10-2540-pr
Vega v. Walsh


                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT
                              August Term 2011
 (Argued: October 18, 2011              Decided:    February 17, 2012)
                            Docket No. 10-2540-pr

                                 HENRY VEGA,
                                               Petitioner-Appellant,

                                     v.
     JAMES WALSH, Superintendent, Sullivan Correctional
                           Facility,
                                               Respondents-Appellee.

Before:
                  KEARSE, LEVAL, and CHIN, Circuit Judges.

                Appeal from a judgment of the United States
District Court for the Eastern District of New York (Ross,

J.) denying petitioner-appellant's petition for a writ of

habeas corpus under 28 U.S.C. § 2254.

                AFFIRMED.

                               MARTIN MICHAEL LUCENTE, Legal Aid
                               Society, New York, New York, for
                               Petitioner-Appellant.

                               WILLIAM H. BRANIGAN, Assistant District
                               Attorney (John M. Castellano,
                               Assistant District Attorney, on the
                               brief), for Richard A. Brown,
                               District Attorney, Queens County,
                               Kew Gardens, New York, for
                               Respondents-Appellees.
PER CURIAM:
          Petitioner-appellant Henry Vega, convicted of,

inter alia, murder in the Supreme Court of the State of New
York in 2002, appeals the denial of his petition for a writ

of habeas corpus brought under 28 U.S.C. § 2254.    Vega
alleged that his rights were violated by the trial court's
admission of (1) evidence of uncharged crimes and a tattoo

featuring the word "Enforcer" and (2) the testimony of a
medical examiner about an autopsy she had not performed.

The district court rejected both claims.    We affirm.
                           BACKGROUND

          On November 5, 1996, a police officer discovered

the body of Thomas Hill in a baseball field in Kissena Park

in Queens.    He had been shot to death, and had bullet wounds
in the chest, back, and head.

          Vega and a co-defendant were arrested for Hill's

murder.   They were tried separately in New York State

Supreme Court, Queens County.    Vega was tried twice in early
2002.   His first trial ended in a mistrial when the jury
could not reach a verdict.    The second trial resulted in

Vega's conviction for murder and weapons possession.
     At both trials, the Government presented evidence that
Vega had solicited a murder-for-hire, owned guns, and dealt

drugs, and had a tattoo featuring the word "Enforcer" on his


                              -2-
abdomen.   In addition, the Court permitted a medical
examiner, Dr. Kari Reiber, to testify as an expert about the

results of Hill's autopsy, which had been performed by
another doctor in her office.    The autopsy report itself was

not admitted into evidence.    Reiber testified that the
prosecution's theory of Hill's death -- that Vega shot Hill,
who was intoxicated from alcohol and cocaine, first in the

chest and then twice more in the head once Hill was on the
ground -- was consistent with the autopsy results.

           On February 7, 2002, the jury found Vega guilty on

all three charges -- one count of second-degree murder and
two counts of possession of weapons.    On March 6, 2002, the

trial court (Randall T. Eng, J.) sentenced Vega principally

to twenty-five years to life in prison.
           The Appellate Division, Second Department,

affirmed his conviction on November 28, 2005, People v.

Vega, 23 A.D.3d 680 (2d Dep't 2005), and the New York State

Court of Appeals denied leave to appeal, People v. Vega, 6
N.Y.3d 782 (2006).
           On December 6, 2006, Vega filed his petition below

for a writ of habeas corpus pursuant to 28 U.S.C. § 2254.
Vega v. Walsh, No. 06-cv-6492 (ARR) (JO) (E.D.N.Y. Dec. 6,
2006), ECF No. 1.    Vega argued that the admission of

evidence of uncharged crimes and Vega's "Enforcer" tattoo


                              -3-
deprived him of a fair trial and that the admission of
Reiber's testimony violated his Sixth Amendment right to

confront his accusers. 1     See Vega v. Walsh, No. 06-cv-6492
(ARR) (JO), 2010 WL 1685819, at *1 (E.D.N.Y. Apr. 22, 2010).

