Marvin Howard BOCKTING, Petitioner-Appellant, v. Robert BAYER, Respondent-Appellee, 505 F.3d 973

Opinion by Judge WALLACE; Dissent by Judge NOONAN. ORDER The opinion and dissent filed on September 27, 2007 are withdrawn. A new opinion and dissent are filed with this order. OPINION WALLACE, Senior Circuit Judge: Bockting appeals from the district court’s order denying his petition for a writ of habeas corpus. Bockting challenges his state convictions on charges associated with the alleged sexual abuse of his then-six-year-old step daughter. We have jurisdiction under 28 U.S.C. § 2253(a).

Bockting has not demonstrated the state court’s adjudication on the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings,” 28 U.S.C. § 2254(d). Therefore, we affirm the district court’s order denying his petition for writ of habeas corpus. I.

Prior to his arrest, Bockting lived with his wife, Laura Bockting (Laura), his six-year-old step daughter, A Bockting (A), and a three-year-old daughter, H Bockting (H), at the Paradise Motel in Las Vegas, Nevada. On Monday, January 11, 1988, Laura began attending evening classes at a local business college, leaving A and H at home under Bockting’s exclusive care and supervision.

The following Saturday evening, when Bockting was away, A approached Laura, crying and “quite upset,” and told Laura that Bockting “put his pee-pee in her pee-pee, and that daddy put his pee-pee in her butt and daddy made her suck on his pee-pee like it was a sucker .... and he put his chin in her pee-pee.” A informed Laura that all this had happened in the bathroom, and described the positions that Bockting used to accomplish the assault. She further stated that Bockting threatened to “beat [her] butt” if she revealed the assault to her mother.

Laura awoke the next morning to find that Bockting had returned to the motel room. She obtained rent money from him and dropped by the motel office to pay the past week’s rent and have Bockting’s name removed from the couple’s rental papers. Returning to the motel room, she found A in tears. A explained that she had just told Bockting about their conversation from the previous evening and reported that “Daddy told me to tell you that I was lying.... I can’t do that, mommy.” Laura immediately confronted Bockting with A’s abuse allegations and ordered him to pack his things and leave.

Bockting accused A of lying, but nevertheless complied with Laura’s request. A wanted to give Bockt-ing a hug and a kiss, but Bockting refused. The following Tuesday, Laura called a rape hotline and agreed to take A to a local hospital where they met Detective Charles Zinovitch, a member of the Las Vegas Metropolitan Police Department’s sexual assault unit. Detective Zinovitch ordered an emergency room doctor to conduct a rape examination. The examining gynecologist-obstetrician, Dr. Stacy Rivers, discovered a fissure on A’s rectum. Dr.

Rivers estimated that the fissure, which was fresh but not actively bleeding, had occurred within the last week. A’s hymenal ring — the thin film of skin covering her vaginal orifice — was gaping wide open, which was unusual for a girl A’s age. Although Dr. Rivers testified that she could not be certain what kind of “instrument or foreign body” had caused the tear in A’s rectum and the laxness of her hymen, she concluded that these injuries had been caused by a “blunt type of trauma” applied to the rectum and vagina. Two days later, Detective Zinovitch interviewed A concerning the alleged sexual abuse.

Although A had been hysterical and uncommunicative at the hospital, she was now calm and cooperative. She described Bockting’s alleged assault, and stated once again that Bockting “put his pee-pee into her pee-pee ... butt and ... mouth” and put “his chin on her pee-pee.” She described the acts in vivid detail and reenacted the positions Bockting assumed during the assault with the aid of anatomically correct dolls, using age appropriate terminology. Detective Zinovitch testified that the positions A described were consistent with the relative body sizes of A and Bockting.

At Bockting’s March 30, 1988, preliminary hearing, A was called to the stand. A testified that she knew the difference between a truth and a lie and answered preliminary questions about the alleged assault and subsequent rape examination. A was initially cooperative, and answered in the affirmative when asked whether Bockting had touched her inappropriately. She stated that the incident had occurred in the bathroom, when her mother was not home, and that H was in the living room at the time.

Her initial statements were consistent with what she told Laura and Detective Zinovitch, except in that she stated that Bockting left her pants on. Upon further questioning, however, A began to cry and averred that she could not remember basic facts as to what had occurred in the bathroom or the statements that she had told Laura and Detective Zinovitch. Laura encouraged A to “be honest” and “tell the truth,” but A refused to answer any further questions, responding instead, “[y]ou already told them.” Bockting’s jury trial commenced on August 15, 1988.

