Garlick v. MillerGarlick v. Miller
DECISION AND ORDER
McMahon, C.J.:
I have received and reviewed the Report and Recommendation of The Hon. Sarah L. Cave, dated April 27, 2020 (Dkt. No. 29; hereinafter the “R&R“), denying Petitioner
Judge Cave concluded that Garlick‘s petition did not meet the exacting standard for relief under the Antiterrorism and Effective Death Penalty Act (“AEDPA“). Nonetheless, the R&R acknowledges that Garlick‘s petition “made a substantial showing of the denial of a constitutional right,” and recommends that this Court certify the following questions for appeal (see
Timely objections to the R&R were received from Petitioner and Respondent Christopher L. Miller, Superintendent of the Great Meadows Correctional Facility, where Petitioner Garlick was housed at the time he filed his petition. (Dkt. Nos. 32, 33.)1 The Court has considered thoroughly all of the Petitioner‘s and Respondent‘s arguments in support of their objections, and has considered de novo all of the points raised. See
Although I adopt substantially all of Judge Cave‘s analysis of the issues and conclusion of law in the R&R, I respectfully disagree with the recommendation that I deny Garlick‘s petition for failure to meet the standard set forth in
BACKGROUND
A. Factual Background
A thorough treatment of the facts is set forth in the R&R. (R&R at 2-9.)
In sum: at Garlick‘s trial on charges of Second Degree Murder, First Degree Manslaughter, First Degree Assault, and Second Degree Assault, the prosecution entered into evidence a report prepared by Dr. Katherine Maloney of the New York Office of the Chief Medical Examiner (“OCME“), summarizing an autopsy she had performed on Garlick‘s alleged victim. The autopsy occurred after Garlick and another individual had been identified as suspects, with two homicide detectives in attendance. In the autopsy report, Dr. Maloney stated that the cause of death was homicide resulting from multiple stab wounds, which caused the police to rule out the other suspect in the case and focus on Garlick.
Although Garlick admitted to having used force against the victim (in defense of his girlfriends), he disputed throughout the trial that he had possessed or used a knife during the altercation. The prosecution did not call Dr. Maloney at the trial, since she
The jury convicted Garlick on the manslaughter charge, and the First Department affirmed the trial court‘s ruling on the Confrontation Clause issue. The appellate court ruled unanimously:
“‘Defendant‘s right of confrontation was not violated when an autopsy report prepared by a former medical examiner, who did not testify, was introduced through the testimony of another medical examiner’ (People v Acevedo, 112 AD3d 454, 455 [1st Dept 2013], lv denied 23 NY3d 1017 [2014]), since the report, which ‘[did] not link the commission of the crime to a particular person,’ was not testimonial (People v John, 27 NY3d 294, 315 [2016]). Defendant‘s contention that People v Freycinet (11 NY3d 38 [2008]) has been undermined by subsequent decisions of the United States Supreme Court is unavailing (see Acevedo, 112 AD3d at 455).”
People v. Garlick, 144 A.D.3d 605, 606, 42 N.Y.S.3d 28 (N.Y. App. Div. 2016).
Garlick‘s habeas petition was timely filed within one year after he exhausted his available remedies on direct review.
B. Confrontation Clause Precedent
This Court adopts the R&R‘s thorough and well-reasoned discussion of several recent Supreme Court decisions dealing with out-of-court statements subject to the defendant‘s right to confrontation under the Sixth Amendment. The following is reproduced to foсus the scope of this Court‘s review of the R&R.
The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right ... to be confronted with the witnesses against him.” This entitles a criminal defendant the right to cross examine all those “who bear testimony” against him, including those who make out-of-court statements “that declarants would reasonably expect to be used prosecutorially,” and “statements that were made under circumstances whiсh would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford v. Washington, 541 U.S. 36, 51-52, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (internal quotation marks omitted).
In Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed. 2d 314 (2009), the Supreme Court ruled that forensic reports – certified by state laboratory analysts and identifying a controlled substance as cocaine – fell within the “core class of testimonial statements” covered by the Confrontation Clause, and that the defendant had a right to confront the analysts at trial. Id. at 311. In so holding, the court rejected the argument that the Sixth Amendment only guarantees a criminal defendant the right to confront “accusatory witnesses” – those that specifically accuse him or her of committing the crime. Id. at 313. Justice Scalia, writing for the majority, made clear that the constitution “contemplates two classes of witnesses – those against the defendant and those in his favor . . . there is not a third category of witnesses, helpful to the prosecution, but somehow immune from confrontation.” Id. at 313-14.
