Opinion

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

TERRELL WILLIAMS,

Petitioner,

MEMORANDUM & ORDER

– against –

23-cv-05595 (NCM)

SUPERINTENDENT, GHCF,

Respondent.

NATASHA C. MERLE, United States District Judge:

Petitioner Terrell Williams,1 currently incarcerated at Sing Sing Correctional

Facility, petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.

Williams was convicted of one count of second-degree murder and one count of second-

degree criminal possession of a weapon after a jury trial. Through counsel, Williams states

one ground for relief in the amended petition, ECF No. 15 (“Petition”)2: the admission of

an “autopsy report drafted by a non-testifying physician was contrary to and constituted

1 Although the original petition lists petitioner’s name as “Terrel” Williams, see Pet.

1, ECF No. 1, the Amended Petition and documents from petitioner’s criminal trial and

direct appeal indicate that petitioner’s name is spelled “Terrell” Williams. See Am. Pet. 1,

ECF No. 15; Am. Pet. Ex. 3, ECF No. 15-3; Affirmation in Opp’n to Pet. Ex. 3, ECF No. 19-

3. Accordingly, the Clerk of Court is respectfully directed to amend the caption of the case

as above.

2 The Court hereinafter refers to the Amended Petition for a Writ of Habeas Corpus,

ECF No. 15, as the “Petition”; respondent’s Response to Order to Show Cause, ECF No.

19, pp. 23–47, as the “Opposition”; and petitioner’s Memorandum of Law in Reply to the

Opposition, ECF No. 21, as the “Reply.”

an unreasonable application of clearly-established Supreme Court precedent.” Pet. 18.3

Petitioner seeks release from the state’s custody unless he is afforded a new trial within a

reasonable time. Pet. 36. For the reasons set forth below, the Petition is DENIED.

BACKGROUND

I. Underlying Offense

The government presented evidence of the following facts at trial. On September

6, 2014, at approximately 6:30 a.m., police officers Piotr Zebrowski and Jeremy Lucca

were on patrol in an unmarked vehicle parked between 309 MacDougal Street and 25

Stone Avenue, also known as Mother Gaston Boulevard. Affirmation in Opp’n to Pet. Ex.

3 (“Trial Tr.”), ECF No. 19-3, 314:1–315:7. While in the vehicle the officers used binoculars

to observe people walking in the street. Trial Tr. 317:11–21. At about 6:45 or 6:50 a.m.,

Zebrowski witnessed two men arguing further down MacDougal Street and Stone Avenue.

Trial Tr. 318:24–319:10. The officers observed a man in a multicolored shirt shoot the

person he was arguing with. Trial Tr. 319:5–6, 320:5–17. The officers heard a “bang noise”

and then observed the man who was shot “tumble” to the ground. Trial Tr. 321:1–5. The

officers heard additional gunshots and witnessed the man in the multicolored shirt walk

away. Trial Tr. 321:14–21. They pursued the individual. Trial Tr. 321:22–322:7.

With Zebrowski in the passenger seat, Lucca drove around 309 MacDougal Street

and found Terrell Williams walking toward the intersection of MacDougal and Stone.

Trial Tr. 322:2–323:6, 443:5–17. The officers testified that they observed Williams with a

gun. Trial Tr. 323:6–11. Zebrowski pointed his gun outside the vehicle window and said

to the man, “Police, don’t move, Let me see your hands. Let me see your hands. Let me

3 Throughout this Order, page numbers for docket filings refer to the page numbers

assigned in ECF filing headers.

see your hands.” Trial Tr. 324:11–15. Williams “crunched” down by a silver car, and

officers heard something like metal fall to the ground. Trial Tr. 324:18–25. Williams

contemporaneously stated, “I don’t have anything.” Trial Tr. 326:16–19. The officers

secured Williams and two other men, later identified as Jamard Grace and Donnell

Pickney, near the crime scene. Trial Tr. 159:25, 326:2–7, 492:3–6. Lucca and Zebrowski

then looked under the car and found a silver gun. Trial Tr. 326:5–10, 448:2–7. The

officers returned to the victim’s body and believed that he was dead. Trial Tr. 327:16, 23;

see also Trial Tr. 451:11–23. The victim, Damon Page, was later declared dead. Trial Tr.

59:10–14; see also Trial Tr. 77:9–11, 79:22–80:19, 300:1–11. The government charged

Terrell Williams with Damon Page’s murder and illegal possession of a firearm. Pet. 1.

II. Trial

At trial, the prosecution presented twelve witnesses.4 The defense did not present

any witnesses. Most relevant to the issues presented by the instant Petition are the

testimonies of the responding officers—Zebrowski and Lucca—as well as the testimony of

the state’s forensic pathology expert, Dr. Georgievskaya.

A. Officer Zebrowski

Zebrowski testified that he began his shift at around 7:30 p.m. on September 5, the

evening before the shooting. Trial Tr. 313:22–23. He testified that he was in plain clothes

in an unmarked police vehicle with his partner, officer Lucca. Trial Tr. 313:24–314:8.

Zebrowski was observing foot traffic around the intersection of MacDougal Street and

Stone Avenue through a set of binoculars. Trial Tr. 315:6–16, 317:8–23. At around 6:45

4 Although Donnel Pickney appeared on the state’s witness list, he did not testify at

trial. Trial Tr. 622:24–25. The court ruled that petitioner was not entitled to a missing

witness charge because Pickney was not in the state’s control. Trial Tr. 700:1–4.

a.m., Zebrowski saw two men arguing, one of whom was wearing a “multi-color[ed] shirt,”

and whom Zebrowski later identified in the courtroom as petitioner. Trial Tr. 318:24–

319:3, 320:3–5, 327:3–8. Shortly thereafter Zebrowski witnessed the man in the

multicolored shirt take out “what seem[ed] to be a gun and sho[o]t the other guy.” Trial

Tr. 319:5–7; see also Trial Tr. 320:15–17. Specifically, Zebrowski observed the man’s

outreached hand recoil, followed by a bang noise. Trial Tr. 320:18–321:1. Zebrowski saw

the other man fall down, and testified that he saw the man in the multicolored shirt

“point[] [his] hand, again[,] and again, I heard shots.” Trial Tr. 321:2–18. Zebrowski then

saw the shooter walking away. Trial Tr. 321:17–21.

Zebrowski testified that he and Lucca started driving toward the shooter. Trial Tr.

322:1–16. As they approached, Zebrowski saw the man “put[] the gun inside of his

waistband.” Trial Tr. 323:10–11. Zebrowski then drew his weapon and directed the man

not to move. Trial Tr. 324:13–14. At that point, Zebrowski saw the man “stop[] by a silver

car” and “crunch[] down[.]” Trial Tr. 324:18–21. Once the man crouched down,

Zebrowski heard a “noise like a metal being dropped on the floor” and heard the man say,

“I don’t have anything.” Trial Tr. 324:24–25, 326:16–19. Zebrowski then arrested the man

and “secured the scene” with two other people in the area. Trial Tr. 325:3–11. Zebrowski

went back and looked underneath the car and saw a silver gun. Trial Tr. 326:2–10. After

Zebrowski “secured” the area, he went back to check the condition of the individual who

was shot and observed that the individual “was dead.” Trial Tr. 327:10–23.

B. Officer Lucca

Officer Jeremy Lucca, Zebrowski’s partner, also testified at trial. He testified

consistent with Zebrowski that the two were on shift in an unmarked police vehicle near

Stone and MacDougal on the morning of September 6, 2014. Trial Tr. 434:5–435:14.

While observing a group of people near the intersection through his binoculars, Lucca saw

two individuals talking—one of whom was in a multi-colored shirt. Trial Tr. 437:9–17,

440:9–10. Lucca then witnessed the individual in the multi-colored shirt, “blade[] his

body . . . and c[o]me out with his arm straight up.” Trial Tr. 441:9–11. Then, with the

man’s arm extended, Officer Lucca “heard a loud bang.” Trial Tr. 441:17–18. Lucca

testified that he heard two more loud bangs, and each time saw the man’s arm recoil. See

Trial Tr. 441:17–21. At that point, Lucca observed the other individual stumble backwards

while the man in the multi-colored shirt “stepped forward.” Trial Tr. 442:3–4. Lucca

testified that he heard two more loud bangs, and again, witnessed the shooter’s arm recoil.

See Trial Tr. 442:3–6.

Lucca then testified that he and Zebrowski drove their car in pursuit of the shooter.

See Trial Tr. 442:12–444:4. While approaching the suspect in the vehicle, Lucca

“observed the gun in the individual’s hand.” Trial Tr. 444:13–15. Then, as the officers were

“pulling up . . . he’s placing the gun into his waistband.” Trial Tr. 444:17–18. Lucca

testified consistent with Zebrowski that he observed the man in the multi-colored shirt

crouch down, heard the man say that he “d[i]dn’t have anything,” and that while the man

was crouching Lucca “heard a loud, distinct, metal clank noise.” Trial Tr. 445:21–446:3.

Lucca also identified petitioner in court as the man whom he and Zebrowski detained at

the scene. See Trial Tr. 447:12–19.

C. Dr. Georgievskaya

The prosecution sought to put Dr. Georgievskaya on as an expert witness in

forensic pathology so she could testify about her conclusions on the victim’s cause of death

based on the notes and observations in the autopsy report. See Trial Tr. 64:15–66:16.

However, the autopsy was performed by Dr. McCubbin, another individual from the

Office of the Chief Medical Examiner who the prosecution did not put on at trial because

she was “no longer with the office.” Trial Tr. 21:17–23, 64:15–22.

i. Objection

Prior to opening statements, defense counsel objected to Dr. Georgievskaya’s

testimony. Trial Tr. 21:17–23:3. Specifically, defense counsel argued that Dr.

Georgievskaya would base her conclusions on the findings in Dr. McCubbin’s report,

despite the fact that Dr. Georgievskaya was not present during the autopsy, and that that

would violate defendant’s right to confrontation if counsel could not “cross-examine the

person whose vision or whose findings she’s basing [her conclusions] on.” Trial Tr.

529:14–530:7. The trial court initially ruled that Dr. Georgievskaya could not “testify to

someone else’s conclusion,” but did not otherwise bar her from testifying. Trial Tr. 22:24–

25.

Later, just before Dr. Georgievskaya testified, defense counsel again objected that

Dr. Georgievskaya could not “substitute the objective findings of the autopsy for her own.”

Trial Tr. 580:12–21. Defense counsel acknowledged that under state case law,

Dr. Georgievskaya was “entitled to [testify] based on her training” and render her opinion

based on the objective portions of the report, but defense counsel nevertheless

maintained his objection. Trial Tr. 580:22–23; see Trial Tr. 580:24–581:1 (“Now, I

happen to think while I’m still objecting to [Dr. Georgievskaya basing her opinion on

objective items in the autopsy report], but I still understand the cases are overruling me

on that[,] I still have my objection[.]”). The trial court overruled the objection based on

its conclusion that, under prevailing state case law, “autopsy reports are not testimonial,”

and that “[t]he fact that testimony is introduced through the testimony of a medical

examiner who didn’t conduct the autopsy is perfectly appropriate within the meaning of

all these cases.” Trial Tr. 582:12–583:6.

ii. Testimony

Testifying as an expert witness in forensic pathology, Dr. Georgievskaya confirmed

that she did not perform and was not present for Damon Page’s autopsy. Trial Tr. 593:15–

19, 594:25–595:9, 597:8–14. The prosecution entered a redacted version of the autopsy

report into evidence as a business record. See Trial Tr. 595:15–597:19. Dr. Georgievskaya

testified that she reviewed the autopsy report and photographs taken in connection with

the autopsy in advance of trial. Trial Tr. 597:24–598:3. Dr. Georgievskaya began by

“describing the [gunshot] wounds just arbitrarily how doctor [McCubbin] described them

in the report.” Trial Tr. 599:10–11. She then testified about the victim’s four gunshot

wounds, including where they punctured the victim’s body and their trajectories. See Trial

Tr. 601:1–607:6. Based on her review of the autopsy report and the photographs taken in

connection with the autopsy, Dr. Georgievskaya testified that the victim “died of gunshot

wounds of torso with visceral injuries.” Trial Tr. 607:19–20.

D. Other Evidence

The prosecution also presented additional witness testimony and forensic

evidence. For instance, another police officer, Asad Anwar, testified that he arrived at the

crime scene after the shooting, where he stayed near the victim’s body. Trial Tr. 74:2–22,

76:2–4. According to Anwar, the victim did not appear to be breathing. Trial Tr. 76:9–10.

He testified that he observed EMS attempt, but fail, to resuscitate Page. Trial Tr. 76:13–

25. Anwar testified that he accompanied EMS and the victim’s body to Brookdale

Hospital. Trial Tr. 77:4–8. Anwar further testified that he saw a bullet on the victim’s

gurney after medical personnel moved the body. Trial Tr. 78:13–25, 85:21–22, 86:6–7.

Anwar later delivered the recovered bullet to the crime scene detective. Trial Tr. 79:10–

12, 21. The prosecution produced evidence of the recovered firearm, and ballistics

evidence indicating that fired bullets recovered at the scene matched the profile of the

weapon recovered from underneath the vehicle at the scene. Trial Tr. 238:2–13, 240:10–

12, 17, 241:11–18, 246:8–9, 369:11–14, 372:24–25, 373:1, 408:6–8. The prosecution also

elicited testimony that an officer had vouchered into evidence a multicolored shirt that

petitioner was wearing while in his cell following his arrest, Trial Tr. 152:22–154:3,

157:20–159:10, but due to its poor condition, they were unable to perform further testing,

Trial Tr. 98:23–100:9, 100:25–101:5, 102:1–15. Lastly, the prosecution produced

evidence that petitioner had previously worn the multicolored shirt recovered from his

cell based on content discovered on social media accounts associated with petitioner. Trial

Tr. 161:3–162:25.

E. Closing Arguments

In closing, the defense argued that the evidence did not show that Terrell Williams

shot Damon Page. Trial Tr. 763:19–22, 765:11–14. Defense counsel conceded that

“nobody [wa]s denying that Mr. Page was murdered. There is no question,” but argued

that was “not the same thing as saying Mr. Williams did this because . . . he did not do this

crime.” Trial Tr. 714:6–15. Defense counsel asserted that the police had many

opportunities to get DNA testing on items that would prove the identity of the shooter but

failed to do so merely because the officers said they witnessed the shooting. Trial Tr.

725:1–18, 731:13–23. The defense also argued that the officers’ testimony didn’t “fit the

testimony” of Dr. Georgievskaya, see Trial Tr. 764:2–5, including because the officers

testified that the victim was found lying on his back, but other evidence suggested that

the victim “g[o]t three shots in the back,” Trial Tr. 764:16–17. That is, because

Dr. Georgievskaya indicated that there was “no evidence of [bullets] bouncing around,”

and the police officers testified that the shooter shot the victim “at the front,” the evidence

didn’t “fit with what the police said they saw.” Trial Tr. 764:6–20.

The prosecution argued that, in totality, the evidence corroborated Zebrowski and

Lucca’s testimony regarding the events of the crime. Trial Tr. 793:1–10. The prosecutor

asserted that there was “no dispute” from the evidence “that this was a murder . . . an

intentional killing of Damon [P]age.” Trial Tr. 797:12–14. He further argued that officers

Zebrowski and Lucca’s testimony was “self-corroborating.” Trial Tr. 782:17–20. The

prosecutor claimed that Dr. Georgievskaya’s testimony corroborated the officers’

testimony because the injuries and placement of the gun wounds were “all consistent”

with Zebrowski and Lucca’s account of the shooting. Trial Tr. 791:13–20. He asserted that

Dr. Georgievskaya’s testimony not only made the officers’ testimony “possible” but

“probable.” Trial Tr. 790:16–18. He summarized the forensic evidence by stating that

everything the officers said “matche[d] up” with the forensic evidence and argued that

“you can’t doubt science.” Trial Tr. 791:14–20.

