                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

RICHARD LEE MASON,                        No. 04-17330
             Petitioner-Appellant,           D.C. No.
               v.                       CV-03-00450-FCD/
M. YARBOROUGH,                                 JFM
            Respondent-Appellee.
                                            OPINION

       Appeal from the United States District Court
          for the Eastern District of California
       Frank C. Damrell, District Judge, Presiding

                  Argued and Submitted
       February 16, 2006—San Francisco, California

                    Filed May 5, 2006

  Before: J. Clifford Wallace, Michael Daly Hawkins, and
             Sidney R. Thomas, Circuit Judges.

               Opinion by Judge Hawkins;
              Concurrence by Judge Wallace




                           5101
                    MASON v. YARBOROUGH                   5103


                         COUNSEL

Matthew Alger, Clovis, California, for the appellant.

Justain P. Riley, Deputy Attorney General, Sacramento, Cali-
fornia, for the appellee.


                         OPINION

HAWKINS, Circuit Judge:

   Petitioner-Appellant Richard Lee Mason (“Mason”) seeks
habeas corpus review of his state court convictions arising out
of two separate shooting incidents in Stockton, California, one
resulting in first-degree murder charges. Mason’s fundamen-
5104                    MASON v. YARBOROUGH
tal contention here is that the admission of the fact that a co-
participant made a statement to law enforcement, but not the
content of that statement, violated his confrontation rights.
Exercising our jurisdiction under 28 U.S.C. § 1291, as con-
strained by 28 U.S.C. § 2254(d)(1),1 we affirm the district
court’s denial of habeas relief.

   In the early morning hours of May 26, 1996, and twice
again later that night, the home of Debra Aguilera was struck
by gunfire. A few days prior, Mason was seen in the passen-
ger seat of a maroon BMW owned by Alder Fenton, display-
ing a handgun and bragging to Fenton’s brother Jeremiah:
“Tell Ray I have something for him.” Jeremiah knew “Ray”
referred to Raymond Munoz, Ms. Aguilera’s oldest son, who
was in the house at the time of the shooting and who had been
involved in an altercation with Mason some six months ear-
lier.

   Later the same evening, neighbors of Sally Purcell heard a
man yelling, “Mike,” outside the Purcell house, followed by
several gunshots fired in rapid succession and then a car
speeding away. Michael Kolkhurst, a man Mason believed
had molested his stepsister, was living with Ms. Purcell. Star-
tled awake by the gunfire, Purcell, who had been asleep in
another room, found Kolkhurst lying in bed and covered in
blood. Efforts by paramedics called to the scene failed to
revive Kolkhurst, and he died from his wounds.

   A few weeks later, Valerie Cole, the mother of one of
Mason’s friends, found Mason asleep in her son’s car outside
her home. Mason explained that he was sleeping there out of
fear that the police were looking for him. Mason asked Cole
  1
   To grant habeas relief, a federal court must find that the state court’s
decision “was contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of
the United States.” Anti-Terrorism and Effective Death Penalty Act of
1996 (“AEDPA”), 28 U.S.C. § 2254(d)(1).
                      MASON v. YARBOROUGH                       5105
to call a friend of hers at the sheriff’s department to see if
there were any warrants out for his arrest. When Cole asked
why, Mason said he had shot someone in Stockton, aiming for
the man’s knees and instead hitting him in the chest. Mason
added that there was someone with him that night who may
have “snitched” on him. Cole made the requested call, which
eventually led to Mason’s arrest.

  At Mason’s trial, the prosecution called Stockton Police
Detective Richard Salsedo. The detective had interviewed
Alder Fenton in the course of the investigation. Critical to
Mason’s claim is the following passage from Detective Salse-
do’s testimony:

    Q. And did you take a — did you take a statement
    from him [Alder Fenton]?

    A.   Yes, I took a seven-hour statement from him.

    Q. And after you took the seven-hour statement did
    you place him [Alder Fenton] under arrest?

    A.   Yes I did.

    Mr. Himelblau [the prosecutor]:       No further ques-
    tions.

    Mr. Hickey [defense counsel]: I’m going to object
    to the last, it’s irrelevant and hearsay and ask it to be
    stricken from the record.

    The Court:    Overruled.

    Mr. Hickey:     Thank you.

