15-647-pr Duhs v. Capra UNITED STATES COURT OF APPEALS FOR THE SECO ND CIRCUIT SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NO T HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JA NUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FE DERAL RULE OF APPE LLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WI TH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WIT H THE NOTATION
A SUMMARY ORDER @ ). A PARTY CITING TO A SU MMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NO T REPRESENTED BY COUNSEL. At a stated term of the United States Cour t of Appeals for the Se cond Circuit, held at 1 the Thurgood Marshall United Stat es Courthouse, 40 Foley Sq uare, in the City of New 2 York, on the 8 th day of February, two thousand sixteen. 3 4 PRESENT: 5 GUIDO CALABRESI, 6 GERARD E. LYNCH, 7 RAYMOND J. LOHIER, JR., 8 Circuit Judges. 9

___________________ __________________ 10 11 MICHAEL DUHS, 12 Petitioner-Appellee , 13 14 v. No. 15-647-pr 15 16 MICHAEL CAPRA, Superintendent of Sing 17 Sing Correctional Facility, 18 Respondent-Appellant

. 19 20

___________________ _________________ 21 22 FOR PETITIONER-APPELLEE: NORMAN TRABULUS, New York, 23 NY. 24 25 FOR RESPONDENT-APPELLANT: ANNE GRADY, Assistant District 26 Attorney (Morrie I. Kleinbart, Assistant 272 District Attorney, on the brief ), for Daniel 1 L. Master, Jr., Acting District Attorney, 2 Richmond County Dist rict Attorney’s 3 Office, Staten Island, NY. 4 5 Appeal from the United States District C ourt for the Eastern District of New York 6 (Jack B. Weinstein, Judge ). 7 8 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, 9 AND DECREED that the judgment of the district court is REVERSED. 10 Respondent-Appellant Michael Capra, the su perintendent of Sing Sing Correctional 11 Facility, appeals from a final judgment of the United States District Court of the Eastern 12 District of New York, entered February 10, 2015, granting Pe titioner-Appellee Michael 13 Duhs’s petition for a writ of habeas corpus pursua nt to 28 U.S.C. § 2254. Duhs v. Capra, 14 83 F. Supp. 3d 435 (E.D.N.Y. 2015). The pe tition sought release from custody based on a 15 judgment of the New York State Supreme Cour t rendered on June 13, 2007, following a 16 jury verdict finding Duhs guilty of Assault in the First Degr ee, in violation of N.Y.P.L § 17 120.10(1), and Endangering the We lfare of a Child, in violation of N.Y.P.L. § 260.10(1). 18 The underlying conviction arose from an inci dent in which the three-year-old son of 19 Duhs’s girlfriend suffered a serious injury while in Duhs’s care. We assume the parties’ 20 familiarity with the underly ing facts and the procedural history of the case. 21 The question presented is whether the st ate courts unreasonabl y applied governing 22 Supreme Court precedents in holding that the ad mission of a statement made by the child to 23 a treating physician did not violate Duhs’s ri ghts under the Confrontation Clause. The 24 Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the 253 right . . . to be confronted w ith the witnesses against him.” U.S. Const. amend VI. The 1 Supreme Court determined in Crawford v. Washington that the Amendment forbids the 2
admission of testimonial statem ents by persons not subject to cross-examination by the 3 accused, but did not articulate a comprehensiv e definition of “testimonial,” an omission 4 that the Court acknowledged would cause “int erim uncertainty,” 541 U.S. 36, 68 n.10 5 (2004). Until the recent decisi on in Ohio v. Clark, 135 S. Ct. 2173 (2015), discussed 6 further below, the Court had defined “testimoni al” only in the context of cases involving 7 questioning by law enforcement officers. See, e.g., Michigan v. Bryant, 562 U.S. 344, 8 367 (2011); Davis v. Washington, 547 U.S. 813, 823 n.2 (2006). 9 In Davis, the Court held that “[s]ta tements . . . are testimonial when the 10 circumstances objectively indicate that there is no . . . ongoing emergency, and that the 11 primary purpose of the interrogation is to estab lish or prove past events potentially relevant 12 to later criminal prosecution.” 547 U.S. at 822. In Bryant, the Court elaborated that 13 under the “primary purpose” test, a court must perform a “combined inquiry that accounts 14 for both the declarant and the interrogator,” 562 U. S. at 367, and that “the relevant inquiry 15 is not the subjective or actual purpose of the i ndividuals involved in a particular encounter, 16 but rather the purpose that reasonable particip ants would have had, as ascertained from the 17 individuals' statemen ts and actions and the circumst ances in which the encounter 18 occurred,” id. at 360. 194 The New York Court of Appeal s affirmed the judgment of conviction against Duhs. 1 The court ruled: 2 Applying the primary purpose test here , it is evident that the statement “he 3 wouldn’t let me out” was not of a te stimonial character, since the primary 4 purpose of the pediatrician’s inquiry was to determine the mechanism of 5 injury so she could render a diagnosi s and administer medical treatment. 