United States Court of Appeals

For the First Circuit

No. 21-1208

BRIAN WATSON,

Petitioner, Appellant,

v.

MICHELLE EDMARK, 

Warden of the New Hampshire State Prison for Men,

Respondent, Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW HAMPSHIRE

[Hon. Joseph N. Laplante, U.S. District Judge]

Before

Barron, Chief Judge,

Lipez and Howard, Circuit Judges.

Mark L. Sisti, Sisti Law Offices, for appellant.

Elizabeth C. Woodcock, Assistant Attorney General, with whom 

John M. Formella, Attorney General of New Hampshire, and Anthony 

J. Galdieri, Solicitor General of New Hampshire, were on brief, 

for appellee.

September 30, 2024
- 2 -

HOWARD, Circuit Judge. Contending that his 

Confrontation Clause rights were violated during his trial in a 

New Hampshire court, appellant Brian Watson appeals the district 

court's denial of his 28 U.S.C. § 2254 petition for habeas corpus 

relief. Watson principally argues that the New Hampshire Supreme 

Court made unreasonable factual findings when it affirmed the trial 

court's decision to allow the state to present laboratory evidence 

through the testimony of a forensic toxicologist who had not 

himself conducted the relevant tests. We conclude that Watson has 

not established by clear and convincing evidence that the state 

court's factual findings were incorrect. We further conclude that, 

to the extent that Watson argues that the state court's decision 

was contrary to or involved an unreasonable application of Supreme 

Court precedent, his appeal on that ground also fails. 

I.

Following his trial in 2017, a jury convicted Watson of 

felony sale of a controlled drug (fentanyl) with death resulting. 

The state's evidence at trial included testimony by Dr. Daniel 

Isenschmid, a forensic toxicologist, who explained that testing 

conducted by colleagues had revealed a certain level of fentanyl 

and its metabolites in the victim's blood. Watson appealed his 

conviction, arguing that the trial court erred by, among other 

things, allowing Dr. Isenschmid to testify to the results of 
- 3 -

toxicology tests that he did not perform. State v. Watson, 185 

A.3d 845, 847 (N.H. 2018). The New Hampshire Supreme Court 

affirmed. Id.

Watson subsequently filed a petition for habeas relief 

pursuant to 28 U.S.C. § 2254 in federal district court, asserting 

that Dr. Isenschmid's testimony violated Watson's rights under the 

Confrontation Clause. The respondent warden of the correctional 

facility where Watson is in custody moved for summary judgment. 

After a hearing, the district court granted the motion for summary 

judgment. This appeal followed.1

Dr. Isenschmid's testimony and the state court's 

findings about it bear particular relevance to Watson's plaint, so 

we examine them at the outset. Dr. Isenschmid is a forensic 

toxicologist for National Medical Services ("NMS"), a private 

laboratory based in Pennsylvania that New Hampshire engages for 

toxicology screening in connection with forensic autopsies. As 

part of the autopsy of the overdose victim in Watson's criminal 

case, the office of the state's chief medical examiner sent the 

victim's blood and urine samples to NMS for an "expanded 

post-mortem toxicology panel." 

1 Although Watson's appeal was not timely, the district court 

granted his unopposed motion for leave to file a late notice of 

appeal. 
- 4 -

At trial, Dr. Isenschmid gave a general overview of the 

process that NMS uses for samples that arrive from out of state. 

He testified that, beginning upon arrival, the specimens are 

tracked throughout the testing process to record the chain of 

custody. Typically, the testing process involves preparing the 

samples for analysis, an initial review of the results, and a 

secondary review of the results. After the laboratory testing is 

complete, a toxicologist -- such as Dr. Isenschmid -- "review[s]

the entire case." Dr. Isenschmid testified that when he reviews 

a case, he "look[s] at all the documentation[,] . . . make[s] sure 

everything [was] entered properly into the computer 

system[,] . . . [and] review[s] all of the instrument tracings" to 

ensure that it matches what was reported. 

With respect to the sample taken from the victim, Dr. 

Isenschmid testified that the toxicology tests identified three 

compounds in the victim's blood -- a breakdown of marijuana, 

fentanyl, and norfentanyl (a breakdown product of fentanyl) -- and 

that the victim's urine tested positive for marijuana and opiates. 