   [1] It is this testimony that Mason claims violated his con-
frontation rights. Specifically, he claims that the admission of
the fact of Fenton’s statement, under these circumstances, was
5106                 MASON v. YARBOROUGH
essentially the same as admitting its content, thus violating the
clearly established principle of Bruton v. United States, 391
U.S. 123 (1968), that the admission of a non-testifying code-
fendant’s “powerfully incriminating extrajudicial statement”
violates a defendant’s Sixth Amendment right to confront his
accuser. Id. at 135-36.

   [2] Bruton’s protection, however, does not extend to all
such statements. Richardson v. Marsh, 481 U.S. 200, 211
(1987), specifically exempts a statement, not incriminating on
its face, that implicates the defendant only in connection to
other admitted evidence. On the other hand, the mere removal
of a codefendant’s name from a statement that obviously
refers to the defendant, does not insulate the statement from
Bruton scrutiny. Gray v. Maryland, 523 U.S. 185, 193-96
(1998).

   [3] The statement here seems closer to Richardson than
Gray for at least two reasons. First, Fenton’s statement to
Detective Salsedo does not mention Mason at all. In fact,
because its content never came into evidence, as far as the
jury was concerned, it mentioned no one at all. For all the jury
knew, Fenton confessed to his own involvement in the shoot-
ings and was arrested. Second, as Gray itself notes, the facts
that would have allowed the jury to infer that Fenton’s state-
ment implicated Mason came through other, properly admit-
ted evidence, particularly through Cole’s testimony of what
Mason told her. Gray, 523 U.S. at 195 (“Richardson placed
outside the scope of Bruton’s rule those statements that
incriminate inferentially.”); see also United States v. Sherlock,
962 F.2d 1349, 1360-61 (9th Cir. 1992) (as amended) (code-
fendant’s statement redacted to exclude defendant’s name and
incriminating only in light of other evidence).

  We are not persuaded to the contrary by Mason v. Scully,
16 F.3d 38, 40-41 (2d Cir. 1994), a pre-AEDPA decision,
where the officer testified that, after a conversation with a
codefendant, the police began looking for the defendant.
                         MASON v. YARBOROUGH                            5107
There, the Second Circuit determined that the only inference
the jury could draw is that the statement implicated the defen-
dant and thus violated Bruton. Id. at 43-44. Here, the only
immediate step taken by the officer hearing the statement was
to arrest its maker. In another pre-AEDPA decision, Foy v.
Donnelly, 959 F.2d 1307, 1313 (5th Cir. 1992), the Fifth Cir-
cuit found no Bruton violation where the officer testified he
sought an arrest warrant for the defendant after conducting an
investigation that included taking a codefendant’s statement.2

   [4] Moreover, there is a real question whether the Confron-
tation Clause protections apply to Detective Salsedo’s testi-
mony, because it is not at all clear that Alder Fenton was a
“witness against” Mason as that term has been defined by the
Supreme Court.

   [5] In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court evaluated the meaning of the Clause, conclud-
ing that “ ‘witnesses’ against the accused . . . [means] those
who ‘bear testimony.’ ” 541 U.S. at 51. “ ‘Testimony,’ in
turn, is typically, ‘[a] solemn declaration or affirmation made
for the purpose of establishing or proving some fact.’ ” Id. at
51 (citation omitted). Because Fenton’s words were never
admitted into evidence, he could not “bear testimony” against
Mason.

  [6] For all these reasons, we cannot say that the California
Court of Appeal’s application of Bruton to these facts was
contrary to clearly established Supreme Court law or that it
  2
    Mason argues that Richardson’s exception of inferentially incriminat-
ing statements from the application of Bruton is expressly conditioned on
the giving of a limiting instruction to the jury. Whatever strength that
argument might ordinarily have, we cannot consider it here because
Mason never requested such an instruction at trial and the Certificate of
Appealability he obtained for this appeal does not raise the issue of a state
trial court’s sua sponte duty to give a limiting instruction in such a circum-
stance. Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005).
5108                 MASON v. YARBOROUGH
applied that law in an objectively unreasonable way. We
therefore affirm the district court’s denial of habeas relief.

  AFFIRMED.



WALLACE, Senior Circuit Judge, concurring in the judg-
ment:

   I agree with the majority’s ultimate conclusion that Mason
is not entitled to habeas relief. Because I disagree with much
of the majority’s analysis, I write separately. Under the appli-
cable Supreme Court precedents, Fenton was not a “witness
against” Mason, and thus Mason’s allegations fall entirely
outside of the protections of the Confrontation Clause of the
Sixth Amendment. However, unlike the majority, I do not
believe that Bruton v. United States, 391 U.S. 123 (1968),
Richardson v. Marsh, 481 U.S. 200 (1987), and Gray v.
Maryland, 523 U.S. 185 (1998) are applicable to this appeal.