F. Verdict and Sentence

On April 10, 2018, the jury reached a unanimous verdict of guilty on one count of

Murder in the Second Degree (New York Penal Law § 125.25[1]) and one count of Criminal

Possession of a Weapon in the Second Degree (New York Penal Law § 265.03[3]). Trial

Tr. 887, 891:11–23; see also Affirmation in Opp’n to Pet. (“Ross Decl.”) ¶ 54, ECF No. 19

pp. 1–22. Approximately three months later the Supreme Court of Kings County imposed

a sentence of twenty-four years to life imprisonment on the murder count, and fifteen

years of imprisonment on the weapon possession count to be followed by five-years of

post-release supervision, all to run concurrently. Ross Decl. ¶¶ 6, 54.

III. Direct Appeal

Petitioner appealed his conviction and raised the following issues: “that the trial

court erred by declining to grant defendant’s request for a missing witness charge

regarding Donnell Pickney”; and “that the testimony of the Medical Examiner Zhanna

Georgievskaya, who had neither performed nor observed the autopsy, violated his Sixth

Amendment Confrontation right.” Ross Decl. ¶ 55. Petitioner also filed a supplemental

brief, arguing that “the evidence of his guilt was legally insufficient and the verdict was

against the weight of the evidence; that his right to due process pursuant to Brady v.

Maryland was violated by the People’s failure to turn over a surveillance video; and that

the trial court improperly pressured the jury to reach a verdict.” Ross Decl. ¶ 57.

The Appellate Division, Second Department affirmed petitioner’s conviction,

People v. Williams, 186 N.Y.S.3d 362 (2d Dep’t 2023). Ross Decl. ¶ 59. The Appellate

Division found: (1) The evidence was legally sufficient to support defendant’s conviction;

(2) the state sufficiently demonstrated that Pickney was not under the prosecution’s

control; and (3) the admission of the redacted autopsy report did not violate defendant’s

Confrontation Clause right because the non-opinion, unredacted portions of the report

were nontestimonial. Williams, 186 N.Y.S. at 363–64. The court also rejected petitioner’s

“remaining contentions.” Id. at 364.

Petitioner’s motion for leave to appeal was denied by the New York Court of

Appeals on June 30, 2023, People v. Williams, 40 N.Y.3d 931 (2023). Ross Decl. ¶ 61.

Petitioner did not file any collateral attacks or other federal proceedings related to his

convictions. See Pet. 2–3.

IV. Habeas Petition

Petitioner filed this § 2254 petition pro se on July 20, 2023. ECF No. 1. Petitioner

retained counsel in January 2024, ECF Nos. 12–14, and filed an amended petition on

April 1, 2024, see Pet. Petitioner states one ground for relief in the amended petition: the

admission “of an autopsy report drafted by a non-testifying physician was contrary to”

and constituted an “unreasonable application of” clearly-established Supreme Court

precedent. Pet. 18. The state filed a response in opposition to the Petition. Opp’n. The

Court held oral argument on the Petition on March 13, 2025.

LEGAL STANDARD

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) narrowed

the scope of federal habeas review of state convictions where the state court has

adjudicated a petitioner’s federal claim on the merits. Fox v. Bezio, No. 10-cv-02986, 2011

WL 837158, at *5 (E.D.N.Y. Mar. 7, 2011) (citing 28 U.S.C. § 2254(d)). Under AEDPA,

federal habeas relief is available when “a person in custody pursuant to the judgment of a

State court . . . is in custody in violation of the Constitution or laws or treaties of the United

States.” 28 U.S.C. § 2254(a). Federal habeas relief is only available for a violation of

federal law, as “it is not the province of a federal habeas court to reexamine state-court

determinations on state-law questions.” Estelle v. McGuire, 502 U.S. 62, 67–68 (1991).

AEDPA provides that an “application for a writ of habeas corpus . . . pursuant to

the judgment of a State court shall not be granted with respect to any claim that was

adjudicated on the merits in State court proceedings,” unless adjudication of that claim

“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 “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)(1)–(2). A decision

on the merits is “contrary to . . . clearly established” federal law if the state court (1) arrives

at a conclusion opposite to one reached by the Supreme Court on a question of law; or (2)

decides a case differently than the Supreme Court has on a set of materially

indistinguishable facts. Jones v. Perez, No. 14-cv-03971, 2015 WL 5923548, at *4

(E.D.N.Y. Oct. 10, 2015) (citing Williams v. Taylor, 529 U.S. 362, 405 (2000)). A state

court decision is an “unreasonable application” of clearly established federal law if the

state court identifies the correct controlling legal principle announced by the Supreme

Court but unreasonably applies that principle to the facts of the petitioner’s case. Id.

(citing Williams, 529 U.S. at 407). This deferential standard of review, known as AEDPA

deference, “reflects the view that habeas corpus is a guard against extreme malfunctions

in the state criminal justice systems, not a substitute for ordinary error correction through

appeal.” Harrington v. Richter, 562 U.S. 86, 102–03 (2011).

AEDPA deference applies only to federal claims “adjudicated on the merits” in

state court. 28 U.S.C. § 2254(d). Merits adjudication occurs when a state court “disposes

of the claim on the merits” and “reduces its disposition to judgment.” Bell v. Miller, 500

F.3d 149, 155 (2d Cir. 2007). When multiple state courts consider a case, including on

direct appeal, the Court reviews the last state court decision that explained its reasoning,

even if a higher court reviewed the case. See Wilson v. Sellers, 584 U.S. 122, 125 (2018)

(“[T]he federal court should look through the unexplained decision to the last related

state-court decision that does provide a relevant rationale. It should then presume that

the unexplained decision adopted the same reasoning.”).

When there has been an adjudication on the merits, AEDPA deference “demands

that state-court decisions be given the benefit of the doubt.” Renico v. Lett, 559 U.S. 766,

773 (2010). In practice, this means that a district court may not overturn a state court’s

application of federal law if it is merely incorrect, but only if it is objectively

“unreasonable—a substantially higher threshold.” Schriro v. Landrigan, 550 U.S. 465,

473 (2007). In other words, a district court may overturn a state court’s application of

federal law only if it is “so erroneous that there is no possibility fairminded jurists could

disagree that the state court’s decision conflicts with the Supreme Court’s precedents.”

Baez v. Royce, No. 20-cv-01669, 2024 WL 2022090, at *8 (E.D.N.Y. May 3, 2024)

(quoting Nevada v. Jackson, 569 U.S. 505, 508–09 (2013)).

DISCUSSION

I. Procedural Requirements

Before considering the merits of a habeas petition, a federal court must ensure that

the petition complies with AEDPA’s procedural requirements. Specifically, the Court

must ensure that the Petition is timely, that petitioner has exhausted his state court

remedies, and that petitioner has not waived his federal claims nor are they barred from

federal review. As laid out below, petitioner meets AEDPA’s procedural requirements.

A. Timeliness

“AEDPA imposes a one-year statute of limitations on federal habeas corpus

petitions filed by prisoners[.]” Chambers v. Lilly, 735 F. Supp. 3d 196, 218

(E.D.N.Y. 2024) (citing § 2244(d)(1)). Petitioner filed his § 2254 petition on July 20,

2023, well within one year of denial of leave to appeal to the New York Court of Appeals,

which occurred on June 30, 2023. Ross Decl. ¶ 61. The Petition is therefore timely, which

respondent does not dispute.

B. Exhaustion

Pursuant to 28 U.S.C. § 2254(b)(1)(A), a habeas petition “shall not be granted

unless it appears that . . . [petitioner] has exhausted the remedies available in the courts

of the State . . . .” A petitioner exhausts remedies by “(i) present[ing] the federal

constitutional claim asserted in the petition to the highest state court (after preserving it

as required by state law in lower courts); and (ii) inform[ing] that court of both the factual

and legal bases for the federal claim.” Diguglielmo v. Senkowski, 42 F. App’x 492, 494

(2d Cir. 2002) (summary order). In New York, a defendant must exhaust his claims by

seeking leave to appeal any denials of relief to the New York Court of Appeals. See Morgan

v. Bennett, 204 F.3d 360, 369 (2d Cir. 2000). This requirement affords the state system

the “opportunity to pass upon and correct alleged violations of its prisoners’ federal

rights.” Duncan v. Henry, 513 U.S. 364, 365 (1995).