Two
To be sure, the Suрreme Court has not ruled that every certified, out-of-court scientific report is a testimonial statement that gives rise to a right to confrontation. For example, in Williams v. Illinois, 567 U.S. 50, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012), a plurality found that the prosecution‘s introduction of a DNA profile that had been certified and “produced before any suspect was identified,” and “sought not for the purposes of obtaining evidence,” did not require “calling the technicians who participated in preparation of the profile.” Id. at 58. In other words, the DNA report in Williams was not created during the course of the criminal proceeding in which it was ultimately offered as evidence, it was not the type of statement made “against” the defendant that Meledendez-Diaz defined as testimonial in nature.
C. The conclusions of the Report and Recommendation
After reviewing that precedent, Judge Cave determined that: (i) “the Autopsy Report qualifies as testimonial and should not have been admitted into evidence at trial without giving Garlick the opportunity to cross examine Dr. Maloney [the medical examiner who conducted the autopsy]” (R&R at 46); (ii) surrogate testimony from an expert witness who was not present at the autopsy “was not a constitutionally sufficient substitute for cross examination of Dr. Maloney herself” (id. at 47); and (iii) the First Department‘s decision to affirm Garlick‘s conviction on the grounds that the autopsy report was not testimonial was not consistent with Supreme Court precedent (id. at 48-49); and (iv) admission of the autopsy report under such circumstances was not harmless error, (id. at 59-63.)
The R&R correctly stated that the certified autopsy report, prepared during the course of an investigation that had already identified Garlick as a suspect, was the sort of “declaration of facts written down and sworn to by the declarant” that the Supreme Court deemed testimonial in Melendez-Diaz and Bullcoming. (R&R at 34-46.) The R&R also recognized that the First Department‘s decision, as well as the authorities it cited, relied on the “accusatory witnesses” distinction rejected by the Supreme Court in 2009. (Id. at 51-55.) Therefore, the R&R provided a roadmap to conclude that the First Department‘s 2016 аffirmance of Garlick‘s conviction was either contrary to, or an unreasonable application of, Supreme Court precedent. Judge Cave also concluded that the admission
Nonetheless, Judge Cave ruled that “the Supreme Court‘s Confrontation Clause precedent is unsettled, and therefore insufficiently ‘established’ to grant relief to Garlick here.” (R&R at 58.) She had two reasons: for one thing, not all lower courts have agreed that autopsy reports are tеstimonial statements within the ambit of the Confrontation Clause have agreed that they were; for another, some courts in this Circuit have commented that the Supreme Court‘s Confrontation Clause “does not conclusively establish under which guidelines the use of forensic reports at trial . . . may intrude on a defendant‘s right to confrontation.” Soler v. U.S., No. 10-cv-4342 (LAP), 2015 WL 4879170, at *16 (S.D.N.Y. Aug. 14, 2015); Vega v. Walsh, 669 F.3d 123, 127 (2d Cir. 2012) (finding “reasonable jurists could disagree” whether a medical examiner‘s testimony about an autopsy report he had not prepared viоlated the confrontation clause).
D. The Parties’ objections to the Report and Recommendation
i. Petitioner‘s Objections
Petitioner objects to: (1) the R&R‘s failure to analyze the First Department‘s error under the “contrary to” prong of the habeas statute, a process that entails de novo review; (2) the Report‘s failure to find that the autopsy report here was materially indistinguishable from forensic reports found testimonial by the Supreme Court; and (3) the Report‘s conclusion that no “clearly established” Supreme Court precedent rendered an autopsy report – created during a hоmicide investigation and declaring that the cause of death was “homicide” – testimonial. (Dkt. No. 33 at 2.)
ii. Respondent‘s Objections
The Respondent objects to two findings in the R&R on two grounds. First, Respondent asserts that Judge Cave should not have found “that the introduction of the autopsy report into evidence through a witness other than the medical examiner who performed the autopsy runs afoul of controlling federal jurisprudence.” (Dkt. No. 32 at ¶¶ 8.) The rationale for this argument is similar to Judge Cave‘s contention that the law in this area was not “clearly establishеd” as of the time of the First Department‘s decision, discussed in greater detail below.
