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).




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       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




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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.



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