of the statement that separates it from

other hearsay that, while subject to traditional limitations

upon hearsay evidence, is not subject to the Confrontation

Clause.” Davis, _ U.S. at __ , 126 S. Ct. at 2273.

Because of this narrowing process, Crawford is not a

sweeping rule, and therefore not a watershed rule.

The instant case is an excellent example of the narrowing

of the Sixth Amendment. Here, Detective Zinovich’s

testimony would fall under the admissibility bar of Crawford

and Davis. As a state agent, the detective collected evidence

for prosecution when he interviewed the child rape victim.

7

The testimony of the child’s mother, while previously

protected under the umbrella of the Sixth Amendment and the

prophylactic Roberts process, is, however, no longer subject

to any Sixth Amendment protections. Now, there is no Sixth

Amendment protective device for the non-testimonial hearsay

presented by the mother of the child victim. Had the child

told a neighbor of her step-father’s sexual attacks, or a

teacher, schooi nurse, or a friend, all of this testimony would

not be inadmissible under the Sixth Amendment in the post-

Crawford context.

This Court held in Tyler v Cain, 533 U.S. 656 (2001),

that for a new procedural rule to be considered a watershed

rule, it must alter our understanding of the bedrock

procedural elements essential to the fairness of a proceeding.

The Court further held in O'Dell v. Netherland, 521 U.S. 151

(1997), and Beard v. Banks, 542 U.S. 406 (2004), that a new

rule is not a bedrock procedural element under the Teague

standard unless it is as “sweeping” and groundbreaking, core

to the criminal process, such as the right to counsel in

Gideon. The rule of Gideon applied to every criminal

defendant in every serious criminal case—the ex nihilo

creation of a new fundamental right. In contradistinction,

Crawford substantially narrowed the scope and reach of the

Confrontation Clause to the single subject of testimonial

hearsay, rather than the broader context of hearsay in general.

It cannot be said that the Crawford rule is as sweeping and

groundbreaking as was the general and broad-based right to

counsel that was pronounced in Gideon.

8

Ill. CRAWFORD DIFFERS SUBSTANTIALLY FROM

GIDEON IN SCOPE AND OPERATION, AND IN

ITS HISTORICAL UNDERPINNINGS.

Bockting argues that Crawford is similar to Gideon in a

number of respects. In forwarding this argument, however,

Bockting is forced to rely on immaterial (and in some cases,

non-existent) similarities. At the same time, Bockting ignores

or glosses over the many profound and basic points of

complete dissimilarity between these decisions. All of the

many federal and state courts,’ save for the Ninth Circuit, that

have rejected the retroactive application of Crawford, have

implicitly, if not explicitly, rejected any argument that

Crawford is on par with Gideon in any material manner.

Pet.Br. 15. In his dissent from the Ninth Circuit’s denial of

en banc reconsideration, Judge O’Scannilain rightly observed

that “Crawford hardly bears comparison with Gideon...The

Crawford rule simply does not approach [its] magnitude. ..The

two judge Bockting majority thus stands alone in its

conviction that Crawford applied retroactively.” JA 215,

223. Yet, Bockting still attempts to find similarities in such

diametrically different decisions.

Bockting argues, for example, that Crawford and Gideon,

represented a return to original constitutional principles. This

argument misses the mark for two reasons. First, as

explained immediately below, Gideon did not represent a

return to an earlier principle, but rather, as explained by

Judge O’Scannlain in his dissenting opinions, it was a

' Courts finding that Crawford does not apply retroactively include

the Second, Fifth, Sixth, Seventh, Tenth, and Eleventh Circuits, as

well as state appellate courts in Florida, Kansas, Colorado,

California, Minnesota, and Washington.

9

groundbreaking new rule that announced not just a new rule

that “reshaped the contours” of an existing right as did

Crawford, but was one that announced, ex nihilo, a new

fundamental right that did not previously exist: the general

right to counsel in serious cases without a need to find

“special circumstances.” JA 215.

Further, and as important to the analysis of Bockting’s

“original principles” argument, is the clear fact that this Court

has wholly rejected this same argument in the context of

Teague 's watershed standard. This argument clearly confuses

the appropriate Teague standard with irrelevant musings about

the Founders’ beliefs, and the argument improperly leads

away from the relevant test for watershed rules. In Schriro v.

