corpus petition in my reply brief i attempted to make clear that there are two separate approaches we're taking on this appeal one is based on the decision of the supreme court in property against washington which was handed down three days before my reply brief was due the other basis is the one outlined in the original appellants opening brief which is the lack of inquiry by the state courts at both the trial requirements with reference to retro activity on collateral attack and what i wanted to address the bulk of my comments right now too was this question of the retroactivity of crawford now i don't want to take too much time telling you things you already know but you'll recall that in the teaching decision the supreme court adopted justice harlan's analysis and evaluation of what sorts of rules of law should on collateral review be given retroactive effect and what it came down to in so far as that's relevant to this case is a question of whether the supreme court has announced a new bedrock procedural decision one that so significant in its application that fairness requires that it be reply that it be applied retroactively and i wanted to approach this by looking at some of the language  again referring to justice harlan you know when one goes off on that to the supreme court is told thernstrom that there are few if any maybe none maybe there are no such rules of law except perhaps the rule about having a right to an attorney but in fact they've stated more strongly in their interest when  since teague has measured at least eleven new rules or proposed rules of criminal procedure against the criteria of the second exception of teeth which is what we're talking about here and in every case is refused to apply the rule  issue retroactively now i think it's about time over eleven seems to me good odds for this one being applied right after that language in the leavitt decision the court goes on to point out as your honor just mentioned the guarantee of counsel in criminal trials established by gideon as an example of the type of rule that would fall within two weeks second exception obviously i don't accept the proposition that after having created the second exception in t v the supreme court would hold that it's impossible ever to find a case that would meet that exception but let's look at the right to counsel let's imagine a slightly different hypothetical than what we have here let's imagine that the juvenile witness mr flo fifteen year old who statement was read into the record by a police detective let's assume he was called as a witness by the prosecution and testified to exactly what he was alleged to have said by the police detective and at the conclusion of his testimony the defense attorney stood up and said now mr floor i said like that ask you a few questions and the trial judge turned to the defense lawyer and said you sit down and be quiet there will be no cross examination of this witness i suggest they'll be a pretty easy case whether on direct or collateral review or reversal but what we have here and mr kent is here a kid his actual trial is something even worse than that namely the juvenile was not called as a witness did not testify but instead the here's a statement listen plea read into the record by a police detective obviously there is no right or no functional right cross examine the juvenile under the circumstances now the right to counsel is obviously a bedrock right and her have to the most important aspect of their right counsel in a criminal trial is the ability to cross examine the prosecution's witnesses and that's such an important bedrock right that it is articulated express in the bill of rights as your honour's no i suggest this is the significant distinction between this case before your honor's and those eleven other cases where courts have perhaps  unlike let's say the right to appointed counsel after all gideon against wainwright the question there was because someone have the right to have a lawyer paid for that is i wrong to deny someone the right to counsel because he or she cannot afford it that issues not addressed directly in the bill of rights but it was found to be obvious and now some years forty years later we all think it's patently obvious that an indigent defendant has a right to a court appointed lawyer no charge to that person the point i'm making here is that certain procedures were deemed to be so important that they were expressed least set forth in the bill of rights and the right of confrontation is one of those procedures consequently even under the second test  it should be recognized by the courts that the crawford decision is indeed a bedrock decision that affects the entire integrity of this trial and any other trial in which  witness is not called but rather their statement is simply read into the record by a police detective analysis there i'm not aware that that is one that has been addressed because these teague questions always seem to lose the but to answer your on a more direct like the state of the law in two thousand district court of appeals rendered its decision was that in ohio against roberts reliability test had to be followed and further under lily against her genya that trial court could not assume under that test that the fact that a statement was a declaration against penal interest was a sufficient indicia of reliability nevertheless that's exactly what happened here both at the trial and appellate level assumed that the california evidence code exception for declarations against people interest and tiredly answered the question and there i tried to outline the issues of reliability in my brief none of those  for purposes of when the when the state court decision became final secondly because i did not have the opportunity to brief the issue because of the timing when cropper came down appellee would like to was at the bar affirmatively at this time and that in this particular case crawford does not represent a watershed rule it is not a change of a bedrock principle although the confrontation clause is clearly a bedrock principle that is its application that is controlling here it is barred by t and it is barred again by and turning to whether or not these statements were properly admitted with respect to lily in ohio versus roberts a parent argued in his brief that the statements at issue here were not firmly rooted did not fall within the firmly reveres exception and also that they do not have sufficient part of your life guarantees of trustworthiness that's not the issue before this court however this use whether the court of appeals determination that the statements were firmly rooted and i think more guarantees the trust report was contrary to or an unreasonable application of clearly established federal law at the time frankly it is still an open question whether the statements at issue in this particular case were firmly rooted or not even after lily the question is still not answered or we have a truly self inculpatory statement which is admitted which has no reference to it or to an accomplice whether those statements can be considered firmly rooted or not even after lately so based on that and based on the court of appeals determination by citing to the state  and if there aren't any other questions believe i just heard reference to the confrontation clause as a bedrock principle if that is so then it seems to me that goes a long way toward answering the question of the record activity of the crawford decision council attempted to distinguish the confrontation pozen the theory that the proper decision is merely an application of confrontation caused a certain kind of hearsay well every guarantee of the bill of rights in a trial court is merely an application some aspect of the bill of rights i agree that crawford by itself is far by ed but it was not clearly established law back in the year two thousand however applies and the difference between  and analyses is one that i'm not aware has  the next case on the calendar is parker vs the city of north