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Washington v. Griffin

United States Court of Appeals, Second Circuit

November 28, 2017

Kenneth Washington, Petitioner-Appellant,
Thomas Griffin, Superintendent, Sullivan Correctional Facility, Respondent-Appellee.

          Argued: January 18, 2017

         Petitioner-Appellant, convicted in New York State of multiple counts of first- and second-degree burglary and first- and second-degree assault, as well as first-degree criminal sexual act and first-degree sexual abuse, contends that his Confrontation Clause rights were violated when records of the Office of the Chief Medical Examiner of the City of New York regarding the DNA testing of his cheek swab were admitted at trial. He asserts that the United States District Court for the Eastern District of New York erred in denying his petition for a writ of habeas corpus on this basis, arguing that the state court's rejection of his Confrontation Clause claim was contrary to, or involved an unreasonable application of, clearly established law. We agree with the district court that the Supreme Court cases on which Petitioner-Appellant relies neither clearly establish his entitlement to cross-examine the analysts who prepared the informal, unsworn documents in the case file introduced as evidence at his trial, nor provide a basis for concluding that the state court judgment was contrary to, or involved an unreasonable application of, clearly established law. Accordingly, the judgment of the district court is AFFIRMED.

          Paul Skip Laisure (Lynn W.L. Fahey, on the brief), Appellate Advocates, New York, New York, for Petitioner-Appellant.

          William H. Branigan, Assistant Queens Country District Attorney (John M. Castellano and Joseph N. Ferdendzi, Assistant Queens County District Attorneys, on the brief), for Richard A. Brown, Queens County District Attorney, Kew Gardens, New York, for Respondent-Appellee.

          Before: Katzmann, Chief Judge, Kearse and Livingston, Circuit Judges.

          Debra Ann Livingston, Circuit Judge.

         Petitioner-Appellant Kenneth Washington ("Washington") appeals from a judgment of the United States District Court for the Eastern District of New York (Block, J.), entered on November 5, 2015, denying his petition for a writ of habeas corpus. Washington was convicted in New York of multiple counts of first- and second-degree burglary and first- and second-degree assault, as well as first-degree criminal sexual act and first-degree sexual abuse. He claims that the introduction at his trial, during the testimony of an expert lab analyst, of a case file concerning the DNA testing of Washington's buccal cheek swab and containing notations made by the expert's coworkers, "analysts whom the State did not call to the stand, " Pet'r's Br. 2, violated his Sixth Amendment right to confront witnesses against him, as clearly established by Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), and Bullcoming v. New Mexico, 564 U.S. 647 (2011). The district court denied the petition, but granted Washington a certificate of appealability. Washington v. Griffin, 142 F.Supp.3d 291, 297 (E.D.N.Y. 2015). We conclude that Washington has not shown, as he must, that the state court either: (1) "arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or . . . decide[d] a case differently than [the Supreme Court] on a set of materially indistinguishable facts"; or (2) "unreasonably applie[d] [the correct governing legal] principle to the facts" of this case. Williams v. Taylor, 529 U.S. 362, 413 (2000). Accordingly, we affirm the judgment of the district court.


         I. Factual Background[1]

         Washington was charged with multiple felony counts-three counts each of first- and second-degree burglary, two counts each of first- and second-degree assault, first-degree criminal sexual act, and first-degree sexual abuse-in connection with three separate home invasions that took place over the course of eleven months between August 2006 and July 2007 in adjacent neighborhoods in Queens, New York. DNA evidence was recovered from each of the three crime scenes, as recounted below. Washington was charged when, as stipulated at trial, a DNA profile based on the DNA evidence recovered at each crime scene was found to match his profile, contained in the New York State DNA Index.

         A. The Crimes

         1. The T-Shirt Evidence

         The first set of crimes occurred around 2:00 a.m. on August 17, 2006, when an off-duty New York City Police Department ("NYPD") detective who lived alone, awoke to find an intruder in her bedroom rifling through her jewelry box. The detective described the intruder, who gained access to her home through a kitchen window, as a slender black man with cornrows wearing a white t-shirt, denim shorts, and a black stocking cap with a knot at the top. The cap covered the intruder's face and he wore socks on his hands.

         When the NYPD officer attempted to retrieve a firearm from the nightstand beside her bed, the intruder approached and they struggled for the weapon. Calling her a "bitch" and a "stupid fat bitch, " the intruder viciously beat the detective on the head, first with his hands and eventually with the gun, so hard she bled into her eyes and could not see. Trial Tr. 494. The struggle and beating continued into the hallway and then the bathroom. Demanding money, the intruder pushed his victim into the bathtub and asserted that he had been watching her and knew that she was "some police type bitch." Id. at 495. When he left her alone in the bathroom (apparently so that he could search for cash), the detective attempted to get up but slipped on the rim of the bathtub, which was wet with her blood. The intruder returned to the bathroom and scolded her to stay put, stomping on the woman and dumping the contents of her handbag over her. When the intruder again left her alone, the detective used the cellphone that had fallen from her bag to call 911. By the time help arrived, the intruder had left the scene. Emergency responders took the victim to the hospital, where she was admitted and treated for her wounds. When she eventually returned to her apartment, the detective discovered that the intruder had taken jewelry, her police shield, her gun, and an NYPD-issued MetroCard.

