                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

JOSEF MICHAEL JENSEN,                     No. 04-55840
             Petitioner-Appellant,           D.C. No.
               v.                        CV-03-01110-JVS
CHERYL K. PLILER, Warden,                   ORDER
             Respondent-Appellee.          AMENDING
                                          OPINION AND
                                           AMENDED
                                           OPINION

       Appeal from the United States District Court
          for the Central District of California
        James V. Selna, District Judge, Presiding

                  Argued and Submitted
          February 7, 2006—Pasadena, California

                  Filed March 9, 2006
                 Amended April 27, 2006

   Before: David R. Thompson, Thomas G. Nelson, and
            Ronald M. Gould, Circuit Judges.

               Opinion by Judge Thompson




                           4793
                      JENSEN v. PLILER                4795


                       COUNSEL

David J. Zugman, San Diego, California, for the petitioner-
appellant.

Scott C. Taylor, Supervising Deputy Attorney General, San
Diego, California, for the respondent-appellee.
4796                   JENSEN v. PLILER
                          ORDER

   The Opinion, Jensen v. Pliler, No. 04-55840, slip op. 2413
(9th Cir. Mar. 9, 2006), is amended by deleting from footnote
3 at slip op. 2421, the following sentence: “However, we need
not decide here whether Crawford applies retroactively.”
Inserted in place thereof is the sentence: “Whether or not
Crawford applies retroactively is immaterial to our disposi-
tion of this case.”

   With the foregoing amendment, the panel, as constituted
above, has unanimously voted to deny appellant Jensen’s peti-
tion for rehearing. Judge Gould has also voted to deny his
petition for rehearing by the court en banc, and Judges
Thompson and T.G. Nelson have recommended denial of that
petition.

  The full court has been advised of the petition for court
rehearing en banc, and no judge of the court has requested en
banc rehearing. See Fed. R. App. P. 35(b).

  The petitions for panel rehearing and for rehearing by the
court en banc are DENIED. No further petitions shall be
entertained.


                         OPINION

THOMPSON, Senior Circuit Judge:

   Josef Michael Jensen appeals the district court’s denial of
his 28 U.S.C. § 2254 habeas corpus petition challenging his
conviction for two counts of first degree murder and two
counts of conspiracy to commit murder. Jensen contends his
Sixth Amendment Confrontation Clause rights were violated
when, during his state court trial, attorney Todd Rash was per-
mitted to testify to out-of-court statements made to him by the
                          JENSEN v. PLILER                 4797
unavailable declarant George Taylor. Taylor had made the
statements to Rash, his attorney, when Taylor was in jail
under arrest for murder. After Taylor was released from jail,
he was killed. Jensen argues that admitting Taylor’s state-
ments into evidence at his trial violated his Confrontation
Clause rights as set forth in Crawford v. Washington, 541
U.S. 36 (2004).

   We affirm the district court’s denial of Jensen’s habeas
petition. The unavailable declarant Taylor’s statements to his
attorney were not “testimonial” under Crawford, and were
properly admitted into evidence at Jensen’s trial.

                    I.    JURISDICTION

   The district court had jurisdiction pursuant to 28 U.S.C.
§ 2254. We have jurisdiction pursuant to 28 U.S.C. §§ 1291
and 2253.

                    II.    BACKGROUND

  While George Taylor was in custody for the January 12,
1998 murder of Kevin James, his mother hired attorney Todd
Rash to interview him about possibly representing him in the
case. During the jailhouse interview, Taylor initially told Rash
he was sleeping in an orange grove when the killing occurred.
Rash said that story was not believable. Taylor then confessed
he had shot a man in the head while the man was in bed in
an upstairs bedroom. That man was the decedent, Kevin
James. Taylor told Rash further details of the killing, includ-
ing the involvement of his friends defendant Josef Jensen,
Shelbi Harris, Terence Bledscoe, and Lisa James (Kevin
James’s wife).

   During the interview, Rash repeatedly assured Taylor that
their conversation was protected by the attorney-client privi-
lege and promised that he “would never, ever, tell anyone.”
Taylor told Rash that he did the killing for Harris, who was
4798                        JENSEN v. PLILER
like a sister to him and who was having an affair with Lisa
James. Taylor further told Rash “he would go to prison before
he would ever testify against anyone else who was involved”
in the murder.

   After Taylor was released from jail, Jensen and Blesdoe
brought him by car to Harris at a remote area. They had a gun,
which Harris had provided. Harris, Jensen, and Blesdoe
accused Taylor of talking to the police and to his attorney.
According to Jensen, Harris shot Taylor as his back was
turned. According to Blesdoe, Jensen shot Taylor as he sat in
the car. Jensen and Blesdoe moved Taylor’s body to a con-
cealed spot.

  After Taylor was killed, Jensen was tried in California state
court for the murders of Kevin James and Taylor. At trial,
Rash testified as to what Taylor had told him while Taylor
was in jail.1

   A jury convicted Jensen of the first degree murder of both
Kevin James and Taylor, as well as conspiracy to commit
those murders. Jensen appealed his conviction, and the Cali-
fornia Court of Appeal affirmed the trial judgment. Without
comment, the California Supreme Court denied Jensen’s peti-
tion for review and his state habeas petition.