                                I.

    The Confrontation Clause guarantees “the accused the right
. . . to be confronted with the witnesses against him . . . .” U.S.
Const. Amend. VI. Thus, as a threshold matter, there must be
a “witness[ ] against” the accused for the Confrontation
Clause to be invoked properly. In the most recent Supreme
Court precedent, Crawford v. Washington, 541 U.S. 36
(2004), the Supreme Court considered three possible mean-
ings of this clause. The Court stated that “[o]ne could plausi-
bly read ‘witnesses against’ a defendant to mean those who
actually testify at trial, those whose statements are offered at
trial, or something in-between . . . .” Id. at 42-43 (citations
omitted). Notably, not even the most expansive possibility
(“those whose statements are offered at trial”) includes situa-
tions where the fact that a person made a statement, without
any content of that statement, was admitted into evidence.
                     MASON v. YARBOROUGH                    5109
The Court ultimately settled on a definition that was “some-
thing in-between” and held “ ‘witnesses’ against the accused
. . . [means] those who ‘bear testimony.’ ” Id. at 51 (citation
omitted). “ ‘Testimony,’ in turn, is typically ‘[a] solemn dec-
laration or affirmation made for the purpose of establishing or
proving some fact.’ ” Id. (citation omitted).

   Although Crawford was decided after Mason’s conviction
became final, intervening precedents are applied retroactively
against habeas petitioners. See Lockhart v. Fretwell, 506 U.S.
364, 372-73 (1993). This is because “[a] federal habeas peti-
tioner has no interest in the finality of the state-court judg-
ment under which he is incarcerated: Indeed, the very purpose
of his habeas petition is to overturn that judgment.” Id. at 373.
Furthermore, this court has held that Crawford is fully retro-
active. See Bockting v. Bayer, 399 F.3d 1010, 1012-13 (9th
Cir. 2005), amended by 408 F.3d 1127, reh’r en banc denied,
418 F.3d 1055 (2005); but see id. at 1024-30 (Wallace, J. dis-
senting).

   If Fenton’s statement to the police had been admitted into
evidence, it would unambiguously have been testimonial
under Crawford, requiring Mason to have an opportunity to
cross-examine Fenton regardless of whether a hearsay excep-
tion applied. Crawford, 541 U.S. at 52, 68. However, because
the content of Fenton’s statement was never admitted into evi-
dence, the California Court of Appeal did not unreasonably
apply Supreme Court precedents when it held that Mason’s
claim lacked merit because “Alder Fenton’s confession was
not admitted into evidence.” [ER tab 8, page 9] It is not an
unreasonable application of federal law, as set out by Craw-
ford, to hold that a person did not “bear testimony” when
none of his words were ever introduced into evidence. There-
fore, Mason cannot obtain habeas relief under 28 U.S.C.
§ 2254(d).

   The majority appears to concede that this analysis is feasi-
ble when it states that “there is a real question whether the
5110                 MASON v. YARBOROUGH
Confrontation Clause protections apply to Detective Salsedo’s
testimony.” Maj. op. at 5107. I go further: I believe this is the
only proper basis to decide this appeal. As I discuss below,
the majority’s application of Bruton, Richardson, and Gray to
single defendant trials creates a grave danger that our juris-
prudence will permit admission of evidence in clear violation
of Crawford, as long as it is not “powerfully incriminating”
or only “incriminate[s] inferentially.” I now explain why.

                               II.

   I do not concur in the majority’s application of Bruton,
Richardson, and Gray. All of these cases address the issue of
whether an admission admitted against one defendant is also
deemed to be a “witness[ ] against” the co-defendant, thus
invoking the protections of the Confrontation Clause. Because
Mason was tried alone, these precedents plainly do not apply.
The admission of the fact of Fenton’s statement must either
not, by itself, make Fenton a “witness[ ] against” Mason, or
else it is a testimonial statement by Fenton requiring a full
opportunity for cross-examination. See Crawford, 541 U.S. at
52, 68. The majority cannot use Bruton, Richardson, and
Gray to hold that the statement was admitted only against a
co-defendant, because there were none at Mason’s trial.

