NOT RECOMMENDED F OR FUL L -TEXT PUB L I CATI ON File Na me: 13a0296n.06 No. 11-3807
UNI TED STATES COURT OF A PPEAL S FOR THE SI XTH CI RCUI T SHANE MI TCHEL L , Petitioner-Appellant,

v. BEN NI E KEL L Y, Warden, Respondent-Appe llee. ) ) ) ) ) ) ) ) ) ) ON APPEALFROM THE UNI TED STATES DI STRI CT COURT FOR THE N ORTHERN DI STRI CT OF OH I O

BEF ORE: MARTI

N, GUY, a

nd McKEAG UE, Circuit J udg es.

PER CURI AM. Shane Mitchell, who is repr esente d b y counsel, appea ls a district court judgme nt de ny ing his pe tition for a writ of habea s corpus filed pursuant to 28 U.S.C. § 2254. The d is tr ic t c o u r t g r a n te d M it chell a cer

tificate of appea lability reg arding his Confrontation Clause c la im

. For the re asons set for

th below, we a ffirm the district c ourt’s judg ment. I n 2005, a jury in the Columbi ana County (Ohio) Court of Common Pleas convicted Mitchell of murder, ag g rava ted robber y , and tampering with evidenc e. At tri al , Dr

. W i l l iam Gra ham, the Columbi ana County Coroner, testified conce rning an autopsy repor t prepa red by Dr. Stan Seligman of the Cuy ahog a County (Ohio) corone r’s office

. Mitchell objected to the admissibili ty of the autopsy repor

t in the ab s ence of Dr. Seligman, as well as Dr. Gra ham’s testimony reg arding the
repor t. The trial court overr

uled Mitchell’s objections. On direc t appea l, the Ohio Court of Appea lsNo. 11-3807

Mitchell v. Kelly held that the trial court did not abuse its discretion in admitting the autopsy repor t and Dr. Gra

ham’s testimony beca

use an autopsy

repor t “is a business re cord, is not hear say , and does not violate any rig ht to confront the make r of that r ecor d.” State v. Mitche ll , No. 05 CO 63, 2008 WL 850179, at *17 (Ohio Ct. App. Mar. 19, 2008) , app. not acce pted for rev ., 893 N.E.2d 516 (Ohio 2008)

. Mitchell subsequently filed the instant habea s corpus p et i tion. As one of his g rounds for habea s corpus relief, Mit che l l cl ai m ed that the admis sion of t he autopsy repor t and Dr. Gra

ham’s testimony violated his rig ht to confr on t at i o n . A mag istrate judge rec ommended that Mitchell’s habea s corpus petition be den i ed

. Ov er Mitchell’s objections, the district court adopted the
mag istrate judge ’s repor

t and denied Mitchell’s habea s corpus petition. Howeve r, the court did g rant M i t ch el l a cer

tificate of appea lability as to the Confrontation Clause claim. Wit h respe ct t o t h at claim, the district court deter mined that the state cour t s d i d not unrea sonably ref use to extend Crawf ord v. W ashington , 541 U.S. 36 (2004), to e x clude the autopsy repor t a dmitted at Mitchell’s trial.
We revie w the district court’s denial of Mitchell’s habea s corpus petition de novo. Amos v. Renico , 683 F.3d 720, 726 (6th Cir.), cert. denied , 133 S. Ct. 664 (2012). A fede ral court may not
g rant habea s corpus relief with respe ct to a “cla im that was adjudicate d on the merits in State court
proce eding s” unless the state court’s adjudication “re sulted i n a d ecision that was contra ry to, or inv o l v ed an unrea sonable application of, clea rly established Fe dera l law, as deter mined by the Supreme Court of t he Un i t ed S tates.” 28 U.S.C. § 2254(d)( 1). “To analy ze whether a st ate court decision is contrary to or an unrea sonable application of clea rly established Supreme Court
prec edent, courts look only to the hol dings of the S upreme Court’s decisions as of t he ti me of the -2-No. 11-3807

Mitchell v. Kelly rele vant state co u rt decision.” Moore v. Mitchell , __ F.3d __, Nos. 08-3167, 08-3230, 2013 WL 673524, at *5 (6th Cir. Fe b. 26, 2013).
I n Crawf ord , the Supreme Cou rt held that the Six th Amendment’s Confrontation Clause prohibits the “admission of testimonial statements of a witness who did not appea r at trial unless he was unavailable to testify , an d the defendant had had a prior opportunit y for cross-examination.” Crawf ord , 541 U.S. at 53–54. The Supreme Court left “for an o t h er d ay any eff ort to spell out a compre hensive definition of ‘testimonial.’” Id

. at 68. Whil e subsequent Supreme Court decisions addre ssed whether fore nsic labora tory repor ts a re testimonial, see Bullcoming v. New M exic o , 131 S. Ct. 2705 (2011); Mele ndez-Diaz v. Massachusetts , 557 U.S. 305 (2009), at the time of Mitchell’s direc t appeal , no Supreme Court prec edent clea rly established that an autopsy repor t constitutes testimonial evidenc e. See Vega v. W alsh , 669 F.3d 123, 127–28 (2d Cir. 2012); Nardi v. Pepe , 662 F.3d 107, 112 ( 1st Cir. 2011).
I n aff irming the admission of the autopsy repor t and Dr. Gra

ham’s testimony , the Ohio Court

o f Ap p ea l s re l ied on the Ohio Supreme Court’s decision i n State v. C raig , 853 N.E.2d 621 (Ohio 2006), which a ddresse d the question of whe ther an autopsy repor t is testimonial under Crawf ord

. C raig adopted the majority view that autopsy repor ts are admissible as nontestimonial business

rec ords. Mitchell , 2008 WL 850179, at *17 (citing Craig , 853 N.E.2d at 638–39). We ag ree with the district court that the decision of the Ohio Court of Appea ls was not an unrea sonable application

o f C rawford g iven the lack of Supreme Court prec edent establishing that an autopsy re p o rt i s testimonial.

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Mitchell v. Kelly Mitchell contends that the Supreme Court in Davis v. W ashington , 547 U.S. 813, 822 (2006), provided prec edent that a statement is testimonial if its primary purpose “is to establish or prove past
events potentially rele vant to later criminal prosec ution.” Acc ord i n g to Mitchell, ever y autopsy
repor t is prepa red with the knowledg e that the patholog ist might be called as a witness in a criminal
prosec ution. Mit chell, howe ver, ove rstates the na rrow holding of Davis : Statements are nontestimonial when made in the course of police interrog ation under circ umstances objectively indicating that the primary purpose of the interrog ation is to enable police assistance t o m eet an ong oing emer g ency . They are testimonial when the circ umstance s o b je c tive ly indicate that there is no such ong oing emer g ency , and that the primary purpose of the interrog ation is to establish or prove past events potentially

rele vant to later c riminal prosec ution. Id . As Mitchell’s ca se did not involve statements m ade in response to police int err og ation, Davis would have g iven little guidanc e to the Ohio Court of Appe als.
For the fore g oing rea sons, we aff irm the district court’s judgme nt deny ing Mitchell’s habea s corpus pe tition.

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