                FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

MARVIN HOWARD BOCKTING,                  No. 02-15866
            Petitioner-Appellant,           D.C. No.
              v.                       CV-98-00764-ECR
ROBERT BAYER,                            ORDER AND
            Respondent-Appellee.
                                          OPINION

       Appeal from the United States District Court
                for the District of Nevada
        Edward C. Reed, District Judge, Presiding

                 Argued and Submitted
        June 13, 2007—San Francisco, California

                 Filed October 12, 2007

     Before: J. Clifford Wallace, John T. Noonan, and
         M. Margaret McKeown, Circuit Judges.

               Opinion by Judge Wallace;
               Dissent by Judge Noonan




                          13811
13814                 BOCKTING v. BAYER


                         COUNSEL

Franny A. Forsman, Federal Public Defender, Las Vegas,
Nevada, for petitioner Marvin Howard Bockting.

Victor-Hugo Schulze, II and Rene L. Hulse, Nevada State
Attorney General’s Office, for respondent Robert Bayer.


                           ORDER

  The opinion and dissent filed on September 27, 2007 are
withdrawn. A new opinion and dissent are filed with this
order.


                          OPINION

WALLACE, Senior Circuit Judge:

   Bockting appeals from the district court’s order denying his
petition for a writ of habeas corpus. Bockting challenges his
state convictions on charges associated with the alleged sex-
ual abuse of his then-six-year-old step daughter. We have
jurisdiction under 28 U.S.C. § 2253(a). Bockting has not dem-
onstrated the state court’s adjudication on the merits:
“(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 proceedings,” 28 U.S.C. § 2254(d). There-
                      BOCKTING v. BAYER                  13815
fore, we affirm the district court’s order denying his petition
for writ of habeas corpus.

                              I.

   Prior to his arrest, Bockting lived with his wife, Laura
Bockting (Laura), his six-year-old step daughter, A Bockting
(A), and a three-year-old daughter, H Bockting (H), at the
Paradise Motel in Las Vegas, Nevada. On Monday, January
11, 1988, Laura began attending evening classes at a local
business college, leaving A and H at home under Bockting’s
exclusive care and supervision. The following Saturday eve-
ning, when Bockting was away, A approached Laura, crying
and “quite upset,” and told Laura that Bockting “put his pee-
pee in her pee-pee, and that daddy put his pee-pee in her butt
and daddy made her suck on his pee-pee like it was a sucker
. . . . and he put his chin in her pee-pee.” A informed Laura
that all this had happened in the bathroom, and described the
positions that Bockting used to accomplish the assault. She
further stated that Bockting threatened to “beat [her] butt” if
she revealed the assault to her mother.

   Laura awoke the next morning to find that Bockting had
returned to the motel room. She obtained rent money from
him and dropped by the motel office to pay the past week’s
rent and have Bockting’s name removed from the couple’s
rental papers. Returning to the motel room, she found A in
tears. A explained that she had just told Bockting about their
conversation from the previous evening and reported that
“Daddy told me to tell you that I was lying . . . . I can’t do
that, mommy.” Laura immediately confronted Bockting with
A’s abuse allegations and ordered him to pack his things and
leave. Bockting accused A of lying, but nevertheless complied
with Laura’s request. A wanted to give Bockting a hug and a
kiss, but Bockting refused.

  The following Tuesday, Laura called a rape hotline and
agreed to take A to a local hospital where they met Detective
13816                 BOCKTING v. BAYER
Charles Zinovitch, a member of the Las Vegas Metropolitan
Police Department’s sexual assault unit. Detective Zinovitch
ordered an emergency room doctor to conduct a rape exami-
nation. The examining gynecologist-obstetrician, Dr. Stacy
Rivers, discovered a fissure on A’s rectum. Dr. Rivers esti-
mated that the fissure, which was fresh but not actively bleed-
ing, had occurred within the last week. A’s hymenal ring—the
thin film of skin covering her vaginal orifice—was gaping
wide open, which was unusual for a girl A’s age. Although
Dr. Rivers testified that she could not be certain what kind of
“instrument or foreign body” had caused the tear in A’s rec-
tum and the laxness of her hymen, she concluded that these
injuries had been caused by a “blunt type of trauma” applied
to the rectum and vagina.

   Two days later, Detective Zinovitch interviewed A con-
cerning the alleged sexual abuse. Although A had been hys-
terical and uncommunicative at the hospital, she was now
calm and cooperative. She described Bockting’s alleged
assault, and stated once again that Bockting “put his pee-pee
into her pee-pee . . . butt and . . . mouth” and put “his chin
on her pee-pee.” She described the acts in vivid detail and
reenacted the positions Bockting assumed during the assault
with the aid of anatomically correct dolls, using age-
appropriate terminology. Detective Zinovitch testified that the
positions A described were consistent with the relative body
sizes of A and Bockting.

   At Bockting’s March 30, 1988, preliminary hearing, A was
called to the stand. A testified that she knew the difference
between a truth and a lie and answered preliminary questions
about the alleged assault and subsequent rape examination. A
was initially cooperative, and answered in the affirmative
when asked whether Bockting had touched her inappropri-
ately. She stated that the incident had occurred in the bath-
room, when her mother was not home, and that H was in the
living room at the time. Her initial statements were consistent
with what she told Laura and Detective Zinovitch, except in
                      BOCKTING v. BAYER                   13817
that she stated that Bockting left her pants on. Upon further
questioning, however, A began to cry and averred that she
could not remember basic facts as to what had occurred in the
bathroom or the statements that she had told Laura and Detec-
tive Zinovitch. Laura encouraged A to “be honest” and “tell
the truth,” but A refused to answer any further questions,
responding instead, “[y]ou already told them.”

  Bockting’s jury trial commenced on August 15, 1988. The
government, represented by Deputy District Attorney Lukens,
called A as its first witness. A was uncooperative, however,
and found unavailable.

   After hearing testimony from Laura and Detective
Zinovitch outside the presence of the jury, the judge con-
cluded that A’s hearsay statements to Laura and the detective
were credible and admissible. The court observed that there
appeared no motive to fabricate, as there appeared to be no
conflict between A and Bockting. Further, the statements
were neither irrational or implausible, they followed a chrono-
logical order, and they conveyed what appeared to be A’s per-
ception of the events. While the court conceded that A’s
statements at the preliminary hearing were not entirely consis-
tent with the statements made to Detective Zinovitch and
Laura, it noted that it was not uncommon for children to
refuse to testify in similar circumstances. The court thus con-
cluded that it had “no difficulty” concerning the reliability of
the statements.

  The court determined that A’s hearsay statements were
admissible under Nevada Revised Statute 51.385 because A
was effectively unavailable for questioning:

    The very purpose of this statute was to avoid the
    problem we have here today where a little girl either
    is not willing to testify or for some reason is unable
    to or testifies in such an inconsistent manner that it
    means, in essence, that their testimony is worthless;
13818                  BOCKTING v. BAYER
    and because of the fact that she is testifying in open
    court in front of strangers with all the things that sur-
    rounds that kind of a setting.

    . . . . The little girl is obviously unavailable. And as
    far as these two statements, I am meaning the one to
    the mother and the one to Detective Zinovitch, I
    think they are allowed—they are credible enough to
    be allowed to be related to the jury.

   Bockting was convicted of three sexual assault counts:
Counts I-II, forcing vaginal and anal intercourse on a child;
and Count III, compelling a victim to perform fellatio on him.
The Nevada Supreme Court dismissed Bockting’s appeal on
June 22, 1989, but the United States Supreme Court later
vacated the state supreme court’s order and remanded for fur-
ther consideration in light of Idaho v. Wright, 497 U.S. 805
(1990). On March 8, 1993, the Nevada Supreme Court
affirmed Bockting’s conviction. See Bockting v. State, 847
P.2d 1364 (Nev. 1993) (per curiam) (Bockting).

   While his application for a writ of certiorari was pending
before the United States Supreme Court, Bockting filed a peti-
tion for post-conviction relief with Nevada’s Eighth Judicial
District Court. The state district court denied Bockting’s peti-
tion, and Bockting appealed to the Nevada Supreme Court.
On December 24, 1997, the state supreme court dismissed the
appeal, effectively putting an end to Bockting’s state court
proceedings.

   Bockting next sought relief in federal court, filing a petition
for habeas corpus on December 30, 1998, followed by a sec-
ond amended petition on May 17, 2000. The district court,
exercising jurisdiction pursuant to 28 U.S.C. § 2254, denied
the petition on March 22, 2002, and issued a certificate of
appealability on April 26, 2002. While the appeal was pend-
ing, the Supreme Court issued its opinion in Crawford v.
Washington, 541 U.S. 36 (2004), overruling Ohio v. Roberts,
                      BOCKTING v. BAYER                   13819
448 U.S. 56 (1980), which was then the governing precedent.
See Whorton v. Bockting, 127 S.Ct. 1173, 1181 (2007) (Whor-
ton). Crawford held that “[t]estimonial statements of wit-
nesses 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. We broadened the certificate of appealability, and
Bockting timely appealed.

   Bockting’s original petition for relief rested primarily on
his constitutional rights under the Confrontation Clause, pre-
senting a question of first impression in our circuit: whether
Crawford applies retroactively to state convictions on habeas
review. A divided panel concluded that the procedural rule
under Crawford applies retroactively to cases on collateral
review, and granted relief. See Bockting v. Bayer, 399 F.3d
1010, 1021-22 (9th Cir. 2005).

   The Supreme Court granted certiorari. It held that Craw-
ford had no retroactive application to cases on collateral
review, and reversed and remanded for further proceedings.
Whorton, 127 S.Ct. at 1177, 1184. We now consider Bock-
ting’s remaining arguments on remand.

                              II.