Summerlin, 542 U.S. 348 (2004), the Court felt obligated to

correct the inmate’s deviation from the proper standard, and

said of an inmate’s similar confusion of the Teague standard

with an original principles argument:

Respondent [inmate Summerlin} further notes that

common-law authorities praised the jury’s factfinding

ability. See, e.g., 3 W. Blackstone, Commentaries on

the Laws of England 380 (1768); Georgia v.

Brailsford, 3 Dall. 1, 4, 1 L. Ed. 483 (1794) (jury

charge of Jay, C.J.).

The question here is not, however, whether the

Framers believed that juries are more accurate

factfinders than judges (perhaps so-they certainly

thought juries were more independent, see Blakely v.

Washington, post, 542 U.S. 296, - , 124,

S.Ct. 2531, 2538-40, 159 L.Ed. 2d 403, 2004 WL

1402697). Nor is the question whether juries actually

are more accurate factfinders than judges (again,

perhaps so). Rather, the question is whether judicial

10

factfinding so ‘seriously diminishe[s]’ accuracy that

there is an ‘impermissibly large risk’ of punishing

conduct the law does not reach...The evidence is

simply too equivocal to support that conclusion.

Summerlin, 542 U.S. at 355-56 (emphasis added). It appears

from the Court’s comments concerning the inmate’s original

principles argument in Summerlin that it views such argument

as deviating from the only relevant inquiry—that of the oft-

stated watershed standard.

Bockting’s second point in his similarity argument is that

Crawford is like Gideon because neither created a new right,

but merely changed the understanding of a constitutional right

at a “conceptual level.” This argument relies on a

fundamental misunderstanding of Gideon. Gideon is unique

in that it announced a new rule that also created a new

fundamental right. Prior to Gideon, the Court had not

established a general right to counsel in all felony cases in

state prosecutions, including a right to the appointment of

counsel in indigent cases at public expense. Bockting

concedes this point. Resp. Br. 24. In Betts v. Brady, 316

U.S. 455 (1942), the Court considered whether the concept of

due process incorporated in the Fourteenth Amendment

obligated the states to furnish counsel in felony cases, there,

for a charge of robbery for which the defendant received a

sentence of eight years. The Court held that the Fourteenth

Amendment did not require the appointment of counsel.’ In

? Justice Harlan’s concurring opinion in Gideon observed that the

Court’s most immediate pre-Berts decision, Powell v. Alabama, 287

U.S. 45 (1932), was not in conflict with Betts, as that decision was

a capital case where the Court found that, under the particular facts

there presented, the ignorance and illiteracy of the defendants,

along with their youth and demonstrated community hostility were

11

Gideon, the issue was whether the Court should reconsider

the Betts decision. Gideon, 372 U.S. at 338. The Gideon

Court observed that in Betts, it had concluded that the

appointment of counsel to indigents in serious cases was not

a fundamental right, essential to a fair trial that was extended

through the Fourteenth Amendment to the states. Gideon,

372 U.S. at 340. The Gideon Court reversed the Betts

decision, and held for the first time that the general right to

counsel in all serious cases such as Clarence Gideon’s (his

sentence was five years’ imprisonment) was a fundamental

right that extended the Sixth Amendment right to the states

through the Fourteenth Amendment. Gideon, 372 U.S. at

342. In his dissent in Backting v. Bayer, 418 F.3d 1055 (9"

Cir. 2005) (Bockting 111), Judge O’Scannlain noted that the

Gideon Court, had by this action, created the right ex nihilo

to counsel in state prosecutions. JA 215.

Conceptually, in attempting to compare Crawford with

Gideon, Bockting confuses Crawford with Pointer v. Texas,

380 U.S. 400 (1965). In Pointer, the Court extended the

right of confrontation to the states. Accordingly, Pointer

created the underlying right to confrontation in state

prosecutions, whereas Crawford reshaped the contours of that

right. But Crawford is not Pointer. Crawford created no new

fundamental right, while Gideon created a new right.

The uniqueness of Gideon is core to the analysis, because

each of the rights that have formed the basis for this Court’s

the factors that guided the decision. Gideon, 372 U.S. at 349-50

(Harlin, J., concurring). Justice Harlan recognized that the pre-

Gideon law on the appointment of counsel to indigent defendants

turned on the existence of “special circumstances,” and did not

reflect a general right to counsel. /d.

12

Teague jurisprudence have been vitally important rights that

both fostered accuracy and improved the operation of fairness

and due process. Yet, none of the new rule cases considered

by the Court since Teague has been found to be a watershed

decision:

Indeed, Crawford’s rule does less to decrease the

chance of an inaccurate conviction than many rules

that have been held not to apply retroactively...

