Whorton v. Bockting , 127 S. Ct. 1173 ( 2007 )

127 S. Ct. 1173 (2007)

Glen WHORTON, Director, Nevada Department of Corrections, Petitioner,
v.
Marvin Howard BOCKTING.

No. 05-595.

Supreme Court of United States.

Argued November 1, 2006. Decided February 28, 2007.

Attorney General George J. Chanos, for petitioner, by Irving L. Gornstein for the United States as amicus curiae, by special leave of the Court, supporting the petitioner.

Frances A. Forsman, Las Vegas, NV, for respondent.

George J. Chanos, Attorney General of the State of Nevada, Gerald Gardner, Chief Deputy Attorney General, Counsel of Record, Victor-Hugo Schulze, II, Senior Deputy Attorney General, Rene L. Hulse, Senior Deputy Attorney General, Las Vegas, NV, for Petitioner.

Franny A. Forsman, Counsel of Record, Federal Public Defender, Michael Pescetta, Assistant Federal Public Defender for District of Nevada, Las Vegas, NV, for Respondent.

Justice ALITO delivered the opinion of the Court.

This case presents the question whether, under the rules set out in Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989), our decision in Crawford v. Washington, 541 U.S. 36, 124 S. Ct. 1354, 158 L. Ed. 2d 177 (2004), is retroactive to cases already final on direct review. We hold that it is not.

I

A

Respondent Marvin Bockting lived in Las Vegas, Nevada, with his wife, Laura Bockting, their 3-year-old daughter Honesty, and Laura's 6-year-old daughter from a previous relationship, Autumn. One night, while respondent was at work, Autumn awoke from a dream crying, but she refused to tell her mother what was wrong, explaining: "``[D]addy said you would make him leave and that he would beat my butt if I told you.'" App. 119. After her mother reassured her, Autumn said that respondent had frequently forced her to engage in numerous and varied sexual acts with him. Ibid.

The next day, Laura Bockting confronted respondent and asked him to leave the house. He did so but denied any wrongdoing. Two days later, Laura called a rape crisis hotline and brought Autumn to the hospital for an examination. At the hospital, Detective Charles Zinovitch from the Las Vegas Metropolitan Police Department Sexual Assault Unit attempted to interview Autumn but found her too distressed to discuss the assaults. Detective Zinovitch then ordered a rape examination, which revealed strong physical evidence of sexual assaults. See Findings of Fact and Conclusions of Law and Order in Nevada v. Bockting, Case No. C-83110 (D.Nev., Sept. 5, 1994); App. 47, 119.

Two days later, Detective Zinovitch interviewed Autumn in the presence of her mother, and at that time, Autumn provided a detailed description of acts of sexual assault carried out by respondent; Autumn also demonstrated those acts using anatomically correct dolls. Id., at 47-48; 119. Respondent was then arrested, and a state grand jury indicted him on four counts of sexual assault on a minor under 14 years of age.

At respondent's preliminary hearing, Autumn testified that she understood the difference between a truth and a lie, but she became upset when asked about the assaults. Although she initially agreed that respondent had touched her in a way that "[she] didn't think he was supposed to touch [her]," id., at 14, she later stated that she could not remember how respondent had touched her or what she had told her mother or the detective, id., at 19-21. The trial court, however, found the testimony of Laura Bockting and Detective Zinovitch to be sufficient to hold respondent for trial.

At trial, the court held a hearing outside the presence of the jury to determine whether Autumn could testify. After it became apparent that Autumn was too distressed to be sworn in, id., at 25-26, the State moved under Nev.Rev.Stat. § 51.385 (2003)^[1] to allow Laura Bockting and Detective Zinovitch to recount Autumn's statements regarding the sexual assaults. App. 25-27. Under the Nevada statute, out-of-court statements made by a child under 10 years of age describing acts of sexual assault or physical abuse of the child may be admitted if the court finds that the child is unavailable or unable to testify and that "the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness." § 51.385(1)(a). Over defense counsel's objection that admission of this testimony would violate the Confrontation Clause, id., at 27-28, the trial court found sufficient evidence of reliability to satisfy § 51.385.