Second, Respondent challenges certain of Judge Cave‘s characterization of the trial record. (Id. ¶¶ 10.) I have reviewed the material Judge Cave cited in the R&R, and find both her conclusions and characterizations faithful and accurate. Respondent‘s objections in this regard are overruled.
STANDARDS OF REVIEW
I. Reviewing a Magistrate‘s Report and Recommendation
In reviewing a report and recommendation, a district court “may accept, rejеct, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].”
28 U.S.C. § 2254(d)(1)
AEDPA constrains a federal court‘s ability to grant a state prisoner‘s application for a writ оf habeas corpus for claims adjudicated on the merits in state court. AEDPA limits issuance of the writ to circumstances in which the state proceedings “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.”
A state court decision is contrary to federal law if the state court applies “a conclusion opposite to that reached by [the Supreme] Court on a question of law or if [it] decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.” Williams, 529 U.S. at 413. A state court‘s merely incorrect application of the correct legal rule to the particular facts of the case “would not fit comfortably within
Under the “unreasonable application” prong of
When judging whether а state court ruling was contrary to or an unreasonable application of Supreme Court precedent, a federal court measures state court decisions “against [the Supreme] Court‘s precedents as of the time the state court renders its decision.” Cullen v. Pinholster, 563 U.S. 170, 182, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011).
DISCUSSION
Garlick‘s habeas petition meets the standard set forth in
I. The First Department‘s decision was not “contrary to” Supreme Court Precedent.
In discussing the impact of the scope of habeas review on Garlick‘s petition, the R&R focuses entirely on the unreasonable application prong. Petitioner‘s first two objections claim that Judge Cave committed error by passing over the “contrary to” prong. Had she not done so, the magistrate would have enjoyed free reign to “determinе the principles necessary to grant relief,” as opposed to deferring to the rule announced by the state court, and determining whether that rule was applied correctly. Lafler v. Cooper, 566 U.S. 156, 173, 132 S.Ct. 1376, 182 L.Ed.2d 398 (2012)
The “contrary to” prong is inapplicable in this case. A state court decision is only contrary to Supreme Court precedent if it “applies a rule that contradicts the governing law set forth in our cases,” or “confront a set of fact that are materially indistinguishable from a decision of [the Supreme] Court and arrives at a different result from out precedent.” Williams, 529 U.S. at 405-6. Neither is the case here. The First Department located the correct rule: out-of-court statements are only subject to confrontation to the extent that they are testimonial. And, although not subject to a different legal rule than those addressed in Crawford, Melendez-Diaz, and Bullcoming (as will be discussed in greater detail below), the out-of-court statements at issue here were collected in manner factually distinguishable from the circumstances presented to the Supreme Court in those cases.
Because it identified the correct rule and applied it to facts distinguishable from the Court‘s prior decisions, the First Department‘s decision was not “contrary to” Supreme Court Precedent, and Judge Cave correctly focused on whether the state court had unreasonably applied the relevant law. Therefore, Petitioner‘s first two objections to the R&R are overruled.
II. The First Department‘s decision was an unrеasonable application of clearly established law.
The R&R concluded that the Supreme Court‘s Confrontation Clause precedent was not “clearly established” at the time of the First Department‘s decision, and thus the decision could not merit habeas relief under either prong. (R&R 55-59.) Garlick objects to that finding. This Court agrees, and concludes that the First Department unreasonably applied clearly established law when affirming Garlick‘s conviction. For the following reasоns, Petitioner‘s third objection to the R&R is sustained.
As an initial matter, Garlick was not required to find a Supreme Court opinion holding autopsy reports testimonial in order to prevail on his claim that “clearly established law” mandated a different result in his case. The federal habeas statute does not demand “an identical factual pattern before a legal rule must be applied.” White v. Woodall, 572 U.S. 415, 427, 134 S.Ct. 1697, 188 L.Ed.2d 698 (2014). So the question raised by Garlick‘s petition is not whether autopsy reports are testimonial, but whether the First Department unreasonably applied the Supreme Court‘s precedents to conclude that a certified report (of any kind), prepared in the course of a criminal investigation and tending to prove the victim‘s cause and manner of death, was testimonial in nature.
