                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          MAR 29 2005
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                               Clerk


    JAVIER JUAREZ,

                Petitioner-Appellant,

    v.                                                   No. 03-3266
                                                  (D.C. No. 02-CV-3125-JAR)
    MICHAEL A. NELSON, Warden, El                          (D. Kan.)
    Dorado Correctional Facility; PHILL
    KLINE, Attorney General of Kansas,

                Respondents-Appellees.


                            ORDER AND JUDGMENT            *




Before BRISCOE , ANDERSON , and MURPHY , Circuit Judges.



         After examining the briefs and appellate record, this panel has determined

unanimously to grant the parties’ request for a decision on the briefs without oral

argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore

ordered submitted without oral argument.




*
      This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
      Petitioner-appellant Javier Juarez appeals from the district court’s order

denying his petition for habeas relief filed under 28 U.S.C. § 2254 . We granted a

certificate of appealablility (COA) on a single issue: whether Mr. Juarez’s Sixth

Amendment right to confront his four-year-old victim at trial had been violated by

admission of her hearsay statements through the testimony of her mother and two

police officers, given the Supreme Court’s recent decision in         Crawford v.

Washington , 541 U.S. 36 (2004). We exercise jurisdiction under 28 U.S.C.

§ 1291 and 28 U.S.C. § 2253, and affirm.

                                               I

       Following a jury trial, Mr. Juarez was convicted in Kansas state court of

aggravated criminal sodomy. His conviction was affirmed on direct appeal and

his subsequent state petition for post-conviction relief was denied. Mr. Juarez

brought a habeas petition in federal district court, asserting violation of his

Confrontation Clause rights.   1
                                   The district court denied the petition.

                                              II

      Federal applications for writs of habeas corpus may only be entertained on

the ground that the applicant is “in custody in violation of the Constitution or

laws or treaties of the United States.” 28 U.S.C. § 2254(d).


1
        The Sixth Amendment’s Confrontation Clause provides that, “[i]n all
criminal prosecutions, the accused shall enjoy the right . . . to be confronted with
the witnesses against him.”

                                              -2-
       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.

       “When applying the[] deferential AEDPA standards, we review the district

court’s legal analysis of the state court decision de novo . . . bearing in mind that .

. . state court factual findings are presumptively correct and only to be rebutted by

clear and convincing evidence.”      Saiz v. Ortiz, 392 F.3d 1166, 1176 (10th Cir.

2004) (internal quotation marks and citations omitted). “To determine the

applicable ‘clearly established’ law [under § 2254(d)], we look to Supreme Court

precedent as it existed when the state court reached its decision.”      Brown v.

Uphoff , 381 F.3d 1219, 1224 n.4 (10th Cir. 2004),      cert. denied , 125 S. Ct. 940

(2005). When the Kansas appellate courts denied post-conviction relief, the

controlling and “clearly established” Supreme Court cases relating to the interplay

between rights under the Confrontation Clause and admission of hearsay evidence

were Ohio v. Roberts , 448 U.S. 56 (1980), and       White v. Illinois , 502 U.S. 346

(1992).




                                             -3-
                                            III

       On appeal, Mr. Juarez first contends that, under    Roberts , in order to admit

the victim’s hearsay statements without violating the Confrontation Clause, the

victim had to be unavailable.    Based on that contention, he argues that the state

trial court’s finding that the victim was unavailable for trial was an unreasonable

determination and unsupported with evidence under state law because no expert

testimony was presented on the issue. We disagree with Mr. Juarez’s preliminary

contention that a finding of unavailability was required by the Sixth Amendment.

       Under Roberts , an out-of-court statement may be introduced against a

defendant without violating the Confrontation Clause if it bears guarantees of

trustworthiness such that “there is no material departure from the reason [for] the

general rule” requiring confrontation.     Roberts , 448 U.S. at 65 (internal quotation

marks omitted). In White , the Supreme Court held that the Confrontation Clause

did not require proof of the unavailability for trial of a four-year-old sexual-abuse

victim in order to properly admit her hearsay statements. In so holding, the

Supreme Court recognized that “    Roberts contains language that might suggest that

the Confrontation Clause generally requires that a declarant be produced at trial

or be found unavailable before [her] out-of-court statement may be admitted into

evidence.” Id. at 347. The Supreme Court concluded, however, that such a

reading was too expansive and that “     Roberts [instead] stands for the proposition


                                            -4-
that unavailability analysis is a necessary part of the Confrontation Clause inquiry

only when the challenged out-of-court statements were made in the course of a

prior judicial proceeding.”   Id. at 354.

       There is no claim that the four-year-old victim’s statements in this case

were made in prior judicial proceedings. Mr. Juarez never challenged the

reliability of the victim’s hearsay statements. Therefore, Supreme Court

precedent at the time the state proceedings concluded did not require a showing of

her unavailability in order to admit her hearsay statements. Accordingly, the

Kansas appellate court’s holding that Mr. Juarez’s Confrontation Clause rights

were not violated is not contrary to, nor is it an unreasonable application of, the

Supreme Court law available at the time of the Kansas decision. Federal habeas

relief is thus unavailable under § 2254(d).

                                            IV

       In March 2004, the Supreme Court held that the Confrontation Clause

requires hearsay “testimonial evidence”     2
                                                to be supported by both a showing of

“unavailability and a prior opportunity for cross-examination.”        Crawford ,

541 U.S. at __, 124 S. Ct. at 1374. Because the Supreme Court’s decision in

Crawford abrogated, in part, the Court’s prior decision in        Roberts , we granted


2
       The Court described “testimonial evidence” to apply, “at a minimum to
prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Crawford , 541 U.S. at ___, 124 S. Ct. at 1374.

                                            -5-
COA and ordered supplemental briefing on whether            Crawford impacts our

determination of Mr. Juarez’s claim. We conclude that it does not.

       After we granted COA and the briefing was completed, we issued our

opinion in Brown v. Uphoff , 381 F.3d 1219 (10th Cir. 2004),          cert. denied ,

125 S. Ct. 940 (2005). As mentioned earlier in this order and judgment, we noted

that we must apply the Supreme Court law existing at the time the state court

reached its decision when analyzing the right to federal habeas relief.           See id . at

1224 n.4. Thus, although “it is clear that the analytical approach announced in

Crawford is a departure from that articulated in       Roberts and its progeny,” and that

Crawford overruled the Roberts’ standards for analyzing a Confrontation Clause

claim when testimonial evidence is involved,        id. at 1224, we may not consider

Crawford under the standard of review we must follow in § 2254(d).            3



       Further, we also concluded in      Brown that, although Crawford “announces a

new rule of constitutional law,”     id. at 1226, it “is not a watershed decision and is,

therefore, not retroactively applicable to initial habeas petition[s],”       id. at 1227.




3
       Thus, although Respondent argues that      Crawford is inapplicable because
the victim’s statements were not “testimonial” as defined in    Crawford , we need
not analyze the issue because Crawford may not be considered in determining
whether the Kansas appellate court reasonably applied clearly-established
Supreme Court law in the case at bar.

                                              -6-
       We AFFIRM the district court’s order denying Mr. Juarez’s petition for

habeas relief.

                                                  Entered for the Court



                                                  Stephen H. Anderson
                                                  Circuit Judge




                                        -7-
