Appeal from the United States District Court for the District of Minnesota.
The opinion of the court was delivered by: Bye, Circuit Judge
Submitted: October 18, 2010
Before RILEY, Chief Judge, BYE and MELLOY, Circuit Judges.
Stephen Danforth was convicted of first-degree criminal sexual conduct on March 16, 1996, and is currently serving a 316-month term of imprisonment. After several unsuccessful appeals and requests for post-conviction relief in the Minnesota courts, Danforth sought habeas relief in federal district court. The district court*fn1 denied Danforth's petition for writ of habeas corpus. Danforth sought to appeal the denial of his petition and the district court granted a certificate of appealability solely on the issue of whether Crawford v. Washington, 541 U.S. 36 (2004) applies retroactively. We granted a motion by Danforth to expand the certificate of appealability to include additional issues regarding the trial court's admission of a videotaped hearsay statement by the victim, who did not testify at trial. We affirm.
Stephen Danforth was charged with first-degree criminal sexual conduct involving a six-year-old boy, J.S. The facts of this case are set forth at length in State v. Danforth, 573 N.W.2d 369, 372 (Minn. Ct. App. 1997), and are repeated herein only to the extent they are relevant. The trial court found J.S. incompetent to testify at trial, but admitted into evidence a videotaped interview of J.S. conducted at a child advocacy center, finding the videotape bore sufficient indicia of reliability in accordance with Minnesota Statutes § 595.02, subdivision 3 (1994). The jury found Danforth guilty of first-degree criminal sexual conduct.
After his conviction, Danforth appealed to the Minnesota Court of Appeals, which affirmed his conviction but remanded for resentencing because the trial court failed to impose a double departure required for patterned sex offenders. Danforth, 573 N.W.2d at 371. On remand, Danforth was sentenced to a 316-month term of imprisonment. On appeal, this sentence was affirmed. State v. Danforth, No. C5-98-2054, 1999 WL 262143, at *1 (Minn. Ct. App. May 4, 1999). Danforth then filed a petition for post-conviction relief, asserting numerous new as well as previously-raised claims, which was denied. The Minnesota Court of Appeals affirmed. Danforth v. State, No. C6-00-699, 2000 WL 1780244, at *1 (Minn. Ct. App. Dec. 5, 2000).
Several years later, the United States Supreme Court in Crawford ruled defendants have a right under the Sixth Amendment's Confrontation Clause to cross-examine testimonial witnesses. See Crawford, 541 U.S. at 68-69. Crawford replaced the reliability standard from Ohio v. Roberts, 448 U.S. 56 (1980), which was applied in this case. Danforth filed a second petition for post-conviction relief alleging he was entitled to relief based on the rule established in Crawford. The Minnesota Court of Appeals affirmed his conviction holding Crawford did not apply retroactively. Danforth v. State, 700 N.W.2d 530, 532 (Minn. Ct. App. 2005). The Minnesota Supreme Court granted review on the Crawfordissue and affirmed, holding that under Teague v. Lane, 489 U.S. 288 (1989), Crawford does not apply retroactively. Danforth v. State, 718 N.W.2d 451, 454-55 (Minn. 2006). A subsequent appeal to the United States Supreme Court reversed the Minnesota Supreme Court, noting the Teague standard regarding retroactivity was not binding on state courts, and remanded so the Minnesota Supreme Court could choose its own standard for deciding whether new rules of federal constitutional criminal procedure are retroactive. Danforth v. Minnesota, 552 U.S. 264, 266 (2008). On remand, the Minnesota Supreme Court chose to adopt the Teague standard, held Crawford did not apply retroactively, and again affirmed Danforth's conviction. Danforth v. State, 761 N.W.2d 493, 499 (Minn. 2009).
While those state-court proceedings were underway, Danforth also filed a petition for writ of habeas corpus in the district court. The petition was denied and Danforth appealed. A certificate of appealability was granted by the district court on August 26, 2005, on the sole issue of whether Crawford applies retroactively to cases on collateral review. A certificate of appealability was denied as to all the other issues raised in the petition. On June 5, 2007, we held Danforth's habeas proceedings in abeyance pending the Supreme Court decision in Danforth v. Minnesota. On July 15, 2009, Danforth's motion to continue the stay was denied, and on October 1, 2009, Danforth's certificate of appealability was expanded to include two additional issues. As a result, the following issues are now before us for consideration: (1) whether Crawford should be applied retroactively to Danforth's case; (2) whether the state trial court unreasonably interpreted pre-Crawford law regarding the admissibility of videotaped testimony; and (3) whether the videotaped statement possessed the requisite particularized guarantees of trustworthiness under Idaho v. Wright, 497 U.S. 805 (1990).
"In an appeal of a habeas petition, [w]e review the district court's findings of fact for clear error and its conclusions of law de novo." Hall v. Luebbers, 341 F.3d 706, 712 (8th Cir. 2003) (internal quotation marks and citation omitted). For habeas relief under 28 U.S.C. § 2254, an applicant must demonstrate the state court's adjudication "(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 proceeding." 28 U.S.C. § 2254(d). A decision is "contrary to" federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law" or if it "confront[ed] facts that are materially indistinguishable from a relevant Supreme Court precedent" but arrived at an opposite result. Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court "unreasonably applies" federal law when it "identifies the correct governing legal rule from [the Supreme] Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or "unreasonably extends a legal principle from [the Supreme Court's] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Id. at 407. A "federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411.
First, Danforth contends the admission of J.S.'s videotaped statement violated his Confrontation Clause rights in light of the Supreme Court's decision in Crawford v. Washington. According to Danforth, this court should retroactively apply Crawford to conclude J.S.'s statement was inadmissible because Danforth never had the opportunity to cross examine J.S. As Danforth concedes, however, the Crawford opinion was rendered after his case was final on direct review. Whether a new rule announced by the Supreme Court should apply retroactively to judgments in criminal cases that are already final on direct review is governed by Teague v. Lane, which holds new rules of constitutional law are not made retroactive to habeas petitions unless they "place[ ] certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe," or set forth "watershed rules of criminal procedure." 489 U.S. at 311 (internal quotation marks omitted).
There is no Eighth Circuit precedent addressing the issue of Crawford's retroactivity. However, we have commented in dicta that "the Crawford Court did not suggest that this doctrine would apply retroactively and the doctrine itself does not appear to fall within either of the two narrow exceptions to Teague v. Lane's non-retroactivity doctrine." Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir. 2004). Several other circuits have reached this issue and declined to apply Crawford retroactively. See, e.g., Lave v. Dretke, 444 F.3d 333 (5th Cir. 2006); Espy v. Massac, 443 F.3d 1362 (11th Cir. 2006); Bintz v. Bertrand, 403 F.3d 859 (7th Cir. 2005); Dorchy v. Jones, 398 F.3d 783 (6th Cir. 2005); Mungo v. Duncan, 393 F.3d 327 (2d Cir. 2004); Brown v. ...