Richardson v. Newland (342 F. Supp. 2d 900, 2004)

AMENDED ORDER

SHUBB, District Judge.

Petitioner, a state prisoner proceeding with counsel, has filed this application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was referred to a United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1)(B) and Local General Order No. 262.

On September 13, 2004, the magistrate judge filed findings and recommendations herein which were served on all parties and which contained notice to all parties that any objections to the findings and recommendations were to be filed within twenty days. Respondents have filed objections to the findings and recommendations. Respondents have also filed a motion seeking an order directing that the writ will be granted only in the event that retrial of the case or a stay pending appeal does not occur within a reasonable time. Petitioner’s counsel has no opposition to the latter request.

In accordance with the provisions of 28 U.S.C. § 636(b)(1)(C) and Local Rule 72-304, this court has conducted a de novo review of this case. Having carefully reviewed the entire file, the court finds the findings and recommendations to be supported by the record and by proper analysis.

Accordingly, IT IS HEREBY ORDERED that:

1. The findings and recommendations filed September 13, 2004, are adopted in full; and

2. Petitioner’s application for a writ of habeas corpus is granted on his claim that the Confrontation Clause was violated by the admission into evidence, at the joint trial, of Michelle Garduno’s extrajudicial statements and in the denial of his motion for a severance unless the state grants petitioner a new trial within 120 days from the date of this order or a stay pending appeal is issued;

3. Petitioner’s application for a writ of habeas corpus is denied in all other respects; and

4. The Clerk of Court is directed to serve a copy of this order and the October 26, 2004 order on the parties, the California Department of Corrections, and the penal institution where petitioner is currently housed.

FINDINGS & RECOMMENDATIONS

DROZD, United States Magistrate Judge.

Petitioner is a state prisoner proceeding pro se with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges his 1992 conviction of first degree murder involving the personal use of a firearm. He claims that: (1) the trial court erred in denying his motion to change venue; (2) the trial court erred in failing to sever his trial from that of his co-defendant; (3) the trial court erred in admitting his co-defendant’s extrajudicial statements into evidence; (4) the trial court erred in denying his motion to suppress his confession; (5) his trial counsel rendered ineffective assistance; (6) his trial counsel had a conflict of interest; and (7) cumulative error requires reversal of his conviction. After a careful review of the entire record in this action, including the lodged records of the state court, this court has determined that the petition for habeas corpus should be granted on petitioner’s Confrontation Clause and severance claims and denied in all other respects.

FACTUAL BACKGROUND

Defendant made the following confession to police officers. On December 21, 1991, he awakened about 3 a.m. after four hours of sleep to go to the bathroom. He had quarreled with his wife, Linda Richardson, on the evening before about his desire for a divorce. He had decided “that it was, you know, me or her.” He got up and went to the bathroom. While there “I just told myself to do it.” He then walked to the spare room, grabbed a loaded pistol, returned to the bedroom and shot his wife once in the temple. As he was getting the gun he thought about where to shoot her so that she would not suffer. He knew that it was not “the right thing to do” but “it was just so quick that I didn’t think to stop before I did it.” The whole thing “mighta taken 5 to 10 minutes.” “I don’t believe I was mad. I just felt like it was the only thing I could do. I felt like it was what I had to do.” He suggested that he was motivated in part by the victim’s remark that she would kill him before she gave him a divorce. However, he admitted that he did not think “she had the nerve for it.” Defendant told the police that after the killing he decided the best thing to do was to move the body. He dragged her out to the jeep and drove from his home near Portola to Stockton where he left the jeep and the body in the Macy’s parking lot. He telephoned Michelle Garduño, a good friend, the young lady whose telephone call the evening before had precipitated the argument. She picked him up in her car and he informed her of the killing. He then spent the day with her as she was babysitting for a friend. That evening she gave him a ride home.

Garduño also made an out-of-court statement to the investigating officers. She related that after she picked defendant up at Macy’s he gave her an account of the killing after which, in the evening, she and a friend drove him to his home. Defendant was charged with murder and Garduño as an accessory. Garduño was found not guilty by verdict of the jury.

The day before trial in an informal conference the defendant indicated a desire to make an in limine motion. The exact nature of the motion is obscure since the conference was not of record; inferably it pertained to the statement given by Garduño to the police. When the matter came on for trial on July 14, 1992, the prosecutor spoke first, asserting that the motion “in effect, raises the issue of the separate trials under Aranda.” The prosecutor argued that the court had correctly decided that issue when it denied an earlier motion for severance by the co-defendant Michelle Garduño. The prosecutor argued that under People v. Keenan (1988) 46 Cal.3d 478, 250 Cal.Rptr. 550, 758 P.2d 1081, raised by defendant, the issue was antagonistic defenses, but there was no antagonism between the defenses of defendant and Garduño.

The defendant argued that there was such antagonism because of Garduno’s assertion in her statement to the police that before the killing defendant said he would “get rid of’ his wife. The prosecutor asserted that “the Aranda-Bruton Rule deals with the fact pattern and a fact situation which is dramatically different than the one before this Court.” He asserted that no Aranda problem existed because both defendants had confessed. He also asserted that the statement of Garduño would be admissible against defendant under hearsay exceptions even if there were a separate trial. The defendant disputed this assertion, citing, inter alia Cruz v. New York (1987), 481 U.S. 186 [107 S.Ct. 1714, 95 L.Ed.2d 162]. The court denied the motion in limine.

The next day on July 15, 1992, during jury selection, defendant made a motion to sever, again in an unreported chambers session. The matter was continued until the next morning. Again, the prosecutor argued first. He claimed that severance was unnecessary because the statements of the defendants would be cross-admissible in separate trials under hearsay exceptions. Defendant again complained of the prospect of admission of Garduno’s statement concerning his pre-offense statements about getting rid of his wife. He argued that no hearsay exception applied.

The trial court decided that without redaction the statement of Garduño would not be admissible against defendant. It directed deletion of references to defendant’s pre-offense statements and indicated the motion for severance would be denied. The defendant then moved to exclude his confession on the ground that it was involuntary and a violation of the right against self-incrimination. The prosecutor replied that the exclusion motion was untimely. The court denied the motion to suppress the confession and the motion to sever.

