that's pending before the court but regardless of the approach that's taken the underlying practical reality remains the same and so does its constitutional significance the principal evidence that was used to  appellant in this case consisted of the un sworn untested statements of the killer james home alley a multiple murder methamphetamine addict and a man with a penchant for telling while the lies about the opportunity to judge his demeanor on the stand and judge by his manner of giving testimony whether we're aware of the implications of non confrontation the question is this test one of the questions it was that because i anticipated that question and you might have the my client's position is of course that the district court got that half of it right and was wrong about prejudice court requires me to agree with you this in fact the district court was wrong about both thinks this was not i believe under jensen versus primary if nothing else this was clearly not testimonial hearsay the implication is that however are rather complicated it's a little bit like three dimensional chess we don't know yet whether whether boxing will be over was not retroactive has gone on to apply roberts and lilly the familiar standard i believe that that's the standard that will be applied to all cases in this posture so i'll speak to that standard u nder that approach the court is aware that o'malley statements spreading the blame to the appellant were not admissible unless they quote contained particularized guarantees of trustworthiness but there was talking but not particularly known for telling the truth and while he was bragging about his about this crime he also claimed to have been a hitman for the hell's angels to have murdered hell's angels to be a hitman for the mafia to have murder d new york city police officers to sharpen the tooth brush and murdered someone prison even though he wasn't in prison to have murdered a man named dennis and sent the body parts to all maladies mother's girlfriend fortunately that wasn't true  he bragged and he wide to gain status as an assassin in his community of motorcyclists drug dealers drug addicts and criminals no reasons for killing the victim and evidence most of the prosecution's evidence in this case consisted of various versions of o'malley statements there were the majority of their civilian witnesses testified to them half of them to testify to nothing else had never met the  applies only to testimonial statements the statements aren't testimonial the fact that prior law might have led courts to apply the confrontation clause to this seems to be a dead letter to me today the supreme court says it doesn't apply in this case but that's only true if crawford is retroactive this case arose after you have any authority that whips it around that says you should apply a law that we know today is not good because at the time it was believed to be good sure stated i think five cases holding the crawford was not retroactive but do any of them involve granting relief to the petitioner that is letting somebody go based on a law that you know today is not good  recall i can't tell you offhand what the outcome was i can tell you what the law was that they applied in the law that they apply and finding crawford not retroactive was robertson really well the cases that i recognize that you cited are all cases where our court for example is saying the state court was not unreasonable implying that law that i'm usually doesn't work the other direction i mean if we if we now know that the law from the supreme court is that the confrontation cla has no place in this case i have a hard time seeing how we can say the state court was on reasonable and not accepting your client's confrontation clause argument while the state court didn't say that the what your honor testimonial would not have have the right to the concrete ation clause ruling them under crawford but they nonetheless suffer from whatever the negative implications of crawford looking particularly at these hearsay statements and when they are trustworthy and reliable ok thank you told us that it's only limited to testimonial evidence and in davis if it wasn't clear in crawford it was clear in davis when they said if it's hearsay and it's not just a million other hearsay limitations apply but not the confrontation clause end  before the supreme court now than we go back to our wall on apply that today what's wrong with that well i think when i think i think it's the i think that there are two possibilities i think one argument is that as you pointed out that it would be we don't have a case in which a defendant is petitioner he's petitioners being granted relief based on case law that we now know to not support relief i do think that you can make an argument that if crawford is not retroactive then we question you're asking as you're looking at the state court state court contrary to petition to mr cautions suggestion the state court did not categorically state this is reliable under lily looked at the evidence that looked at the specific circumstances it applied ohio and lilly and found that lilly was wholly distinguishable in conformance with many federal circuit decisions for the same reasons that these were not statements made to police when they got a is under arrest and it's the  telling anybody you know everybody and anybody over periods of time spontaneously we know that's not testimonial and it's also not literally so the question i think you could reasonably ask if crawford is not retroactive that you do ask whether the state court got it wrong did they deny him his confrontation rights in unreasonably applying the jurisprudence at the time and i think the answer is clearly no and that that fact is now even further and thinking about the case which is we use the short term term retroactivity to refer actually to a specific situation which is going to petition or claim the benefit of a change in a given supreme court precedent and that this is really  e hundred eighty degrees on that because the question becomes well in this case the law has changed potentially adversely to the petitioners case if the supreme court says in a case that says that out of the traditional way of trying to claim the benefit of a change if the supreme court says it's not retroactive does that also mean that you apply it the other way around well this isn't the first time we've had retroactivity use use and i haven't researched the question of whether applies both ways i doubt that it does but that's the question that's working out there now i had the same question and i spent some time trying to come up with some analogous situation where you know the defense hailed crawford is this great decision i mean i couldn't find a case that would say that when the supreme when you say here's what i mean i feel uncomfortable joining you in that in the in the possibility that that he has no remedy even if traditional or more common petition or someone is trying to claim the benefit of crawford saying look i was convicted i'm collateral attack i'm trying to raise coffer type issues epis a play in court says it's not too late that crawford is one of the supreme court is saying it is so fundamental that it traces back to earlier case life think i think whether it's a fiction or not i think the up to standard doesn't provide a different barrier so i don't know where that ultimately that gets us except the supreme court will not in police custody it's you know you don't have confrontation clause problem statement is inherently reliable but really it's so different on all fours as this court the circuit court you know recognized in virtually every other circuit court under circumstances similar to these so i think a little he would be the controlling authority and i think that you know this statement is reliable i think that you have i mean mr question's been very creative and saying oh we had all these reasons to lie but there's you know that might be one inference but the more the inference found by the state court in determining its admission even under the state hearsay law was that he was telling people because he was upset that the defendant hadn't paid them and he had you know it's he didn't even need a reason he'd gone ahead and he ended up killing like three people that were associated with this with this gang so the idea  we can determine applied at the time yes and i think when you look at the state court opinion you'll see that they did not categorically admit them they went in they set out really they analyzed it they talked about the distinctions and i don't think under any stretch you can say know i do mr questions makes an argument that even if boxing is upheld in crawford applies that we're applying ohio versus roberts jurisprudence or something of that sort and i just think that that nonsensical to think that if we're in a let's do we're in a post crawford world and non testimonial hearsay gets this alternative reality confrontation cause jurisprudence just i mean i think that's if anything if there's anything