He further testified that there were 21 nanograms per milliliter 

of fentanyl found in the victim's blood and explained that "since 

the fentanyl concentration was so high [and] the norfentanyl 

concentration was so low, it could certainly be a reason for an 

acute fentanyl death," but noted that this conclusion was 

"something that is determined by the medical examiner."
- 5 -

In considering the permissibility of Dr. Isenschmid's 

testimony, the New Hampshire Supreme Court noted that Dr. 

Isenschmid had personally reviewed "all the documentation in the 

case," ensured that entries had been made correctly, "reviewed the 

actual instrument data" and "all . . . the testing results," and 

"issued and signed the toxicology report that described the testing 

results and testified that the report accurately reflected his 

findings and conclusions." Watson, 185 A.3d at 858 (internal 

quotation marks omitted). For these reasons, the state court 

concluded that Dr. Isenschmid's "participation in preparing the 

report and developing the substantive conclusions contained 

therein was real and direct" and that his testimony did not violate 

the Confrontation Clause. Id. (quoting State v. Michaels, 95 A.3d 

648, 674 (N.J. 2014)).

In its order granting summary judgment to the warden in 

the present habeas action, the district court stated that it could 

not say that the state court's opinion was "contrary to, or 

involved an unreasonable application of, clearly established 

federal law as determined by the Supreme Court." And the district 

court noted:

The case did not involve unaccompanied 

testimonial affidavits, certifications, or 

reports, and did not involve "mere custodian"

or "mere conduit" testimony from an analyst or 

criminologist unconnected with the report 
- 6 -

(which here was signed by the witness in 

question) or the work described. 

II.

We review the district court's grant of summary judgment

de novo. Lawless v. Steward Health Care Sys., LLC, 894 F.3d 9, 21 

(1st Cir. 2018) (citing McKenney v. Mangino, 873 F.3d 75, 80 (1st 

Cir. 2017)). "Summary judgment is warranted if the record, 

construed in the light most flattering to the nonmovant, 'presents 

no genuine issue as to any material fact and reflects the movant's 

entitlement to judgment as a matter of law.'" Id. at 20-21 

(quoting McKenney, 873 F.3d at 80).

At the same time, "the Antiterrorism and Effective Death 

Penalty Act ('AEDPA'), which governs petitions for writs of habeas 

corpus," Kellogg-Roe v. Gerry, 19 F. 4th 21, 25 (1st Cir. 2021), 

"sets out a separate and exacting standard applicable to review of 

a state court's factual findings," Yeboah-Sefah v. Ficco, 556 F.3d 

53, 66 (1st Cir. 2009) (quoting Pike v. Guarino, 492 F.3d 61, 68 

(1st Cir. 2007)). "The state court's factual findings are 

'presumed to be correct' unless the petitioner rebuts this 

'presumption of correctness' with 'clear and convincing 

evidence.'" Id. (quoting 28 U.S.C. § 2254(e)(1)).2

2 There is "some tension" between AEDPA's provisions: under 

§ 2254(d)(2), "a federal court may issue the writ if the state 

court decision 'was based on an unreasonable determination of the 

facts in light of the evidence presented in the State court 
- 7 -

AEDPA further mandates that 

where a federal claim was "adjudicated on the 

merits in State court proceedings," the 

application for habeas corpus must be denied 

unless the state court's adjudication of the 

claim satisfies either of two conditions: (1) 

it "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," or (2) it "resulted in a decision 

that was based on an unreasonable 

determination of the facts in light of the 

evidence presented in the State court 

proceeding."

Yeboah-Sefah, 556 F.3d at 65 (quoting 28 U.S.C. § 2254(d)).

A.

As noted earlier, Watson's petition principally rests on 

the ground that the New Hampshire Supreme Court made an 

unreasonable determination of the facts. On appeal, Watson

contends that "Dr. Isenschmid's involvement [in the testing 

process] presents genuine issues of fact that must be adjudicated,"

and therefore "the District Court erred in granting of summary 

proceeding,'" while § 2254(e)(1) asserts that "'a determination of 

a factual issue made by a State court shall be presumed to be 

correct' unless rebutted 'by clear and convincing evidence.'" 