The government, represented by Deputy District Attorney Luk-ens, called A as its first witness. A was uncooperative, however, and found unavailable. After hearing testimony from Laura and Detective Zinovitch outside the presence of the jury, the judge concluded that A’s hearsay statements to Laura and the detective were credible and admissible. The court observed that there appeared no motive to fabricate, as there appeared to be no conflict between A and Bockting.

Further, the statements were neither irrational or implausible, they followed a chronological order, and they conveyed what appeared to be A’s perception of the events. While the court conceded that A’s statements at the preliminary hearing were not entirely consistent with the statements made to Detective Zinovitch and Laura, it noted that it was not uncommon for children to refuse to testify in similar circumstances. The court thus concluded that it had “no difficulty” concerning the reliability of the statements.

The court determined that A’s hearsay statements were admissible under Nevada Revised Statute 51.385 because A was effectively unavailable for questioning: The very purpose of this statute was to avoid the problem we have here today where a little girl either is not willing to testify or for some reason is unable to or testifies in such an inconsistent manner that it means, in essence, that their testimony is worthless; and because of the fact that she is testifying in open court in front of strangers with all the things that surrounds that kind of a setting. .... The little girl is obviously unavailable.

And as far as these two statements, I am meaning the one to the mother and the one to Detective Zino-vitch, I think they are allowed — they are credible enough to be allowed to be related to the jury. Bockting was convicted of three sexual assault counts: Counts I — II, forcing vaginal and anal intercourse on a child; and Count III, compelling a victim to perform fellatio on him. The Nevada Supreme Court dismissed Bockting’s appeal on June 22, 1989, but the United States Supreme Court later vacated the state supreme court’s order and remanded for further consideration in light of Idaho v.

Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). On March 8, 1993, the Nevada Supreme Court affirmed Bockting’s conviction. See Bockting v. State, 109 Nev. 103, 847 P.2d 1364 (1993) (per curiam) (Bockting). While his application for a writ of certio-rari was pending before the United States Supreme Court, Bockting filed a petition for post-conviction relief with Nevada’s Eighth Judicial District Court. The state district court denied Bockting’s petition, and Bockting appealed to the Nevada Supreme Court.

On December 24, 1997, the state supreme court dismissed the appeal, effectively putting an end to Bockting’s state court proceedings. Bockting next sought relief in federal court, filing a petition for habeas corpus on December 30, 1998, followed by a second amended petition on May 17, 2000. The district court, exercising jurisdiction pursuant to 28 U.S.C. § 2254, denied the petition on March 22, 2002, and issued a certificate of appealability on April 26, 2002. While the appeal was pending, the Supreme Court issued its opinion in Crawford v.

Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), overruling Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), which was then the governing precedent. See Whorton v. Bockting, — U.S. —, 127 S.Ct. 1173, 1181, 167 L.Ed.2d 1 (2007) (Whor-ton). Crawford held that “[testimonial statements of witnesses absent from trial” are admissible “only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine” the witness. 541 U.S. at 59, 124 S.Ct. 1354. We broadened the certificate of ap-pealability, and Bockting timely appealed.

Bockting’s original petition for relief rested primarily on his constitutional rights under the Confrontation Clause, presenting a question of first impression in our circuit: whether Crawford applies retroactively to state convictions on habeas review. A divided panel concluded that the procedural rule under Crawford applies retroactively to cases on collateral review, and granted relief. See Bockting v. Bayer, 399 F.3d 1010, 1021-22 (9th Cir.2005). The Supreme Court granted certiorari.

It held that Crawford had no retroactive application to cases on collateral review, and reversed and remanded for further proceedings. Whorton, 127 S.Ct. at 1177, 1184. We now consider Bockting’s remaining arguments on remand. II. Our review of Bockting’s state convictions is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). See Bell v. Cone, 535 U.S. 685, 693, 122 S.Ct. 1843, 152 L.Ed.2d 914 (2002).

Under AEDPA, habeas relief is warranted only where the state court’s adjudication of the merits: “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.” 28 U.S.C. § 2254(d)(l)-(2).