There are, no doubt, many types of forensic reports containing the types of statements deemed testimonial in Crawford, Melendez-Diaz, and Bullcoming. But the fact that different types of documentation exist does not mean that eаch type must be deemed subject to the Supreme Court‘s recent Confrontation Clause precedents before those precedent can be applied to them. The relevant question in all such cases is whether the out-of-court statements are testimonial in nature, not what label appears on the document that the prosecution seeks to introduce to bring those statements into evidence. The Supreme Court‘s Confrontation Clause precedеnts clearly instruct courts to examine the nature of potentially testimonial statements – rather than the classification of the document in which they appear – to determine whether the statement triggers
Nor do disagreements between lower state and federal courts on the testimonial nature of particular autopsy reports preclude a finding of “clearly established law” in the area of out-of-court certifications. The habeas statute is clear: it is the word of the Supreme Court, and only the Supreme Court, that matters when determining what is “clearly established law.”
Limiting “clearly established law” to the statutory definition quickly reveals that the First Department unreasonably applied the Supreme Court‘s precedents when denying Garlick‘s appeal. The court ruled that the autopsy report was not testimonial since it did “not link the commission of the crime to a particular person,” Garlick, 44 A.D.3d at 606, even though Melendez-Diaz definitively did away with the accusatory/non-accusatory distinction some seven years earlier. Melendez-Diaz, 557 U.S. at 313-14. What is more, the First Department ignored the holding in Bullcoming that the only sensible way to read the Supreme Court‘s prior Confrontation Clause decisions demands that a certified statement prepared during a criminal investigation which tends to prove some fact in the case is testimonial in nature. Id. at 663.
Bullcoming not only demonstrates the merit of Garlick‘s petition; it also fits quite neatly with Harrington‘s formulation of the “unreasonable application” standard, which denies relief to any petition that сhallenges a state court ruling subject to “fairminded disagreement.” Harrington, 562 U.S. at 103. But fairminded jurists could not possibly disagree about the testimonial nature of certified reports prepared to aid a criminal investigation, given that the Supreme Court previously held that those reports are testimonial and that its precedents “cannot sensibly be read any other way.” Bullcoming, 564 U.S. at 663.
As for Vega and Soler – two cases from this Circuit that Judge Cave cited for the proposition that the Supreme Court “has not developed a clear set of rules” governing the testimonial nature of autopsy reports (R&R at 58) – they provide no insight into the state of “clearly established law” at the time that the First Department affirmed Garlick‘s conviction. That is because a federal court reviewing a state court decision must ” ‘focus on what a state court knew and did,’ and . . . measure state-court decisions ‘against this Court‘s precedents as of the time the state court renders its decision.” Green v. Fisher, 565 U.S. 34, 38, 132 S.Ct. 38, 181 L.Ed.2d 336 (2011) (emphasis in original) (quoting Cullen, 563 U.S. at 182). That date, the R&R correctly stated, was November 29, 2016, several years after the Supreme Court decided the cases relevant to this petition. (R&R at 13.)
Neither Vega nor Soler could avail themselves of the Confrontation Clause principles announced in Melendez-Diaz and Bullcoming that the First Department disregarded when affirming Garlick‘s conviction. Vega challenged a conviction affirmed
For the same reason that it would be unfair to state courts (and a misapplication of
CONCLUSION
I hereby adopt the following conclusions from the R&R: (i) the Autopsy Report was testimonial; (ii) surrogate testimony from a qualified expert in medical examination was not a sufficient substitute for cross examination; (iii) the First Department‘s ruling on the testimonial nature of the autopsy report was incorrect under Supreme Court precedent; and (iv) the trial court‘s admission of the autopsy report without providing Garlick the opportunity to confront the medical examiner who prepared it did not constitute harmless error. I do not adopt the portion of the R&R recommending denial of the petition on the grounds that the First Department‘s decision was not an unreasonable application of clearly established law.
For the reasons set forth above, Garlick‘s habeas petition is GRANTED. Accordingly, Respondent is directed to release Garlick from custody unless the Peoрle of the State of New York decide to re-try him within the next ninety days. Because I have granted the petition, there is no need to issue a Certificate of Appealability for purposes of appeal. The Clerk of the Court is directed to close this case.
Dated: June 2, 2020
Colleen McMahon
Chief Judge
BY ECF TO ALL PARTIES