The prosecution commenced its case, adducing evidence as follows. Police officers located the body in the jeep in the Macy’s parking lot with a contact gunshot wound to the right side of the temple. Linda Richardson’s sister, Marcella Webb, went to defendant’s house shortly before 9 p.m. on December 21, 1991. She had a key and let herself in. Webb had been unsuccessful in her attempts earlier that day to reach her sister. She looked in the back bedroom to see if there were any clues to her sister’s whereabouts. She saw a bloodstain about three inches in diameter on the mattress, it had soaked through to the bottom. Webb went home.

Shortly after Webb arrived home defendant telephoned her and inquired if she knew where his wife was. She told him she did not and he said he would come to her house. He arrived and after a brief discussion she told him she was calling the sheriff. Deputy Sheriff Dwight Cline came to her house and spoke with them. Webb told Cline about the bloodstain out of defendant’s presence. Cline left. Webb asked defendant if he had done anything to her sister. He tearfully denied the accusation. When defendant left Webb’s home she called Cline and informed him.

Cline went to defendant’s house and when defendant arrived Cline told him that he needed more information for the missing persons report. Defendant invited him into the house. Cline asked if anything was missing from the house. Defendant invited him to accompany defendant in looking to see if anything was missing. Cline noticed that the mattress was missing. Defendant said he had taken it to Reno to be repaired. Cline saw various firearms in another bedroom and an empty leather holster. He also saw a single set of tire prints in the snow leading up to the deck in the backyard adjacent to the family room. He saw what appeared to be two bloodstains on the family room carpet. Detective Michael Gamberg came to defendant’s house and met Cline. After talking with Cline, Gamberg spoke to defendant. Because of inconsistencies in defendant’s statements Gamberg gave defendant a Miranda [v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966)] admonition. Defendant stated that he understood his rights and was willing to talk to the officers. In further questioning defendant told the officers what had happened to his wife. Defendant told Gamberg the murder weapon was in the spare bedroom under a leather apron. Gamberg went there and found a .22 caliber revolver. They took defendant to the sheriffs office where he made a videotaped statement.

At this point the prosecution offered the videotape and a typewritten transcript into evidence; they were admitted without objection. The videotape of defendant’s confession was played for the jury. Gamberg was examined and cross-examined on the interrogation of the defendant. He testified without objection that he was informed the autopsy showed ligature marks on the victim’s neck and that when asked about this defendant told Sergeant Rives where the rope was.

Detective Steven Hitch interviewed Gar-duño in Stockton on December 22, 1991. When the prosecution commenced an offer of a transcript of this interview defendant objected, “on the same basis that we argued at length before the beginning of the trial.” The trial court overruled the objection.

After Hitch was examined defendant asked for a bench conference. His counsel said that he wanted to put on the record a situation on page 26 of the Garduño transcript with respect to the rope underneath the bed. Counsel said the statement was inconsistent with defendant’s statement on the videotape. The prosecutor said that it was not inconsistent, and that in any event it was fully consistent with another statement that defendant had made to Detective Sergeant Rives in the Plumas County Jail. Defendant’s counsel disputed that latter assertion because in his view it was unclear whether defendant had conceded in answering Rives that he had the rope under the bed or only that he had used it to strangle his wife. The prosecutor suggested that Rives could be questioned on this point and defendant’s counsel said that would solve the problem.

The jury was then read a stipulation that the cause of the victim’s death was a gunshot wound to the right temple and that there was evidence of a ligature on the neck which, in the opinion of the pathologist did not contribute to her death.

Sergeant Larry Rives testified that when he was informed about the ligature marks he went to the jail and spoke to the defendant. Rives made the following statement to defendant: Okay, then the other thing [Garduño said] is, that she says you also strangled your wife with a piece of rope that was underneath the bed. I talked to the people doing the autopsy, they are doing it today, and they said that there are — or there is a quarter-inch ligature mark, a bruise on the neck.” Rives asked defendant if he did that. Defendant replied that he did and in response to a further question told Rives where the rope was located. Rives was cross-examined on his view of the meaning of defendant’s reply. Thereafter defendant objected to a reading of the redacted transcript of the interview of Garduño. He objected that so doing would violate his right to cross-examination and adopted the earlier arguments. The trial court overruled the objection. The transcript was read, including the following snippet:

“[Police Officer]: And she’s still breathing?”

“[Garduño]: Yeah”

“[Police Officer]: So I guess he goes somewhere, and he came back with the rope, or is the rope in his bedroom?”

“[Garduño]: No. He said he had it under the bed.”

PROCEDURAL BACKGROUND

On March 13, 1992, an information was filed in the Plumas County Superior Court charging petitioner with one count of murder, in violation of California Penal Code § 187. (Answer, Ex. 1(CT) at 11-12.) It was also alleged that petitioner personally used a firearm in the commission of the crime, within the meaning of California Penal Code § 12022.5. (Id.) In count II of the information, co-defendant Michelle Garduño was charged with being an accessory after the fact, in violation of California Penal Code § 32. (Id.)

Jury trial commenced on July 14, 1992. (Answer, Exs. 2, 3, 4, and 5(RT) at 1.) On July 29, 1992, the jury found petitioner guilty of first degree murder with the personal use of a firearm. (Id. at 1134.) Michelle Garduño was acquitted. (CT at 187.) On August 31, 1992, petitioner was sentenced to twenty-five years to life for the murder and a consecutive five year term for the personal use enhancement. (RT at 1148^49; CT at 257-58.)