Petitioner has exhausted his ground for relief, which was raised on direct appeal to

the state’s highest court. Specifically, petitioner appealed his conviction on the

Confrontation Clause issue raised in this Petition and was denied relief by the New York

Court of Appeals. See Pet. Ex. 3, ECF No. 15-3; Pet. Ex. 4, ECF No. 15-4. Petitioner

therefore has exhausted his claim, which respondent, again, does not dispute. See

Chambers, 735 F. Supp. 3d at 225 (citing Morgan, 204 F.3d at 369) (“In New York, a

defendant must exhaust his claims not only by presenting them to the lower state courts,

but also by seeking leave to appeal any denials of relief to the New York Court of

Appeals.”).

C. Independent State Grounds

Lastly, petitioner’s Confrontation Clause claim is preserved for purposes of habeas

review. Respondent contends that petitioner waived his Confrontation Clause claim by

consenting to the admission of the autopsy report and the attendant surrogate testimony

at trial insofar as it was based on “objective facts.” Opp’n 33–34. Petitioner argues that

trial counsel preserved the issue by objecting multiple times to the surrogate witness’s

testimony. Reply 6. Petitioner also argues that, because the Second Department reached

the merits, his claim was therefore preserved, and the independent state grounds

procedural bar does not apply. See Reply 9.

To bar federal habeas review, a state court’s decision must rest not only on an

independent procedural bar under state law, but also one that is “adequate to support the

judgment.” Murden v. Artuz, 497 F.3d 178, 191–92 (2d Cir. 2007). A state procedural bar

is “adequate” if it is “firmly established and regularly followed by the state in question in

the specific circumstances presented in the instant case.” Id. at 192 (citing Monroe v.

Kuhlman, 433 F.3d 236, 241 (2d Cir. 2006)). However, “[s]tate procedural bars are not

immortal . . . they may expire because of later actions by state courts.” Ylst v.

Nunnemaker, 501 U.S. 797, 801 (1991). Specifically, “[i]f the last state court to be

presented with a particular federal claim reaches the merits, it removes any bar to federal-

court review that might otherwise have been available.” Id. Thus, a failure to object to an

issue at trial or to raise an issue on direct appeal will not bar federal habeas review where

“the last state court in which review could be had considered [the] constitutional claim on

the merits.” Victor v. Nebraska, 511 U.S. 1, 19 (1994).

Here, the Second Department reviewed the merits of petitioner’s Confrontation

Clause claim. See Williams, 186 N.Y.S.3d at 364 (“Contrary to the defendant’s contention,

admission of an autopsy report redacted to eliminate opinions did not violate his right of

confrontation. As determined by the Court of Appeals in decisions binding upon this

Court, the non-opinion portion of the autopsy report was nontestimonial in nature.”). As

such, respondent’s argument that defense counsel failed to preserve this argument by

failing to properly object at trial does not preclude this Court’s review. See Ross Decl. ¶ 56.

Put differently, irrespective of whether defense counsel’s objection at trial adequately

apprised the trial judge of the contours of the Confrontation Clause objection, the

Appellate Division’s opinion on the merits of that claim renders any preservation

arguments moot.5 See Taylor v. Kaplan, No. 14-cv-01402, 2017 WL 1047327, at *3

(E.D.N.Y. Mar. 17, 2017) (reasoning that even where the state court would have been

entitled to find a claim procedurally defaulted, “the last state court to consider” the

petitioner’s claim “did so on the merits” and “[b]y doing so, it removed any bar to federal-

court review that might otherwise have been available”).

II. Merits

Where the most recent “state-court decision on the merits” is not explained on the

record—“[f]or instance, the decision may consist of a one-word order, such as ‘affirmed’

or ‘denied’”—AEDPA requires the federal habeas court to “look through the unexplained

decision to the last related state-court decision that does provide a relevant rationale” and

“presume that the unexplained decision adopted the same reasoning.” Wilson, 584 U.S.

at 125–26. Here, the New York Court of Appeals did not issue a written opinion in denying

leave to appeal. However, the Second Department issued a written opinion considering

5 Moreover, defense counsel did in fact make a Confrontation Clause objection

regarding the autopsy report and thus did not waive the issue for purposes of habeas

review. See Trial Tr. 21:17–23:1. Even if defense counsel’s objection was not entirely

accurate, the trial court was certainly put on notice about the constitutional concerns of

an autopsy report coming in through a surrogate witness. Cf. Chen v. Miller, No. 24-cv-

02855, 2025 WL 83774, at *1, 4 (E.D.N.Y. Jan. 13, 2025) (finding state appellate ruling

that confrontation clause issue was not preserved where defense counsel “made no

objection” to the surrogate witness’ testimony “at all,” an independent and adequate state

bar to federal habeas relief).

and rejecting the merits of petitioner’s Confrontation Clause argument. See Williams, 186

N.Y.S.3d at 362; see also Ross Decl. ¶ 60 Where “the last state court to decide a prisoner’s

federal claim explains its decision on the merits in a reasoned opinion,” AEDPA calls for

a “straightforward inquiry.” Wilson, 584 U.S. at 125. “In that case, a federal habeas court

simply reviews the specific reasons given by the state court and defers to those reasons if

they are reasonable.” Id.

A. Federal Law

The Court concludes that the Second Department’s ruling was “contrary to, or

involved an unreasonable application of, clearly established Federal law, as determined

by the Supreme Court of the United States.” Garcia v. Walsh, 348 F. App’x 618, 619 (2d

Cir. 2009) (summary order). Supreme Court precedent confirms that—at the time

petitioner’s appeal was decided by the Second Department—autopsy reports are

testimonial, and they cannot be introduced into evidence in violation of a defendant’s

right of confrontation.

The Sixth Amendment to the U.S. Constitution provides that “[i]n all criminal

prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses

against him.” U.S. Const. amend. VI. The so-called Confrontation Clause “applies only to

testimonial hearsay—and in that two-word phrase are two limits.” Smith v. Arizona, 602

U.S. 779, 784 (2024). First, the Clause is confined to “testimonial statements.” Id. Second,

the Clause bars only the introduction of hearsay, i.e., out-of-court statements offered to

prove the truth of the matter asserted. Id. at 785. Beginning with its seminal decision in

Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court has established that

autopsy reports are “testimonial hearsay” to which the Confrontation Clause applies.

i. Crawford

In Crawford, the Court assessed whether an unavailable witness’s prior

recorded statement to police was properly admissible at a criminal trial without the

defendant having an opportunity to cross-examine the witness. Id. at 38. The Court

elucidated two key principles from its review of the historical backdrop of the

Confrontation Clause and contemporary understandings of the Framers around the time

of the Clause’s ratification. See id. at 42–50. First, the “principal evil” which the Clause

was intended to address was the civil-law mode of criminal procedure, specifically the

“use of ex parte examinations as evidence against the accused.” Id. at 50. The Court

elaborated that the text of the Sixth Amendment applies, by its terms, to “witnesses

against the accused,” i.e., “those who bear testimony.” Id. at 51. “Testimony, in turn, is

typically a solemn declaration or affirmation made for the purpose of establishing or

proving some fact.” Id. Thus, the constitutional text reflects “an especially acute concern

with a specific type of out-of-court statement”—testimonial statements. Id.

The Court observed that “[v]arious formulations of this core class of testimonial

statements exist[.]” Id. For instance, “ex parte in-court testimony or its functional

equivalent—that is, material such as affidavits, custodial examinations, prior testimony

that the defendant was unable to cross-examine, or similar pretrial statements that

declarants would reasonably expect to be used prosecutorially,” or “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.” Id. at 51–52. Recognizing

that each of the different formulations “all share[d] a common nucleus,” id. at 52, the

Court elected to “leave for another day any effort to spell out a comprehensive definition

of testimonial” in light of its conclusion that the statement at issue in the case before it—

a recorded statement made to police officers at a police station—qualified as testimonial

under any formulation, id. at 68.