   Our review of Bockting’s state convictions is governed by
the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See Bell v. Cone, 535 U.S. 685, 693 (2002). Under
AEDPA, habeas relief is warranted only where the state
court’s adjudication of the merits: “(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 deci-
sion that was based on an unreasonable determination of the
facts in light of the evidence presented in the State court pro-
ceedings.” 28 U.S.C. § 2254(d)(1)-(2). A state court convic-
tion “can involve an ‘unreasonable application’ of federal law
13820                 BOCKTING v. BAYER
if it either 1) correctly identifies the governing rule but then
applies it to a new set of facts in a way that is objectively
unreasonable, or 2) extends or fails to extend a clearly estab-
lished legal principle to a new context in a way that is objec-
tively unreasonable.” Van Tran v. Lindsey, 212 F.3d 1143,
1150 (9th Cir. 2000), overruled on other grounds by Lockyer
v. Andrade, 538 U.S. 63 (2003). State court findings of fact
are presumed correct unless the presumption is rebutted with
clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).

   [1] Since the Supreme Court has concluded that Crawford
has no retroactive application to cases on collateral review,
we apply the law as it stood before that case. Prior to Craw-
ford, an out-of-court statement against a criminal defendant
was admissible at trial if two conditions were met. See Rob-
erts, 448 U.S. at 65-66. First, “in order to introduce relevant
statements at trial, state prosecutors [must] either produce the
declarants of those statements as witnesses at trial or demon-
strate their unavailability.” Bains v. Cambra, 204 F.3d 964,
973 (9th Cir. 2000), citing Roberts, 448 U.S. at 65-66. Sec-
ond, even if prosecutors succeed in demonstrating unavaila-
bility, the statements are only admissible if they bear
“adequate indicia of reliability.” Roberts, 448 U.S. at 66
(internal quotation marks omitted). The “indicia of reliability”
requirement is met if the statements fall within a “firmly
rooted hearsay exception” or contain “particularized guaran-
tees of trustworthiness.” Id.

   In Bockting’s state proceedings, the Nevada Supreme Court
determined that the government satisfied these two require-
ments. See Bockting, 847 P.2d at 1366-70. Bockting chal-
lenges these determinations on federal habeas review.
Mindful of our duty to defer to the state supreme court’s fac-
tual determinations and reasonable applications of Supreme
Court precedent, 28 U.S.C. § 2254(d)(1)-(2), we consider
Bockting’s arguments.
                      BOCKTING v. BAYER                  13821
                             III.

   Bockting contends that relief is warranted because the
Nevada Supreme Court decision conflicts with Idaho v.
Wright, 497 U.S. 805 (1990), and applies the wrong standards
in determining the admissibility of A’s hearsay statements. He
argues that the state court decision involved an unreasonable
application of clearly established federal law and was based
on an unreasonable determination of the facts.

   [2] Whether A’s hearsay statements “were sufficiently reli-
able to be admitted without violating [Roberts] is a mixed
question” of law and fact. Swan v. Peterson, 6 F.3d 1373,
1379 (9th Cir. 1993). We review the Nevada Supreme Court’s
reliability determination to ascertain whether it “was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
the United States.” 28 U.S.C. § 2254(d)(1); see also Davis v.
Woodford, 333 F.3d 982, 990 (9th Cir. 2003) (stating that sub-
section 2254(d)(1) applies “to mixed questions of law and
fact” (citing Williams v. Taylor, 529 U.S. 362, 407-09
(2001))). To the extent the Nevada Supreme Court’s determi-
nation of “particularized guarantees of trustworthiness” rests
on findings of fact, we must consider whether it “was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). We presume that the state court’s findings are
correct unless the presumption is rebutted with clear and con-
vincing evidence. See id. § 2254(e)(1).

   In Wright, the Supreme Court examined whether the admis-
sion at trial of certain hearsay statements made by a child
declarant to an examining doctor violated the defendant’s
rights under the Confrontation Clause. 497 U.S. at 808.
Wright reiterated the Roberts test, confirming that hearsay
statements made by an unavailable witness are admissible
only where the statements bear “adequate indica of reliabili-
ty.” Id. at 815 (internal quotation marks omitted), quoting
13822                  BOCKTING v. BAYER
Roberts, 448 U.S. at 65. Reliability may be “inferred without
more” where the statements fall within a firmly rooted hear-
say exception. Id. at 815. Where no hearsay exception applies,
however, the statements are “presumptively unreliable” and
meet Confrontation Clause reliability standards only if “sup-
ported by a showing of particularized guarantees of trustwor-
thiness.” Id. at 817, quoting Lee v. Illinois, 476 U.S. 530, 543
(1986) (internal quotation marks omitted).

   [3] Wright held that the “ ‘particularized guarantees of
trustworthiness’ required for admission [of hearsay state-
ments] under the Confrontation Clause must . . . be drawn
from the totality of circumstances that surround the making of
the statement and that render the declarant particularly worthy
of belief.” Id. at 820. Relevant factors in child sexual abuse
cases include: (1) spontaneity and consistent repetition, (2)
the mental state of declarant, (3) use of terminology unex-
pected of a child of similar age, and (4) lack of motive to fab-
ricate. Id. at 821-22. The Court observed, however, that these
factors were “not exclusive, and courts have considerable lee-
way in their consideration of appropriate factors.” Id. at 822.
It “therefore decline[d] to endorse a mechanical test for deter-
mining ‘particularized guarantees of trustworthiness’ under
the Clause,” stating instead that the “unifying principle is that
these factors relate to whether the child declarant was particu-
larly likely to be telling the truth when the statement was
made.” Id.

                               A.

  We first consider whether the Nevada court’s decision was
based on an unreasonable determination of the facts. See 28
U.S.C. § 2254(d)(2).

   [4] In Bockting’s underlying state case, the Nevada
Supreme Court determined that while A’s statements did not
fall within any “firmly rooted hearsay exception,” they were
nevertheless admissible because the statements bore the “par-
                      BOCKTING v. BAYER                   13823
ticularized guarantees of trustworthiness” required under Rob-
erts. Bockting, 847 P.2d at 1367-70. Applying the test
outlined in Wright, 497 U.S. at 821-22, the court identified
several facts supporting the trustworthiness of A’s statements,
including (1) the “spontaneity and consistent repetition” of
her statements, (2) A’s “agitation and fear,” reflected by “the
fact that she was visibly shaken and crying,” (3) her “knowl-
edge of sexual conduct not present in most children six years
of age,” (4) her “child-like terminology” which “was reflec-
tive of candor rather than coaching,” and (5) her “display of
affection for Bockting,” which was “indicative of love rather
than hate.” Bockting, 847 P.2d at 1369.

   These findings are not unreasonable based on the record.
On two different occasions, A made spontaneous statements
to her mother concerning the alleged assault: on July 16,
1988, when A first complained of the assault; and again on
the morning of July 17, 1988, when she cried and told her
mother that “Daddy told me to tell you that I was lying . . .
I can’t do that, mommy.” Second, when taken as a whole, A’s
statements of abuse are consistent. A’s initial allegations of
abuse, on July 16, 1988, are in accord with the abuse that she
described to Detective Zinovitch. Her demonstration with the
dolls, in front of Detective Zinovitch, further supported her
statements. Her outburst to her mother on July 17, 1988, that
Bockting told her to say that she was lying, also corroborated
her allegations of abuse. Finally, A’s testimony at the prelimi-
nary hearing is more consistent than not: (1) A answered
“yes” when asked whether Bockting had touched her inappro-
priately, and (2) she testified that her mother had not been
home, that H was in the living room, and that the incident
occurred in the bathroom. Although A’s statement that her
pants were on at the time of the assault is inconsistent with
her prior statements, her preliminary hearing testimony as a
whole corroborates her previous description of the alleged
assault.

  The other Wright factors similarly cut in favor of the rea-
sonableness of the Nevada Supreme Court’s determination on
13824                 BOCKTING v. BAYER
trustworthiness. When A initially described the alleged assault
to Laura, she was “quite upset” and crying. She cried again
when she told Laura that Bockting told her to deny the story
the next day. The vivid descriptions that A gave to both Laura
and Detective Zinovitch also reflect an unusual knowledge of
sex for a child her age, even given the fact that A had on
occasion walked in on intercourse between Bockting and
Laura. Further, the terminology used by A in her statements
both to Laura and Detective Zinovitch was consistent with
what may be expected from a child her age: she described the
alleged assault to Laura and Detective Zinovitch with refer-
ence to her own “butt” and “pee-pee” and Bockting’s “pee-
pee,” and stated that “white bubbly stuff” came out of Bock-
ting’s penis. Finally, A’s affection for Bockting evidenced a
lack of motive to fabricate.

   Bockting contends that the Nevada court created facts not
present in the record in determining that the “veteran detec-
tive conducted the recorded interview with the child in a man-
ner that was not suggestive, leading, or indicative of a
predetermined resolve to produce evidence of child abuse,”
Bockting, 847 P.2d at 1368-69. Not so. Detective Zinovitch
testified that he was employed by the Las Vegas Metropolitan
Police Department for sixteen years, and had been assigned to
the sexual assault unit for four years. He stated that he was
“very careful” when interviewing a child, and that he would
try to “have the child describe what had happened in her own
words.” He further testified that after A stated that Bockting
had hurt her, he asked her “What do you mean he hurt you?
How did he hurt you?” Detective Zinovitch’s testimony
reflects that he was experienced at interviewing children and
that he used open-ended questions during his interview with
A. This record supports the Nevada Supreme Court’s finding
that the detective did not use suggestive or leading questions
during his interview with A, and we thus disagree that the
court created facts not present in the record.