On direct appeal, petitioner argued that “the trial court prejudicially erred in failing to sever his trial from that of a co-defendant, in refusing to require that all jurors be questioned in isolation, in failing to grant a change of venue, in denying a hearing on the admissibility of his confession, and in admitting evidence of the co-defendant’s out-of-court admissions.” (Answer, Ex. 9 at 1.) Petitioner’s conviction was affirmed in all respects by order of the California Court of Appeal for the Third Appellate District dated October 21, 1993. (Id. at 2.) Petitioner’s petition for rehearing was denied by the California Court of Appeal on November 16, 1993. (Answer, Ex. 10.) On January 19, 1994, the California Supreme Court summarily denied petitioner’s petition for review. (Answer, Ex. 11.) On December 13, 1996, petitioner filed a petition for writ of habeas corpus in the Plumas County Superior Court. (Answer, Ex. 12.) Therein, he claimed that his trial counsel rendered ineffective assistance and had a conflict of interest. (Id.) That petition was denied in a reasoned opinion dated May 5, 1997. (Answer, Ex. 13.) On May 23, 1997, petitioner filed a petition for writ of habeas corpus, containing the same claims, in the California Court of Appeal. (Answer, Ex. 14; “Petitioner’s Petition for Writ of Habeas Corpus,” filed by resp’t on October 25, 2001.) That petition was summarily denied on June 5, 1997. (Answer, Ex. 14; “Court’s Ruling of June 5, 1997,” filed by resp’t on October 25, 2001.) On June 26, 1997, petitioner filed a petition for writ of habeas corpus, containing the same claims, in the California Supreme Court. (Answer, Ex. 15.) That petition was summarily denied by order dated November 25, 1997. (Id.)

Petitioner filed a pro se petition for writ of habeas corpus in this court on December 12, 1997. On February 24, 1998, respondents filed an answer to the petition and on March 23, 1998, petitioner filed a traverse. By order dated December 22, 1998, petitioner’s amended motion to substitute Saor Stetler and James Thomson as counsel of record was granted. On June 11, 1999, petitioner filed an amended petition for writ of habeas corpus. By order dated July 31, 2000, petitioner’s motion for equitable tolling of the statute of limitations was granted and respondents’ motion to dismiss the amended petition was denied. On October 31, 2000, respondents filed an answer to the amended petition for writ of habeas corpus. On January 3, 2001, petitioner filed a traverse.

ANALYSIS

I. Standards of Review Applicable to Ha-beas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir.1994); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir.1985) (citing Engle v. Isaac, 456 U.S. 107, 119, 102 S.Ct. 1558, 71 L.Ed.2d 783 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir.2000); Middleton, 768 F.2d at 1085.

However, a “claim of error based upon a right not specifically guaranteed by the Constitution may nonetheless form a ground for federal habeas corpus relief where its impact so infects the entire trial that the resulting conviction violates the defendant’s right to due process.” Hines v. Enomoto, 658 F.2d 667, 673 (9th Cir. 1981) (citing Quigg v. Crist, 616 F.2d 1107 (9th Cir.1980)). See also Lisenba v. California, 314 U.S. 219, 236, 62 S.Ct. 280, 86 L.Ed. 166 (1941); Henry v. Keman, 197 F.3d 1021, 1031 (9th Cir.1999), cert. denied, 528 U.S. 1198, 120 S.Ct. 1262, 146 L.Ed.2d 117 (2000). In order to raise such a claim in a federal habeas corpus petition, the “error alleged must have resulted in a complete miscarriage of justice.” Hill v. United States, 368 U.S. 424, 428, 82 S.Ct. 468, 7 L.Ed.2d 417 (1962). See also Henry, 197 F.3d at 1031; Crisafi v. Oliver, 396 F.2d 293, 294-95 (9th Cir.1968). Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377, 92 S.Ct. 2174, 33 L.Ed.2d 1 (1972).

Because this action was filed after April 26, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) are applicable. See Lindh v. Murphy, 521 U.S. 320, 336, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Calderon v. United States Dist. Ct., 128 F.3d 1283, 1287 (9th Cir.1997). Section 2254(d) as amended by the AEDPA, sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—

(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). See also Penry v. Johnson, 532 U.S. 782, 792-93, 121 S.Ct. 1910, 150 L.Ed.2d 9 (2001); Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir.2001).

II. State Court Decisions

As discussed above, the California Court of Appeal rejected the claims contained in petitioner’s direct appeal in a reasoned opinion dated October 21, 1993. Petitioner’s petition for review was summarily denied by the California Supreme Court. In this circumstance, the court must “look through” the unexplained California Supreme Court decision to the last reasoned decision, the state appellate court’s decision, as the basis for the state courts’ judgment with respect to the claims contained in the direct appeal. See Shackleford v. Hubbard, 234 F.3d 1072, 1079 n. 2 (9th Cir.2000).

Petitioner’s claims of ineffective assistance of counsel and counsel’s alleged conflict of interest were raised for the first time on collateral review. The Plumas County Superior Court denied petitioner’s claims in a reasoned opinion dated May 5, 1997. Petitioner’s subsequent habeas petitions to the California Court of Appeals and California Supreme Court were summarily denied. Again, in this circumstance, this court will “look through” these unexplained decisions to the last reasoned decision, the state superior court’s decision, as the basis for the state courts’ judgment with respect to petitioner’s ineffective assistance of counsel claims.

III. Motion for Change of Venue

Petitioner’s first claim in the petition before this court is that the trial court erred in denying his motions for a change of venue. Citing Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507, 16 L.Ed.2d 600 (1966), petitioner contends that he was denied a fair trial because the media coverage surrounding the trial prejudiced the jurors against him. He argues that the trial should have been held in another county “where the jury pool would not have had the same exposure to the facts surrounding the case and the parties involved.” (Am. Pet. at 30.)

A. Facts

The record reflects that petitioner and co-defendant Michele Garduño filed a joint motion to change venue several months before trial. (CT at 42-68.) They argued that they could not receive a fair trial in Plumas County because of the “extensive, inflammatory and prejudicial” pretrial publicity concerning the case. (Id. at 43.) The motion was accompanied by copies of three radio news broadcasts on three separate days, a radio news broadcast on the day of petitioner’s preliminary hearing, a sheriffs department news release, four newspaper articles, a thank you letter to the community from the victim’s family published in the newspaper, and the victim’s obituary. (Id. at 46-57.) The trial court denied the motion for a change of venue without prejudice. (Id. at 76.) During jury voir dire, defense counsel twice renewed the motion for change of venue. (RT at 106-112; 397-99.) The court denied the motions without prejudice to their renewal at the end of voir dire. (Id. at 112, 399.) After voir dire was completed and petitioner had exhausted all of the peremptory challenges available to him, petitioner again renewed the motion for change of venue. (Id. at 561-62.) Petitioner’s counsel also requested additional peremptory challenges because of his belief that there were still people on the jury who had been prejudiced by the “publicity” and the “conversations in the community.” (Id. at 562.) These defense motions were also denied. (Id. at 564.)

