DeJesus v. Perez ( 2020 )

19-2245-pr
DeJesus v. Perez
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST
CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
13th day of May, two thousand twenty.
PRESENT:
GUIDO CALABRESI,
RICHARD C. WESLEY,
JOSEPH F. BIANCO,
Circuit Judges.
JOSHUE DEJESUS,
Petitioner-Appellant, 19-2245-pr
v.
ADA PEREZ, Superintendent, Downstate
Correctional Facility,
Respondent-Appellee. *
FOR PETITIONER-APPELLANT: JONATHAN I. EDELSTEIN, Edelstein &
Grossman, New York, New York.
FOR RESPONDENT-APPELLEE: ALICE WISEMAN (Eleanor J. Ostrow, on
the brief), Assistant District Attorneys, for
*
The Clerk of Court is directed to amend the caption as set forth above.
Cyrus R. Vance, Jr., District Attorney, New
York County, New York, New York.
Appeal from an order of the United States District Court for the Southern District of New
York (Swain, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the order of the district court is AFFIRMED.
Petitioner Joshue DeJesus appeals from a July 9, 2019 order of the United States District
Court for the Southern District of New York (Swain, J.), denying the petition for a writ of habeas
corpus pursuant to 28 U.S.C. § 2254. DeJesus is serving an indeterminate term of imprisonment
of 20 years to life following conviction by a jury of murder in the second degree in New York
Supreme Court, New York County. DeJesus argues that the state court unreasonably applied
United States Supreme Court precedent in finding that the trial testimony of certain New York
City Police Department detectives did not violate his Sixth Amendment Confrontation Clause
rights, and that the district court erred in concluding otherwise. We assume the parties’
familiarity with the underlying facts, procedural history, and issues on appeal.
I. Background
This petition arises from the arrest and prosecution of DeJesus for the murder of Julio
Montez. In the early morning of June 9, 2006, DeJesus was at a bar in Manhattan with his
friends; Montez was also there with his friend Lennon Carrasco, among others. At 3:45 a.m.,
Montez was outside of the bar arguing with another man, when someone walked up to Montez
and shot him in the chest. Carrasco initially told law enforcement that he did not see the
shooting, but revised his story when he spoke to police again around 7:00 p.m. that same day. At
that point, he told the detective that he saw the man who shot Montez, recognized him from the
2
neighborhood, and provided a physical description. Carrasco identified DeJesus as the shooter
from a photo array around 10:00 p.m. that evening. Several months later, DeJesus voluntarily
surrendered himself and Carrasco again identified him as the shooter during a lineup.
Before trial began, the state court denied the prosecution’s request to admit testimony
from a member of Montez’s family concerning a telephone call that was received the day of the
shooting. In that call, an anonymous person said that “the shooter’s name is Joshua” and
provided his address. App. at 123-24. The family member relayed this information to the police
at approximately 4:15 p.m. on the day of the shooting. The court did not permit the prosecution
to reference the phone call, but allowed the prosecution to ask the detectives if they had a suspect
in mind based on their investigation, prior to the Carrasco interview. On direct examination, the
detectives (including Detective Antonio Rivera) revealed that they identified DeJesus as a
suspect at around 4:00 p.m., even though Carrasco did not provide a description of the shooter
until approximately 7:00 p.m. that day.
II. Discussion
a. Standard of Review
We review de novo the district court’s denial of a petition for a writ of habeas corpus.
Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). Because DeJesus’s Confrontation Clause
claim was “adjudicated on the merits in State court proceedings,” 28 U.S.C.
§ 2254(d), see People v. Garcia, 25 N.Y.3d 77, 30 N.E.3d 137 (2015), we may only grant the
writ under the Antiterrorism and Effective Death Penalty Act (“AEDPA”) if the state
adjudication “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).
3
For purposes of habeas review, “clearly established Federal law” refers to holdings of the
United States Supreme Court, and not an appellate court’s interpretation or extension of such
holding. See Carey v. Musladin, 549 U.S. 70, 74 (2006) (“[C]learly established Federal law . . .
refers to the holdings, as opposed to the dicta, of [the Supreme] Court’s decisions as of the time
of the relevant state-court decision.” (emphasis added) (quotation marks omitted)); see also
Rodriguez v. Miller, 537 F.3d 102, 109 (2d Cir. 2008) (“[I]n the past we (and other courts)
occasionally have relied on our own precedents to interpret and flesh out Supreme Court
decisions to decide variegated petitions as they come before us. It would appear that we can no
longer do this.”).
b. The Right to Confrontation
The Sixth Amendment to the United States Constitution guarantees a criminal defendant
“the right . . . to be confronted with the witnesses against him.” U.S. Const. amend.
VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965). In Crawford v. Washington, the Supreme
Court held that the Confrontation Clause bars out-of-court “testimonial” statements against a
criminal defendant by a witness absent from trial unless the defendant had a prior opportunity to
cross-examine the declarant. 541 U.S. 36, 68 (2004); see also Washington v. Griffin, 876 F.3d
395, 404 (2d Cir. 2017). Although the Supreme Court declined “to spell out a comprehensive
definition of ‘testimonial,’” it made clear that “[w]hatever else the term covers, it applies at a
minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial;
and to police interrogations.” Crawford, 541 U.S. at 68. Furthermore, the Confrontation Clause
“does not bar the use of testimonial statements for purposes other than establishing the truth of
the matter asserted.” Id. at 59 n.9; see also Tennessee v. Street, 471 U.S. 409, 414 (1985)
(holding that non-hearsay admissions do not raise “Confrontation Clause concerns”).
4
In Bruton v. United States, 391 U.S. 123 (1968), and its progeny, the Supreme Court
separately addressed Confrontation Clause claims in the context of out-of-court statements by
non-testifying co-conspirators implicating a defendant in the charged crime. Bruton involved the
oral confession of the defendant’s co-conspirator that was admitted at their joint trial. 391 U.S.
at 124. The confession, which implicated the defendant, violated the defendant’s right to
confrontation given that the co-conspirator did not testify. Id. at 128. Thereafter, in Gray v.
Maryland, the confession of the non-testifying co-defendant was also read to the jury, but this
time the defendant’s name was redacted. 523 U.S. 185, 194 (1998). A detective affirmed that
based on the co-defendant’s confession, he “subsequently [was] able to arrest Mr. Kevin Gray.”
Id. at 188-89. Despite the redaction, the Supreme Court found a violation of the defendant’s
confrontation right, explaining that “the kind of” inference matters. Id. at 196. The Court
distinguished between inferential statements “which became incriminating ‘only when linked
with other evidence introduced later at trial’” and statements which “obviously refer directly to
someone, often obviously the defendant, and which involve inferences that a jury ordinarily
could make immediately, even were the confession the very first item introduced at trial.” Id.
(quoting Richardson v. Marsh, 481 U.S. 200, 208 (1987)).
In addition to Bruton and Gray, DeJesus relies on a Second Circuit case, Ryan v. Miller,
303 F.3d 231 (2d Cir. 2002). In Ryan, the testimony revealed that while one detective was
interrogating Ryan about a murder, another detective was simultaneously interviewing one of
Ryan’s friends, Peter Q. Id. at 240. At one point, the sergeant supervising the investigation, who
had just spoken with the officer interviewing Peter Q., directed the detective interviewing Ryan
to read Ryan his Miranda rights. Id. On appeal, we agreed with Ryan that this sequence of
events “provided the indirect link between Peter Q.’s confession and the arrest of Ryan and
5
contained an obvious accusation against Ryan.” Id. Thus, “[b]ased on the testimony, the jury
. . . had nothing to conclude except that Peter Q. implicated Ryan. Because Peter Q. did not
testify, Ryan could not confront his accuser.” Id. at 240-41. This Court concluded that
“[t]estimony need not contain an explicit accusation in order to be excluded as a violation of the
Confrontation Clause.” Id. at 248.
c. Application
On appeal, DeJesus argues that the detectives’ testimony violated his right to
confrontation by implying that a non-testifying individual accused petitioner of the murder
before Carrasco identified him, and that the prosecutor “hammered the inference home” in her
opening statement and summation. Appellant Br. at 47. We affirm the denial of the writ because
the state court’s rejection of DeJesus’s Confrontation Clause claim was not an unreasonable
application of the legal standards set forth in Crawford, Bruton, or subsequent Supreme Court
holdings applying those standards.