   We also disagree with the assertion that the Nevada court’s
reliance on A’s use of the dolls in her interview with Detec-
                      BOCKTING v. BAYER                  13825
tive Zinovitch somehow rendered the decision an “unreason-
able determination of the facts.” Bockting cites one study in
support of his argument that “considerable disagreement”
exists regarding the propriety of using the dolls. Bockting’s
reference to a single study on doll evidence, without more, is
not enough to suggest that the Nevada court’s opinion was
“based on an unreasonable determination of the facts in light
of the evidence presented,” see 28 U.S.C. § 2254(d)(2).

   [5] Our review of the record evidence satisfies us that the
Nevada Supreme Court’s opinion was not “based on an unrea-
sonable determination of the facts in light of the evidence
presented in the State court proceeding.” 28 U.S.C.
§ 2254(d)(2). We presume that the state court findings of fact
are correct unless rebutted by clear and convincing evidence,
id. § 2254(e)(1), and Bockting has failed to overcome that
presumption.

                              B.

   We turn to Bockting’s contention that the Nevada opinion
was “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme
Court of the United States,” see 28 U.S.C. § 2254(d)(1).

   Bockting asserts that the state courts misapplied Roberts in
two ways. First, he argues that the trial court misapplied Rob-
erts by applying a presumption in favor of admissibility.
However, no such burden is evident from the trial record.
Somewhat more interesting is Bockting’s second argument,
that the Nevada Supreme Court’s failure to state that the “pre-
sumptive[ ] unreliab[ility]” of A’s hearsay statements is con-
trary to Wright.

  [6] The Nevada Supreme Court considered Bockting’s
appeal on remand, with the express instruction from the
United States Supreme Court to consider the case under
Wright. In the resulting opinion, the Nevada court recited the
13826                  BOCKTING v. BAYER
proper test under Roberts, that hearsay statements made by an
unavailable witness are admissible only in two circumstances:
(1) where the statement fits a “firmly rooted” hearsay excep-
tion, or (2) the statement “reflects particularized guarantees of
trustworthiness.” 847 P.2d at 1367 (internal quotation marks
and citation omitted). In evaluating the admissibility of A’s
hearsay statements, the Nevada Supreme Court made a “care-
ful comparison of the factors accorded significance in Idaho
v. Wright with those present in the instant case.” Bockting,
847 P.2d at 1369. The court raised and discussed the relevant
Wright factors (spontaneity, repetition, mental state, terminol-
ogy, and motive to fabricate) before determining that, “[i]n
viewing the totality of the circumstances surrounding the
child’s out-of-court statements, as defined in Wright, we con-
clude that the [trial] court did not err in finding sufficient
‘particularized guarantees of trust-worthiness’ to admit the
proffered statements.” Id. at 1369-70. In light of the Nevada
court’s extensive discussion and reliance on Wright, we do
not agree with Bockting that the Nevada Supreme Court’s
failure to mention that A’s hearsay statements were “pre-
sumptively unreliable” renders it contrary to Wright.

   [7] Wright did refer to a statement from Lee v. Illinois that
hearsay evidence not within a firmly rooted exception is “pre-
sumptively unreliable,” but then states that such hearsay
meets the Confrontation Clause if it is supported by a “show-
ing of particularized guarantees of trustworthiness.” Lee, 476
U.S. 530, 543 (1986) (quotation marks and citation omitted).
But it is this guarantee of trustworthiness that overcomes the
presumption. As the Nevada Supreme Court’s analysis of
these factors was not an unreasonable application of Wright,
it was unnecessary to mention the word “presumption.”

   Bockting also mistakenly argues that the Nevada Supreme
Court’s decision involved an unreasonable application of
clearly established federal law because evidence confirming
the unreliability of A’s statements was rejected or ignored. In
its opinion, the Nevada Supreme Court recognized some
                      BOCKTING v. BAYER                  13827
inconsistencies in A’s statements. It observed that during the
preliminary hearing, A stated that her pants were not removed
during the alleged assault, that she was unable to remember
how Bockting touched her, and that she could not remember
what she had told her mother or Detective Zinovitch. Bock-
ting, 847 P.2d at 1366-67. It concluded, however, after con-
sidering the “totality of the circumstances surrounding the
child’s out-of-court statements, as defined in Wright” that the
trial court properly admitted the statements. Id. at 1369-70.
After evaluating the court’s discussion of the Wright factors,
we do not agree that the Nevada Supreme Court’s opinion
was defective merely because it failed to mention every fact
that Bockting believes supports his case.

   [8] Finally, Bockting argues that Crawford did not change
the rule with respect to testimonial statements, and suggests
that confrontation would be required in this case under either
Roberts or Crawford. This argument is foreclosed by Whorton
v. Bockting, which stated that Crawford “overruled Roberts”
and “announced a new rule.” 127 S.Ct. 1181 (“The Crawford
rule is flatly inconsistent with the prior governing precedent,
Roberts, which Crawford overruled”).

  AFFIRMED.