A parallel principle governs this case: even though

the Confrontation Clause demands the exclusion of

out-of-court testimony—and even though blanket

exclusion of such testimony may, in fact, be more

accurate than the more nuanced rule of Roberts—there

is little reason to think that judicial determination of

reliability so seriously diminishes accuracy as to make

likely the conviction of the innocent. If Apprendi,

Ring, and Blakely, with their massive implications

striking to the core of our system of criminal justice,

were not watershed rules with retrospective

application, then surely the relatively minor—though

still quite significant—change wrought by Crawford is

not either.

JA 216, 221 (Judge O’Scannlain, dissenting). To these cases

cited by Judge O’Scannlain, the Petitioner would add the

decisions of Sawyer, Summerlin, and O'Dell, all of which

held that new rules that directly implicated core fundamental

rights in capital sentencing proceedings, and that were

designed to foster fairness and accuracy in those proceedings,

were held not to be watershed rules. Crawford, likewise, is

not a watershed rule.

13

In Summerlin, the Court observed that:

Our decision in DeStefano v. Woods, 392 U.S. 631,

88 S.Ct. 2093, 20 L.Ed. 2d 1308 (1968) (per curiam),

is on point. There we refused to give retroactive

effect to Duncan v. Louisiana, 391 U.S. 145, 88 S.Ct.

1444, 20 L.Ed. 2d 491 (1968), which applied the

Sixth Amendment’s jury-trial guarantee to the

States...We concluded that ‘[t}he values implemented

by the right to jury trial would not measurably be

served by requiring retrial of all persons convicted in

the past by procedures not consistent with the Sixth

Amendment right to jury trial.’ 392 U.S., at 634, 88

S.Ct. 2093. If under DeStefano a trial held entirely

without a jury was not impermissibly inaccurate, it is

hard to see how a trial in which a judge finds only

aggravating factors could be.

Summerlin, 542 U.S. at 356-57. In this regard, Summerlin

controls this retroactivity analysis. If under DeStefano a trial

held entirely without a jury was not impermissibly inaccurate,

and if under Summerlin a trial held without a jury in the

capital sentencing phase was not impermissibly inaccurate, it

is equally hard to see how a trial in which a judge, who does

no more than make findings of reliability of a hearsay

witness, would implicate impermissible inaccuracy.

Crawford, furthermore, as a rule that reshaped the

contours of the already-existing right to confrontation, in

distinction to one that created ex nihilo a new right, is a right

subject to harmless error analysis. If the right to

confrontation is subject to harmless error analysis, and can

therefore be dispensed with based on other case variables such

as the strength of the state’s case, it is impossible to conclude

that the right is so central to bedrock principles of criminal

14

procedure that it is a watershed rule. In rejecting retroactive

application for Crawford, the Tenth Circuit held that

watershed status and harmless error are incompatible:

Unlike Gideon, Crawford does not ‘alter{ ] our

understanding of what constitutes basic due process,’

Mora, 293 F.3d at 1219, but merely sets out new

standards for the admission of certain kinds of

hearsay. Confrontation Clause violations are subject

to harmless error analysis and thus may be excused

depending on the state of the evidence at trial.

Crespin v. New Mexico, 144 F.3d 641, 649 (1998).

It would, therefore, be difficult to conclude that the

rule in Crawford alters rights fundamental to due

process. See Mora, 293 F.3d at 1219 (holding that

Apprendi v. New Jersey did not alter fundamental due

process rights, in part because Apprendi errors could

be excused given overwhelming evidence).

Accordingly, we conclude that Crawford is not a

watershed decision and is, therefore, not retroactively

applicable to Brown’s initial habeas petition.

Brown v. Uphoff, 381 F.3d 1219, 1226-27 (10" Cir. 2004).

Crawford did not create a new fundamental right and is

intrinsically different from Gideon. Bockting’s argument for

retroactive application of Crawford based upon perceived

similarities to Gideon must be rejected.

IV. 28U.S.C. SECTION 2254(D) DOES NOT ADOPT

THE TEAGUE EXCEPTIONS FOR WATERSHED

RULES.

