The opinion of the court was delivered by: Timothy J Bommer United States Magistrate Judge
FINDINGS AND RECOMMENDATIONS
Petitioner, Alfred Lee Grayson, is a state prisoner proceeding with a counseled*fn1 petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner is currently serving a sentence of 26-years-to-life in prison after a jury convicted him of one count of murder in the first degree and one count of assault with a deadly weapon, with a sentence enhancement for use of a weapon. On remand from the Ninth Circuit, Petitioner raises one claim for relief: The introduction into evidence of hearsay statements made by the victim before she was killed violated Petitioner's Confrontation Clause rights under the Sixth Amendment. Specifically, Petitioner asserts that the victim's statement to police three days prior to her death that Petitioner had said to her that he "had to kill her because if he didn't he'd go back to jail for three years," admitted pursuant to a recently added statutory exception to the general bar on hearsay testimony, did not bear the required indicia of reliability to meet the requirements of Ohio v. Roberts, 448 U.S. 56 (1980). For the reasons stated herein, the federal habeas petition should be denied.
I. FACTUAL BACKGROUND*fn2
Defendant and the victim had a volatile marriage. Over the 20 plus years of their relationship, arguments and physical altercations were common. The police had been called to their residence on many occasions and, at the time of this incident, defendant was on probation for threatening the victim with a knife.
June 1996 was marked by many arguments between defendant and the victim. On June 16, 1996, Father's Day, the couple quarreled because the victim wanted defendant to mow the lawn. When defendant received a telephone call from another woman, things came to a head, and an argument ensued. The victim grabbed a knife and, when defendant stood up, the victim ran out of the house. Defendant followed.
Defendant stabbed the victim several times. When the victim's son tried to intervene, defendant stabbed him as well. The victim ran away, but fell down. Defendant leaned over her and stabbed her repeatedly, killing her. The victim suffered 32 stab wounds to her body, including at least 14 wounds to major organs and defensive wounds on her legs and hands. There were several eyewitnesses to this savage attack, some of whom described seeing defendant go back into the house to get another knife after the victim grabbed the first knife away from defendant. Three knives were found at the scene.
At trial, defendant admitted killing his wife but asserted he acted without premeditation or malice, and instead had simply "lost it" as a result of the day's events. The prosecution introduced evidence that defendant had previously threatened to kill the victim, and emphasized inconsistencies between defendant's trial testimony and statements he had made to investigators.
Judgment was entered against Petitioner in the Superior Court of Sacramento County, Case No. 96F04725, On September 3, 1999. The California Court of Appeal, Third Appellate District, affirmed Petitioner's conviction and sentence on September 27, 2002. The California Supreme Court denied review on December 11, 2002.
Thereafter, Petitioner, proceeding pro se, filed this federal petition for habeas corpus on August 12, 2003, in which he raised six claims for relief. Respondent answered the petition on January 21, 2004, and Petitioner filed a Traverse on April 26, 2004. The matter was referred to a United States Magistrate Judge, who recommended the petition be denied on all grounds. Docket No. 20, filed August 10, 2006. In ruling on Petitioner's Confrontation Clause claim, which Respondent had argued in his memorandum of points and authorities was procedurally barred, the court found as follows:
Without argument, in conclusory fashion, respondent claims this "issue is not properly before this Court" because petitioner's objection to the evidence covered only its use in support of the false imprisonment charge and did not specifically rely on the Confrontation Clause. As noted above, however, the state bears the burden of raising procedural default as a defense or it loses the right to assert the defense thereafter. Bennett [v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003)]. The state's burden includes demonstrating that the procedural rule has been regularly and consistently applied. Id. at 586. In this case, respondent has made no effort to satisfy his burden on this issue. Answer at 14-21. There is no bar to this court's consideration of petitioner's Confrontation Clause claim.
Id. at 13-14. Finding the claim was not procedurally barred, the court reached the merits. Pursuant to Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005) overruled by Whorton v. Bockting, 549 U.S. 406, 421 (2007), the court retroactively applied the Supreme Court's decision in Crawford v. Washington, 541 U.S. 36 (2004), and concluded that Petitioner's confrontation rights had not been violated. Id. at 14-19.
After reviewing objections by both Respondent and Petitioner to the Magistrate Judge's Findings and Recommendations, the district court adopted the Findings and Recommendations in full. Docket No. 22, filed September 11, 2006. The district court issued a Certificate of Appealability with regard to the Confrontation Clause claim, and Petitioner appealed the district court's decision to the Ninth Circuit Court of Appeal.
