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21-1892

Gibson v. Bell

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 

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

Present:

DEBRA ANN LIVINGSTON,

Chief Judge,

AMALYA L. KEARSE,

SUSAN L. CARNEY

Circuit Judges

_____________________________________

MICHAEL S. GIBSON,

Petitioner-Appellant,

v. 21-1892

EARL BELL, Superintendent, Clinton Correctional 

Facility

Respondent-Appellee.

_____________________________________

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.
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Appeal from a judgment of the United States District Court for the Eastern District of New 

York (Brown, J.).

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 seconddegree 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 twentyfive 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.

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 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. 

1 Nassau County argues that Gibson’s due process claim is procedurally barred because he failed to exhaust any 

constitutional challenge to the state trial court’s determination not to hold a Frye hearing. Given our determination 

that Gibson’s claim is without merit in any event, we need not address this argument. 28 U.S.C. § 2254(b)(2).

2 “[C]learly established Federal law, as determined by the Supreme Court of the United States” means “the holdings, 

as opposed to the dicta” of the Supreme Court, and only of that court. Williams v. Taylor, 529 U.S. 362, 412 (2000); 

Lopez v. Smith, 574 U.S. 1, 2 (2014) (per curiam).
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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 
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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 F. App’x 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 F. App’x 53, 55–56 (2d Cir. 2017) (summary order); United States 

v. Wilbern, No. 203494-cr, 2022 WL 10225144, at *2 (2d Cir. Oct. 18, 2022) (summary order). 

And Gibson has fallen short of showing that the evidence here would not have been admitted after 

a hearing, much less that as a result of the state court’s failure to afford him a Frye hearing, he was 

denied a fundamentally fair trial.

Here, viewing the record as a whole, the LCN DNA evidence was not crucial to the 

outcome of Gibson’s trial, but merely corroborated other, more powerful evidence against Gibson. 

This evidence included eyewitness testimony, video footage, corroborating cell site location 

evidence, recovery of the murder weapon at a location that Gibson had visited shortly after the 

shooting, Gibson’s flight out of state, and his false statements upon apprehension. In addition, the 

LCN DNA expert was subject to effective cross-examination about the reliability of the LCN DNA 
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process. See Olin Corp. v. Certain Underwriters at Lloyd’s London, 468 F.3d 120, 134 (2d Cir. 

2006) (discussing cross-examination as one of the ways to challenge “weak expert testimony, 

rather than complete exclusion”); see also United States v. Ware, 69 F.4th 830, 848 (11th Cir. 

2023) (“[T]he proper cure for sufficiently reliable but allegedly ‘shaky’ scientific evidence is not 

exclusion, but ‘[v]igorous cross-examination, presentation of contrary evidence, and careful 

instruction on the burden of proof.’”) (quoting Daubert, 509 U.S. at 596)).

In sum, we cannot conclude that upholding Gibson’s conviction, despite the admission of 

the LCN DNA evidence in the absence of a Frye hearing, was a mistake of constitutional 

magnitude “so lacking in justification that there was an error well understood and comprehended 

in existing law beyond any possibility for fair[-]minded disagreement.” Richter, 562 U.S. at 103. 

In such circumstances, Gibson is not entitled to habeas relief. 

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We have considered Gibson’s remaining arguments and find them to be without merit. 

Accordingly, we AFFIRM the judgment of the district court. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk