Gibson v. Bell

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Michael S. Gibson, Petitioner-Appellant, v. Earl Bell, Facility Superintendent, Clinton Correctional Respondent-Appellee.

No. 21-1892

United States Court of Appeals, Second Circuit

November 7, 2023

UNPUBLISHED OPINION

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 7^th day of November, two thousand twenty-three.

Appeal from a judgment of the United States District Court for the Eastern District of New York (Brown, J.).

For Petitioner-Appellant: JILLIAN S. HARRINGTON, Law Office of Jillian S. Harrington, Monroe Township, New Jersey.

For Respondent-Appellee: MONICA M. C. LEITER, Assistant District Attorneys, of Counsel (Tammy J. Smiley, Daniel Bresnahan Cristin N. Connell, on the brief), on behalf of Anne T Donnelly, District Attorney, Nassau County, Mineola, New York.

Present: DEBRA ANN LIVINGSTON, Chief Judge, AMALYA L. KEARSE SUSAN L. CARNEY Circuit Judges

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court is AFFIRMED.

Petitioner-Appellant Michael Gibson appeals from a judgment dated July 13, 2021 by the United States District Court for the Eastern District of New York (Brown, J.), denying Gibson's petition for a writ of habeas corpus under 28 U.S.C. § 2254. Gibson was convicted of second-degree murder and two counts of criminal possession of a weapon following a jury trial in New York State Supreme Court, Nassau County, and was sentenced to an indeterminate term of twenty-five years to life imprisonment on the murder charge and a definite term of fifteen years imprisonment on each of the weapons charges, to be followed by five years of post-release supervision.

Twice before trial, defense counsel unsuccessfully sought a hearing pursuant to Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), to determine the reliability and general acceptance of low copy number ("LCN") DNA testing before expert testimony of such testing was admitted. Gibson raised the denial of such a hearing, among other claims, on direct appeal to the Appellate Division, Second Department, which rejected the challenge and unanimously upheld his conviction. See People v. Gibson, 80 N.Y.S. 3d 392, 394 (N.Y.App.Div. 2018). The New York Court of Appeals, where he also pressed the claim, denied leave to appeal. People v. Gibson, 32 N.Y.3d 1064, 1064 (2018). We assume the parties' familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

We certified a single issue for appeal: "whether the state trial court's evidentiary ruling admitting DNA testing testimony without conducting a Frye hearing presents a constitutional due process claim because the admitted evidence was crucial to the trial's outcome." We will assume arguendo that it was an error of state law for the trial court to decline a Frye hearing in the circumstances of this case. However, this alone is insufficient for habeas relief because, as the Supreme Court has repeatedly stated, "'[F]ederal habeas corpus relief does not lie for errors of state law.'" Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)). In addition, our review of a state court's denial of relief on the merits of a constitutional claim is statutorily limited.^[1] Scrimo v. Lee, 935 F.3d 103, 111 (2d Cir. 2019). As relevant here, a federal court may grant habeas relief only if "the [state court] adjudication of the 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." ^[2] 28 U.S.C. § 2254(d).

"A state court's decision is contrary to clearly established federal law when it 'applies a rule that contradicts the governing law set forth in Supreme Court caselaw or . . . confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at a result different from Supreme Court precedent.'" McCray v. Capra, 45 F.4th 634, 640 (2d Cir. 2022) (quoting Lockyer v. Andrade, 538 U.S. 63, 73 (2003)) (alteration marks omitted). The right to a fundamentally fair trial has been clearly established. See, e.g., Chambers v. Mississippi, 410 U.S. 284, 302 (1973). But there is no clearly established constitutional requirement that a hearing be held before expert testimony is admitted. There is no Supreme Court caselaw on point for the state court to have acted contrary to, nor any case with materially indistinguishable facts.

As to the unreasonable application of clearly established federal law, a petitioner demonstrates entitlement to habeas relief by "'show[ing] that the state court's ruling on the [constitutional] claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair[-] minded disagreement.'" Carmichael v. Chappius, 848 F.3d 536, 544 (2d Cir. 2017) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). The determination of what constitutes a reasonable application will depend on "the level of specificity of the relevant precedent's holding." Id. (citation omitted). "The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Because there are few rules more general than the requirement that a trial be fundamentally fair pursuant to the "general 'fairness' mandate of the due process clause," courts have considerable leeway in making case-by-case determinations in this context. See Herring v. Meachum, 11 F.3d 374, 378 (2d Cir. 1993) (noting that a habeas petitioner bears "an onerous burden" in challenging a state conviction under this general mandate).

We have said that "[t]he inquiry . . . into possible state evidentiary law errors at the trial level assists us in ascertaining whether the appellate division acted within the limits of what is objectively reasonable." Hawkins v. Costello, 460 F.3d 238, 244 (2d Cir. 2006) (internal quotation marks and alteration marks omitted) (quoting Jones v. Stinson, 229 F.3d 112, 120 (2d Cir. 2000)). In evaluating whether the trial court's possible error "was 'so pervasive as to have denied the defendant a fundamentally fair trial,'" we consider whether "'the erroneously admitted evidence, viewed objectively in light of the entire record before the jury, was sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'" Smith v. Greiner, 117 Fed.Appx. 779, 781 (2d Cir. 2004) (summary order) (quoting Collins v. Scully, 755 F.2d 16, 18, 19 (2d Cir. 1985)); see also Collins, 755 F.2d at 19 (noting that, to violate due process, erroneously admitted evidence "must have been crucial, critical, highly significant" (internal quotation marks omitted)).

Even assuming arguendo that it was an error of New York evidentiary law to deny counsels' requests for a Frye hearing, however, we cannot conclude that the New York state courts acted outside the limits of objective reasonableness in upholding Gibson's conviction. Indeed we have previously upheld federal district court determinations to admit LCN DNA evidence (albeit after a hearing pursuant to Daubert v. Merrell Dow Pharmaceuticals, 509 U.S. 579 (1993)). See United States v. Morgan, 675 Fed.Appx. 53, 55-56 (2d Cir. 2017) (summary order); United States v. Wilbern, No. 203494-cr, ...