A state court conviction “can involve an ‘unreasonable application’ of federal law if it either 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable.” Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir.2000), overruled on other grounds by Lockyer v. Andrade, 538 U.S. 63, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003).

State court findings of fact are presumed correct unless the presumption is rebutted with clear and convincing evidence. See 28 U.S.C. § 2254(e)(1). Since the Supreme Court has concluded that Crawford has no retroactive application to cases on collateral review, we apply the law as it stood before that case. Prior to Crawford, an out-of-court statement against a criminal defendant was admissible at trial if two conditions were met. See Roberts, 448 U.S. at 65-66, 100 S.Ct. 2531.

First, “in order to introduce relevant statements at trial, state prosecutors [must] either produce the declarants of those statements as witnesses at trial or demonstrate their unavailability.” Bains v. Cambra, 204 F.3d 964, 973 (9th Cir.2000), citing Roberts, 448 U.S. at 65-66, 100 S.Ct. 2531. Second, even if prosecutors succeed in demonstrating unavailability, the statements are only admissible if they bear “adequate indicia of reliability.” Roberts, 448 U.S. at 66, 100 S.Ct. 2531 (internal quotation marks omitted).

The “indicia of reliability” requirement is met if the statements fall within a “firmly rooted hearsay exception” or contain “particularized guarantees of trustworthiness.” Id. In Bockting’s state proceedings, the Nevada Supreme Court determined that the government satisfied these two requirements. See Bockting, 847 P.2d at 1366-70. Bockting challenges these determinations on federal habeas review. Mindful of our duty to defer to the state supreme court’s factual determinations and reasonable applications of Supreme Court precedent, 28 U.S.C. § 2254(d)(l)-(2), we consider Bockt-ing’s arguments. III.

Bockting contends that relief is warranted because the Nevada Supreme Court decision conflicts with Idaho v. Wright, 497 U.S. 805, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990), and applies the wrong standards in determining the admissibility of A’s hearsay statements. He argues that the state court decision involved an unreasonable application of clearly established federal law and was based on an unreasonable determination of the facts. Whether A’s hearsay statements “were sufficiently reliable to be admitted without violating [Roberts] is a mixed question” of law and fact. Swan v.

Peterson, 6 F.3d 1373, 1379 (9th Cir.1993). We review the Nevada Supreme Court’s reliability determination to ascertain whether it “was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1); see also Davis v. Woodford, 333 F.3d 982, 990 (9th Cir.2003) (stating that subsection 2254(d)(1) applies “to mixed questions of law and fact” (citing Williams v. Taylor, 529 U.S. 362, 407-09, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000))).

To the extent the Nevada Supreme Court’s determination of “particularized guarantees of trustworthiness” rests on findings of fact, we must consider whether it “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). We presume that the state court’s findings are correct unless the presumption is rebutted with clear and convincing evidence. See id. § 2254(e)(1).

In Wright, the Supreme Court examined whether the admission at trial of certain hearsay statements made by a child declarant to an examining doctor violated the defendant’s rights under the Confrontation Clause. 497 U.S. at 808, 110 S.Ct. 3139. Wright reiterated the Roberts test, confirming that hearsay statements made by an unavailable witness are admissible only where the statements bear “adequate indica of reliability.” Id. at 815, 110 S.Ct. 3139 (internal quotation marks omitted), quoting Roberts, 448 U.S. at 65, 100 S.Ct. 2531.

Reliability may be “inferred without more” where the statements fall within a firmly rooted hearsay exception. Id. at 815, 110 S.Ct. 3139. Where no hearsay exception applies, however, the statements are “presumptively unreliable” and meet Confrontation Clause reliability standards only if “supported by a showing of particularized guarantees of trustworthiness.” Id. at 817, 110 S.Ct. 3139, quoting Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (internal quotation marks omitted).

Wright held that the “ ‘particularized guarantees of trustworthiness’ required for admission [of hearsay statements] under the Confrontation Clause must ... be drawn from the totality of circumstances that surround the making of the statement and that render the declar-ant particularly worthy of belief.” Id. at 820, 110 S.Ct. 3139. Relevant factors in child sexual abuse cases include: (1) spontaneity and consistent repetition, (2) the mental state of declarant, (3) use of terminology unexpected of a child of similar age, and (4) lack of motive to fabricate. Id. at 821-22, 110 S.Ct. 3139.

The Court observed, however, that these factors were “not exclusive, and courts have considerable leeway in their consideration of appropriate factors.” Id. at 822, 110 S.Ct. 3139. It “therefore decline[d] to endorse a mechanical test for determining ‘particularized guarantees of trustworthiness’ under the Clause,” stating instead that the “unifying principle is that these factors relate to whether the child declarant was particularly likely to be telling the truth when the statement was made.” Id. A. We first consider whether the Nevada court’s decision was based on an unreasonable determination of the facts.

See 28 U.S.C. § 2254(d)(2). In Bockting’s underlying state case, the Nevada Supreme Court determined that while A’s statements did not fall within any “firmly rooted hearsay exception,” they were nevertheless admissible because the statements bore the “particularized guarantees of trustworthiness” required under Roberts. Bockting, 847 P.2d at 1367-70. Applying the test outlined in Wright, 497 U.S. at 821-22, 110 S.Ct. 3139, the court identified several facts supporting the trustworthiness of A’s statements, including (1) the “spontaneity and consistent repetition” of her statements,

(2) A’s “agitation and fear,” reflected by “the fact that she was visibly shaken and crying,” (3) her “knowledge of sexual conduct not present in most children six years of age,” (4) her “child-like terminology” which “was reflective of candor rather than coaching,” and (5) her “display of affection for Bockting,” which was “indicative of love rather than hate.” Bockting, 847 P.2d at 1369. These findings are not unreasonable based on the record.

On two different occasions, A made spontaneous statements to her mother concerning the alleged assault: on July 16, 1988, when A first complained of the assault; and again on the morning of July 17, 1988, when she cried and told her mother that “Daddy told me to tell you that I was lying ... I can’t do that, mommy.” Second, when taken as a whole, A’s statements of abuse are consistent. A’s initial allegations of abuse, on July 16, 1988, are in accord with the abuse that she described to Detective Zinovitch. Her demonstration with the dolls, in front of Detective Zinovitch, further supported her statements.

Her outburst to her mother on July 17, 1988, that Bockting told her to say that she was lying, also corroborated her allegations of abuse. Finally, A’s testimony at the preliminary hearing is more consistent than not:

(1) A answered “yes” when asked whether Bockting had touched her inappropriately, and (2) she testified that her mother had not been home, that H was in the living room, and that the incident occurred in the bathroom. Although A’s statement that her pants were on at the time of the assault is inconsistent with her prior statements, her preliminary hearing testimony as a whole corroborates her previous description of the alleged assault. The other Wright factors similarly cut in favor of the reasonableness of the Nevada Supreme Court’s determination on trustworthiness.

When A initially described the alleged assault to Laura, she was “quite upset” and crying. She cried again when she told Laura that Bockting told her to deny the story the next day. The vivid descriptions that A gave to both Laura and Detective Zinovitch also reflect an unusual knowledge of sex for a child her age, even given the fact that A had on occasion walked in on intercourse between Bockting and Laura.

Further, the terminology used by A in her statements both to Laura and Detective Zinovitch was consistent with what may be expected from a child her age: she described the alleged assault to Laura and Detective Zinovitch with reference to her own “butt” and “pee-pee” and Bockting’s “pee-pee,” and stated that “white bubbly stuff’ came out of Bockting’s penis. Finally, A’s affection for Bockting evidenced a lack of motive to fabricate.

Bockting contends that the Nevada court created facts not present in the record in determining that the “veteran detective conducted the recorded interview with the child in a manner that was not suggestive, leading, or indicative of a predetermined resolve to produce evidence of child abuse,” Bockting, 847 P.2d at 1368-69. Not so. Detective Zinovitch testified that he was employed by the Las Vegas Metropolitan Police Department for sixteen years, and had been assigned to the sexual assault unit for four years.

He stated that he was “very careful” when interviewing a child, and that he would try to “have the child describe what had happened in her own words.” He further testified that after A stated that Bockting had hurt her, he asked her “What do you mean he hurt you? How did he hurt you?” Detective Zinovitch’s testimony reflects that he was experienced at interviewing children and that he used open-ended questions during his interview with A.

This record supports the Nevada Supreme Court’s finding that the detective did not use suggestive or leading questions during his interview with A, and we thus disagree that the court created facts not present in the record. We also disagree with the assertion that the Nevada court’s reliance on A’s use of the dolls in her interview with Detective Zinovitch somehow rendered the decision an “unreasonable determination of the facts.” Bockting cites one study in support of his argument that “considerable disagreement” exists regarding the propriety of using the dolls.

Bockting’s reference to a single study on doll evidence, without more, is not enough to suggest that the Nevada court’s opinion was “based on an unreasonable determination of the facts in light of the evidence presented,” see 28 U.S.C. § 2254(d)(2). Our review of the record evidence satisfies us that the Nevada Supreme Court’s opinion was not “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2).

We presume that the state court findings of fact are correct unless rebutted by clear and convincing evidence, id. § 2254(e)(1), and Bockting has failed to overcome that presumption. B. We turn to Bockting’s contention that the Nevada opinion was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” see 28 U.S.C. § 2254(d)(1). Bockting asserts that the state courts misapplied Roberts in two ways. First, he argues that the trial court misapplied Roberts by applying a presumption in favor of admissibility.

However, no such burden is evident from the trial record. Somewhat more interesting is Bockting’s second argument, that the Nevada Supreme Court’s failure to state that the “presumptive[ ] unreliab[ility]” of A’s hearsay statements is contrary to Wright The Nevada Supreme Court considered Bockting’s appeal on remand, with the express instruction from the United States Supreme Court to consider the case under Wright.

In the resulting opinion, the Nevada court recited the proper test under Roberts, that hearsay statements made by an unavailable witness are admissible only in two circumstances: (1) where the statement fits a “firmly rooted” hearsay exception, or (2) the statement “reflects particularized guarantees of trustworthiness.” 847 P.2d at 1367 (internal quotation marks and citation omitted). In evaluating the admissibility of A’s hearsay statements, the Nevada Supreme Court made a “careful comparison of the factors accorded significance in Idaho v.

Wright with those present in the instant case.” Bockting, 847 P.2d at 1369. The court raised and discussed the relevant Wright factors (spontaneity, repetition, mental state, terminology, and motive to fabricate) before determining that, “[i]n viewing the totality of the circumstances surrounding the child’s out-of-court statements, as defined in Wright, we conclude that the [trial] court did not err in finding sufficient ‘particularized guarantees of trust-worthiness’ to admit the proffered statements.” Id. at 1369-70.

In light of the Nevada court’s extensive discussion and reliance on Wright, we do not agree with Bockting that the Nevada Supreme Court’s failure to mention that A’s hearsay statements were “presumptively unreliable” renders it contrary to Wright. Wright did refer to a statement from Lee v.

Illinois that hearsay evidence not within a firmly rooted exception is “presumptively unreliable,” but then states that such hearsay meets the Confrontation Clause if it is supported by a “showing of particularized guarantees of trustworthiness.” Lee, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986) (quotation marks and citation omitted). But it is this guarantee of trustworthiness that overcomes the presumption.

As the Nevada Supreme Court’s analysis of these factors was not an unreasonable application of Wright, it was unnecessary to mention the word “presumption.” Bockting also mistakenly argues that the Nevada Supreme Court’s decision involved an unreasonable application of clearly established federal law because evidence confirming the unreliability of A’s statements was rejected or ignored. In its opinion, the Nevada Supreme Court recognized some inconsistencies in A’s statements.

It observed that during the preliminary hearing, A stated that her pants were not removed during the alleged assault, that she was unable to remember how Bockting touched her, and that she could not remember what she had told her mother or Detective Zinovitch. Bockting, 847 P.2d at 1366-67. It concluded, however, after considering the “totality of the circumstances surrounding the child’s out-of-court statements, as defined in Wright” that the trial court properly admitted the statements. Id. at 1369-70.

After evaluating the court’s discussion of the Wright factors, we do not agree that the Nevada Supreme Court’s opinion was defective merely because it failed to mention every fact that Bockting believes supports his case. Finally, Bockting argues that Crawford did not change the rule with respect to testimonial statements, and suggests that confrontation would be required in this case under either Roberts or Crawford. This argument is foreclosed by Whorton v.

Bockting, which stated that Crawford “overruled Roberts” and “announced a new rule.” 127 S.Ct. at 1181 (“The Crawford rule is flatly inconsistent with the prior governing precedent, Roberts, which Crawford overruled”). AFFIRMED.