As a threshold matter, respondent argues that Ryan, as a Circuit decision, is not
controlling in this case because “clearly established Federal law” is only determined by Supreme
Court precedent for purposes of habeas review. See Alston v. Phillips, 476 F. App’x 907, 909
(2d Cir. 2012) (“[T]he Supreme Court has not addressed the question” whether “‘testimony that
indirectly includes an accusation against the defendant may violate the Confrontation Clause
even if the testimony is not a direct reiteration of the accusatory assertion.’” (quoting Ryan, 303
F.3d at 248)). However, Ryan was a habeas appeal in which this Court articulated its view of
“clearly established Federal law” on a Confrontation Clause claim for purposes of habeas review.
See Ryan, 303 F.3d at 234 (“We find that the officers’ testimony constituted hearsay containing
an implicit accusation against Ryan, in violation of the Confrontation Clause of the Sixth
6
Amendment, and that the state appellate court unreasonably applied clearly established Supreme
Court precedent in denying Ryan’s Sixth Amendment claim.”). DeJesus contends that Ryan’s
articulation of “clearly established Supreme Court precedent” is binding on future cases in this
Circuit. See id.; see also Gersten v. Senkowski, 426 F.3d 588, 607 n.1 (2d Cir. 2005) (noting that
district courts, on habeas review, are “bound to apply this Court’s precedents governing when
applications of Strickland are unreasonable” (quotation marks omitted)). Notwithstanding that
Ryan itself was applying post–AEDPA Supreme Court law, respondent further contends that
“[i]n a string of cases beginning with Musladin in 2006—thus post-dating both Ryan and
Gersten—the Supreme Court has made clear that the type of extension of Supreme Court
holdings exemplified by Ryan is impermissible.” Appellee Br. at 43. Although respondent
suggests that the holdings of both Gersten and Ryan have been implicitly overruled by Musladin
and its progeny, we need not address that issue because we conclude that DeJesus’s claim is not
supported by the clearly established Federal law articulated in Ryan, and would require an
extension of Crawford and Bruton that is impermissible on habeas review.
We explained in Ryan that, as it relates to Confrontation Clause claims involving an
implicit accusation by a non-testifying witness, “[t]he relevant question is whether the way the
prosecutor solicited the testimony made the source and content of the conversation clear.” 303
F.3d at 250. Thus, because in Ryan the source of the information was identified (namely, co-
perpetrator Peter Q.) and the content of information was made abundantly clear from the
circumstances (namely, the arrest of Ryan immediately following the questioning of Peter Q.),
we found a Confrontation Clause violation under those “particularly egregious facts.” Alston,
476 F. App’x at 910 (discussing Ryan). By contrast, here, neither the source of the information
nor its specific content was ever revealed to the jury during questioning by the prosecutor; rather,
7
the jury only learned that the police suspected DeJesus as the murderer prior to the Carrasco
interview and his identification of DeJesus. 1 Thus, Ryan’s standard under Supreme Court
precedent for an indirect accusation to constitute a Confrontation Clause violation was not met
here. 2 No Supreme Court case has held, under its Crawford or Bruton lines of cases or in any
other context, that the Confrontation Clause is violated where neither the source nor content of
the information is revealed by the prosecution to the jury. In the absence of any such precedent,
DeJesus’s claim under the facts of this case does not permit habeas relief.