   Jensen then filed a federal habeas petition. The magistrate
judge’s report and recommendation recommended that the
petition be denied. While this recommendation was being
considered by the district court, the United States Supreme
Court decided Crawford, replacing the Confrontation Clause
inquiry under Ohio v. Roberts, 448 U.S. 56, 66 (1980), which
had emphasized whether statements were “trustworthy,” with
a new test that focused on whether statements were “testimo-
nial.” See Crawford, 541 U.S. at 68. The district court then
  1
   Taylor’s mother, her son’s next of kin, waived the attorney-client privi-
lege.
                        JENSEN v. PLILER                    4799
reasoned that Crawford did not apply retroactively, and, fol-
lowing the magistrate judge’s report and recommendation,
denied Jensen’s habeas petition with prejudice and refused to
issue a certificate of appealability.

   We granted a certificate of appealability on the issue
whether the appellant Jensen’s Sixth Amendment right of
confrontation was violated by the trial court’s admission of
the unavailable declarant Taylor’s statements to his lawyer,
Rash.

              III.   STANDARD OF REVIEW

   We review de novo the district court’s decision to grant or
deny a 28 U.S.C. § 2254 habeas corpus petition. See Lambert
v. Blodgett, 393 F.3d 943, 964 (9th Cir. 2004). Because Jen-
sen filed his habeas petition after the effective date of the
Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), its provisions apply. See Woodford v. Garceau,
538 U.S. 202, 207 (2003). Under AEDPA, a state prisoner is
entitled to habeas relief only if the state court’s decision “re-
sulted in a decision that was contrary to, or involved an unrea-
sonable application of, clearly established Federal law, as
determined by the Supreme Court” or was “based on an
unreasonable determination of the facts in light of the evi-
dence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(1)-(2).

                     IV.   DISCUSSION

   Jensen contends that his Sixth Amendment right of con-
frontation was violated by the admission of the unavailable
declarant Taylor’s statements to his attorney without Jensen
having an opportunity to cross-examine him.

  [1] The Confrontation Clause requires that a defendant in
a criminal prosecution “enjoy the right . . . to be confronted
with the witnesses against him.” U.S. Const. Amend. VI. In
4800                   JENSEN v. PLILER
Crawford, the Supreme Court determined that admissibility of
an unavailable declarant’s out-of-court statements depends on
whether the statements were “testimonial” in nature. Craw-
ford, 541 U.S. at 68 (“Where testimonial evidence is at issue
. . . the Sixth Amendment demands . . . unavailability and a
prior opportunity for cross-examination.”); see also United
States v. Cervantes-Flores, 421 F.3d 825, 831 (9th Cir. 2005).
Thus, to decide whether Jensen’s Confrontation Clause rights
were violated, we must first determine whether Taylor’s state-
ments to his attorney were “testimonial” within the meaning
of Crawford.

   [2] While the Court in Crawford “le[ft] for another day any
effort to spell out a comprehensive definition of ‘testimoni-
al,’ ” the Court provided some guidance for ascertaining
whether evidence is testimonial. Crawford, 541 U.S. at 68.
First, the Court observed that “[a]n accuser who makes a for-
mal statement to government officers bears testimony in a
sense that a person who makes a casual remark to an
acquaintance does not.” Id. at 51. The Court next offered
three “formulations of [the] core class of ‘testimonial’ state-
ments”:

    [(1)] “ex parte in-court testimony or its functional
    equivalent — that is, material such as affidavits, cus-
    todial examinations, prior testimony that the defen-
    dant was unable to cross-examine, or similar pretrial
    statements that declarants would reasonably expect
    to be used prosecutorially,” [(2)] “extrajudicial state-
    ments . . . contained in formalized testimonial mate-
    rials, such as affidavits, depositions, prior testimony,
    or confessions,” [(3)] “statements that were made
    under circumstances which would lead an objective
    witness reasonably to believe that the statement
    would be available for use at a later trial[.]”

Id. at 51-52 (omission in original) (citations omitted). The
Court also gave examples of clearly testimonial statements —
                            JENSEN v. PLILER                         4801
“prior testimony at a preliminary hearing, before a grand jury,
or at a former trial; and . . . police interrogations.” Id. at 68.

   [3] Whatever the definition of “testimonial,” we conclude
that Taylor’s statements to his attorney were non-testimonial
under Crawford. Taylor’s statements do not “fall within the
compass” of the per se examples of testimonial evidence
given in Crawford. Leavitt v. Arave, 383 F.3d 809, 830 n.22
(9th Cir. 2004); see also Crawford, 541 U.S. at 68.

