sister circuits in the tenth and second circuit courts of appeal in holding that crawford v washington does not retroactively apply to the collateral review of state proper wouldn't apply anyway the court explicitly said we decline to address the rock directivity issue here however we have a case where the state is not contesting that this your say evidence was testimonial in nature indeed it was given to police officers investigating this crime but in parlay the court did note that crawford reconfigured confrontation clause jurisprudence and noted rock principle for all criminal trials it changed the rules of the game and essentially what it means is that ohio the roberts the controlling that and i think that there is ample support for that now in crawford itself and the relevant portions are discussed in the briefing but also in the opinions of the tenth and  which really address this issue in some detail so therefore from your point of view then you don't even reach the tea i think that we do reach the teague issue because it is a new procedural rule here that came into effect after the judgment was became became final but underachieving alice's it doesn't fit in the exceptions it's not a watershed principle so we don't have to go on to the up to question as to whether that would be likable to the state havey as a petition because it's not retroactive in any event to a lateral review absolutely and i think that what we're asking this court to do is simply to take its initial points on crawford that i discussed in harlan and taken to their logical conclusion and not to create an analytical split pressed to be able to explain that at the time the state court decision was final a different result was dictated quite clearly established supreme court precedent and so we do have an adopt a situation in this case a lot of ways similar again to the parley decision it's the state's position and because the court didn't repeat its analysis it leaves us at least somewhat uncertain as to exactly what the the reliability analysis was placed upon so i think you need to focus on what's left after you take out the that were found by the state court that said the visitor is this is why we find this reliable and you're right at the tail end of that analysis they said also it was corroborated by another eyewitness and you touched exactly how need to to look at here is the standard is what's the totality of circumstances flying fish or liability and you're absolutely right that that this corroborating evidence has been sort of excised from what is appropriate to review but that doesn't mean that you throw the baby out with bathwater a similar point was made by this court again and harland when they cited that exact evidentiary problem saying evidence code section thirteen seventy allows courts and actually requires courts to consider cross breeding evidence but it's a footnote for i don't have the page cite there but the supreme court has condemned this last its presence in the code does not render the statute unconstitutional and why have evolved because as this court wrote because the section still requires the it's essential in addition of trustworthiness and suggest other other legitimate factors which dabbles that so i think we need to look at what's the state court's decision here and how did they reach that and would they have said absent that corroborating i would miss testimony in the fact that all of the statements matter where they because the u s supreme court has said you know right it doesn't ring a decision invalid but what it may in fact do is show that any confrontation clause air even assuming one was there was harmless this is exactly what we have in the fact do here for all in agreement that he's unavailable and not going to testify because his attorney has just represented he's not going to testify because both of them yes but then that issue is no longer in the case is it your thoughts correct that's our let's hear from three young men please the court my name is going on i represent the petitioner how he has a mara there really a total of five statements an issue in this case the first statement october the sixt there was two statements within that there was one right at the scene and there was another statement on the way in the ambulance on the way to the hospital they were identical and neither of those statements did the victim identify my client as the shooter there was a statement two days later at the hospital in which he identified this nickname child and identified as photograph but refused to circle the photograph refused to sign the  name came up in the first the six but it was not linked to your client at that point correct it's the second when you're now talking about where gets tied into according to the office testimony to the how do you spell that name the child this age i all did so there's that gap as well now there's the statement of a month later at that it was videotaped and played for the jury in which he identified my client there's a further statement later on in february when he meets with the defense investigator and at least according to the investigator there was that my client was there so you have that discrepancy and the reason as was that later i think it was about the same time it was february seventh which is something three months or so after and to get right to the point you take the court of appeals analysis of reliability and it has to be a reasonable the first mistake the real fundamental mistake the court of appeals made was that they concluded that my client was identified and that first statement and the flaws and the subsequent analysis stemmed from statements were consistent with the statement of october sixth again that is just a flat out mistake so two of the factors on which the court of appeals based are based on our fundamental error which is that my client was identified in that first state that an error or is it something premised upon a fact or an inference is disputed that is the correlation of chango and child as being the same name well i would say that they're saying that my client was identified at the scene that is a mistake a reasonable finding of fact the rest of the conclusions that identifications never wavered at the later statements were can were consist name being recorded in different fashions as the spanish or as an english name and then everything else they say seems to fall into place now that link i will concede is not the strongest link in to or heard of but but there an inconsistency or a problem with the state court determination separate and apart if you accept that premise what seems to be the other pieces fall on yes there is but just one further point and that the court of appeals never made that analysis the district court did ask the state to brief it and you know tell us why child is child and they did and the in the court made a finding that they had proved that the court of appeals never got into that so it's a very good assumption i think made but assuming they did is there are other the other is not acceptable and i don't hold the right they found no motive to fabricate identifications just the leniency if he's promised some kind of leniency and he had drugs found in the house and he had prior convictions and there's also the fun of possession under lily leniencies not an appropriate factor as well and they say that the other factor the court of appeals identified was that cruz was reluctant to talk and then the leak case voluntariness of the statement is not appropriate so what we have is three fundamental errors about he was the identified or not and then was those statements cooperated those are errors and then we have other findings by the court of appeals that are appropriate under the separate federal constitutional analysis the one that i have to concede was that the state be subjected cruise to retaliation so of the six or seven factors that are identified by the court of appeals is why this statement is reliable five or six of them are wrong are not legally correct and i think you know a reasonable subjectively unreasonable is a tougher and tougher standard to meet from this side but when you have what six or seven factors wrong i think you there in your argument without even referring to the crawford issue yesterday and i  will address proffered but the strongest argument frankly