Porter v. Coyne-Fague, 35 F.4th 68, 79 (1st Cir. 2022) (quoting 28 

U.S.C. §§ 2254(d)(2), (e)(1)). The Supreme Court has declined to 

resolve the question of how to harmonize these provisions, as have 

we. Id. Still, "this circuit has routinely held petitioners to 

the § 2254(e)(1) 'clear and convincing' standard." Id. (quoting 

Smith v. Dickhaut, 836 F.3d 97, 101 (1st Cir. 2016)). Here, both 

parties have applied this standard, and we have followed their 

lead. In any event, we find that the state court's factfinding

survives either standard.
- 8 -

judgment for the Respondent."3 In support of this contention, 

Watson points to portions of Dr. Isenschmid's testimony where he 

explained that he did not participate in the laboratory work nor 

supervise those who did.4 Dr. Isenschmid also testified that he 

3 Watson trains his appellate argument on the state court's 

characterization of Dr. Isenschmid's participation in producing 

the laboratory report as "real and direct." See State v. Watson, 

185 A.3d 845, 858 (N.H. 2018) (quoting State v. Michaels, 95 A.3d 

648, 674 (N.H. 2014)). Indeed, when pressed at oral argument to 

pinpoint the precise factual finding that he was challenging, 

counsel for Watson identified the "real and direct" 

characterization, as he did in his briefing. We, however, ascribe 

no independent factual or legal significance to the 

characterization "real and direct," and instead review the 

reasonableness of the state court's relevant factual findings. 

4 In addition to challenging the "real and direct"

description, Watson appears to specifically challenge the New 

Hampshire Supreme Court's finding that Dr. Isenschmid "personally 

reviewed the 'actual instrument data' and made sure that the data 

were accurately entered into the NMS computer," Watson, 185 A.3d 

at 858, because Dr. Isenschmid did not testify that he personally 

reviewed the data in Watson's case. But it was not unreasonable 

for the New Hampshire Supreme Court to determine that Dr. 

Isenschmid conducted such a review, based on the evidence in the 

record. For instance, when asked about his review practices "in 

a case like this," Dr. Isenschmid testified that he "review[s] all 

the instrument tracings to make sure that what was reported was in 

fact what we have in those tracings." 

Watson has also failed to point to evidence in the record 

that would show that Dr. Isenschmid did not take those steps. 

While he highlighted Dr. Isenschmid's explanation that a first and 

second reviewer double-check the machine calibration and data 

entry, respectively, he does not argue that those reviewers'

actions would have precluded Dr. Isenschmid from conducting 

similar actions in his own subsequent review. Furthermore, while 

Dr. Isenschmid did acknowledge that he "did not do any of the 

laboratory work" or supervise laboratory workers, those statements 

appear to concern the operating of the instruments, as opposed to 

the review of the data those instruments produced that the state 

court concluded he conducted.
- 9 -

did not know if any of the individuals who had handled the sample 

had disciplinary records. 

But as the New Hampshire Supreme Court noted -- and as 

it could reasonably infer from Dr. Isenschmid's testimony -- he 

"reviewed 'all the documentation' in the case, including the chain 

of custody, and ensured that all of the information had been 

correctly entered into the NMS computer system"; "personally 

reviewed the 'actual instrument data' and made sure that the data 

were accurately entered into the NMS computer"; "actually reviewed 

all of the testing results"; and "issued and signed the toxicology 

report that described the testing results and testified that the 

report accurately reflected his findings and conclusions." 

Watson, 185 A.3d at 858. Only after considering all of this 

testimony establishing Dr. Isenschmid's personal review of chain 

of custody documentation, and his personal review of the data 

entered, instrument data and test results, as well as the fact 

that he personally issued and signed the resultant report of his 

findings, did the New Hampshire Supreme Court conclude that Dr. 

Isenschmid's participation "was real and direct." Id. (quoting 

Michaels, 95 A.3d at 674). Regardless of the state court's 

characterization of Dr. Isenschmid's participation, Watson has not 

shown "by clear and convincing evidence" any error in that court's 

recitation of the facts. 28 U.S.C. § 2254(e)(1). 
- 10 -

B.

Insofar as Watson makes a legal argument that the

state-court decision "was contrary to" or "involved an 

unreasonable application of" Supreme Court precedent, 28 U.S.C. § 

2254(d)(1), this challenge also falls short. Under AEDPA, an 

application of Supreme Court precedent is unreasonable "if, and 

only if, it is so obvious that a clearly established rule applies 

to a given set of facts that there could be no 'fairminded 

disagreement' on the question." White v. Woodall, 572 U.S. 415, 

427 (2014) (quoting Harrington v. Richter, 562 U.S. 86, 103

(2011)). A state-court decision is contrary to Supreme Court 

precedent if "the state court arrives at a conclusion opposite to 

that reached by [the Supreme] Court on a question of law or if the 

state court decides a case differently than [the Supreme] Court 

has on a set of materially indistinguishable facts." Porter v. 