The California Court of Appeal rejected petitioner’s argument in this regard because it concluded, after a review of the whole record, “that the jury was not influenced by any of the pretrial publicity and that it is not reasonably likely that the defendant was deprived of a fair and impartial trial by reason thereof.” (Opinion at 16.) The court examined the “five factors” relevant under California law in determining whether a change of venue motion should be granted: the gravity of the offense, the nature and extent of the news coverage, the size of the community, the status of the defendant in the community, and the popularity and prominence of the victim. See People v. Jennings, 53 Cal.3d 334, 359-60, 279 Cal.Rptr. 780, 807 P.2d 1009 (1991). The state appellate court found that: (1) the crime was “unspectacular;” (2) the pretrial publicity was “neither extensive nor inflammatory;” and (3) although seven of petitioner’s jurors had read something about the case prior to trial and two others had heard something about it by word of mouth, they “disclaimed detailed recollection of the media accounts and asserted an ability to judge the matter based on the evidence.” (Opinion at 16-18.) While the court also concluded that the small size and provincial nature of the community weighed on the side of a change of venue and that the status of petitioner and the victim in the community was a “neutral” factor, it ultimately determined that petitioner had received a fair trial. (Id.)

B. Law

The Sixth Amendment “guarantees to the criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors.” Irvin v. Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). See also Green v. White, 232 F.3d 671, 676 (9th Cir.2000). If prejudicial pretrial publicity makes it impossible to obtain an impartial jury, then the trial judge must grant the defendant’s motion for a change of venue. Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir.1997); Harris v. Pulley, 885 F.2d 1354, 1361 (9th Cir.1988). However, jurors are not required to be totally ignorant of the facts and issues involved in a case. Irvin, 366 U.S. at 722, 81 S.Ct. 1639; see also Murphy v. Florida, 421 U.S. 794, 800, 95 S.Ct. 2031, 44 L.Ed.2d 589 (1975); United States v. Sherwood, 98 F.3d 402, 410 (9th Cir.1996). It is sufficient if the jurors can lay aside their impressions or opinions and render a verdict based on the evidence presented in court. Holt v. United States, 218 U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021 (1910); United States v. Dischner, 974 F.2d 1502, 1525 (9th Cir.1992) (issue is whether jurors could impartially judge the defendant, not whether they remembered the case), overruled on other grounds by United States v. Morales, 108 F.3d 1031, 1035 n. 1 (9th Cir.1997).

The Ninth Circuit Court of Appeals employs a two-pronged test to determine if a petitioner’s rights to due process and a fair and impartial jury have been violated by excessive and unfair publicity. Gallego, 124 F.3d at 1070; Harris, 885 F.2d at 1361; Hart v. Stagner, 935 F.2d 1007, 1014 (9th Cir.1991). Specifically, a petitioner must show that either prejudice should be presumed or that actual prejudice existed. Turner v. Calderon, 281 F.3d 851, 865 (9th Cir.2002); Hart, 935 F.2d at 1014 (citing Murphy, 421 U.S. at 800, 95 S.Ct. 2031). Prejudice may be presumed if the record demonstrates the trial venue was saturated with prejudicial and inflammatory publicity about the crime; however, prejudice is presumed only in extreme circumstances. Gallego, 124 F.3d at 1070; United States v. Croft, 124 F.3d 1109, 1115 (9th Cir.1997). See also Rideau v. Louisiana, 373 U.S. 723, 83 S.Ct. 1417,10 L.Ed.2d 663 (1963) (prejudice presumed where the case involved the televising of an in-jail twenty minute interrogation of the defendant by the police in which the defendant confessed to the murder for which he was subsequently convicted); Estes v. Texas, 381 U.S. 532, 85 S.Ct. 1628, 14 L.Ed.2d 543 (1965) (prejudice presumed where the press was allowed to sit within the bar of the court and to overrun it with television equipment); Sheppard, 384 U.S. at 357, 362, 86 S.Ct. 1507 (prejudice presumed where media accounts contained inflammatory, prejudicial information that was not admissible at trial). Actual prejudice, on the other hand, exists if the jurors demonstrated actual partiality or hostility. See Irvin, 366 U.S. at 728, 81 S.Ct. 1639 (actual prejudice found where eight of the twelve empaneled jurors had already formed the opinion that the defendant was guilty, and 268 of the 430 potential jurors were excused for cause because they indicated some degree of belief in the defendant’s guilt). Actual prejudice may also be found where the degree of adverse pretrial publicity has created a community-wide sentiment against the defendant, such that the jurors’ claims that they can be impartial should not be believed. Id.; Patton v. Yount, 467 U.S. 1025, 1031, 104 S.Ct. 2885, 81 L.Ed.2d 847 (1984).

The duty of a federal court reviewing such a claim in a habeas corpus proceeding is to “make an independent review of the record to determine whether there was such a degree of prejudice against the petitioner that a fair trial was impossible.” Harris, 885 F.2d at 1360 (quoting Bashor v. Risley, 730 F.2d 1228, 1234 (9th Cir.1984)). To this end, a “reviewing court must independently examine the news reports for volume, content and timing.” Harris, 885 F.2d at 1360. A court must also consider whether the jurors had such fixed opinions they could not impartially judge the guilt of the defendant. Patton, 467 U.S. at 1035, 104 S.Ct. 2885.