         During an early morning search of the area near the victim's home in the hours after the crime, a police officer observed a white t-shirt and a white sock, both apparently covered in blood, and a stocking cap. Officers photographed, collected, and documented these items. Eventually, analysts at the New York City Office of the Chief Medical Examiner ("OCME"), an accredited lab affiliated with the New York City Department of Health and Mental Hygiene, tested these items for DNA evidence. [2] From scrapings taken from the neck of the t-shirt, the OCME analysts developed a DNA profile of a then-unknown male individual.[3]

         2. The Glove Evidence

         The second criminal incident occurred on December 5, 2006, about four months later, and was discovered when a working mother returned home, accompanied by family, to find her house in disarray. Her handbag had been emptied out, and someone had strewn her earrings around the living room. Several items-sneakers, multiple video gaming systems, and two watches-were gone. A window in the dining room had been forced open.

         Two gloves that did not belong to any of the home's occupants were recovered at the scene. Police officers collected the gloves and sent them to OCME for DNA testing. OCME analysts determined that, while there was a mixture of DNA present on each glove, both had the same major donor. A male DNA profile was generated from glove scrapings.

         3. The Iced-Tea Container Evidence

         Finally, on the afternoon of July 15, 2007, the third victim, who was alone at home at the time of the crime, had just awakened and was watching television in bed when a male intruder appeared in her bedroom. The intruder, a black male with cornrows, wore her long white bathrobe, and had covered his face with a towel or t-shirt. The third victim, like the first, noticed that the intruder wore socks on his hands.

         The intruder violently assaulted this third victim, placing his hand over her mouth and pushing her face into a pillow to muffle her screams, before pulling her off the bed by her hair and pressing his penis between her buttocks. The victim, who was pregnant at the time, used her hands to shield her stomach during this assault. When she resisted the intruder, he punched the side of her head, causing her to see stars, and tied a t-shirt around her face. The intruder repeatedly called the victim a bitch and also demanded money. At one point during the attack, the intruder dragged the woman into the kitchen, where he removed a container of iced tea from the refrigerator and took several gulps from it-spitting some of the tea onto her leg. The assailant then dragged her back to the bedroom, where he began choking her.

         The victim defecated on herself at this assault, enraging the intruder who called her a "nasty bitch, " dragged her by the hair into the bathroom, threw her in the shower, and told her to clean herself. Id. at 719. The intruder then dragged her back to the bedroom and continued his attack, warning her that if she didn't stop whimpering he would kill her. When the victim again defecated upon being choked, the intruder hit her on the face, returned her to the bathroom, and left her on the toilet. Once he left the bathroom, the woman locked the door behind him. While he banged on the door, threatening to kill her, she opened the bathroom window, which was eight feet above the ground, and jumped out, landing on her back. Scantily clad and covered in blood and feces, she crawled on her hands and knees across the concrete to the front of the house, and then ran across the street to a neighbor's home for help.

         The neighbor called 911, noting, as she did so, an individual in a white robe scaling the fence behind the victim's home. An ambulance took the victim to the hospital where medical personnel treated her injuries and monitored her unborn child during the next few days. She never returned to the residence, but when friends eventually retrieved her things, and she was able to go through them, she discovered that her eyeglasses, jewelry, and some money had been taken. While processing the crime scene, a police officer collected an iced-tea container from the bedroom, which the victim identified at trial. The police sent the iced-tea container to OCME for testing. The OCME DNA lab developed a male DNA profile from amylase taken from the container.[4]

         B. The DNA Evidence

         1. The DNA Index Match

         At trial, the parties stipulated that Washington was not an identical twin and that, had witnesses been called from the New York State Police Forensic Biology Laboratory, these witnesses would have offered evidence establishing that "the male DNA profile developed by [OCME]'s DNA laboratory from the evidence contained in FB06-14709, scrapings from the neck of white T-shirt, FB07-2443, scrapings from the glove, and FB07-1469, amylase from ice[d-]tea container, was uploaded into [the] New York State DNA Index in Albany." Joint App'x 23. The profile from the crime-scene evidence was then compared to known individuals in that database. The database included Washingtonʹs DNA profile. The parties stipulated that "the New York State DNA Index revealed that the male DNA profile developed from the evidence described above matched the defendant, Kenneth Washington's, DNA profile contained in the New York State DNA Index." Id. at 24. DNA Index personnel informed the NYPD of the match.

         Washington was arrested. After Washington's arrest, Detective Patrick Curran, who testified at trial, used a buccal swab to take a DNA sample from Washington pursuant to a court order.[5] Detective Curran sent the buccal swab in a sealed envelope to the OCME DNA lab for testing.

         2. Yanoff's Analysis of the DNA Evidence

         At Washington's trial, the state relied on the testimony of Natalyn Yanoff, a Level Three Criminalist with OCME, who testified as an expert in the field of DNA analysis, forensic biology, and the statistical significance of DNA profiles, to establish that the DNA profiles developed from the evidence recovered at each crime scene matched the DNA profile of Washington developed from the buccal swab. Yanoff testified that as a Level Three Criminalist, she not only "manage[s] [her] own cases in which [she] interpret[s] DNA results, write[s] reports, and testif[ies] in court if needed, " she also supervises others in the use of various DNA techniques, coordinating ...

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