PETITION FOR A WRIT OF CERTIORARI - SCOTUSblog

II.
THIS COURT SHOULD GRANT THE WRIT TO DETERMINE IF
CRAWFORD’S HOLDING APPLIES TO PETITIONER’S CASE,
THE IDENTICAL ISSUE PRESENTED IN THE PENDING CASE
OF WHORTON v. BOCKTING.
The Minnesota Supreme Court affirmed petitioner’s conviction because it held
that Crawford, which was decided in 2004, did not apply to petitioner’s case, which
became final in September 1999. The Minnesota court considered the issue of
Crawford’s retroactive application under the Teague standard and held that 1) Crawford
had announced a new rule of constitutional criminal procedure; and 2) the rule was not a
watershed rule. (App. A-7-14).
In 2004, a split panel of the United States Circuit Court of Appeals for the Ninth
Circuit reached the opposite conclusion. Bockting v. Bayer, 399 F.3d 1010 (9th Cir.
2004), op. amended, re’hrg en banc denied 408 F.3d 1127 (9th Cir. 2005). Considering
the same issue, a majority of the panel held that, even if Crawford had announced a new
rule, it was a watershed rule of criminal procedure and was fully retroactive. Bockting,
399 F.3d at 1018. One of the panelists would have concluded that Crawford did not
announce a new rule and therefore applied to all past cases. Bockting, 399 F.3d at 1022-
24 (Noonan, J., concurring). Another panelist dissented and would have held that
Crawford announced a new rule but not a watershed rule of procedure. Id. at 1024-41
(Wallace, J., dissenting).
This Court has issued a writ of certiorari in Bockting, presumably to determine
(possibly among other things) Crawford’s retroactive effect under the Teague standard.
Whorton v. Bockting, ___ U.S. ___, 126 S.Ct. 2017 (2006) (mem) (U.S. Supreme Court
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