C. Analysis

The murder in this case occurred in Plumas County, with a population of approximately 20,000 residents. (CT at 54.) Three panels of prospective jurors, totaling 160 persons, were questioned. (RT at 504.) The Feather River Bulletin, the Portola Reporter, the Chester Progressive, the Quincy Bulletin, the Indian Valley Record, the Greenville Record, and the Sacramento Bee ran articles about the case. (Id. at 135, 275, 358, 593, 600, 602.) Some of these stories were identical, differing only in the masthead. (Id. at 135, 570, 769.) Petitioner was arrested on December 22, 1991. On that same date, the Plumas County Sheriffs Department issued a news release about the arrest. On December 23, 27, and 31, 1991, the local radio station issued reports about the story, which aired no more than three times on those dates. (CT at 45-46.) On December 31, 1991, the Feather River Bulletin (and, presumably, the other local papers mentioned during jury voir dire) ran a story on the arrest. (Id. at 51-53.) The Sacramento Bee also ran a news story on the case. (Id. at 54.) On March 13, 1992, the local radio station covered the preliminary hearing. (Id. at 49.) The local news coverage included: (1) information that the victim had been shot in the head and then transported to Stockton; (2) the fact that petitioner was the suspect in the murder; (3) details about the victim and her job as a preschool teacher’s aide; (4) the fact that the District Attorney was considering whether to seek the death penalty; (5) information that petitioner’s girlfriend had been charged with being an accessory and that petitioner had told her about the crime; (6) information that petitioner had confessed to the crime; and (7) the fact that the California Attorney General’s Office was going to prosecute the case instead of the Plumas County District Attorney’s Office. The Sacramento Bee reported further details of the crime, including that petitioner had confessed to killing his wife, that he had “pondered” prior to killing his wife and that he strangled the victim when she did not die immediately. (Id. at 54.) The Feather River Bulletin included a picture of petitioner in an orange jumpsuit and shackles. (Id. at 51-52.)

This court accepts petitioner’s assertion that there was substantial media coverage of his case. However, after reviewing the state court record, the undersigned agrees with the California Court of Appeal’s conclusion that the nature of the news coverage was primarily factual and not unduly inflammatory. Further, most of the media coverage took place at least six months before jury selection in the case commenced. Television coverage was minimal. After reading the newspaper articles and other material submitted by the petitioner, this court concludes that the record does not reflect a “general atmosphere in the community or courtroom [which was] sufficiently inflammatory and prejudicial to deny [petitioner his] right to a fair and impartial jury at trial.” See Harris, 885 F.2d at 1363 (quoting Murphy, 421 U.S. at 802, 95 S.Ct. 2031). Therefore, prejudice cannot be presumed.

This court also agrees with the conclusion of the California Court of Appeal that there was no actual prejudice on the part of the jurors at petitioner’s trial. While there was extensive information about the case in the local media, the coverage was not nearly so prejudicial as that found in Irvin, which involved a “barrage of newspaper headlines, articles, cartoons and pictures ... unleashed against ... [the defendant] during the six or seven months preceding his trial.” 366 U.S. at 725-26, 81 S.Ct. 1639. Further, here, although the potential jury pool learned from media reports that petitioner had admitted to the killing, the identity of the killer was never at issue at petitioner’s trial. Rather, the sole issue was whether the murder was of the first or second degree. The only coverage relevant to that issue was found in the Sacramento Bee, not a local newspaper, in which the newspaper article informed the readers that petitioner had “pondered” before killing his wife. (See CT at 54.) However, as explained below, that information did not unduly influence the jury pool.

During voir dire, the jurors were questioned individually regarding their exposure to media accounts of the case. For example, juror Carpenter denied having heard about the case prior to coming to court and stated that there was nothing that might make it difficult for him to judge the case fairly and impartially (RT at 477); juror Zunino had heard very little about the case and only from “word of mouth,” and could not think of any reason why he could not judge the case fairly and impartially (id. at 157-58); juror Hermo had just heard about the case from a friend and could not think of anything that would make it difficult for her to judge the case fairly and impartially (id. at 307, 342-43); juror Murray had read some newspaper articles about the case but had not formed an opinion as to petitioner’s guilt or innocence and believed he would not be “biased or influenced” (id. at 134-35, 183); and juror Janney had read about the case in the newspaper but could “set that aside” and judge the case only on the evidence (id. at 546-48).

Out of the one hundred-sixty potential jurors, twenty-six were excused for cause. Even assuming that all of these jurors were excused due to concerns regarding their exposure to pretrial publicity, however, actual prejudice on the part of trial jurors would not be demonstrated. Federal courts have found no actual prejudice when a similar proportion of jurors were excused because of prejudicial publicity. See, e.g., Murphy, 421 U.S. at 803, 95 S.Ct. 2031 (no actual prejudice found where twenty of seventy-eight potential jurors were excused for partiality); Jeffries v. Blodgett, 5 F.3d 1180, 1189 (9th Cir.1993) (finding no prejudice where almost all the venire members had read about the trial, fourteen of one hundred eighty were excused for cause or potential prejudice and all the jurors swore they could decide impartially). All of the jurors at petitioner’s trial denied having fixed opinions as to petitioner’s guilt which could not be changed by the evidence admitted at trial. After a review of the record, the court finds that none of the jurors’ remarks during voir dire indicate partiality, fixed opinion, or the inability to decide the case based solely on the evidence presented at trial.

The opinion of the California courts that petitioner’s motions for change of venue were properly denied did not result in a decision that was contrary to, or an unreasonable application of, clearly established federal law. For the reasons set forth above, petitioner has failed to show that media coverage of his arrest and trial denied him the right to a fair trial in the venue in which it was conducted. Accordingly, petitioner is not entitled to relief as to this claim.

IV. Motion to Sever ¡Admission of Co-Defendant’s Statements

Petitioner claims that his rights pursuant to the Fifth, Sixth and Fourteenth Amendments were violated by the trial court’s admission of a redacted version of co-defendant Michelle Garduno’s statements to police and the court’s refusal to sever petitioner’s trial from that of Gardu-ño. The court will address these related claims below.

A. Facts

1. Motion to Sever

The record reflects that Garduno’s counsel filed a motion for separate trials on April 9, 1992. (CT at 23-29.) The motion was based on two arguments: (1) that it would be unduly prejudicial for Ms. Gardu-ño to be tried with petitioner; and (2) that petitioner could give exonerating testimony on behalf of Garduño at a separate trial. (Id.) At the April 20, 1992 hearing on this motion, the prosecutor gave notice that he intended to introduce the statements of both petitioner and Garduño to police at the joint trial. (Ex. 21 in Support of Answer, filed October 31, 2000, at 9.) Petitioner did not join the motion to sever. (CT at 41.)