The second principle discussed by the Court is that “the Framers would not

have allowed admission of testimonial statements of a witness who did not appear at trial

unless he was unavailable to testify, and the defendant had had a prior opportunity for

cross-examination.” Id. at 54. Reevaluating its previous framework governing the

admissibility of hearsay evidence, the Court concluded that “[w]here testimonial

statements are involved, we do not think the Framers meant to leave the Sixth

Amendment’s protection to the vagaries of the rules of evidence, much less to amorphous

notions of reliability.” Id. at 61. As the Court explained:

To be sure, the Clause’s ultimate goal is to ensure reliability of

evidence, but it is a procedural rather than a substantive

guarantee. It commands, not that evidence be reliable, but

that reliability be assessed in a particular manner: by testing

in the crucible of cross-examination. The Clause thus reflects

a judgment, not only about the desirability of reliable evidence

(a point on which there could be little dissent), but about how

reliability can best be determined.

Id.

Thus, the Court held that the defendant’s Sixth Amendment rights were

violated by permitting the admission of the witness’s testimony in the absence of an

opportunity to cross-examine the witness. Id. at 68.

ii. Melendez-Diaz

The Supreme Court built upon its Confrontation Clause precedent several years

later in Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009). There, the Court decided

whether lab analysts who prepared affidavits that “report[ed] the results of forensic

analysis which showed that material seized by the police and connected to the defendant

was cocaine,” were witnesses subject to the defendant’s right of confrontation. Id. at 307.

The Court answered that question in the affirmative, holding that the analysts’ statements

“prepared specifically for use at [the] petitioner’s trial—were testimony against [the]

petitioner.” Id. at 324. Accordingly, “the analysts were subject to confrontation under the

Sixth Amendment.” Id.

The Court easily concluded that the statements at issue—affidavits—fell within

the “core class of testimonial statements” covered by the Clause because they were

“incontrovertibly a solemn declaration or affirmation made for the purpose of

establishing or proving some fact.” Id. at 310. Specifically, the affidavits sought to prove

the fact that the substance in possession of the petitioner was in fact cocaine as the

prosecution claimed. Id. The Court reasoned that the certificates offered by the affiants

were “functionally identical to live, in-court testimony, doing precisely what a witness

does on direct examination.” Id. at 310–11.

The Court expressly rejected the respondent’s argument that the analysts were

not subject to confrontation because “they [we]re not accusatory witnesses, in that they

d[id] not directly accuse [the] petitioner of wrongdoing.” Id. at 313. The Court reasoned

that the analysts were subject to confrontation because (1) they were witnesses because

they provided solemn affirmations for proving some fact; and (2) the affirmations were

offered “against [the] petitioner, proving one fact necessary for his conviction—that the

substance he possessed was cocaine.” Id. As the Court explained: “The text of the [Sixth]

Amendment contemplates two classes of witnesses—those against the defendant and

those in his favor. The prosecution must produce the former; the defendant may call the

latter. Contrary to respondent’s assertion, there is not a third category of witnesses,

helpful to the prosecution, but somehow immune from confrontation.” Id. at 313–14. By

way of illustration, the Court posed a hypothetical of a police officer’s investigative report

“describing the crime scene.” Id. at 316. Although the report might not reflect

observations of the crime or activity related to it, that report certainly could not be

admitted absent an opportunity to cross-examine the officer. Id.

iii. Bullcoming

Finally, in Bullcoming v. New Mexico, 564 U.S. 647 (2011), the Court opined

on whether a forensic laboratory report certifying a defendant’s blood-alcohol

concentration was properly admitted at trial through a surrogate witness familiar with

the laboratory’s procedures, but who did not participate or observe the test on the

petitioner’s blood sample. Id. at 651. Specifically, the Court answered “whether the

Confrontation Clause permits the prosecution to introduce a forensic laboratory report

containing a testimonial certification—made for the purpose of proving a particular fact—

through the in-court testimony of a scientist who did not sign the certification or perform

or observe the test reported in the certification.” Id. at 652. The lower court had concluded

that the report was properly admissible because the certifying analyst “was a mere

scrivener, who simply transcribed the results generated by the gas chromatograph

machine.” Id. at 657.

The Supreme Court disagreed, noting that the analyst’s certification went

beyond merely transcribing the results, but certifying the procedures and methods that

the analyst undertook. Id. at 660. The Court opined that the lower court’s ruling “raise[d]

red flags.” Id. As the Court observed, “[m]ost witnesses, after all, testify to their

observations of factual conditions or events.” Id. Thus, the fact that the analyst “simply

transcribed” a result generated by a machine did not remove the report from the Clause’s

reach. Id. at 659–60. For example, “[s]uppose a police report recorded an objective fact .

. . the address above the front door of a house or the readout of a radar gun. Could an

officer other than the one who saw the number on the house or gun present the

information in court—so long as that officer was equipped to testify about any technology

the observing officer deployed and the police department’s standard operating

procedures? As our precedent makes plain, the answer is emphatically ‘No.’” Id. at 660.

The Court also rejected the respondent’s argument that the reports were not

“adversarial” because they were “simply observations of an independent scientist[.]” Id.

at 664. The Court explained that its precedent made clear: “[a] document created solely

for an evidentiary purpose, Melendez–Diaz clarified, made in aid of a police investigation,

ranks as testimonial[.]” Id. Accordingly, “the analysts who wr[o]te reports that the

prosecution introduces must be made available for confrontation even if they possess the

scientific acumen of Mme. Curie and the veracity of Mother Teresa.” Id. at 661.

Together, this Supreme Court precedent clearly established—at the time

petitioner’s direct appeal was decided—that “forensic report[s] [are] testimonial and the

Confrontation Clause requires that the defendant be afforded the opportunity to cross-

examine the declarant.” Garlick v. Lee, 1 F.4th 122, 136 (2d Cir. 2021); see also Ganthier

v. Superintendent, Green Haven Corr. Facility, No. 23-cv-00414, 2025 WL 2452386, at

*2 (E.D.N.Y. Aug. 26, 2025) (concluding that admission of autopsy report through

surrogate testimony clearly violated the Confrontation Clause).

The fact that the autopsy report was “redacted to remove the absent medical

examiner’s conclusions” does not compel a different result. See Opp’n 30. The

Confrontation Clause applies to testimonial hearsay. Smith, 602 U.S. at 784–85.

Respondent—and the Second Department—suggest that because the autopsy report was

redacted to remove the absent medical examiner’s opinions as to cause of death, the

remaining “non-opinion” portions of the report were not testimonial and thus did not

implicate the Confrontation Clause. See Opp’n 30; Ross Decl. ¶ 60. But the Supreme Court

has rejected this position. See Melendez-Diaz, 557 U.S. at 314 (“[T]here is no[] third

category of witnesses, helpful to the prosecution, but somehow immune from

confrontation.”). The autopsy report was made for the purposes of establishing certain

facts in aid of a police investigation, including where the bullets struck the victim and the

nature of the victim’s injuries. And the report’s author certified that she conducted the

autopsy—and was responsible for its findings—when and where it was conducted, and in

whose presence. See Pet. Ex. 5 (“Autopsy Report”) 4, ECF No. 15-5. In other words, the

report was a “solemn declaration or affirmation made for the purpose of establishing or

proving some fact” i.e., testimony. Crawford, 541 U.S. at 51.

Therefore, even if “objective facts” were the only information included in the report

admitted into evidence, that does not alter the testimonial nature of the report. See

Bullcoming, 564 U.S. at 660 (explaining that Supreme Court precedent makes clear that

objective facts recorded in a police report cannot be admitted through non-declarant

witness); see also Garlick, 1 F.4th at 136 (explaining that the dictates of the Confrontation

Clause extend even to “forensic report[s] contain[ing] only a contemporaneous, objective

account of observable facts that do[] not accuse a defendant”); Diaz v. Miller, No. 22-

1835, 2023 WL 4363245, at *2 (2d Cir. July 6, 2023) (summary order) (“Even if the crime

scene evidence contains only a contemporaneous, objective account of observable facts

that does not accuse a defendant, it is testimonial and the Confrontation Clause requires

that the defendant be afforded the opportunity to cross-examine the declarant.”);

Ganthier, 2025 WL 2452386, at *22 (“Respondent’s distinction between opinion and

non-opinion portions of the report is one that simply does not exist under clearly

established Supreme Court precedent.”).6

Accordingly, the Appellate Division’s determination that admission of the non-

opinion portions of the autopsy report did not violate the Confrontation Clause amounts

to an unreasonable application of federal law under AEDPA. See Ganthier, 2025 WL

2452386, at *17 (explaining that Supreme Court precedent made clear well before 2013

that the petitioner’s “Confrontation Clause rights were violated by the introduction of [an]

autopsy report—including what the Appellate Division characterized as the non-opinion

portions of that report—without the production of [the declarant] for cross-

examination”).