As a result of this ruling, Laura Bockting and Detective Zinovitch were permitted at trial to recount Autumn's out-of-court statements about the assaults. Laura Bockting also testified that respondent was the only male who had had the opportunity to assault Autumn. In addition, the prosecution introduced evidence regarding Autumn's medical exam. Respondent testified in his own defense and denied the assaults, and the defense brought out the fact that Autumn, unlike many children her age, had acquired some knowledge about sexual acts, since she had seen respondent and her mother engaging in sexual intercourse and had become familiar with sexual terms. Id., at 118.

The jury found respondent guilty of three counts of sexual assault on a minor under the age of 14, and the trial court imposed two consecutive life sentences and another concurrent life sentence.

B

Respondent took an appeal to the Nevada Supreme Court, which handed down its final decision in 1993, more than a decade before Crawford.^[2] In analyzing respondent's contention that the admission of Autumn's out-of-court statements had violated his Confrontation Clause rights, the Nevada Supreme Court looked to Ohio v. Roberts, 448 U.S. 56, 100 S. Ct. 2531, 65 L. Ed. 2d 597 (1980), which was then the governing precedent of this Court. See Bockting v. State, 109 Nev. 103, 847 P.2d 1364 (1993) (per curiam). Roberts had held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant who was unavailable to testify if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were "particularized guarantees of trustworthiness" relating to the statement in question. 448 U.S., at 66, 100 S. Ct. 2531. Applying Roberts, the Nevada Supreme Court held that the admission of Autumn's statements was constitutional because the circumstances surrounding the making of the statements provided particularized guarantees of trustworthiness. The Court cited the "natural spontaneity" of Autumn's initial statements to her mother, her reiteration of the same account to Detective Zinovitch several days later, her use of anatomically correct dolls to demonstrate the assaults, and her detailed descriptions of sexual acts with which a 6-year-old would generally not be familiar. Bockting, supra, at 109-112, 847 P.2d, at 1368-1370.

C

Respondent then filed a petition for a writ of habeas corpus with the United States District Court for the District of Nevada, arguing that the Nevada Supreme Court's decision violated his Confrontation Clause rights. The District Court denied the petition, holding that respondent was not entitled to relief under the habeas statute, 28 U.S.C. § 2254(d), because the Nevada Supreme Court's decision was not "contrary to" and did not "involv[e] an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." Order in Bockting v. Bayer, No. CV-N-98-0764-ECR (Mar. 19, 2002), App. 69-70. Respondent then appealed to the United States Court of Appeals for the Ninth Circuit.

While this appeal was pending, we issued our opinion in Crawford, in which we overruled Roberts and held that "[t]estimonial statements of witnesses absent from trial" are admissible "only where the declarant is unavailable, and only where the defendant has had a prior opportunity to cross-examine [the witness]." 541 U.S., at 59, 124 S. Ct. 1354. See also Davis v. Washington, 547 U.S. ___, 126 S. Ct. 2266, 165 L. Ed. 2d 224 (2006). We noted that the outcome in Roberts—as well as the outcome in all similar cases decided by this Court—was consistent with the rule announced in Crawford, but we concluded that the interpretation of the Confrontation Clause set out in Roberts was unsound in several respects. See Crawford, supra, at 60, 124 S. Ct. 1354 ("Although the results of our decisions have generally been faithful to the original meaning of the Confrontation Clause, the same cannot be said of our rationales"). First, we observed that Roberts potentially excluded too much testimony because it imposed Confrontation Clause restrictions on nontestimonial hearsay not governed by that Clause. 541 U.S., at 60, 124 S. Ct. 1354. At the same time, we noted, the Roberts test was too "malleable" in permitting the admission of ex parte testimonial statements. 541 U.S., at 60, 124 S. Ct. 1354. We concluded:

"Where testimonial statements are involved, we do not think the Framers meant to leave the Sixth Amendment's protection to the vagaries of the rules of evidence, much less to amorphous notions of ``reliability.' ... Admitting statements deemed reliable by a judge is fundamentally at odds with the right to confrontation. To be sure, the Clause's ultimate goal is to ensure reliability of evidence, but it is a procedural rather than a substantive guarantee. It commands not that evidence be reliable, but that reliability be assessed in a particular manner: by testing in the crucible of cross-examination. The Clause thus reflects a judgment, not only about the desirability of reliable evidence (a point on which there could be little dissent), but about how reliability can best be determined." Id., at 61, 124 S. Ct. 1354.

