Garlick v. Miller

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

JAMES GARLICK,

Petitioner,

-against-

No. 18-cv-11038 (CM) (SLC)

SUPERINTENDENT WILLIAM LEE, Eastern

Correctional Facility

Defendants.

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 James

Garlick’s petition for a writ of habeas corpus. Garlick seeks relief on the grounds that the

prosecution relied on an autopsy report prepared by an individual whom Garlick was not given

the opportunity to cross examine at trial, in violation of the Confrontation Clause of the Sixth

Amendment. He claims that the decision of the First Judicial Department of the Supreme Court

of the State of New York affirming his conviction “was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court of the

United States.” 28 U.S.C. § 2254(d)(1),

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 28 U.S.C. § 2253(c)(2)): (1) whether the Supreme Court’s Confrontation Clause precedent

clearly established, as of the date Garlick’s conviction was affirmed by the First Department, that

an autopsy report was testimonial; and (2) if so, whether the First Department’s decision denying

Galrick’s Confrontation Clause claim was contrary to, or involved an unreasonable application

of, that precedent (R&R at 63).

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 28 U.S.C. § 636(b)(1)(c).

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 § 2254(d)(1). Garlick has, in fact, made the

necessary showing to obtain habeas relief. Accordingly, the petition for a writ of habeas corpus

is GRANTED.

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

1 Garlick was recently transferred from Great Meadows to Eastern Correctional Facility; accordingly, the Court has

substituted the superintendent of that facility, William Lee, as respondent in the case caption. See Fed. R. Civ. P.

25(d).

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 was no longer

employed by OCME, instead calling Dr. Susan Ely, who had not attended the autopsy, to lay the

foundation and testify about Dr. Maloney’s report. Garlick’s counsel objected that Dr. Ely’s

testimony violated Garlick’s right to confrontation, but was overruled.

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 focus 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 which 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 years later, the Supreme Court extended the reasoning of Melendez-Diaz to another

type of certified report: analyses of blood alcohol collected from persons suspected of driving

under the influence. In Bullcoming v. New Mexico, 564 U.S. 647, 661, 131 S. Ct. 2705, 180 L.

Ed. 2d 610 (2011), the court held that “analysts who write reports introduced as evidence must

be made available for confrontation,” even where those analysts do nothing more than transcribe

the results generated by a gas chromatograph machine. Id. at 661. In doing so, the Supreme

Court rejected the respondent’s argument that “observations of independent scientists” are not

covered by the Confrontation Clause, reiterating the holding in Melendez-Diaz that certified

analyses submitted “for the purpose of establishing or proving some fact in a criminal

proceeding” are testimonial in nature. Id. at 664 (internal quotation marks omitted). Therefore,

when the prosecution “elected to introduce [an analyst’s] certification, [the analyst] became a

witness Bullcoming had the right to confront. Our precedent cannot sensibly be read any other

way.” Id. at 663.

To be sure, the Supreme 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 affirmance of Garlick’s conviction was

either contrary to, or an unreasonable application of, Supreme Court precedent. Judge Cave also

concluded that the admission of the report did not constitute harmless error.

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 testimonial 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 violated 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

homicide 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 established” 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, reject, or

modify, in whole or in part, the findings or recommendations made by the magistrate [judge].”

28 U.S.C.A. § 636(b)(1)(C). The Court must make a de novo determination to the extent that a

party makes specific objections to a magistrate’s findings. See 28 U.S.C. § 636(b)(1)(C). To the

extent, however, that a party makes only conclusory or general objections, or simply reiterates

original arguments, the Court will review the Report strictly for clear error. Pearson-Fraser v.

Bell Atl., 2003 WL 43367, at *1 (S.D.N.Y. Jan. 6, 2003).

II. The Antiterrorism and Effective Death Penalty Act, 28 U.S.C. § 2254(d)(1)

AEDPA constrains a federal court's ability to grant a state prisoner's application for a writ

of 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.” 28 U.S.C. § 2254(d)(1); see Williams v. Taylor, 529

U.S. 362, 412 (2000).

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 § 2254(d)(1)’s ‘contrary to’

clause.” Id. at 406.

Under the “unreasonable application” prong of Section 2254(d)(1), federal court may

only overrule state court decisions found to be “objectively unreasonable.” Id. at 409. “A state

court’s determination that a claim lacks merit precludes federal habeas relief so long as

‘fairminded jurists could disagree’ on the correctness of the state court’s decision.” Harrington v.

Richter, 562 U.S. 86, 101, 131 S.Ct. 770, 178 L.Ed.2d 634 (2011) (quoting Yarborough v.

Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140, 158 L.Ed.2d 938 (2004). The more general the rule

announced by the Supreme Court, the more leeway state courts enjoy in applying it. Id. “[I]t is

not an unreasonable application of clearly established Federal law for a state court to decline to

apply a specific legal rule that has not been squarely established by this Court.” Knowles v.

Mirzayance, 556 U.S. 111, 122, 129 S.Ct. 1411, 1413–14, 173 L.Ed.2d 251 (2009) (internal

quotation marks omitted).

When judging whether a 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 § 2254(d)(1). The First

Department unreasonably applied clearly established law when it affirmed Garlick’s

conviction. The Court having adopted the portions of the R&R to which Respondent objects,

Petitioner’s objections are disposed of as follows.

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 “determine 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) (citing Panetti v. Quarterman, 551 U.S. 930, 948, 127 S.Ct. 2842, 168

L.Ed.2d 662 (2007)).

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 unreasonable 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 reasons, 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 each 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

precedents 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 the defendant’s right to confront the speaker.

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.” 28 U.S.C. §

2254(d)(1). As the court made clear in Marshall v. Rodgers, 569 U.S. 58, 133 S.Ct. 1446, 185

L.Ed.2d 540 (2013), lower courts are not free to “canvass circuit decisions to determine whether

a particular rule of law . . . would, if presented to the Court, be accepted as correct.” 569 U.S. at

64. Respondent may not substitute conflicts between lower courts in cases that happen to apply

Crawford and its progeny to autopsy reports for “clearly established law” announced by the

Supreme Court regarding certified out-of-court statements made in the course of a criminal

investigation.

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 challenges 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 in 2005. Vega, 669 F.3d

at 125. Soler challenged a federal conviction, as opposed to a state court decision, under 28

U.S.C. § 2255(d)(1), arguing that he received ineffective assistance of counsel at his 2007 trial

when his attorney failed to raise a Confrontation Clause objection to the introduction of a

forensic report. Soler, 2015 WL 4879170, at *16. The court in Soler denied the petition on the

grounds that an attorney in 2007 could not have anticipated the Supreme Court’s subsequent

decisions, which “represented a distinct change in the state of the law.” Id. Therefore, both Vega

and Soler highlight the importance of the Supreme Court’s post-2007 Confrontation Clause

decisions, which expressly eliminated the accusatory witness distinction on which the First

Department rested its decision, and which made clear that statements contained within certified

reports composed in the course of a criminal investigation are testimonial in nature.

For the same reason that it would be unfair to state courts (and a misapplication of §

2254(d)(1)) to second-guess their judgment in light of law that only became “clearly established”

after they delivered a final decision on the merits, see, e.g., Greene, 565 U.S. at 38, it would be

unfair to Garlick deny him the benefit of the holdings in Melendez-Diaz and Bullcoming. Taking

the view from 2016, as this Court must, the First Department’s affirmance was an unreasonable

application of clearly established law regarding the testimonial nature of certified out-of-court

statements.

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 People 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

/ (thee

Chief Judge

BY ECF TO ALL PARTIES

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