Respondent Bockting and amicus Public Defender Service

for the District of Columbia (P.D.S. amicus) argue that the

controlling statute, 28 U.S.C. Section 2254(d)(1),

15

incorporates the exceptions to retroactivity under Teague for

private conduct beyond criminal proscription and watershed

rules. The primary weakness in Bockting’s argument is that

it ignores the palpable tension that exists between the plain

language of the statute and the Teague exceptions that are

exemplified by Judge McKeown’s opinion below. The

tension in Judge McKeown’s words is unavoidable: the

position that the statute adopts the Teague exceptions results

in an illogical and absurd reading of what P.D.S. amicus for

the Respondent concedes repeatedly is plain statutory

language. P.D.S. Br. 2. Under that analysis, the Nevada

Supreme Court’s decision in applying Idaho v. Wright and

Ohio v. Roberts was objectively reasonable for eleven years,

and then suddenly, somehow, became objectively

unreasonable upon the announcement of Crawford in 2004.

Neither the Ninth Circuit panel in Bockting I nor

Respondent’s amicus explain how such an ex post facto

logical reconfiguration can occur.

The Nevada Supreme Court relied on Roberts to

conclude that Autumn was ‘unavailable’ and that her

Statements bore the requisite ‘particularized guarantees

of trustworthiness.” Bockting v. State, 109 Nev. 103,

847 P.2d 1364, 1367-70 (Nev. 1993). As we know

now, but the Nevada Supreme Court could not have

divined Crawford dictates the right to cross-examine

the witness. The progeny of Roberts, such as the

multi-factor reliability test developed in Idaho y.

Wright, 497 U.S. 805, 821-22, 110 S.Ct. 3139, 111

L.Ed. 2d 638 (9" Cir. 1990) (sic) cannot override the

right of confrontation. Thus, the Nevada Supreme

Court’s decision was ‘contrary to’ established

Supreme Court precedent in Crawford, as made

retroactive under Teague and Summerlin.

16

JA 136. The unmistakable illogic of this position is that it at

once concedes the correctness of the state court’s application

of federal law, and yet at the same time accuses the same state

court of deciding the question in a manner that was contrary

to federal law. Both precepts cannot be correct.

Because the Nevada Supreme Court’s decision in

Bockting’s case preceded Crawford by eleven years, it is not

logically possible for that decision to be contrary to Crawford.

When Bockting was first before this Court in 1990, on

certiorari following his direct appeal, the matter was

remanded back to the Nevada Supreme Court with instruction

to reconsider its decsion in light of Idaho v. Wright, 497 U.S.

805 (1990). JA 44. The Nevada Supreme Court did exactly

that, and applied that law which was clearly

established—/daho v. Wright. JA 45-60. For Bockting’s

argument to be accepted, this Court would have to accept a

wholly unpredictable and fickle definition of the plain

statutory term “clearly established Federal law,” one that

would be unstable, variable, and ever-changing. Such an

oscillating standard would make impossible any sense of

finality based on the good faith application of existing law by

state courts in the face of new rules from this Court.

It is curious indeed that Respondent’s P.D.S. amicus

engages an interpretive process analyzing a purported

“perverse incentive structure” (P.D.S. Br. 14) and compares

Section 2254(d) to external provisions to draw out the

meaning of Section 2254(d)(1) in light of the fact that P.D.S.

amicus and Bockting agree that the statutory language is plain

on its face. The Petitioner is not alone in its position that “the

statute freezes the applicable law for state prisoners on federal

habeas review to law ‘that exists at the time the state court

decision is made.” *P.D.S. Br. 14, 15. The plain and

unambiguous language of the statute, set forth in the past

17

tense as a participle (“established,” rather than “to be

established at a future time”) serves as the unmistakably clear

Statement required by Hamdan v. Rumsfeld, _U.S. __,

126 S. Ct. 2749, 2764 (2006), that P.D.S. amicus asserts is

missing. Such a lengthy statutory construction exercise is

unnecessary. “[Wjhen the statute's language is plain, the sole

function of the courts-at least where the disposition required

by the text is not absurd-is to enforce it according to its

terms.” Dodd v. United States, 545 U.S. 353, 359 (2005).

This Court should quickly decline Bockting’s invitation to

redefine the plain words of the statute and to add words that

are not there.

This is especially true in light of the fact that this Court

‘has already recognized that the words of the statute mean

precisely what they say. Surprisingly, however, Bockting and

P.D.S. amicus give short shrift to the controlling case on this

point. Petitioner has already pointed out that this Court in

Lockyer v. Andrade, 538 U.S. 63 (2003), recognized that the

timing of the clearly established Federal law requirement in

Section 2254(d)(1) as being “at the time the state court

renders its decision.” Andrade, 538 U.S. at 71. Bockting

assails the reasoning of the Court because, he asserts, this

language does not appear in the statute itself. (Resp. Br. 35).