A magistrate judge (James Orenstein, M.J.) recommended
denying Vega's petition in its entirety.         Id. at *21.     The

district court (Allyne R. Ross, J.) adopted the
recommendation and denied Vega's petition.          Vega v. Walsh,
No. 06-cv-6492 (ARR) (JO), 2010 WL 2265043, at *4 (E.D.N.Y.

May 28, 2010).

          This appeal followed.
                             DISCUSSION

          A federal court may grant habeas relief under §
2254 if the state court's adjudication of a claim on the

merits "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).     A federal court may reverse a state

court ruling only where it was "so lacking in justification

that there was . . . [no] possibility for fairminded
disagreement."    Harrington v. Richter, 131 S. Ct. 770, 786-
87 (2011); see also Cavazos v. Smith, 132 S. Ct. 2, 7-8


     1
        Vega asserted a third claim below -- a Batson-related
argument, Vega, 2010 WL 1685819, at *1 -- that has not been pursued on
appeal.

                                 -4-
(2011) (per curiam) (citing Supreme Court jurisprudence
"highlighting the necessity of deference to state courts in

§ 2254(d) habeas cases").
         We review the district court's denial of a § 2254

petition de novo.   Harris v. Kuhlmann, 346 F.3d 330, 342 (2d
Cir. 2003).   We conclude that the state court's rulings here
were not contrary to and did not involve 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).

         First, Vega's arguments regarding the trial
court's admission of evidence of Vega's uncharged crimes and

"Enforcer" tattoo are without merit.   In admitting the

contested evidence, the trial court reasonably applied New
York law in a manner that was not contrary to or an

unreasonable application of United States law or the

Constitution.   Indeed, state trial court evidentiary rulings

generally are not a basis for habeas relief.     See, e.g.,
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).    See
generally Crane v. Kentucky, 476 U.S. 683, 689 (1986)

(noting Supreme Court's "traditional reluctance to impose
constitutional constraints on ordinary evidentiary rulings
by state trial courts").    The evidence at issue here was at

least arguably relevant, and even assuming there was error,


                              -5-
the evidence was not "so extremely unfair that its admission
violate[d] 'fundamental conceptions of justice,'" Dowling v.

United States, 493 U.S. 342, 352 (1990) (citation omitted).
         Second, Vega's claim that the medical examiner's

testimony was improperly received likewise fails.
         In Crawford v. Washington, 541 U.S. 36 (2004), the
Supreme Court held that the admission of testimonial hearsay

violates the Confrontation Clause absent "unavailability" of
the declarant "and a prior opportunity for cross-

examination."     Id. at 68.   A series of lower-court cases

elaborating on the meaning of "testimonial" followed.     This
Court found in United States v. Feliz, 467 F.3d 227 (2d Cir.

2006), that autopsy reports are not testimonial and are

admissible as public and business records.      Id. at 236-38.
         While this case was pending in the district court,

the Supreme Court decided Melendez-Diaz v. Massachusetts,

129 S. Ct. 2527 (2009).    There, the Supreme Court held that

forensic "certificates of analysis" identifying a white
powder seized from the defendant as cocaine were testimonial
under Crawford.    129 S. Ct. at 2532 (reasoning that because

reports underlying hearsay affidavits were made for "sole
purpose" of providing evidence against defendant, he was
entitled under Sixth Amendment to cross-examine authors of

certificates of analysis).     More recently, in Bullcoming v.


                                -6-
New Mexico, 131 S. Ct. 2705 (2011), the Supreme Court held
that laboratory reports of blood alcohol tests are also

testimonial.   Id. at 2710; see also id. at 2722 (Sotomayor,
J., concurring in part) (emphasizing that decision did not

address situations where expert witness discussed
testimonial statements not admitted into evidence).
          Relying on Melendez-Diaz and Bullcoming, Vega

argues that his rights under the Confrontation Clause of the
Sixth Amendment were violated because autopsy reports are

testimonial.   Specifically, he contends that the medical

examiner should not have been permitted to testify from a
report about an autopsy she had not performed, where the

medical examiner who performed the autopsy was not available

for cross-examination.   The district court rejected this
argument on the basis that Melendez-Diaz created a new rule

that did not apply retroactively to Vega.   Vega, 2010 WL

2265043, at **3-4.