D

On appeal from the denial of his petition for writ of habeas corpus, respondent contended that if the rule in Crawford had been applied to his case, Autumn's out-of-court statements could not have been admitted into evidence and the jury would not have convicted him. Respondent further argued that Crawford should have been applied to his case because the Crawford rule was either (1) an old rule in existence at the time of his conviction or (2) a "``watershed'" rule that implicated "the fundamental fairness and accuracy of the criminal proceeding." Saffle v. Parks, 494 U.S. 484, 495, 110 S. Ct. 1257, 108 L. Ed. 2d 415 (1990) (quoting Teague, 489 U.S., at 311, 109 S. Ct. 1060 (plurality opinion)).

A divided panel of the Ninth Circuit reversed the District Court, holding that Crawford applies retroactively to cases on collateral review. Bockting v. Bayer, 399 F.3d 1010, as amended, 408 F.3d 1127 (2005). In the panel's lead opinion, Judge McKeown concluded that Crawford announced a new rule of criminal procedure, 399 F.3d, at 1014-1016, but that the decision was nevertheless retroactive on collateral review because it announced a watershed rule that "rework[ed] our understanding of bedrock criminal procedure," id., at 1016.^[3] Judge Noonan concurred, but his preferred analysis differed from Judge McKeown's. Judge Noonan believed that Crawford did not announce a new rule, 399 F.3d, at 1022-1024, but "[a]s an alternative to [this] analysis and in order to provide a precedent for [the] court," he "also concur[red] in Judge McKeown's analysis and opinion," id., at 1024. Judge Wallace, concurring and dissenting, agreed with Judge McKeown that Crawford announced a new procedural rule but arguing that Crawford did not rise to the level of a watershed rule under this Court's jurisprudence. The Ninth Circuit denied rehearing en banc, with nine judges dissenting. 418 F.3d 1055 (2005).

The panel's decision that Crawford is retroactive to cases on collateral review conflicts with the decision of every other Court of Appeals and State Supreme Court that has addressed this issue.^[4] We granted certiorari to resolve this conflict. 547 U.S. ___, 126 S. Ct. 2017, 164 L. Ed. 2d 778 (2006).

II

A

In Teague and subsequent cases, we have laid out the framework to be used in determining whether a rule announced in one of our opinions should be applied retroactively to judgments in criminal cases that are already final on direct review. Under the Teague framework, an old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review. See Griffith v. Kentucky, 479 U.S. 314, 107 S. Ct. 708, 93 L. Ed. 2d 649 (1987). A new rule applies retroactively in a collateral proceeding only if (1) the rule is substantive or (2) the rule is a "``watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, supra, at 495, 110 S. Ct. 1257 (quoting Teague, supra, at 311, 109 S. Ct. 1060 (plurality opinion)).

B

In this case, it is undisputed that respondent's conviction became final on direct appeal well before Crawford was decided. We therefore turn to the question whether Crawford applied an old rule or announced a new one. A new rule is defined as "a rule that ... was not ``dictated by precedent existing at the time the defendant's conviction became final.'" Saffle, supra, at 488, 110 S. Ct. 1257 (quoting Teague, supra, at 301, 109 S. Ct. 1060 (plurality opinion); emphasis in original).

Applying this definition, it is clear that Crawford announced a new rule. The Crawford rule was not "dictated" by prior precedent. Quite the opposite is true: The Crawford rule is flatly inconsistent with the prior governing precedent, Roberts, which Crawford overruled. See Davis, 547 U.S., at ___, 126 S. Ct. 2266. "The explicit overruling of an earlier holding no doubt creates a new rule." Saffle, supra, at 488, 110 S. Ct. 1257.

In concluding that Crawford merely applied an old rule, Judge Noonan relied on our observation in Crawford that the holdings in our prior decisions, including those that applied the Roberts rule, had been generally consistent with the rule announced in Crawford (and with the Framers' understanding of the meaning of the Confrontation Clause, which provided the basis for the Crawford decision). See 541 U.S., at 57-59, 124 S. Ct. 1354. But the Crawford Court was quick to note that "the rationales" of our prior decisions had been inconsistent with the Crawford rule. Id., at 60, 124 S. Ct. 1354. "``The "new rule" principle ... validates reasonable, good-faith interpretations of existing precedents made by state courts even though they are shown to be contrary to later decisions.'" Lockhart v. Fretwell, 506 U.S. 364, 372-373, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993) (quoting Butler v. McKellar, 494 U.S. 407, 414, 110 S. Ct. 1212, 108 L. Ed. 2d 347 (1990)). And it is stating the obvious to say that, prior to Crawford, "reasonable jurists," Graham v. Collins, 506 U.S. 461, 467, 113 S. Ct. 892, 122 L. Ed. 2d 260 (1993), could have reached the conclusion that the Roberts rule was the rule that governed the admission of hearsay statements made by an unavailable declarant.

Because the Crawford rule was not dictated by the governing precedent existing at the time when respondent's conviction became final, the Crawford rule is a new rule.

III

A

Because Crawford announced a "new rule" and because it is clear and undisputed that the rule is procedural and not substantive, that rule cannot be applied in this collateral attack on respondent's conviction unless it is a "``watershed rul[e] of criminal procedure' implicating the fundamental fairness and accuracy of the criminal proceeding." Saffle, 494 U.S., at 495, 110 S. Ct. 1257 (quoting Teague, 489 U.S., at 311, 109 S. Ct. 1060 (plurality opinion)). This exception is "extremely narrow," Schriro v. Summerlin, 542 U.S. 348, 352, 124 S. Ct. 2519, 159 L. Ed. 2d 442 (2004). We have observed that it is "``unlikely'" that any such rules "``ha[ve] yet to emerge,'" ibid. (quoting Tyler v. Cain, 533 U.S. 656, 121 S. Ct. 2478, 150 L. Ed. 2d 632 (2001); internal quotation marks omitted); see also O'Dell v. Netherland, 521 U.S. 151, 157, 117 S. Ct. 1969, 138 L. Ed. 2d 351 (1997); Graham, supra, at 478, 113 S. Ct. 892; Teague, supra, at 313, 109 S. Ct. 1060 (plurality opinion). And in the years since Teague, we have rejected every claim that a new rule satisfied the requirements for watershed status. See, e.g., Summerlin, supra (rejecting retroactivity for Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002)); Beard v. Banks, 542 U.S. 406, 124 S. Ct. 2504, 159 L. Ed. 2d 494 (2004) (rejecting retroactivity for Mills v. Maryland, 486 U.S. 367, 108 S. Ct. 1860, 100 L. Ed. 2d 384 (1988)); O'Dell, supra (rejecting retroactivity for Simmons v. South Carolina, 512 U.S. 154, 114 S. Ct. 2187, 129 L. Ed. 2d 133 (1994)); Gilmore v. Taylor, 508 U.S. 333, 113 S. Ct. 2112, 124 L. Ed. 2d 306 (1993) (rejecting retroactivity for a new rule relating to jury instructions on homicide); Sawyer v. Smith, 497 U.S. 227, 110 S. Ct. 2822, 111 L. Ed. 2d 193 (1990) (rejecting retroactivity for Caldwell v. Mississippi, 472 U.S. 320, 105 S. Ct. 2633, 86 L. Ed. 2d 231 (1985)).

In order to qualify as watershed, a new rule must meet two requirements. First, the rule must be necessary to prevent "an ``"impermissibly large risk"'" of an inaccurate conviction. Summerlin, supra, at 356, 124 S. Ct. 2519; see also Tyler, 533 U.S., at 665, 121 S. Ct. 2478. Second, the rule must "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Ibid. (internal quotation marks and emphasis omitted). We consider each of these requirements in turn.

B

The Crawford rule does not satisfy the first requirement relating to an impermissibly large risk of an inaccurate conviction. To be sure, the Crawford rule reflects the Framers' preferred mechanism (cross-examination) for ensuring that inaccurate out-of-court testimonial statements are not used to convict an accused. But in order for a new rule to meet the accuracy requirement at issue here, "[i]t is ... not enough ... to say that [the] rule is aimed at improving the accuracy of trial," Sawyer, 497 U.S., at 242, 110 S. Ct. 2822 or that the rule "is directed toward the enhancement of reliability and accuracy in some sense," id., at 243, 110 S. Ct. 2822. Instead, the question is whether the new rule remedied "an ``"impermissibly large risk"'" of an inaccurate conviction. Summerlin, supra, at 366, 124 S. Ct. 2519.