   In Bruton, an out-of-court admission by Bruton’s co-
defendant, Evans, was admitted into evidence in the joint trial.
Bruton, 391 U.S. at 124. That admission “powerfully
incriminat[ed]” Bruton by name. Id. at 135-36. Although the
jury was given a limiting instruction that it could only con-
sider the confession against Evans, the Supreme Court held
that “the introduction of Evans’ confession posed a substantial
threat to [Bruton’s] right to confront the witnesses against
him, and this is a hazard [the Court] cannot ignore.” Id. at
137. Thus, Evans was effectively deemed to be a witness
against Bruton, as well as himself, and because of the nature
of the confession, this could not be overcome by a limiting
                     MASON v. YARBOROUGH                    5111
instruction. As such, Bruton’s Confrontation Clause rights
were violated. Id. at 135-37.

   Richardson also involved a joint trial of two defendants
(Marsh and Williams). Richardson, 481 U.S. at 202. The con-
fession of the co-defendant, Williams, was introduced into
evidence. Id. at 203. That confession, unlike the one at issue
in Bruton, was redacted so that it contained no reference to
Marsh. Id. In addition, the jury was “admonished not to use
it in any way against respondent.” Id. at 204.

   The Court in Richardson held that “[o]rdinarily, a witness
whose testimony is introduced at a joint trial is not considered
to be a witness ‘against’ a defendant if the jury is instructed
to consider that testimony only against a codefendant.” Id.
at 206 (emphasis added). The Court based this holding in part
on “the almost invariable assumption of the law that jurors
follow their instructions . . . .” Id. (citations omitted). Thus,
the Court held that the redaction and limiting instructions
effectively prevented Williams from being a “witness against”
Marsh, and therefore the protections of the Confrontation
Clause were not at issue.

   Gray also addressed a confession by one defendant in a
joint trial. Gray, 523 U.S. at 188. The redacted admission of
Gray’s co-defendant (Bell) was introduced into evidence and
a limiting instruction was given. Id. at 188-89. However, the
redaction merely “substitut[ed] for the defendant’s name in
the confession a blank space or the word ‘deleted.’ ” Id. at
188. There the Court held that “[t]he blank space in an obvi-
ously redacted confession also points directly to the defen-
dant, and it accuses the defendant in a manner similar to
Evans’ use of Bruton’s name or to a testifying codefendant’s
accusatory finger.” Id. at 194. Thus, the confession fell
“within the class of statements to which Bruton’s protections
apply.” Id. at 197. Therefore, the Supreme Court implicitly
held that Bell’s confession made Bell a witness against Gray,
entitling him, under Bruton, to confront Bell.
5112                MASON v. YARBOROUGH
   Read properly, Bruton, Richardson, and Gray all address
the question of when an admission by one defendant can be
considered a “witness” against another defendant. In the case
before us, however, there cannot be any doubt against whom
the evidence was introduced, as Mason was the only defen-
dant on trial. If Fenton’s redacted statement had been entered
into evidence, he unquestionably would have been a “witness
against” Mason. Here, because Fenton’s statement was made
to the police during the course of interrogation, it would
clearly be testimonial, see Crawford, 541 U.S. at 52, and, if
admitted into evidence, would require an opportunity for
cross-examination, regardless of whether any hearsay excep-
tions applied. Id. at 68-69. This is not the case, however,
because Fenton’s statement (redacted or otherwise) was never
entered into evidence.

   Because Mason was tried separately, Bruton, Richardson,
and Gray do not apply. Any evidence produced at trial was
introduced against Mason. Because Fenton did not “bear testi-
mony” of any kind against Mason, he was a “witness[ ]
against” Mason. As such, the protections of the Confrontation
Clause are not at issue, and the state courts did not unreason-
ably apply Supreme Court precedent in holding as much.

   If Fenton had been a witness against Mason, however, nei-
ther redaction nor a limiting instruction could have relieved
the state of its obligation to provide Mason an opportunity to
cross-examine Fenton. The majority’s application of Richard-
son would appear to be squarely at odds with Crawford by
potentially allowing testimonial statements to be admitted
without cross-examination against a defendant tried sepa-
rately, as long as the statement was not facially incriminating.

                              III.

  Because Fenton did not “bear testimony,” he was not a
“witness[ ] against” Mason, and hence the protections of the
Confrontation Clause do not apply. This should be the end of
                   MASON v. YARBOROUGH                  5113
the analysis. The majority errs in relying upon Bruton, Rich-
ardson, and Gray, which do not apply to this appeal as Mason
was tried alone. Mason’s claim must stand or fall on whether
Fenton was a witness against him.

  Because I agree that the district court properly denied
habeas relief, I concur in the judgment.