But of course, it does, as the term “clearly established” is

presented in the past tense. Because the statutory provision

is plain on its face, and because the Court has settled the

question of its meaning, reliance on statutory construction

rules is unnecessary. This issue is settled.

Even if construction were necessary, Bockting might have

noted reference to the one pre-AEDPA case where the same

term was defined harmoniously with the Court’s subsequent

Andrade decision; one would need to look no further than the

legislative history and early decisions of this Court defining

18

the same term to find that the intent, and indeed the genesis

itself, of the “clearly established” language demonstrates that

it refers to the time of the state court decision, as the Court

has recently repeated in Andrade. A commentator recently

observed: !

While the legislative history does shed some light on

how the standard of review provisions were intended

to operate, it does not specifically address the meaning

of ‘clearly established Federal law as determined by

the Supreme Court.’

The closest reference to the clearly established

language was a reference to the governmental

qualified immunity doctrine in tort law when Senator

Orrin Hatch, the primary sponsor of § 2254, referred

to Harlow v. Fitzgerald [457 U.S. 800 (1982)].

Arguably, that reference was not made as a suggestion

to adopt the same ‘clearly established’ standard from

the qualified immunity context, but rather to

‘compare[ ] the deference provisions in the habeas

reforms to the preference for reasonableness that

courts give in other areas of the law.’

Berry, Melissa M., Seeking Clarity in the Federal Habeas

Fog: Determining What Constitutes “Clearly Established”

Law Under the Antiterrorism and Effective Death Penalty Act,

Cath. U. L. Rev., 747, 761-64 (Sp. 2005).

But the suggestion that the reference was, in fact, intended

to adopt the same “clearly established” standard should not be

so quickly dispensed with, especially in light of the Court's

decision in Andrade that also concluded that the time of the

relevant state court decision controls the question. In Harlow,

the Court took the opportunity to define the term “clearly

19

established law” in the context of qualified immunity for

government officials. The Court’s decision was based, in

great part, on the need for predictability and the need for

officials to have notice of what the law demanded of their

actions at the time of those actions:

If the law at that time was not clearly established, an

official could not reasonably be expected to anticipate

subsequent legal developments, nor could he fairly be

said to ‘know’ that the law forbade conduct not

previously identified as unlawful...

Where an official could be expected to know that

certain conduct would violate statutory or

constitutional rights, he should be made to hesitate;

and a person who suffers injury caused by such

conduct may have a cause of action.

Harlow, 457 U.S. at 818, 819. This early view of the

relevant timing of clearly established law is fully consonant

with the plain meaning of the statutory provision and with the

decisions in Andrade and Williams v. Taylor, 529 U.S. 362,

412 (2000). It is the clearly established law existing at the

time that the official acts, and not after a later change in law,

that determines the immunity of the official.

Like the holding in Harlow, Section 2254(d) legislates a

specific and logical relationship between the timing of an act,

the state’s decision, and the state of the relevant law at that

time. Under Harlow, the state of the law at the time the

official acts controls the question of immunity. Likewise,

under Andrade, the state of the law at the time the state court

acts controls the question of whether the state court’s decision

was contrary to federal law. Just as the official cannot be

held liable for the future state of the law of which he has no

20

notice, a state’s strong interest in the finality of criminal

judgments cannot be penalized based on future and

unpredictable changes in the law. This reading of Section

2254(d) avoids the logical pitfalls of Judge McKeown’s view

that the Nevada Supreme Court’s decision in 1993 was

contrary to law that did not exist, and of which she concedes

the court could not have divined. As this Court has stated,

“clearly established Federal law” under Section 2254(d)

refers to decisions of the Court as of the time of the relevant

state court decision is rendered.

CONCLUSION

Petitioners reassert their request that this Court reverse the

judgment of the United States Court of Appeals for the Ninth

Circuit.

Respectfully submitted,

GEORGE J. CHANOS

Attorney General

of the State of Nevada

GERALD GARDNER

Chief Deputy Attorney General

Counsel of record

VICTOR-HUGO SCHULZE, I

Senior Deputy Attorney General

RENE L. HULSE

Senior Deputy Attorney General