6 Moreover, the Supreme Court has noted th at “statements to physicians in the 7 course of receiving treatment would be excluded, if at al l, only by hearsay 8 rules” and not the Confrontation Clause. 9 People v. Duhs, 16 N.Y.3d 40 5, 409 (2011), quoting Giles v. California, 554 U.S. 353, 376 10 (2008). The court further concluded that “it is of no moment that the pediatrician may 11 have had a secondary motive for her inquiry, namely, to fulfill her ethical and legal duty, as 12 a mandatory reporter of child abuse, to i nvestigate whether the ch ild was potentially a 13 victim of abuse,” because her primary duty was to “render medi cal assistance to an injured 14 child.” Id. at 410. 15 Reviewing the case on Duhs’s petition for habeas corpus, however, the district court 16 held that “[t]he New York state courts unr easonably applied clea rly established law by 17 failing to objectively evaluate the statements and actions of all the parties to the 18 encounter,” 83 F. Supp. 3d at 465 (internal quotation ma rks and alterations omitted), 19 because “[t]here was no ‘combined inquiry’ of the interrogator's posture and that of the 20 declarant” and “the court restricted its inqui ry to the purpose of the resident doctor as 21 medical caretaker, rather than also considering her position as a compelled enforcer of state 22 criminal and civil abuse of ch ildren and the possibility that the child conceived the inquiry 235 as one to determine his own guilt,” id. Dete rmining that the admission of the child’s 1 statement violated the Confrontation Clause, and that the error was not harmless because 2 the statement was critical to finding the element of intent for the assault charge, the district 3 court granted the writ. Id. at 472. 4 The district court erred in its analysis by misapprehending the degree of deference 5 accorded to state courts under federal habe as review. A petitioner requesting a writ of 6 habeas corpus under § 2254 must show that th e challenged state decision was “contrary to, 7 or involved an unreasonable application of, cl early established Federa l law, as determined 8 by the Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1). Under that 9 standard, a writ of habeas corpus will issue onl y if “a state court’s application of federal 10 law . . . is so erroneous that there is no possibi lity fair-minded jurists c ould disagree that the 11 state court’s decision conflicts with [the Supreme] Court’s preced ents.” Nevada v. 12 Jackson, 133 S. Ct. 1990, 1992 (2013) (per cu riam) (internal quotation marks and citations 13 omitted). Thus, even a showing of “clear error” will not suffi ce. White v. Woodall, 134 14 S. Ct. 1697, 1702 (2014). 15 At the time the state courts addressed this case, it presented a close issue with no 16 controlling Supreme Court precedent. Since the Supreme Court had never applied the 17 “combined inquiry” or objec tive understanding standards outside the law enforcement 18 context, and indeed had suggested, albeit in passing dictum, that the Confrontation Clause 19 might not apply at all to “statements to physic ians in the course of receiving treatment,” 206 Giles, 554 U.S. at 376, a ny arguable deviation from the methodology used by the Supreme 1 Court in the police context in assessing the “p rimary purpose” of statements made in the 2
course of medical treatment cannot be held an unreasonable application of Supreme Court 3 law. 4 Moreover, since the decisions of the New York Court of Appeals and the district 5 court, the Supreme Court has decided a case cl ose on its facts to this one. That decision 6 makes it even clearer that the state courts’ ac tions do not contravene clearly established 7 Supreme Court precedent. Ohio v. Clark is the Supreme Court’s first post-Crawford 8 decision regarding ques tioning by anyone other than a law enforcement officer. In Clark, 9 the Court applied the “primary purpose” test to the questioning of a young child by a 10 person not involved in law enforcement, but who, like the physician in this case, had a duty 11 under state law to report susp ected child abuse. The Court held, as the state courts did 12 here, that the statements were nontestimonial . 135 S. Ct. at 2180-81. The Court ruled 13 that statements to individuals who are not la w-enforcement officers “are much less likely 14 to be testimonial than statements to law en forcement officers” and that “[s]tatements by 15 very young children will rarely, if ever, implicate the C onfrontation Clause.” Id. at 16 2181-82. Even assuming for the sake of ar gument that Clark is distinguishable from the 17 case before us, the Supreme Court’s decision makes it apparent that the decision of the 18 state courts in this case was not contrary to, or an unreasonable interpretation of, 19 established Supreme Court law. 207 We have considered Duhs’s remaining ar guments and find them to be without 1 merit. For the reasons stated above, the judgment of the district court is REVERSED

. 2
FOR THE COURT: 3 Catherine O’Hagan Wolfe, Clerk 4