   Taylor’s statements do not fit within the Court’s initial
example in Crawford because Taylor’s statements were not
made to a government officer with an eye toward trial, the pri-
mary abuse at which the Confrontation Clause was directed.2
Crawford, 541 U.S. at 50, 56 n.7, 68; see also Cervantes-
Flores, 421 F.3d at 833-34 (noting that Crawford’s examples
“all involve live out-of-court statements against a defendant
elicited by a government officer with a clear eye to prosecu-
tion.”); United States v. Manfre, 368 F.3d 832, 838 n.1 (8th
Cir. 2004) (holding that statements made by declarant to fam-
ily members were not “testimonial” because they were “not
the kind of memorialized, judicial-process-created evidence
of which Crawford speaks”).

  [4] Nor do Taylor’s statements qualify as testimonial under
any of the “formulations” of testimonial evidence offered in
Crawford. Regarding Crawford’s first and third formulations,
   2
     We reject Jensen’s contention that Taylor’s statements were testimo-
nial because Rash, Taylor’s attorney, was allegedly the functional equiva-
lent of an interrogating officer. Rash had worked as a prosecutor for
approximately seven years with the District Attorney’s office that eventu-
ally prosecuted Jensen but left for private practice over two years before
he met with Taylor. Jensen asserts that Rash used his skills as a former
prosecutor to cross-examine Taylor during their interview. There is no evi-
dence, however, that Rash acted in any capacity other than as Taylor’s
attorney. The tone in which an attorney conducts his client interview, or
where the attorney used to work, do not render an attorney-client conver-
sation testimonial.
4802                        JENSEN v. PLILER
Taylor could not have “reasonably expect[ed] [his statements
to his attorney Rash] to be used prosecutorially” or “reason-
ably . . . believe[d] that the statement[s] would be available
for use at a later trial.” Crawford, 541 U.S. at 51-52. Rash
repeatedly explained to Taylor that their discussion was pro-
tected by the attorney-client privilege and promised that he
“would never, ever, tell anyone.” Taylor also told Rash that
“he would go to prison before he would ever testify against
anyone else who was involved in” Kevin James’s murder,
supporting the state’s contention that Taylor never expected
that his statements would be used at a later trial. In addition,
the first formulation’s reference to “custodial examinations”
doubtless refers to interrogation by a government officer,
rather than a prisoner being interviewed by his attorney. Id. at
51. Finally, despite their confessional nature, Taylor’s state-
ments to his attorney are not encompassed by the second for-
mulation which concerns “formal” confessions. Id. at 52. In
sum, because Taylor’s statements to his attorney were not
“testimonial,” their admission in Jensen’s trial was not pre-
cluded by Crawford.3

   [5] We need not decide here whether the firmly rooted
hearsay exception or particularized guarantees of trustworthi-
ness test enunciated in Roberts, 448 U.S. at 66, is still the
applicable law for the admissibility of non-testimonial evi-
dence under the Confrontation Clause. See United States v.
Weiland, 420 F.3d 1062, 1076 (9th Cir. 2005) (noting that it
is unclear whether the Roberts test survives Crawford for
non-testimonial evidence). Even assuming that Roberts still
applies, the California Court of Appeal’s decision that the
Confrontation Clause requirements were satisfied was not
  3
    In Bockting v. Bayer, 399 F.3d 1010, 1012-13 (9th Cir. 2005), we held
that Crawford applies retroactively to cases on collateral review. A peti-
tion for certiorari in that case was filed on November 7, 2005, but the
Supreme Court has not yet acted on it. Whether or not Crawford applies
retroactively is immaterial to our disposition of this case. Taylor’s state-
ments were not “testimonial,” and therefore Crawford does not preclude
their admission into evidence in Jensen’s trial.
                               JENSEN v. PLILER                        4803
“contrary to, [n]or involved an unreasonable application of,”
the law the Supreme Court set forth in Roberts.4 See 28
U.S.C. § 2254(d)(1).

                          V.    CONCLUSION

   Taylor’s statements to his attorney were non-testimonial
under Crawford and therefore Crawford does not preclude
their admission into evidence at Jensen’s trial. Aside from
Crawford, the California Court of Appeal’s determination that
Jensen’s Sixth Amendment right to confrontation was not vio-
lated by the admission of the statements was not contrary to
nor an unreasonable application of federal law as determined
by the Supreme Court. Accordingly, we affirm the district
court’s denial of Jensen’s habeas petition.

  AFFIRMED.




  4
    Citing two cases, People v. Duke, 74 Cal. App. 4th 23, 29 (Cal. Ct.
App. 1999), and Lilly v. Virginia, 527 U.S. 116, 124-25 (1999), the Cali-
fornia Court of Appeal concluded that Taylor’s statements satisfied the
requirements of the Confrontation Clause based on the following particu-
larized guarantees of trustworthiness:
      Taylor voluntarily made his statements to his counsel, believing
      they would be confidential. He described the crime in detail and
      explained why he committed it. He had no apparent motive to lie
      or to try to inculpate defendants. To the contrary, he told Rash
      emphatically that “he would go to prison before he would ever
      testify against anyone else who was involved.” He accepted pri-
      mary responsibility for the killing rather than attempting to shift
      it to one of the defendants.
People v. James, No. RIF079628, 2001 WL 1284235, at *10 (Cal. Ct.
App. Oct. 23, 2001) (unpublished).