* * *

The Court does not take lightly the fact that petitioner’s right to confrontation was

violated at his trial. The right to confront witnesses at a criminal trial is one of our nation’s

bedrock constitutional guarantees. As the Supreme Court has repeatedly underscored, it

protects not only individual defendants who may be wrongly accused, but the integrity of

6 Respondent argues at length that Dr. Georgievskaya’s surrogate testimony was

properly admissible because she offered her “expert opinion” about the victim’s cause of

death based on “her review of the autopsy report and the photographs of the autopsy[.]”

Opp’n 34. However, in Smith v. Arizona, 602 U.S. 779 (2024), the Supreme Court

squarely held that “[w]hen an expert conveys an absent analyst’s statements in support of

his opinion, and the statements provide that support only if true, then the statements

come into evidence for their truth.” Id. at 783. Thus, “when an expert relays an absent lab

analyst’s statements as part of offering his opinion . . . and if those statements are

testimonial too . . . the Confrontation Clause will bar their admission.” Id. That is precisely

what Dr. Georgievskaya did while rendering her conclusions at trial. See, e.g., Trial Tr.

599:10–12 (“So I will be describing the wounds just arbitrarily how [the] doctor described

them in the [autopsy] report.”). However, the Court need not decide whether admission

of Dr. Georgievskaya’s testimony, apart from the autopsy report, violated clearly

established federal law in light of the Court’s conclusion discussed infra that any error in

admitting the surrogate testimony was harmless.

our adversarial system of justice. The prosecution’s dereliction of its duty to produce a

witness who offered testimony against petitioner as required by the Constitution is

particularly egregious given the unconvincing reason for the State’s failure: the medical

examiner who performed the autopsy was no longer employed by the State. Still, this

Court must abide by AEDPA and binding precedent, requiring the Court to determine

whether any error in admitting the evidence was harmless. And as set forth below, the

Court concludes that the constitutional error in petitioner’s case was harmless in light of

the other evidence offered at trial.

B. Harmless Error

When a federal habeas court finds error in a state court’s ruling on the merits of a

state prisoner’s claim, the federal court cannot grant relief without determining that the

error was not harmless. This requires “an actual prejudice analysis, wherein an error is

harmless if it did not have a substantial and injurious effect or influence in determining

the jury’s verdict.” Young v. Collado, No. 20-cv-02172, 2024 WL 3218839, at *10

(E.D.N.Y. June 28, 2024) (citing Brecht v. Abrahamson, 507 U.S. 619 (1993)); see also

Diaz, 2023 WL 4363245, at *1 (quoting Perkins v. Herbert, 596 F.3d 161, 175 (2d Cir.

2010)). Petitioner bears the burden of showing that the error was not harmless. See

Hernandez v. McIntosh, 146 F.4th 142, 163 (2d Cir. 2025) (explaining that under Brecht,

“the burden is on the petitioner to show harm”); see also Bentley v. Scully, 41 F.3d 818,

824 (2d Cir. 1994) (“Habeas relief is not appropriate when there is merely a reasonable

possibility that trial error contributed to the verdict,” but instead, the petitioner “must

demonstrate that he suffered actual prejudice because the [error] had a substantial and

injurious effect or influence in determining the jury’s verdict”).

In determining whether a Confrontation Clause error was harmless, the Court

considers “a host of factors, including the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.” Diaz, 2023 WL 4363245, at *2 (citing Delaware v. Van Arsdall,

475 U.S. 673, 684 (1986)). An error is harmless if it is “highly probable” that it did not

contribute to the jury’s verdict. United States v. Johnson, 117 F.4th 28, 43 (2d Cir. 2024);

see, e.g., Diaz, 2023 WL 4363245, at *3 (finding Confrontation Clause violation harmless

where a damaging cross-examination of unavailable detective would have been irrelevant

to corresponding issue); United States v. McClain, 377 F.3d 219, 222–23 (2d Cir. 2004)

(finding Confrontation Clause violation harmless where there was overwhelming

evidence of the defendants’ guilt). In other words, “[e]rroneously admitted evidence is

harmless if it was unimportant in relation to everything else the jury considered on the

issue in question.” United States v. Greco, 728 F. App’x 32, 34 (2d Cir. 2018) (summary

order).

Petitioner contends that the error was not harmless because (i) intent was at issue

at trial and (ii) the autopsy report was the “only proof” from which the jury could infer

petitioner’s intent. See Reply 2–3. Respondent contends that the only issue at trial was

the identity of the shooter—which the autopsy report did not address—and that neither

the autopsy report nor Dr. Georgievskaya’s surrogate testimony “were necessary to prove

defendant’s intent to kill.” Opp’n 41–43. The Court finds that admission of the autopsy

report, although erroneous, constituted harmless error.

i. Intent Not at Issue

To begin, contrary to petitioner’s contention, the core issue disputed at trial was

whether petitioner was misidentified as the shooter; there was no real dispute as to the

cause and manner of the victim’s death. Indeed, defense counsel admitted as much in his

summation: “[N]obody is denying that Mr. Page was murdered. There is no question . .

. .” Trial Tr. 714:10–12; see also Guyton v. LeFevre, 560 F. Supp. 1237, 1246

(S.D.N.Y. 1983) (“Insofar as petitioner’s defense did not, in fact, dispute the murder and

in many ways admitted it was someone else, it can fairly be said that the defendant

conceded the issue of intent[.]”). Put differently, “there was no genuine dispute regarding

the fact that [Mr. Page’s] death was a homicide.” Wright v. Duncan, 31 F. Supp. 3d 378,

422 (N.D.N.Y. 2011). Instead, petitioner’s theory of defense was that the police

misidentified who shot and killed the victim.7 See Trial Tr. 763:15–22. On these facts, the

erroneous admission of an autopsy report and surrogate testimony offered for purposes

of confirming the victim’s cause of death constituted, at most, harmless error. See e.g.,

Ventura v. United States, No. 18-cv-09179, 2024 WL 1929183, at *17 (S.D.N.Y. May 1,

7 Petitioner’s argument that admission of the autopsy report was not harmless

because “[i]f that evidence had not been admitted, [defense] counsel would almost

certainly have challenged the strength of the proof of intent[,]” Reply 12, also fails. For

one, petitioner’s speculation that defense counsel would have more vigorously disputed

proof of intent is belied by the record, which reflects that defense counsel did not dispute

the issue of intent or how the victim died even within the context of his objection to

Dr. Georgievskaya’s testimony and admission of the autopsy report. See Opp’n 39–40;

see also Trial Tr. 584:4–7 (defense counsel stating “I don’t think we even have an issue of

cause of death here”). And in any event, the applicable inquiry is “whether, assuming that

the damaging potential of the cross-examination were fully realized, a reviewing court

might nonetheless say that the error was harmless,” see Van Arsdall, 475 U.S. at 648, not

whether a different trial strategy would have had a reasonable probability of producing a

different outcome. And as set forth below, petitioner fails to meet his burden of showing

that a fully realized cross-examination of Dr. McCubbin would be damaging such that

preclusion of such cross-examination was not harmless.

2024) (concluding that alleged erroneous admission of autopsy report “did not prejudice

[the petitioner] because the fact of the murder was understandably not contested”);

Melendez v. Lempke, No. 09-cv-04373, 2012 WL 3887093, at *15 (E.D.N.Y. Sept. 7, 2012)

(“[E]ven if the admission of the autopsy report into evidence violated the Confrontation

Clause, the error was harmless. The autopsy report was admitted to show that [the victim]

died of complications from smoke inhalation, but the cause of death was not disputed at

trial.”).