Coyne-Fague, 35 F.4th 68, 74 (1st Cir. 2022) (alteration in 

original) (quoting Williams v. Taylor, 529 U.S. 362, 412-13 

(2000)). 

Watson cannot clear any of AEDPA's hurdles. The Sixth 

Amendment requires that a laboratory report be introduced through 

a live witness who either certified the test report by signature

or performed or observed the test. Bullcoming v. New Mexico, 564 

U.S. 647, 654 (2011). "[I]t is not the case[] that anyone whose 

testimony may be relevant in establishing the chain of custody, 
- 11 -

authenticity of the sample, or accuracy of the testing device[]

must appear in person . . . ." Melendez-Diaz v. Massachusetts, 

557 U.S. 305, 311 n.1 (2009). But "[t]he Sixth Amendment [is] not 

satisfied by [the testimony of] a 'surrogate' witness . . . who 

ha[s] formed no independent opinion concerning the forensic 

examination results." United States v. Soto, 720 F.3d 51, 58 (1st 

Cir. 2013) (quoting Bullcoming, 564 U.S. at 661). "Accordingly, 

the analysts who write reports that the prosecution introduces 

must be made available for confrontation." Id. (quoting 

Bullcoming, 564 U.S. at 661). 

Watson fails to establish that Dr. Isenschmid was an 

incompetent witness to introduce his laboratory report for at least 

three reasons. First, Dr. Isenschmid "signed the report describing 

[the laboratory test] results." Watson, 185 A.3d at 857; see

Bullcoming, 564 U.S. at 663 ("[The] analyst who must testify is 

the person who signed the certificate . . . ." (quoting 

Melendez-Diaz, 557 U.S. at 334 (Kennedy, J., dissenting))). 

Second, Dr. Isenschmid himself authored the laboratory report, 

which was full of his own analysis and conclusions based upon data 

from the test results.5 See Watson, 185 A.3d at 858 ("Isenschmid 

5 The basis for Dr. Isenschmid's conclusions distinguishes 

this case from Smith v. Arizona, 144 S. Ct. 1785 (2024). In Smith, 

the Supreme Court stated that, "[w]hen an expert conveys an absent 

analyst's statements in support of his opinion, and the statements 

provide that support only if true, then the statements come into 
- 12 -

personally reviewed the 'actual instrument data' and made sure 

that the data were accurately entered into the NMS 

computer. . . . '[T]he findings and conclusions contained in the 

report and to which he testified were his own.'" (quoting Michaels, 

95 A.3d at 674-75)). Third, as documented by the state court, 

numerous federal and state courts "have found no Confrontation 

Clause violation under similar circumstances." Watson, 185 A.3d 

845 at 859; see id. at 859 n.3 (collecting cases). Despite the 

existence of contrary authority, see id. at 859 n.2 (collecting 

cases), these rulings establish at the least that there is ample 

room for fairminded disagreement in this area of law. Cf.

Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("[T]he more 

general the rule, the more leeway courts have in reaching outcomes 

in case by case determinations."); Williams v. Illinois, 567 U.S. 

50, 141 (2012) (Kagan, J., dissenting), abrogated by Smith v. 

Arizona, 144 S. Ct. 1785 (2024) (highlighting "significant 

confusion" in this area of law). Because Watson has failed to 

evidence for their truth." Id. at 1791; see id. at 1796 ("Longoni 

prepared for trial by reviewing Rast's report and notes. And when 

Longoni took the stand, he referred to [Rast's] materials and 

related what was in them, item by item by item."). Thus, if the 

statements are also testimonial, the Confrontation Clause bars 

their admission. Id. Here, Dr. Isenschmid's report was based on

"'all the documentation' in the case," including "actual 

instrument data" and "all of the testing results." Watson, 185 

A.3d at 858; see supra note 4. We have no way to determine, and 

Watson does not address, whether these data and test results 

comprise statements of an absent analyst -- much less whether they 

are testimonial. 
- 13 -

show why it is wrong to think that the state court's application 

of clearly established federal law was not unreasonable, to the 

extent that he also challenges his conviction on this basis, that 

challenge fails as well. 

Affirmed.