On August 13, 2008, the Ninth Circuit reversed and remanded, concluding that the district court did not correctly apply circuit precedent with regard to procedural default:
The State maintains . . . that Grayson's claim is procedurally barred and that the district court erred in concluding otherwise. We agree with the State that the district court misapplied the burden shifting framework outlined in Bennett v. Mueller, 322 F.3d 573 (9th Cir. 2003). Bennett holds that after the state adequately pleads a procedural bar defense, the petitioner must assert that the procedural bar is inadequate. Id. at 586. The State then bears the ultimate burden of demonstrating that the state procedural rule is adequate. Id. Here, the district court erred in requiring the State to shoulder its ultimate burden before Grayson had "place[d] [the] defense in issue." King v. LaMarque, 464 F.3d 963, 967 (9th Cir. 2006).
Although there is some question whether the State clearly raised a procedural bar defense, the district court treated the issue as having been raised in the State's responsive pleadings. Because the district court addressed the State's defense, we need not decide whether the State properly asserted a procedural bar defense when it raised the issue in its memorandum of points and authorities instead of its Answer. See Rules Governing Section 2254 Cases, Rule 5(b). However, because the district court misapplied Bennett, we vacate the judgment and remand to allow Grayson to meet his initial burden and the State to meet its ultimate burden.
Docket No. 39 [hereinafter Appellate Op.], at 3-4. The court also recognized that while the district court appropriately applied Crawford v. Washington retroactively to Petitioner's Confrontation Clause claim under then-existing circuit precedent, the Supreme Court had held in the interim that Crawford was not to be applied retroactively. Bockting, 549 U.S. at 421. As a result, the Ninth Circuit instructed that if this court reaches the merits of Petitioner's Confrontation Clause claim, it is to apply Ohio v. Roberts, 448 U.S. 56 (1980), the law at the time of the state court's decision.
After the case was remanded to the district court, the court appointed counsel to act on behalf of Petitioner. Docket No. 44 (Order Appointing Counsel). The parties have provided additional briefing on the issues remanded by the Ninth Circuit, and the case is ready for decision.
III. APPLICABLE LAW FOR FEDERAL HABEAS CORPUS
An application for writ of habeas corpus by a person in custody under judgment of a state court can only be granted for violations of the Constitution or laws of the United States. See 28 U.S.C. § 2254(a); see also Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). Petitioner filed this petition for writ of habeas corpus after April 24, 1996, thus the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies. See Lindh v. Murphy, 521 U.S. 320, 326 (1997). Under AEDPA, federal habeas corpus relief is not available for any claim decided on the merits in the state court proceedings unless the state court's 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 state court. See 28 U.S.C. § 2254(d); Perry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362, 402-03 (2000).
In applying AEDPA's standards, the federal court must "identify the state court decision that is appropriate for our review." Barker v. Fleming, 423 F.3d 1085, 1091 (9th Cir. 2005). "The relevant state court determination for purposes of AEDPA review is the last reasoned state court decision." Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008) (citations omitted). "Where there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). To the extent no such reasoned opinion exists, courts must conduct an independent review of the record to determine whether the state court clearly erred in its application of controlling federal law, and whether the state court's decision was objectively unreasonable. Delgado v. Lewis, 223 F.3d 976, 981-82 (9th Cir. 2000). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (citing Williams, 529 U.S. at 410). "When it is clear, however, that the state court has not decided an issue, we review that question de novo." Reynoso v.Giurbino, 462 F.3d 1099, 1109 (9th Cir. 2006) (citing Rompilla v. Beard, 545 U.S. 374, 377 (2005)).
IV. ANALYSIS OF PETITIONER'S CLAIM
Petitioner contends that a statement made by the victim to a police officer three days before her death that Petitioner had said to her he "had to kill her because if he didn't he'd go back to jail for three years" was admitted in violation of his Sixth Amendment right to confront the witnesses against him. Respondent maintains that this claim is procedurally barred or, in the alternative, that it should be denied on the merits.
1. Factual and Procedural Background Regarding the Statement Petitioner and the victim, his wife,*fn3 had a contentious relationship that lasted over twenty years. Rep.'s Tr. at 198. During this time, they often fought and threatened each other. Id. Their daughter testified at trial that she "knew they fought . . . every single day." Id. at 196. They were also not entirely faithful in their marriage. The victim's youngest of four children, Ricky, was fathered by someone other than Petitioner. ...