On July 14, 1992, petitioner’ counsel made a motion in limine to sever his trial from Garduno’s trial. (RT at 1-25.) Counsel for petitioner argued that severance was required because: (1) the prosecutor intended to introduce Garduno’s extrajudicial statements against petitioner; and (2) Garduño, according to her counsel, might not take the stand and, therefore, petitioner would not be able to cross-examine her about the statements. (Id. at 6-7, 9.) Petitioner’s trial counsel argued that the statements provided “substantially incriminating evidence on the chief point in this trial, which is the degree of culpability” and that this evidence was inconsistent with what petitioner had said in his statement to the police. (Id. at 7-8.) Counsel also argued that Garduño and petitioner had inconsistent defenses; to wit, petitioner’s position was that he acted without forethought, while Garduno’s statements implied that he premeditated the killing. (Id. at 5-7.) Specifically, petitioner’s counsel objected to Garduno’s statement that petitioner told her he wanted to “get rid of’ his wife. (Id. at 6.) In response, the prosecutor argued that Garduno’s statement would be admissible against petitioner in a separate trial because it qualified as an exception to the hearsay rule under the California Evidence Code; therefore, there was no need for a severance. (Id. at 10-11, 13.) The prosecution attempted to distinguish Aranda and Bruton on the basis that because both petitioner and Garduño had confessed, the confession of one co-defendant was not being offered against a co-defendant who had not confessed. (Id. at 12.) Petitioner’s counsel argued that the statements would not be admissible against petitioner in a separate trial. (Id. at 14-16.) After hearing argument, the trial court denied the motion to sever. (Id. at 25.)

Later, the issue of severance was raised again by the trial court sua sponte. (Id. at 317-18.) The judge asked the parties to distinguish between the Supreme Court decisions in Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) and Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). (Answer at 20, Traverse at 12.) The prosecutor discussed the decisions in several cases in which jointly tried defendants had both confessed, as was the case at petitioner’s trial. (RT at 320-34.) See Lee v. Illinois, 476 U.S. 530, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Cruz, 481 U.S. 186, 107 S.Ct. 1714; Parker, 442 U.S. 62, 99 S.Ct. 2132; Douglas v. Alabama, 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934 (1965). He noted that petitioner was not challenging his confession. (RT at 321.) In an apparent attempt to counter this argument, counsel for petitioner argued that both petitioner’s and Garduno’s confessions were involuntary. (Id. at 415-18.) The court again declined to grant a severance, stating as follows:

All right. That would be the ruling; that the Court sees the statement of Mrs. Garduño as, in effect, covering two topics; one is the physical evidence of the murder or the alleged murder, homicide; and the other pertaining to events transpiring up to the homicide, which are verbal communications back and forth.

The Court does find the part regarding the circumstances of the homicide, the physical circumstances of the homicide, rehable. And the Court finds that these statements regarding the communications prior to the homicide between Mrs. Garduño and Mr. Richardson to be unreliable from the standpoint that Mrs. Garduño could have been theoretically a suspect as an accomplice, at the time she gave the statement.

So the court will — so Ms. Garduno’s statement in its present form would be inadmissible. And — but the Court would consider the redaction, and find it admissible with the deletion of references to the communications prior to the homicide.

(Id. at 458.)

The trial court then ordered that the parties agree upon a written transcript that could be submitted in lieu of editing the tape recording of Garduno’s statements. (Id. at 458-59.) Immediately after this ruling, petitioner’s counsel moved to exclude petitioner’s confession from admission into evidence on the grounds that it was “taken non-voluntarily and in circumstances which make it a violation of right against self-incrimination.” (Id. at 459.) In this regard, defense counsel argued as follows:

The motion, your Honor, we believe becomes timely because of the Court’s ruling. It substantially changes whether or not my client would take the stand, because, obviously now if he takes the stand, the information that has been redacted comes in a different fashion on rebuttal. Consequently, it changes the focus of the case. It changes the desire of the Defense to have the Defendant take the stand. And consequently, changes trial tactics to the point that the confession, which probably is not a voluntary confession, becomes a different question now from the point of view of trial tactics.

(Id. at 459.) The prosecutor countered that defense counsel was

well aware, when he represented several days and several months ago, that his client would be taking the stand. That regardless whether Ms. Garduño testified or did not testify, whether her statement was admitted directly or in rebuttal, that if his client testified, that the Garduño statement could come in against him, and that it would be available for impeachment ....

(Id. at 460.) The prosecutor described the motion to suppress petitioner’s confession as manipulative and “spurious.” (Id.)

The trial court summarily denied the defense motion to exclude petitioner’s confession. (Id.) The court subsequently accepted a redacted version of Garduno’s statement to be read to the jury at petitioner’s trial. (See Am. Pet., Ex.6.) The prosecutor represented that he would make no reference to the redacted portions. (RT at 460-61.) The redacted statement was read to the jury. (Id. at 878-913.) Although the redacted statement did not contain reference to petitioner’s desire to “get rid of’ his wife, Garduno’s assertions that petitioner told her he “kept going out in the hallway and going back and forth, back and forth” before he shot the victim, and that the rope apparently used to strangle the victim was under the bed, remained. (Id.)

At trial Detective Gamberg testified that when he lifted the mattress in petitioner’s house and looked under the bed, he saw no evidence that anything was regularly stored or kept underneath. (Id. at 806.) He also testified that the rope was found by police in a room along with “a lot of spare parts and motorcycles, and other things in it.” (Id. at 814.) On cross-examination, Detective Gamberg testified that he looked under petitioner’s bed because “we had learned that there was a fishing stringer that we ultimately located, that was allegedly left under the bed; and that’s where that came to mind.” (Id. at 794.) He conceded, however, that based upon the investigation at the scene there was no indication that the fishing stringer had in fact been under the bed before the murder. (Id.)

Petitioner testified in his own defense at trial. On cross-examination, petitioner was asked whether he had told Garduño that he thought he, should “get rid of’ his wife. (Id. at 958.) He admitted making these statements but claimed that he meant to divorce her, not to kill her. (Id. at 958-59.) He also denied telling Gardu-ño or the police that the rope that he used to strangle his wife was under the bed. (Id. at 962, 966-67.)