NOONAN, Circuit Judge, dissenting:

   This appeal, as Judge Wallace accurately puts it, turns on
whether the Supreme Court of Nevada unreasonably applied
Idaho v. Wright, 497 U.S. 805 (1990) to the facts of this case.
In its first remand of the case, the United States Supreme
Court had asked the Nevada Supreme Court to consider its
affirmance of Bockting’s conviction in the light of Wright.
Bockting v. Nevada, 497 U.S. 1021 (1990). Our court must
ask whether the Nevada Supreme Court has reasonably done
so.
13828                 BOCKTING v. BAYER
  To apply Wright reasonably, the Nevada Supreme Court
had to decide whether A was not available as a witness and
whether her statements as reported by her mother and by the
detective bore such particularized guarantees of truthworthi-
ness that cross-examination of her would be only marginally
useful.

   Both issues mixed fact and law. There had to be a factual
basis for finding that A could not take the stand. There had
to be a factual basis for finding that such particularized guar-
antees of A’s truthworthiness existed that cross-examination
would be of marginal utility. Instructed by Wright, the
Nevada Supreme Court knew the rule that it must apply in
each instance. It could not make the rule applicable by imag-
ining the facts or by abbreviating the rule to the point of mis-
understanding it.

   The position in which the Nevada Supreme Court was put
by the remand may be illustrated by an analogy from baseball.
The home plate umpire decides if a runner is out when there
is a close call at the plate. The umpire’s melding of what he
sees with the rule he knows cannot reasonably be challenged.
But when the runner is stealing second, and the third base
umpire calls him out because he did not reach third, the third
base umpire is subject to reversal. He has either not under-
stood the facts or not understood the rule he purports to apply,
or he has understood neither. Is the Nevada Supreme Court in
the position of the supposed home plate umpire or in that of
the imagined third base umpire?

   Was A not available as a witness? The Nevada Supreme
Court devoted footnote four of its opinion to this question and
stated:

    Although NRS 51.385 does not require the unavaila-
    bility of the hearsay declarant as a prerequisite to the
    admissibility of the declarant’s statements, we are
    satisfied on this record that the trial judge correctly
                      BOCKTING v. BAYER                   13829
    determined that the child was unavailable as a wit-
    ness. The record reveals, as described by the prose-
    cutor, that the child “froze” and would not even
    stand or communicate to take the oath. Moreover,
    defense counsel did not contest the district court’s
    ruling concerning the child’s unavailability as a wit-
    ness.

This single paragraph, central to the Nevada Supreme Court’s
finding that A was not available, first endorses the trial
judge’s conclusion to that effect and secondly accepts the
prosecutor’s claim that A “froze.” Neither the first nor the
second point establish A’s unavailability. The trial judge did
not make any finding at all as to A’s unavailability. To rely
on what the trial court did is to rely on nothing except his
decision to let in her hearsay statements. The trial judge iden-
tified no basis for this result.

   What the trial judge did say was something that showed
him to be confused about the relevant rule. He said, “The very
purpose of this statute [governing the testimony of a child
under ten] was to avoid the problem we have here today
where a little girl either is not willing to testify or for some
reason is unable to or testifies in such an inconsistent manner
that it means, in essence, that [her] testimony is worthless.”
In the trial judge’s mind, the child witness is unavailable, if,
as in A’s case, her testimony is inconsistent so that it becomes
“worthless.” That is surely a misstatement of the rule deter-
mining a witness’s unavailability.

   The second leg on which the Nevada Supreme Court stood
begins with the prosecutor’s characterization of what A did;
supplements this reference by a reference to what the record
shows; and adds that defense counsel did not object. To take
the last point first, there was no ruling to which defense coun-
sel could make a record; the trial judge simply assumed that
A, inconsistent as she was in her statements, was not avail-
able. What the record reveals as to her unavailability is her
13830                 BOCKTING v. BAYER
nonresponsiveness to a colloquy between her and the judge
that could not have consumed more than a minute. The record
reveals no effort by the judge to make her more at home or
to consider measures that could be taken to lessen her reluc-
tance. A “froze” as the prosecutor said. A momentary freezing
is insufficient ground to find unavailability established espe-
cially when the witness is already present and the conclusion
is reached by a judge confused as to the relevant rule.

   The “Sixth Amendment establishes a rule of necessity.”
Ohio v. Roberts, 448 U.S. 56, 65 (1980). “In the usual case
. . . the prosecution must either produce, or demonstrate the
unavailability of, the declarant . . .” Id. No necessity was
proved to justify the introduction of the hearsay. Neither the
trial judge nor the Nevada Supreme Court in cursory fashion
referencing the record have taken seriously the first require-
ment of Wright. The witness whose words will be reported by
someone else must actually be not available. We owe defer-
ence to the state court’s findings of fact. We do not owe def-
erence to the Nevada Supreme Court’s endorsement of a
ruling never made and of a statement by the prosecutor.

  Did the judicial umpire, the Nevada Supreme Court, do any
better in its fusing of facts with law to find particularized
guarantees of trustworthiness making cross-examination, if
not unnecessary, at least of little use?