Guidance in answering this question is provided by Gideon v. Wainwright, 372 U.S. 335, 83 S. Ct. 792, 9 L. Ed. 2d 799 (1963), to which we have repeatedly referred in discussing the meaning of the Teague exception at issue here. See, e.g., Beard, supra, at 417, 124 S. Ct. 2504; Saffle, supra, at 495, 110 S. Ct. 1257; Gilmore, supra, at 364, 113 S. Ct. 2112 (Blackmun, J., dissenting). In Gideon, the only case that we have identified as qualifying under this exception, the Court held that counsel must be appointed for any indigent defendant charged with a felony. When a defendant who wishes to be represented by counsel is denied representation, Gideon held, the risk of an unreliable verdict is intolerably high. See Mickens v. Taylor, 535 U.S. 162, 166, 122 S. Ct. 1237, 152 L. Ed. 2d 291 (2002); United States v. Cronic, 466 U.S. 648, 658-659, 104 S. Ct. 2039, 80 L. Ed. 2d 657 (1984); Gideon, supra, at 344-345, 83 S. Ct. 792. The new rule announced in Gideon eliminated this risk.

The Crawford rule is in no way comparable to the Gideon rule. The Crawford rule is much more limited in scope, and the relationship of that rule to the accuracy of the factfinding process is far less direct and profound. Crawford overruled Roberts because Roberts was inconsistent with the original understanding of the meaning of the Confrontation Clause, not because the Court reached the conclusion that the overall effect of the Crawford rule would be to improve the accuracy of fact finding in criminal trials. Indeed, in Crawford we recognized that even under the Roberts rule, this Court had never specifically approved the introduction of testimonial hearsay statements. 542 U.S., at 57-60, 124 S. Ct. 2373. Accordingly, it is not surprising that the overall effect of Crawford with regard to the accuracy of fact-finding in criminal cases is not easy to assess.

With respect to testimonial out-of-court statements, Crawford is more restrictive than was Roberts, and this may improve the accuracy of fact-finding in some criminal cases. Specifically, under Roberts, there may have been cases in which courts erroneously determined that testimonial statements were reliable. But see 418 F.3d, at 1058 (O'Scannlain, J., dissenting from denial of rehearing en banc) (observing that it is unlikely that this occurred "in anything but the exceptional case"). But whatever improvement in reliability Crawford produced in this respect must be considered together with Crawford's elimination of Confrontation Clause protection against the admission of unreliable out-of-court nontestimonial statements. Under Roberts, an out-of-court nontestimonial statement not subject to prior cross-examination could not be admitted without a judicial determination regarding reliability. Under Crawford, on the other hand, the Confrontation Clause has no application to such statements and therefore permits their admission even if they lack indicia of reliability.

It is thus unclear whether Crawford, on the whole, decreased or increased the number of unreliable out-of-court statements that may be admitted in criminal trials. But the question here is not whether Crawford resulted in some net improvement in the accuracy of fact finding in criminal cases. Rather, "the question is whether testimony admissible under Roberts is so much more unreliable than that admissible under Crawford that the Crawford rule is ``one without which the likelihood of an accurate conviction is seriously diminished.'" 399 F.3d, at 1028 (Wallace, J., concurring and dissenting) (quoting Summerlin, 542 U.S., at 352, 124 S. Ct. 2519) (internal quotation marks omitted; emphasis in original). Crawford did not effect a change of this magnitude.

C

The Crawford rule also did not "alter our understanding of the bedrock procedural elements essential to the fairness of a proceeding." Sawyer, supra, at 242, 110 S. Ct. 2822 (internal quotations marks omitted and emphasis in original). Contrary to the suggestion of the Court of Appeals, see 399 F.3d, at 1019 (relying on the conclusion that "the right of cross-examination as an adjunct to the constitutional right of confrontation" is a "bedrock procedural rul[e]"), this requirement cannot be met simply by showing that a new procedural rule is based on a "bedrock" right. We have frequently held that the Teague bar to retroactivity applies to new rules that are based on "bedrock" constitutional rights. See, e.g., Beard, 542 U.S., at 418, 124 S. Ct. 2504. Similarly, "[t]hat a new procedural rule is ``fundamental' in some abstract sense is not enough." Summerlin, 542 U.S., at 352, 124 S. Ct. 2519.