In the petition pending before this court petitioner argues that the introduction of Garduno’s redacted statement violated his Sixth Amendment rights to confront the witnesses against him and to the effective assistance of counsel, his Fifth Amendment right against self-incrimination and his Fourteenth Amendment due process rights. He argues that Garduno’s statement differed from his own confession with regard to the issue of premeditation. Specifically, he points to that part of Gardu-no’s statement wherein she stated that petitioner “kept going out in the hallway and going back and forth, back and forth” before he shot the victim, and her statement that the rope was under the bed. He notes that he did not admit pacing the hallway and that he told police that the rope was in the spare bedroom. Petitioner argues that the prosecutor “relied primarily upon Garduno’s statements to convince the jury that petitioner committed first degree murder instead of second degree murder or manslaughter.” (Am. Pet. at 38.)

With regard to his Fifth Amendment argument, petitioner states that when his motions for severance and to exclude his confession were denied, he was “forced to testify in his own behalf or risk the inevitable adverse inference the jury would draw from his decision not to testify.” (Id. at 31.) He notes that the prosecution was allowed to cross-examine him regarding all of the statements he made to Garduño, including the statements that had been redacted. (Traverse at 13.) He contends, “the issue in this case is whether the introduction of an inculpating confession from a co-defendant who would not testify would violate Bruton and require a severance.” (Id. at 14.) Respondents, on the other hand, contend that petitioner’s argument before the Court of Appeal was essentially that the trial judge had erred in allowing Garduno’s redacted statement to be admitted into evidence. Respondents argue that the state appellate court’s decision on this evidentiary question was correct and certainly not “contrary to any Supreme Court ruling.” (Answer at 21.)

After addressing pertinent federal and state authorities, the California Court of Appeal concluded that the trial court did not err in denying petitioner’s motions to sever. It found that Garduno’s statement was “potentially admissible” at a joint trial because “the statements of defendant were within the exception for admissions of a party (Evid.Code § 1220) and those of Garduño concerning what defendant had told her were within the reach of the hearsay exception for declarations against interest (Evid.Code § 1280).” (Opinion at 11.) The state appellate court noted that at the time of the hearing on the motion to sever:

the only significant discrepancy offered the court between Garduno’s statement and defendant’s confession lay in her assertion that defendant had spoken of “getting rid of’ his wife on occasions before the killing. Since the trial court directed that Garduno’s statement be redacted to remove this discrepancy there was no abuse of discretion under the Bmtorir-Aranda [sic] in denying the motion to sever.

(Id. at 12.) Therefore, according to the California Court of Appeal, the “facts as they appeared] at the time of the hearing on the motion” justified the court’s decision. (Id.)

2. Admission of Garduno’s Statement

In a related argument, petitioner contends that Garduno’s statements to police should not have been admitted at trial because they constituted inadmissible hearsay, thereby violating his right to confrontation, cross-examination and due process. In rejecting these arguments, the California Court of Appeal concluded that all of Garduno’s statements, except those about the location of the rope, were admissible hearsay, but that even if the rope comments were inadmissible, there was no prejudice because those statements came in by way of another witness. The court reasoned as follows:

For the reasons given, Garduno’s statements were admissible at the point of defendant’s ultimate objection except for her assertion that defendant told her the rope he used to strangle his wife was under the bed. That statement arguably might be found admissible under Lee in light of defendant’s statement to Rives. We need not examine that prospect. By the time Garduno’s redacted statement was read to the jury it had already been told, in the testimony of Rives, to which no objection was made, that she had told the investigating officers that defendant said the rope was under the bed. The reiteration of that information in reading her statement, if error, was categorically harmless.

(Id. at 12-13.)

As discussed, the record reflects that petitioner initially objected only to the admission of that portion of Garduno’s statement that referred to petitioner’s stated desire to “get rid of’ his wife. (RT at 416, 455.) He argued that these statements were barred by Cruz v. New York, 481 U.S. 186, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987). (Id. at 455.) The objected-to statements were later ordered redacted. (Id. at 458.) Subsequently, counsel requested that the statements regarding the location of the rope also be redacted. (Id. at 830.) In response, the prosecution contended that Garduno’s statement about the rope was consistent with the statements made by petitioner to Detective Rives; therefore, it should not be redacted. (Id. at 831-32.) Defense counsel then argued that petitioner’s statement to Rives was ambiguous and that Rives should be available for cross-examination. (Id. at 832-33.) Rives was later called as a witness and cross-examined on the statement about the location of the rope. (Id. at 862-76.) He testified that he believed petitioner was responding in the affirmative to both parts of his question to petitioner on this subject. (Id. at 868, 872.) Ultimately, the statements about the rope were not redacted from Garduno’s statement.

Respondents contend that the admission of Garduno’s comments regarding the statements about the rope was not prejudicial because defense counsel knew these statements would come into evidence through the tape recording of petitioner’s interview with Detective Rives. Respondents argue that the admission of the Gar-duño statements did not force petitioner to testify because “it had always been petitioner’s trial strategy to testify in an attempt to convince the jury that he neither premeditated nor deliberated the murder” and that petitioner had “always” intended to testify in order to prevent Garduño from being convicted. (Answer at 24.) Finally, respondents argue that Garduno’s statement was sufficiently reliable to be admissible in a joint trial even though she did not testify. (Id. at 24-25.)

Petitioner contends that, while he intended to testify only if necessary to exculpate Garduño from the charges against her, he ultimately was forced to testify because of the court’s rulings on severance, admission of the redacted statement and the admissibility of his confession. (Traverse at 13.) He alleges that the factual dispute as to this issue entitles him to an evidentiary hearing. (Id.)

B. Law

1. Severance

A court may grant habeas relief based on a state court’s decision to deny a motion for severance only if the joint trial was so prejudicial that it denied a petitioner his right to a fair trial. Zafiro v. United States, 506 U.S. 534, 538-39, 113 S.Ct. 933, 122 L.Ed.2d 317 (1993) (court must decide if “there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence”); United States v. Lane, 474 U.S. 438, 446 n. 8, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986) (“misjoinder would rise to the level of a constitutional violation only if it results in prejudice so great as to deny a defendant his Fifth Amendment right to a fair trial”); Featherstone v. Estelle, 948 F.2d 1497, 1503 (9th Cir.1991) (same). Petitioner bears the burden of proving that the denial of severance rendered his trial fundamentally unfaii’, Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir.1997), and must establish that prejudice arising from the failure to sever was so “clear, manifest, and undue” that he was denied a fair trial. Lambright v. Stewart, 191 F.3d 1181, 1185 (9th Cir.1999) (quoting United States v. Throckmorton, 87 F.3d 1069, 1071-72 (9th Cir.1996)). See also United States v. Cruz, 127 F.3d 791, 798 (9th Cir.1997) (moving party must demonstrate that the joint trial impinged on a fundamental trial right or compromised the fairness of the proceedings in a tangible way).