          We need not decide whether the rulings of
Melendez-Diaz or Bullcoming apply retroactively.    Rather,
habeas relief is barred because the state court rulings here

were not contrary to clearly established federal law at the
time.   Section "2254(d)(1) requires federal courts . . . to
measure state-court decisions 'against th[e Supreme] Court's

precedents as of "the time the state court renders its


                             -7-
decision."'"   Greene v. Fisher, 132 S. Ct. 38, 44 (2011)
(quoting Cullen v. Pinholster, 131 S. Ct. 1388, 1399 (2011)

(in turn quoting Lockyer v. Andrade, 538 U.S. 63, 71-72
(2003))) (emphasis in Greene).

           At the time of the Appellate Division's affirmance
of Vega's convictions, which was "the last state-court
adjudication on the merits of [his] claim," Greene, 132 S.

Ct. at 45, neither Melendez-Diaz nor Bullcoming had been
decided.   Hence, even if either of those cases "clearly

established" that autopsy reports are testimonial within the

meaning of the Confrontation Clause, the Appellate
Division's ruling that the admission of Reiber's testimony

was permissible was consistent with existing law and was not

"contrary to [or] 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).

           Indeed, Crawford was the Supreme Court's

pronouncement in effect when the Appellate Division affirmed
Vega's conviction.   The question therefore is whether the
Appellate Division's ruling was contrary to or an

unreasonable application of Crawford.    In Crawford, the
Court ruled that a Confrontation Clause challenge turns on
whether the hearsay was "testimonial."   It provided three

categories of testimonial statements:    "[1] ex parte in-


                              -8-
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, [2] extrajudicial
statements . . . contained in formalized testimonial
materials, such as affidavits, depositions, prior testimony,

or confessions, [and 3] statements that were made under
circumstances which would lead an objective witness

reasonably to believe that the statement would be available

for use at a later trial."    Crawford, 541 U.S. at 51-52
(internal quotation marks and citations omitted).      The

Court, however, declined to "spell out a comprehensive

definition of 'testimonial.'"     Id. at 68.
            We conclude that the Appellate Division's decision

was neither contrary to nor an unreasonable application of

Crawford.    Reasonable jurists could disagree (certainly back

then) as to whether Reiber's testimony about the autopsy
report came within the Crawford formulations.      Crawford's
list of testimonial statements was nonexhaustive and its

guidance was hardly definitive.      Furthermore, although
autopsies are often used in criminal prosecutions, they are
also prepared for numerous other reasons -- including the

determination of cause of death when there is no


                               -9-
anticipation of use of the autopsy in any kind of court
proceeding.    See Feliz, 467 F.3d at 236-37.   Given the state

of the law in 2005, we conclude that there was nothing
unreasonable in the Appellate Division's conclusion that

Reiber's testimony was not barred by the Confrontation
Clause.2    Accordingly, Vega is not entitled to § 2254
relief.
                           CONCLUSION

            We have considered all of Vega's contentions on

this appeal and have found them to be without merit.      For

the foregoing reasons, the judgment of the district court is
AFFIRMED.




     2
          Furthermore, although it is sufficient to rest our
decision on the conclusion that the Appellate Division's ruling
was not contrary to or an unreasonable application of federal law
as it existed at the time, we also note that a fair issue exists
as to whether the Appellate Division's decision would have been
contrary to or an unreasonable application of Melendez-Diaz or
Bullcoming, even assuming they had already been decided, as there
are significant differences between narcotics and blood alcohol
analyses and autopsies.

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