* The Honorable David G. Trager of the United States District

Court for the Eastern District of New York, sitting by

designation.

08-1490-pr

Perkins v. Herbert

 UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term, 2008

(Argued June 23, 2009) (Decided February 23, 2010)

Docket No. 08-1490-pr

--------------------------------------------x

VICTOR PERKINS,

Petitioner-Appellee,

- against -

VICTOR T. HERBERT,

Respondent-Appellant.

--------------------------------------------x

B e f o r e: MINER and LIVINGSTON, Circuit Judges,

and TRAGER, District Judge.*

Appeal from a judgment of the United States District

Court for the Western District of New York (Bianchini, U.S.M.J.)

entered on March 10, 2008, conditionally granting the writ of

habeas corpus. 

The judgment of the district court is reversed.

_______________________
JULIA PAMELA HEIT, Esq.,

New York, NY,

for Petitioner-Appellee

Michael C. GREEN, Esq.,

District Attorney for Monroe

County,

KELLY CHRISTINE WOLFORD, Esq.,

Assistant District Attorney, 

Rochester, NY,

for Respondent-Appellant
Judge Trager, District Judge.

On March 27, 1998, a Grand Jury charged Petitioner Victor

Perkins (“Perkins”) with one count of first degree robbery (N.Y.

Penal Law § 160.15(4)), two counts of criminal possession of a

weapon in the second degree (N.Y. Penal Law § 265.03), two counts

of criminal possession of a weapon in the third degree (N.Y.

Penal Law § 265.02(4)), and one count of unlawful imprisonment in

the first degree (N.Y. Penal Law § 135.10). All counts stemmed

from the robbery and detention of a grocery clerk named Claudia

Cruz (“Cruz”).

Perkins was tried and convicted of first degree robbery and

two counts of weapons possession in the third degree. However,

the jury acquitted Perkins of the unlawful imprisonment charge,

as well as the two counts of weapons possession in the second

degree. The trial court sentenced Perkins as a second violent

felony offender to concurrent prison terms, the longest of which

was a term of twenty years.

Perkins appealed his conviction to the New York State

Supreme Court, Appellate Division (“Appellate Division”),

claiming that the trial court had violated his rights under the

Confrontation Clause by admitting the Grand Jury testimony and

supporting depositions of Cruz without affording him the ability

to cross-examine her at a pre-trial hearing or at trial. Perkins
 Pursuant to 28 U.S.C. § 636(c), the parties consented to 1

have Magistrate Judge Bianchini conduct the proceedings and enter

final judgment.

2

further argued that his Fifth Amendment rights had been violated

by the introduction of a written confession that had been

obtained after he invoked his right to silence. The Appellate

Division accepted Perkins’s argument that his constitutional

rights had been violated in both instances, but nonetheless

upheld his conviction on the ground that the constitutional

errors had been “harmless beyond a reasonable doubt” in light of

the other evidence presented at trial. People v. Perkins,

289 A.D.2d 940, 941, 735 N.Y.S.2d 273, 275 (4th Dep’t 2001)

(“Perkins II”), lv. denied, 98 N.Y.2d 654, 772 N.E.2d 616 (2002).

Perkins subsequently filed this petition for a writ of

habeas corpus, seeking to have the district court set aside his

conviction. Respondent Victor Herbert (“Herbert”),

Superintendent of the Attica Correctional Facility, opposed

Perkins’s petition. The United States District Court for the

Western District of New York (Victor E. Bianchini, U.S.M.J.),1

however, conditionally granted the writ of habeas corpus pursuant

to 28 U.S.C. § 2254, setting aside Perkins’s conviction for

robbery and weapons possession. Perkins v. Herbert, 537 F. Supp.

2d 481, 506 (W.D.N.Y. 2008) (“Perkins III”). According to the

magistrate judge, the constitutional errors had not been harmless
3

under the “substantial and injurious effect” standard set forth

in Brecht v. Abrahamson, 507 U.S. 619, 638 (1993). Perkins III,

537 F. Supp. 2d at 502 (citing Fry v. Pliler, 127 S.Ct. 2321,

2328 (2007)). We disagree with this last ruling and reverse the

grant of the writ.

Background

(1)

Factual Background

On February 26, 1998, at approximately 10:05 a.m., Perkins

and another man named Ernesto Shannon, a.k.a. “Lucky” (“Lucky”),

entered Willie’s Grocery Store in the City of Rochester. 