   To being with, the Nevada Supreme Court missed the prin-
ciple overarching any admission of this sort of hearsay: cross-
examination of the child, the declarant herself, would not
materially increase a jury’s confidence that she had said what
the retailers of the hearsay said she said. The overarching
principle is put with great clarity by Wright quoting Wigmore:

    “The theory of the hearsay rule . . . is that the many
    possible sources of inaccuracy and untrustworthiness
    which may lie underneath the bare untested assertion
    of a witness can best be brought to light and
                       BOCKTING v. BAYER                   13831
    exposed, if they exist, by the test of cross-
    examination. But this test or security may in a given
    instance be superfluous; it may be sufficiently clear,
    in that instance, that the statement offered is free
    enough from the risk of inaccuracy and untrust-
    worthiness, so that the test of cross-examination
    would be a work of supererogation.” 5 J. Wigmore,
    Evidence § 1420, p. 251 (J. Chadborn rev. 1974).

Wright, 497 U.S. at 819.

   The Supreme Court of the United States, embracing this
“theory of the hearsay rule” went on to restate the rule’s ratio-
nale in its own terms and to illustrate it in application:

    In other words, if the declarant’s truthfulness is so
    clear from the surrounding circumstances that the
    test of cross-examination would be of marginal util-
    ity, then the hearsay rule does not bar admission of
    the statement at trial. The basis for the “excited utter-
    ance” exception, for example, is that such statements
    are given under circumstances that eliminate the pos-
    sibility of fabrication, coaching, or confabulation,
    and that therefore the circumstances surrounding the
    making of the statement provide sufficient assurance
    that the statement is trustworthy and that cross-
    examination would be superfluous.

Id. at 820.

   As the Court declared: “Our precedents have recognized
that statements admitted under a ‘firmly rooted’ hearsay
exception are so trustworthy that adversarial testing would
add little to their reliability.” Id. at 820-21. The Court went on
to say that:

    “the particularized guarantees of trustworthiness”
    must be at least as reliable as evidence admitted
    under a firmly rooted hearsay exception . . .
13832                  BOCKTING v. BAYER
Id. at 821.

   The Nevada Supreme Court handicapped itself severely by
not stating, or apparently grasping, the rationale that would let
into a trial the nontestimonial statements of a child. The
Nevada Supreme Court noted that the Supreme Court had not
endorsed any mechanical test. The Nevada Supreme Court
then proceeded in mechanical fashion to find three particular-
ized guarantees. Let us look at them.

   The first is that A awoke from sleep, distressed and sob-
bing, and after being reassured by her mother, gave details of
Bockting’s alleged acts. This statement did not qualify as an
“excited utterance” under the firmly-rooted exception to the
hearsay rule. The Nevada Supreme Court made a half-effort
to bring the statement within this exception (“the child’s out-
pouring . . . reflected a natural spontaneity indicative of
truth”); but the court did not invoke the firmly-rooted excep-
tion. Instead, the court expressed incredulity that a child
“would conjure up the parade of horribles she related about
her stepfather.” What the hearsay reported was a “parade of
horribles” — does that make the story more or less credible?
Are you more trustworthy when you let your imagination go?
The court overlooked the totality of the circumstances in
which the horribles were paraded. In her mother’s words,
“She looked like she had just woke up from a bad dream and
she was quite upset.” It is a commonplace phenomenon for
people of all ages to have nightmares and to awake in distress.
What they then say was bothering them carries no guarantee
of trustworthiness; they are coming out of sleep, still respond-
ing to their sleeping-state impressions.

   A’s second declaration was made to the police officer in the
presence of her mother. The Nevada Supreme Court found
that its guarantee of trustworthiness was that it was “consis-
tent with the details she had previously told to her mother.”
That consistency carries little weight unless her nighttime
declaration to her mother was trustworthy. The Nevada
                       BOCKTING v. BAYER                   13833
Supreme Court did not note that two days earlier, A had
refused to speak to the detective. Neither did the court note
the psychological compulsion not to let down her mother who
was counting on her to confirm what the mother had reported.

   The Nevada Supreme Court treated A’s arrangement of the
dolls as her “third consistent description of the events.” At the
preliminary hearing, Detective Zinovitch gave an account of
A and the dolls: Before he began to question her, he told her
that he had some dolls he might show her. After he had fin-
ished his questions, she asked, “Can I see the dolls now?”
Zinovitch showed her the dolls. As he testified:

    First I had her look at the dolls, take the clothing off
    the dolls, so we could identify what she feels would
    be the adult dolls, what would be the juvenile dolls,
    male, female, to be sure she knew what she was talk-
    ing about when she talks about the suspect’s penis or
    pee-pee, what the vagina is or what she calls her pee-
    pee. And, you know, we went through that type of
    questioning.

       After I was sure that she was aware of the specific
    body parts, then I asked her to show me — I asked
    her if she could show me what positions had actually
    taken place in the different acts.

   Zinovitch’s tape recorder, which he had turned off when he
was identifying body parts, was turned on to record what A
then said. According to his testimony, she described what had
happened, illustrating it by reference to the dolls, using a male
adult doll and a young female doll to show “the exact posi-
tions that had occurred.” He added, “She was happy through-
out the interview.”