Instead, in order to meet this requirement, a new rule must itself constitute a previously unrecognized bedrock procedural element that is essential to the fairness of a proceeding. In applying this requirement, we again have looked to the example of Gideon, and "we have not hesitated to hold that less sweeping and fundamental rules" do not qualify. Beard, supra, at 418, 124 S. Ct. 2504.

In this case, it is apparent that the rule announced in Crawford, while certainly important, is not in the same category with Gideon. Gideon effected a profound and "``sweeping'" change. Beard, supra, at 418, 124 S. Ct. 2504 (quoting O'Dell, 521 U.S., at 167, 117 S. Ct. 1969). The Crawford rule simply lacks the "primacy" and "centrality" of the Gideon rule, Saffle, 494 U.S., at 495, 110 S. Ct. 1257, and does not qualify as a rule that "alter[ed] our understanding of the bedrock procedural elements essential to the fairness of a proceeding," Sawyer, 497 U.S., at 242, 110 S. Ct. 2822 (internal quotation marks and emphasis omitted).

IV

In sum, we hold that Crawford announced a "new rule" of criminal procedure and that this rule does not fall within the Teague exception for watershed rules. We therefore reverse the judgment of the Court of Appeals and remand the case for further proceedings consistent with this opinion.

It is so ordered.

NOTES

[1] Section 51.385 provides, in relevant part:

"1. [A] statement made by a child under the age of 10 years describing any act of sexual conduct performed with or on the child or any act of physical abuse of the child is admissible in a criminal proceeding regarding that act of sexual conduct or physical abuse if:

"(a) The court finds, in a hearing out of the presence of the jury, that the time, content and circumstances of the statement provide sufficient circumstantial guarantees of trustworthiness; and

"(b) The child testifies at the proceeding or is unavailable or unable to testify.

"2. In determining the trustworthiness of a statement, the court shall consider, without limitation, whether:

"(a) The statement was spontaneous;

"(b) The child was subjected to repetitive questioning;

"(c) The child had a motive to fabricate;

"(d) The child used terminology unexpected of a child of similar age; and

"(e) The child was in a stable mental state."

[2] The State Supreme Court initially dismissed respondent's appeal in 1989, Bockting v. State, 105 Nev. 1023, 810 P.2d 317 (unpublished table opinion), but we granted respondent's petition for a writ of certiorari and vacated and remanded the case for reconsideration in light of Idaho v. Wright, 497 U.S. 805, 110 S. Ct. 3139, 111 L. Ed. 2d 638 (1990), see Bockting v. Nevada, 497 U.S. 1021, 110 S. Ct. 3266, 111 L. Ed. 2d 777 (1990).

[3] Judge McKeown then held respondent merited habeas corpus relief under the Antiterrorism and Effective Death Penalty Act of 1996, because that statute incorporates our Teague v. Lane, 489 U.S. 288, 109 S. Ct. 1060, 103 L. Ed. 2d 334 (1989) retroactivity analysis. 399 F.3d, at 1021-1022.

[4] See, e.g., Lave v. Dretke, 444 F.3d 333 (C.A.5 2006); Espy v. Massac, 443 F.3d 1362 (C.A.11 2006); Murillo v. Frank, 402 F.3d 786 (C.A.7 2005); Dorchy v. Jones, 398 F.3d 783 (C.A.6 2005); Brown v. Uphoff, 381 F.3d 1219 (C.A.10 2004); Mungo v. Duncan, 393 F.3d 327 (C.A.2 2004); Edwards v. People, 129 P.3d 977 (Colo.2006) (en banc); Ennis v. State, 122 Nev. ___, 137 P.3d 1095 (2006); Danforth v. State, 718 N.W.2d 451 (Minn.2006); State v. Williams, 695 N.W.2d 23 (Iowa 2005); Chandler v. Crosby, 916 So. 2d 728 (Fla.2005); In re Markel, 154 Wash.2d 262, 111 P.3d 249 (2005).