Finally, to the extent that DeJesus argues that this case approaches Gray because the
content of the information (namely, a second eyewitness identifying DeJesus as the shooter) was
made clear by direct testimony from the prosecution’s witnesses, that contention is not supported
by the record. Although the testimony here established that the detectives identified DeJesus as a
suspect before Carrasco implicated him, the testimony elicited on direct examination did not
attribute this knowledge to a specific source of information or describe its content. 3 Instead, it
1
This situation is more akin to the situation in Quartararo v. Hanslmaier, 186 F.3d 91 (2d Cir.
1999), which was distinguished in Ryan. Like the testimony here, “the testimony [in
Quartararo] did not make clear from whom or where [the detective] received the information, if
in fact he received any information at all.” Ryan, 303 F.3d at 252 n.7. Moreover, the testimony
“did not contain the contemporaneous, back and forth exchanges between [the] interrogator[s]
that was so evident in the questioning at Ryan’s trial.” Id.
2
DeJesus’s reliance on Ocampo v. Vail, 649 F.3d 1098 (9th Cir. 2011), is similarly misplaced.
In Ocampo, unlike here, the detectives’ testimony revealed the identity of the out-of-court
declarant and established that he implicated the defendant and corroborated other details. See id.
at 1102-05.
3
DeJesus further suggests that the prosecutor’s opening statement already made these additional
facts clear. We disagree. The prosecutor’s passing remarks in the opening statement regarding
the police investigation did not identify the source or content of any information possessed by
the detectives before questioning Carrasco. Similarly, the summation provided no more
information to the jurors on that topic than had been already revealed on cross-examination of
the prosecution witnesses by DeJesus’s counsel.
8
was on cross-examination that defense counsel brought out substantive details about the content
of the identification. In particular, in response to defense counsel’s questions, Detective Rivera
revealed that there was an individual who identified petitioner before Carrasco did, whereas on
direct examination, the detectives merely affirmed that DeJesus was a suspect around 4:00 p.m.
“as a result of [their] investigation.” App. at 135. As the district court noted, “the jury could not
have inferred that any statement by a non-testifying witness had been made until Petitioner’s
own counsel, while cross examining [D]etective Rivera, introduced the notion that some other
individual had identified Petitioner at 4:00 p.m. on June 9.” App. at 232. Although Detective
Rivera did not speak to Carrasco at 4:00 p.m., it was still possible for the jury to infer that
another detective had already received information from Carrasco at that time, based on the
limited information revealed during his direct examination, or that the suspicion was a
generalized one prompted by his presence at the scene or some other innocuous reason. The fact
that defense counsel asked questions on cross-examination that revealed more details about the
content of the information cannot be used to form the basis of a Confrontation Clause claim. See
Giles v. California, 554 U.S. 353, 376 n.7 (2008) (observing that “the confrontation guarantee
limits the evidence that the State may introduce without limiting the evidence that a defendant
may introduce”).
In sum, we conclude that testimony that the detectives considered DeJesus to be a suspect
prior to speaking with Carrasco, without reference to the source or content of the information, is
too vague an accusation to constitute a Confrontation Clause violation within the scope of the
9
Supreme Court’s jurisprudence under Bruton and Crawford. Accordingly, we cannot say that
the state court’s decision was an unreasonable application of clearly established Federal law. 4
***
We have considered petitioner’s remaining arguments and conclude that they are without
merit. For the foregoing reasons, we AFFIRM the order of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk of Court
4
We note that this conclusion should not be construed as stating any view on whether the legal
principles in Bruton or Crawford could be extended to cover the situation present here. In fact,
in Ryan, we stated that “it is well established in this Circuit that lawyers may not circumvent the
Confrontation Clause by introducing [an out-of-court, accusatory statement] in a different form.”
Ryan, 303 F.3d at 248-49 (collecting cases). Instead, our analysis is limited to applying Supreme
Court precedent in determining clearly established Federal law for habeas review, and DeJesus’s
claim fails under that deferential standard.
10