On habeas review, federal courts neither depend on the state law governing severance in state trials, Grisby, 130 F.3d at 370 (citing Hollins v. Dep’t of Corrections, State of Iowa, 969 F.2d 606, 608 (8th Cir.1992)), nor consider procedural rights to a severance afforded to criminal defendants in the federal criminal justice system. Id. Rather, the relevant question is whether the state proceedings satisfied due process. Id.; see also Cooper v. McGrath, 314 F.Supp.2d 967, 983 (N.D.Cal.2004).

2. Confrontation Clause

The Confrontation Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.... ” U.S. Const, amend. VI. This right, extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189, 107 S.Ct. 1714, 95 L.Ed.2d 162 (1987) (citing Pointer v. Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965)). “The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact.” Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (quoting Maryland v. Craig, 497 U.S. 836, 845, 110 S.Ct. 3157, 111 L.Ed.2d 666 (1990)). See also Davis v. Alaska, 415 U.S. 308, 315, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974) (a primary interest secured by the Confrontation Clause is the right of cross-examination). Nonetheless, at the time of petitioner’s trial, federal law provided that an unavailable witness’s out-of-court statement could be admitted against a criminal defendant and not run afoul of the Confrontation Clause so long as it bore adequate indicia of reliability— i.e., fell within a “firmly rooted hearsay exception” or otherwise bore “particularized guarantees of trustworthiness” such that adversarial testing would be expected to add little, if anything, to the statement’s reliability. Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980); Lilly, 527 U.S. at 124-25, 119 S.Ct. 1887. Notably, accomplice confessions that incriminated a criminal defendant were not deemed to fall within a firmly rooted exception to the hearsay rule. Lilly, 527 U.S. at 134, 119 S.Ct. 1887. Therefore, incriminating statements by a non-testifying co-defendant could be admitted against another defendant only if they satisfied the “particularized guarantees of trustworthiness” prong of Roberts. Lilly, 527 U.S. at 134-37, 119 S.Ct. 1887. See also Lee v. Illinois, 476 U.S. 530, 543, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986); Forn v. Homung, 343 F.3d 990, 996-97 (9th Cir.2003).

The United States Supreme Court has since held that the Confrontation Clause bars the state from introducing into evidence out-of-court statements which are testimonial in nature unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable. Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). In so holding, the Supreme Court observed that: “[dispensing with confrontation because testimony is obviously reliable is akin to dispensing with a jury trial because a defendant is obviously guilty. This is not what the Sixth Amendment prescribes.” Id., 124 S.Ct. at 1371. In reaching this conclusion, the Supreme Court reviewed its prior decisions in the area and found that they had been “largely consistent” with the principles set forth in Crawford (id., 124 S.Ct. at 1367) and “faithful” to the “original meaning of the Confrontation Clause.” Id., 124 S.Ct. at 1369. The court noted:

Our cases have thus remained faithful to the Framers’ understanding: Testimonial statements of witnesses absent from trial have been admitted only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine.

Id. See also Bruton v. United States, 391 U.S. 123, 135, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968); Lee, 476 U.S. at 539, 106 S.Ct. 2056 (state’s attempt to admit co-defendant’s confession to double murder where no right to cross-examination rejected); Cruz, 481 U.S. at 187-88, 107 S.Ct. 1714 (where a non-testifying co-defendant’s confession incriminating the defendant is not directly admissible against the defendant, the Confrontation Clause bars its admission at their joint trial, even if the jury is instructed not to consider it against the defendant and even if the defendant’s own confession is admitted against him); Lilly, 527 U.S. at 139, 119 S.Ct. 1887 (admission of a non-testifying accomplice’s confession violated the defendant’s right to confront his accuser notwithstanding the hearsay exception for declarations against penal interest).

At the request of this court, the parties have submitted supplemental briefs addressing the applicability of the Crawford decision, if any, to the instant case. Respondents argue that the Crawford decision constitutes a “new rule” which cannot be applied to this case under the Supreme Court’s decision in Teague v. Lane, 489 U.S. 288, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989). Petitioner asserts that Crawford did not announce a “new rule” of constitutional law, but merely applied traditional Confrontation Clause principles to the facts presented in that case. Petitioner contends that because Ms. Garduno’s statement was clearly testimonial and was admitted without proper adversarial testing as required by the Sixth Amendment, the decision in Crawford mandates the granting of habeas relief here.

In Teague the United States Supreme Court held that new rules of criminal procedure are generally not applicable on habeas review. 489 U.S. at 301, 310, 109 S.Ct. 1060; see also Gonzalez v. Pliler, 341 F.3d 897, 904 (9th Cir.2003). Thus, “[w]ith few exceptions, the Teague non-retroactivity doctrine prohibits courts from announcing new rules of law in federal habeas proceedings.” Hoffman v. Arave, 236 F.3d 523, 537 (9th Cir.), cert. denied, 534 U.S. 944, 122 S.Ct. 323, 151 L.Ed.2d 241 (2001). However, a decision announces a “new rule” only if it “ ‘breaks new ground or imposes a new obligation on the States or the Federal Government [or] if the result was not dictated by precedent existing at the time the defendant’s conviction became final.’ ” Jones v. Smith, 231 F.3d 1227, 1236 (9th Cir.2000) (quoting Teague, 489 U.S. at 301, 109 S.Ct. 1060). See also Hoffman, 236 F.3d at 537. Thus, “ ‘[t]o determine what counts as a new rule, Teague requires courts to ask whether the rule a habeas petitioner seeks can be meaningfully distinguished from that established by binding precedent at the time his state court conviction became final.’ ” Hoffman, 236 F.3d at 537 (quoting Wright v. West, 505 U.S. 277, 304, 112 S.Ct. 2482, 120 L.Ed.2d 225 (1992) (O’Con-nor, J., concurring)). See also Gonzalez, 341 F.3d at 904.

C. Analysis

As described above, habeas corpus relief in this