   The question must be asked whether A’s arrangement of
the dolls was a guarantee of the trustworthiness of what she
had told Zinovitch. Five things mark this part of his interview.
13834                 BOCKTING v. BAYER
First, he initiated the conversation about the sex organs of the
dolls. Second, he instructed A to take off the dolls’ clothes.
Third, he turned off the tape while he prepared her. He asked
her a leading question: “When he put his pee-pee in your
vagina, show me how you were laying.” Fifth, she was happy
as she reenacted the events.

   The dolls would be an unconventional way of guaranteeing
the truth of what A is reported to have said. The immediate
circumstances of what she said at this time are far from giving
confidence in Zinovitch’s report. Not only did he testify to the
leading question he asked her, but he conceded that he con-
ducted the preliminary conversation about the sex organs of
the dolls, and he directed the removal of the dolls’ clothes.
Although he had been taping the interview, he chose not to
tape his preliminary conversation that primed A on the body
parts. And throughout this reliving of what is portrayed by the
prosecution as a fearful trauma, A seemed happy! Her happi-
ness is part of the totality of the circumstances of her state-
ment. Her happiness must undermine confidence in the
credibility of what she is said to have said.

   We own no deference to the Nevada Supreme Court as to
its understanding of governing constitutional principle. Like
the third base umpire of the analogy, the Nevada Supreme
Court has misunderstood the relevant rule. That court has not
understood why a statement can qualify as an exception to the
requirements of the Confrontation Clause. That court has not
grasped that the governing principle is: would cross-
examination be of significant value.

   The Nevada Supreme Court failed to apply Wright reason-
ably to A’s availability as a witness and to the value of cross-
examination in testing the trustworthiness of the statements
attributed to her, and so has not asked the question it had to
answer: Would cross-examination have materially increased
confidence in A’s reported statements? It is difficult to imag-
ine a lawyer or a judge who would answer the question No.
                      BOCKTING v. BAYER                   13835
Bockting’s right to confront the only percipient witness
against him was grievously violated.

          AEDPA and the Nevada Supreme Court

   AEDPA directs us to determine whether the state decision
“was based on an unreasonable determination of the facts in
light of the evidence presented in the State court proceeding.”
28 U.S.C. § 2254(d)(2). So far this analysis has proceeded as
though the highest state court to rule on the case had the
power to determine the facts. But this is not so.

   The constitution of the State of Nevada prohibits the
Nevada Supreme Court from finding facts in the course of a
criminal appeal. Nev. Const. art. 6, § 4; Lane v. Second Judi-
cial Dist. Court, 760 P.2d 1245, 1261 (Nev. 1988) (Steffen,
J., concurring). It must be assumed the Nevada Supreme
Court obeyed or, that if it did not, its findings were unlawful
and may be disregarded.

   In terms of the analogy with baseball, this split between the
ability to determine the facts and the ability to state the law
constitute a distinct problem. It is as though the home plate
umpire could only find the facts — the catcher touched the
runner; the runner had not crossed home plate; while a super-
umpire would have the power to review the application of the
rules and pronounce the runner to be out. Certainly, the super-
umpire could not invent facts and say, “The runner crossed
the plate. He’s not out.”

   Out of an abundance of caution, it has been assumed that
some facts could be determined by the Nevada Supreme
Court. Now, however, as an alternative approach, the analysis
is founded on what was found by the only Nevada court that
had power to find facts, the trial court.

   As to A’s unavailability as a witness, as already noted, the
trial court made no finding of fact. Consequently, there is
13836                  BOCKTING v. BAYER
nothing for us to review or to treat with deference. and no
guarantee of the statement’s trustworthiness shown. Nor is
anything shown by the statement’s plausibility. The prosecu-
tor wouldn’t be trying to introduce it if it were implausible.
Chronological order seems to be characteristic of any narra-
tive. The judge found that A had no motive to fabricate. This
negative conclusion was scarcely a guarantee of trustworthi-
ness. That the trial judge thought the statements reflected A’s
perceptions and that he found the account “credible” merely
presents the trial judge’s view of the evidence. At the end of
his brief analysis, he acknowledges that A spoke differently
at the preliminary hearing. Plausibility, rationality, chronolog-
ical order, absence of motive to lie, and credibility create no
exception to the constitutional requirement set by the Sixth
Amendment. The writ of habeas corpus must be issued.

   As to the other requirements of Wright, the trial court found
the hearsay statements “not irrational or not plausible. They
follow chronologically the events. They tell what the little
girl’s perception of it was and it seems to be credible,
although I grant that at the preliminary hearing there is a dif-
ferent version.” That a statement does not appear irrational
and that it appears plausible and credible to the judge — none
of these are particularized guarantees. And when the judge
concedes that A’s testimony is not consistent, how could any-
one conclude that cross-examination of her would be of little
utility? No findings as to the necessary guarantees have been
made. For this reason, too, the writ should issue.