in my opinion is that the court of appeals was unreasonable and come to that conclusion for the reasons i just identified now you earlier raised with counsel the issue of one availability you know having been there in court sometimes when the court says you know why should we go through with the charade i'm not sure it necessarily implies you agree that he's unavailable but you know the court having indicated that he thinks he's unavailable  don't bother with the charade i'm not going to rely on that i just as a lawyer i understand what you're saying the problem is you have to make your record you do on the record was made of an objection to the procedure correct but there's two ways we still get to the unavailable and available analysis one is through ineffective assistance of counsel if he did raise it that's going to affect the assistance on its face because it led to the admission of these statements and then the other way we get petitioners encounter all the time this is one of those rare instances perhaps that it falls in and it hurts the other side but it's a rule that is imposed in this court all the time and the point that counsel made was  that it wasn't raised in the petition by a post a petition or mind you and that's why it wasn't answered but in fact the petitioner did say that and i'm quoting the trial court admitted statements in violation of confrontation clause and ruled that cruz quote was unavailable and could not be cross examined about them statements so he certainly didn't say i did valid billeted i'm raising it but the words on availability do appear in the petition and it was an accident on that basis the district court found procedural default and that's why i don't unavailable that he can be raised here and then we get to the substantive issue on availability and clearly  appellate courts that of address that i have held that it's not retroactive and after cheryl the summer link saying that ring isn't retroactive you know there's not going to be too many things that are retroactive but we do have court knowing that retroactively is an issue that doesn't specifically in their decision say what they intend but you do have that language that gives this certainly something to look at using the language of bedrock gives you something to argue least fair enough leon of but looking at the two decisions you know brown be off the tenth circuit one they basically how that is not retroactive because confrontation clause issues are subject to harmless error and they said if it's harmless error then it can't be retroactive it can't be a bedrock i'm not sure that that's very persuasive i think could be that's not the dividing line i'm more troubled by the second case the recent one that says crawford is not retroactive because it doesn't necessarily improve the accuracy of the criminal process and i looked at that and that's seems to be an uphill struggle but looking back about it's the mechanism it's the mechanism of cross examination that is in play implicated here and that's the fundamental game now i see that the founders left us now it may or may not improve accuracy but it but that is the reliability is not always going to be improved because sometimes reliable evidence is going to be excluded as a result of the crawford decision so the question then is it is it is a recall is it a requirement to get retroactivity that improve it or just get it the fact of the matter is that may be a reasonable interpretation of the other but that interpretation the evidence wasn't dictated by supreme court precedent to the state courts the state courts were not compelled to come to the exact same conclusion understandably titian's counsel now jumps all over that favorable finding saying my client was never identified at the scene well that's not exactly the case we have the defense counsel at trial using the monikers child and child interchangeably with reference to petitioner officer says i heard child the night of the incident the student happened well how do you spell that well it's  l o or where he says yes there's no distinction here between these two monitors there was never a fifth attacker identified that was child or that was not petitioner and even if  different interpretations of evidence are probable or possible here there was ample evidence for the jury to decide and the california court of appeal to agree that petitioner was the child or child referred to at the night of the incident during that uncontested statement the fact that a different court might reach a different conclusion or argue the matter differently is absolute beside the point on death review of this factual finding which is presumed correct and no evidence was presented to the contrary also in terms of these other envision of reliability council says well maybe evidence of promises would go towards a pro would work in my favor but unfortunately there is no evidence of that and none was presented in the district court and all that aside council still did not address the issue even assuming that there was this confrontational which we are not conceding this is a case that is right for a harmless error analysis given that there is corroborating evidence not only from like the uncontested statement by cruz but also rodriguez this crowd rating eyewitness testimony at the end contested state and by cruz brings you back to the child child problem because you can't get to i don't know the way you get to a demographic nation of defendant as the word used in that statement child without your client's subsequent identification of him as child well that's not entirely true because it was undisputed that he was known as child with a d and there's testimony which i cited in my opening brief where the officer was asked when did you first hear the moniker child with a d d and he said on the night reliability analyzed in depth by the state court here combined with that yes i think absolutely well indicia reliability goes to the admission of the statements but if we move on and say well there was there so you don't get the statements and i've met mr robert entirely that you're left with what the corroborating statements are the other eye witness and what you can get out of his statements the day of the of the i may be enough not trying to say it isn't but i'm trying to figure out ok what do we really have we're doing a harmless error breck type analysis because the premise of that point is that you removed the the challenge evidence what's left well i still think that you have a crime scene statement that was undisputed at trial but additional is identified the jury no argument was made to the jury that child wasn't a child or that there was any distinction between those terms which was never at issue  and self the district court took it upon itself to interpret the evidence on its own so you have that statement with that officer saying i heard child when the night of the incident you have a victim interpretations of this evidence and that would make a great closing argument for a jury to say guess what my client was never identified at the scene because he's not shallow or child or whatever other variation or iteration of this moniker there was state court we can't say what would have been argued to the jury had the confrontation clause evidence been removed i think it's highly likely a defense counsel would have he might not have made the argument there because you've got a pretty good connection between the defendant and his photograph and the name with the additional statements that come in those statements are there i think i'm a defense counsel that a lot harder about challenging what you third party eyewitness statements but also identified petition of the crime scene so i think i mean that's powerful evidence i have a guy that says i know petitioner personally i've partied with him he's in my gang i saw him weather we're going to submit this case i want to notice both sides that there is a pending case before another panel is called boxing b o c k t i n g versus here b a y e r and its court of appeals number zero two dash one five eight six six this is a what is probably the first crawford retroactivity case that is pending in our court and it's quite likely and that's saying now but i'm but i am saying that it's quite likely that we may have to defer submission  argued will be submitted for decision