Petitioner’s argument that the error was not harmless because intent is an element

of second-degree murder is unavailing. See Reply 11. Although petitioner is correct that

intent was necessarily an “issue” as an element of the underlying offense, it was not in

dispute given petitioner’s theory of the case. Accord Hill v. Quigley, 784 F. App’x 16, 20

(2d Cir. 2019) (summary order) (concluding that potentially erroneous jury instruction

concerning intent constituted harmless error because “intent was not at issue at trial” and

the defense’s theory was “not that the shooting was accidental”); Lind v. Artuz, No. 97-

cv-03331, 2001 WL 262662, at *17 (E.D.N.Y. Mar. 15, 2001) (concluding that erroneous

jury instruction was harmless where “the issue of intent was not seriously contested at

trial”), aff’d, 23 F. App’x 98 (2d Cir. 2002) (summary order).

Petitioner’s defense was that he did not shoot the victim; he did not meaningfully

contest that the victim’s death was caused by gunshot wounds, and he did not suggest that

the shooting was accidental. And because the autopsy report and Dr. Georgievskaya’s

testimony were not offered to prove the shooter’s identity—the crux of petitioner’s

defense—any error in admitting that evidence was harmless. See Duncan, 31 F. Supp. 3d

at 422 (finding that erroneous admission of autopsy report constituted harmless error

because “[t]his was not a case where the defense was arguing that the death was

accidental[,] [r]ather, the defense theory was that someone else had murdered [the

victim]”); see also Edwards v. Artus, No. 06-cv-05995, 2009 WL 742735, at *8 (E.D.N.Y.

Mar. 20, 2009) (“[A]ny conceivable error in admitting the autopsy report . . . concerning

cause of death would have been utterly harmless” where the petitioner did not “suggest

that [the victim] could have died from some cause other than those wounds”); People v.

Fuller, 179 N.Y.S.3d 56, 59 (1st Dep’t 2022) (concluding that potentially erroneous

admission of autopsy report was harmless where “[t]he cause of the victim’s death was

undisputed, and the only issue was the killer’s identity”); cf. Ganthier, 2025 WL 2452386,

at *14 (“And at a murder trial . . . where the primary—and arguably only—disputed issue

was the cause of [] death, and where the autopsy findings were essential to the jury’s

resolution of that dispute, the admission of [the] autopsy report and [] surrogate

testimony about its findings and conclusions was in no way harmless.”).

ii. Other Evidence of Intent

Petitioner’s argument that the admission of the autopsy report was not harmless

error because it was the “only proof . . . from which the jury undoubtedly inferred that

petitioner intended to cause death,” is similarly unavailing. Reply 2–3. The prosecution

presented evidence besides the autopsy report from which a juror could infer intent,

“especially where,” as here, “it was uncontested[.]” Fuller, 179 N.Y.S.3d at 59. For

example, the jury heard testimony from one of the responding officers that they observed

two men arguing at the scene. Trial Tr. 318:24–319:3. A responding officer testified that

he heard five gunshots fired in total, and observed the shooter’s arm recoil five times. See

Trial Tr. 441:15–442:6. Officers further testified that after the victim tumbled backward

after the first shots were fired, the shooter moved closer to the victim and fired two more

shots. See Trial Tr. 321:2–18, 509:11–511:5. Indeed, Officer Lucca testified that he

observed the shooter three to five feet away from the victim when he fired the shots. See

Trial Tr. 510:14–25. The responding officers’ testimony was corroborated by other

testimony and ballistics evidence, such as three recovered bullets—including a bullet

recovered from a hospital gurney after the victim’s body was moved, Trial Tr. 78:10–79:5,

as well as an analysis of the alleged recovered murder weapon which contained five

expended cartridge casings, see Trial Tr. 241:14–18, 374:6–15, 403:8–11.

On these facts, even in the absence of the autopsy report, a reasonable juror could

have inferred that the shooter had intent to kill. See Bonton v. Ercole, No. 08-cv-00526,

2008 WL 3851938, at *8 (E.D.N.Y. Aug. 18, 2008) (“In New York, courts have

consistently held that intent to kill is established when a defendant fires more than one

shot at a victim at a close range.”); see also Anderson v. Lee, No. 19-cv-04488, 2020 WL

5043906, at *2 (E.D.N.Y. Aug. 26, 2020) (“Shooting someone twice from six feet away

with a .45 caliber firearm is more than sufficient to demonstrate intent to kill; indeed,

shooting someone once is sufficient.”) (collecting cases); Hernandez v. Artus, No. 09-cv-

05694, 2020 WL 2769404, at *5 (E.D.N.Y. May 28, 2020) (“[T]he jury could have also

inferred petitioner’s murderous intent from his conduct before and after the shooting.”);

People v. Lopez, 96 A.D.3d 1621, 1622 (4th Dep’t 2012) (holding that there was sufficient

evidence to support a finding that the defendant acted with the intent to kill where the

prosecution presented evidence that the “defendant and the victim quarreled immediately

before the shooting, and that [the] defendant was only a few feet away from the victim

when [the] defendant pointed a gun at him and then fired that weapon”).

Petitioner’s contention that without the autopsy report, “there was no other

evidence about where on the body or how many times the decedent was struck by gunfire,”

does not compel a different conclusion. Reply 11. First, as previously discussed,

testimonial and ballistics evidence—including analysis of the recovered murder weapon

and the bullets recovered at the scene—served as circumstantial evidence of the number

of times the victim was struck by gunfire. See People v. Jamison, 616 N.Y.S.2d 735, 735

(1st Dep’t 1994) (“It cannot be trivialized as mere coincidence that a bullet was promptly

recovered at the scene of an alleged shooting, indeed, next to the victim’s body.”).

Moreover, “regardless of how many shots hit” the victim, evidence that the gun was fired

toward the victim five times along with the recovered bullets and discharged shell casings,

“is plenty of indicia of intent.” Lee, 2020 WL 5043906, at *2. And to the extent petitioner

contends that where and how many times the victim was struck was necessary to establish

cause of death, the responding officers’ testimony that after they observed the shooting,

they checked the victim and discovered that he was unresponsive and appeared deceased

could certainly support an inference that the shooting was the cause of death. See Trial

Tr. 355:18–356:4, 451:11–23; see also United States v. Prince, 445 F. App’x 419, 421 (2d

Cir. 2011) (summary order) (“Although it may be ordinary practice for the prosecutor to

introduce an autopsy report or testimony from a medical examiner to establish the cause

of death, such evidence is not required. A jury is permitted, as it did here, to find an

element of a crime proven beyond a reasonable doubt based solely on circumstantial

evidence.”).

iii. Van Arsdall Factors

The Court also finds that application of the Van Arsdall factors leads to the

conclusion that any error in admitting the autopsy report and Dr. Georgievskaya’s

testimony was harmless.

a. Strength of the Prosecution’s Case

Whether a Confrontation Clause violation has a substantial and injurious effect

“depends upon a host of factors, including the importance of the witness’ testimony in the

prosecution’s case, whether the testimony was cumulative, the presence or absence of

evidence corroborating or contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of course, the overall strength

of the prosecution’s case.” Diaz, 2023 WL 4363245, at *2 (citing Van Arsdall, 475 U.S. at

684). However, “the strength of the prosecution’s case is probably the single most critical

factor in a harmless error analysis.” Perkins, 596 F.3d at 177; see also United States v.

McCallum, 584 F.3d 471, 478 (2d Cir. 2009) (“We have repeatedly held that the strength

of the government’s case is the most critical factor in assessing whether error was

harmless.”); United States v. Mejia, 545 F.3d 179, 199 n.5 (2d Cir. 2008) (“Although

harmless error analysis originally focused on whether the error had affected the jury, over

the years our focus has shifted from the impact of the error on the jury’s analysis to an

assessment of the strength of the remaining evidence of guilt.”).

In petitioner’s trial, “[t]he weapon, bullets, and shell casings recovered from the

crime scene were exhibited at trial and admitted into evidence, corroborated by photos of

the crime scene taken shortly after the shooting.” Chen, 2025 WL 83774, at *8; see also

Trial Tr. 226:5–242:10. Officers testified that they observed the shooting, and shortly

apprehended petitioner after he fled the scene of the shooting. See Perkins, 596 F.3d at

178 (finding that constitutional error was harmless where the petitioner’s explanation of

why he fled the crime scene was “not plausible and was not supported by other evidence”).

Moreover, officer testimony coupled with evidence of petitioner’s social media posts

tended to show that “an individual wearing the same outfit that [p]etitioner wore,” shot

the victim. Chen, 2025 WL 83774, at *8. And the fact that the victim died shortly after the

shooting was established by the testimony of officers Lucca and Zebrowski, and

corroborated by the testimony of officer Anwar—who witnessed the victim at the scene of

the shooting lying completely unresponsive, travelled with the victim’s body to Brookdale

Hospital, and later identified the body at the medical examiner’s office. Trial Tr. 76:2–

77:12, 79:22–80:19. “In short, this is not a case where the prosecution’s evidence was

weak; to the contrary, . . . eye-witness testimony tied [petitioner] to the crime[],” even

without the autopsy report and surrogate testimony. Goodman v. Collado, No. 18-cv-

02769, 2021 WL 4893676, at *6 (E.D.N.Y. Oct. 20, 2021); accord United States v. Stukes,

186 F. App’x 150, 151 (2d Cir. 2006) (summary order) (“Given the substantial body of

evidence the government presented at trial, including the uncontroverted eyewitness

testimony of a New York Police Department officer and the corroborating testimony of

four other officers, [the defendant’s] challenge to the sufficiency of the evidence is without

merit.”).

b. Other Van Arsdall Factors

Moreover, the other Van Arsdall factors also weigh in favor of finding that the error

was harmless. First, the autopsy report had little importance to the prosecution’s case as

it was only briefly alluded to during the prosecution’s opening and summation, and

offered simply for purposes of confirming the largely undisputed issue of the cause of the

victim’s death. See Trial Tr. 64:1–6, 64:15–65:20, 793:1–11, 796:1–8; cf. Ganthier, 2025

WL 2452386, at *24 (“The centrality of improperly introduced evidence to a prosecution’s

case, including the extent to which it is featured in opening and closing arguments, can

contribute to a finding that the error was not harmless.”). Further, the autopsy report was

cumulative as it was offered to corroborate the eyewitness testimony of the responding

police officers. See Trial Tr. 792:23–793:11; see also Perkins, 596 F.3d at 178 (finding

Confrontation Clause

error harmless even where erroneously admitted eyewitness testimony

“constituted significant evidence of guilt” that was “important to the prosecution’s case”

and which “could potentially have bolstered” properly admitted evidence because it was

nonetheless “cumulative of the other testimony and evidence” tying the petitioner to the

crime). To that end, no evidence in the record contradicts the material points of Dr.

Georgievskaya’s testimony and the autopsy report. See id. (“[The petitioner] introduced

no testimony or evidence directly contradicting [the improperly admitted evidence] of the

robbery on any material points, which also weighs in favor of finding harmless error.”).

Moreover, “the fact that [p]etitioner’s attorney was afforded the opportunity to cross-

examine every other witness,” also weighs in favor of finding the error harmless. Chen,

2025 WL 83774, at *8.

Petitioner’s cited authority illustrates the nature of the harmless error in his case.

See Reply 4. For instance, in Garlick, the Second Circuit took up an appeal of a lower

court’s grant of habeas relief in connection with a first-degree manslaughter conviction.

1 F.4th at 125. At the underlying criminal trial, the petitioner was indicted for murder,

manslaughter, and assault with a dangerous weapon stemming from a knife attack at an

apartment building. See id. at 125–26. Over the petitioner’s objection, the trial court

admitted the autopsy report of the victim through the testimony of a doctor who did not

prepare the report and was not involved in the autopsy. Id. at 126–27.

The Second Circuit held that the admission of the autopsy report constituted an

unreasonable application of clearly established federal law, and that the error in

admitting the report was not harmless. See id. at 128, 136. In its harmless error analysis,

the Court noted that the autopsy report was introduced as the State’s first exhibit and that

the State “heavily relied on [the report] in its opening and closing statements.” Id. at 136.

The Court further noted that the State used the report to eliminate another suspect as a

potential cause of the victim’s death. Id. The Court highlighted that the State offered the

report as evidence of the petitioner’s intent to cause injury and observed that “no witness

testified that [the petitioner] had or used a knife during the attack, and [the petitioner]

denied that he had a knife.” Id. Thus, the Court concluded that the report was “the

strongest evidence in the State’s case” and was not cumulative of other evidence

connecting the petitioner to the victim’s death. Id.

The facts of petitioner’s case starkly contrast the facts in Garlick. Here, the

prosecuting district attorney alluded to the autopsy report a mere four times in his

opening and summation. See Trial Tr. 64:1–6, 64:15–65:20, 793:1–11, 796:1–8. And the

prosecution discussed the report specifically in the context of how it “corroborate[d] and

[wa]s consistent with” the testimony of the police officers who responded to the shooting,

i.e., the report was cumulative, Trial Tr. 65:22–66:1, or to refute defense counsel’s

interpretation of the autopsy report, see Trial Tr. 787:15–788:14. Indeed, defense counsel

went to great lengths in his summation to argue that the autopsy report and Dr.

Georgievskaya’s testimony supported petitioner’s defense. Namely, that the autopsy

results—including the trajectory of the bullets—contradicted the responding officers’

testimony and suggested that a “taller person” than petitioner shot the victim.8 See Trial

8 For this reason, petitioner’s argument that the issue of intent was “close[]” because

the jury asked for the autopsy report during deliberations is of no moment. Reply 12.

Petitioner fails to demonstrate, and the record does not reflect, that the jury sought the

autopsy report during their deliberation for purposes of determining intent as opposed

to, for example, considering petitioner’s argument that the autopsy report didn’t “fit the

testimony” of the responding officers. Trial Tr. 721:13–24.

Tr. 720:4–723:1; see also Duncan, 31 F. Supp. 3d at 422 (“[T]he admission into evidence

of the medical examiner’s finding that the cause of death was homicide, while technically

improper was not prejudicial to the defense. Indeed, it was consistent with their defense

theory.”). Moreover, far from the prosecution’s “strongest evidence,” the state introduced

the autopsy report for the purpose of corroborating its most important evidence in the

case: the eyewitness testimony of the responding officers. See Trial Tr. 65:22–66:1,

787:18–790:18.

* * *

In sum, petitioner fails to show that the error was not harmless, even if the

“damaging potential of the cross-examination were fully realized[.]” Van Arsdall, 475 U.S.

at 684. As set forth above, “[u]ltimately . . . the central question of the trial was basically

one of identity.” Diaz, 2023 WL 4363245, at *3. And a “fully realized” and “damaging”

cross-examination of the unavailable medical examiner “would have been essentially

irrelevant to this issue.” Id. Accordingly, the Court concludes that the admission of the

autopsy report and the attendant surrogate testimony did not have a substantial and

injurious impact on the jury’s verdict, and, as such, any error was harmless and the

Petition must be denied. See Perkins, 596 F.3d at 180; see also People v. Taveras, 212

N.Y.S.3d 330, 333 (1st Dep’t 2024) (“Although admission of the autopsy report, including

the conclusions of the non-testifying examiner, violated defendant’s confrontation rights,

any error in admitting the autopsy report was harmless, as there was no reasonable

possibility that the error contributed to the conviction. The cause of death was

undisputed, and the only issue was the killer’s identity.”); Mendez v. Graham, No. 11-cv-

05492, 2012 WL 6594456, at *20 (E.D.N.Y. Dec. 18, 2012) (finding error harmless where

“the importance of the wrongly admitted evidence, assuming it was wrongly admitted,

was not great[,] [t]he prosecution did not rely on it in summation, it did not bear on an

issue plainly critical to the jury’s decision, and it was largely cumulative” of eyewitness

testimony); accord Diaz, 2023 WL 4363245, at *3 (“But in light of the other evidence

introduced at trial and the limited relevance of the crime scene evidence to the core

dispute over competing eyewitness testimony, we cannot say that no fairminded jurist

applying Supreme Court precedent could reach the First Department’s” conclusion that

Confrontation Clause error was harmless).

CONCLUSION

For the reasons stated above, the Petition is DENIED. The Clerk of Court is

respectfully directed to enter judgment and mark the case as closed.

SO ORDERED.

/s/ Natasha C. Merle

NATASHA C. MERLE

United States District Judge

Dated: October 31, 2025

Brooklyn, New York