According to an oral statement by Perkins, a third man, named Ted

Francis (“Ted”), stood outside the grocery store acting as a

lookout. After demanding Cruz’s jewelry and the money from the

register, the two men forced Cruz to help them contact a man

named Luis Rijo, a.k.a. “Hector” (“Hector”), a local drug dealer

with whom Cruz was acquainted. Perkins then paged Hector from a

nearby telephone booth with the number “335,” knowing that Cruz

would sometimes use this number to summon Hector to the grocery

store. 

Once Hector arrived at the front door, Perkins and Lucky

forced Cruz to participate in his capture. According to
 The Grand Jury indictment at issue here deals solely with 2

the robbery and imprisonment of Cruz, and not the crimes

committed against Hector. Hector did not testify at trial. 

 According to Cruz, Perkins left at this point. However, 3

in his written confession, Perkins states that it was Lucky who

left the grocery store. 

4

testimony from Cruz, as well as a written confession from

Perkins, the two men forced Cruz to meet Hector at the front door

and persuade him to use the rear entrance instead. After Hector

had approached the rear entrance, Cruz coaxed Hector into the

store. However, soon after Hector entered, he was ambushed by

Lucky and taken into the basement, where he was blindfolded,

duct-taped to a chair and beaten. Lucky then threatened Hector

with a semiautomatic pistol and demanded to know where Hector

kept his drugs and money.2

Under duress, Hector relented. He spoke to the two men in

Spanish, which Cruz translated, revealing that his drugs and

money were located in the attic of a nearby house at 295 Avenue

C. At this point, one of the two men left the grocery store in

search of Hector’s drugs and money. However, that person soon 3

returned to the grocery store, where the two men questioned

Hector once more. Hector once again reassured the two men that

he had told them the truth regarding the location of his drugs

and money, and Lucky subsequently exited Willie’s Grocery Store. 

Perkins, however, remained behind with Cruz and Hector. 
5

While the men were struggling to locate Hector’s drugs and

money, the police had received reports of suspicious activity and

shouting coming from Willie’s Grocery Store. In response to

these reports, the police contacted the owner, who unlocked the

store. Upon entering the basement, the officers encountered

Cruz, who appeared distraught, and Hector, who was duct taped to

a chair and bleeding from the head. Although she was crying, and

her hands were trembling, Cruz pointed in Perkins’s direction and

said: “[H]e’s over there.” When the officers looked in this

direction, they saw Perkins fleeing through the rear entrance. 

Officer Mark Barna (“Officer Barna”), who had been waiting

outside the rear entrance, observed Perkins fleeing the grocery

store and called out a radio broadcast with Perkins’s

description. 

Shortly after receiving Officer Barna’s broadcast, Officer

Richard Gerbino (“Officer Gerbino”) apprehended Perkins. Officer

Gerbino’s search revealed that Perkins was carrying a gun

holster, $78.60 in cash, and numerous pieces of jewelry that

would later be identified as belonging to Cruz. Officer Gerbino

then brought Perkins back to the grocery store for a show-up

identification by Cruz, who hesitated at first, but ultimately

recognized Perkins as the man who had robbed her. Perkins then

asked the officers if they caught “the other guy” and offered to
6

cooperate, stating his desire not to go to prison.

At the police station, Investigators Thomas Baccanti and

Michael McAuliffe (“Inv. Baccanti” and “Inv. McAuliffe”) read

Perkins his Miranda warnings, which Perkins agreed to waive. 

Perkins initially denied that he had participated in the robbery

or possessed a gun. Inv. Baccanti, however, told Perkins that he

did not believe this to be true, and that Cruz had already

implicated Perkins in the robbery. After making this comment,

Inv. Baccanti stated: “What really happened was you pointed a gun

at her, at Claudia Cruz, and you took her money and jewelry . . .

that’s the way it happened, isn’t it?” Perkins responded,

“[Y]es, that’s the way it happened.” Perkins also admitted to

possessing a gun, and to accidentally discharging it while he was

fleeing from the police. However, when Inv. Baccanti requested

that Perkins reduce his statement to writing, Perkins refused. 

Perkins also indicated that he did not wish to discuss the matter

any further, thus ending the interrogation. Perkins again

refused to discuss the matter two and a half hours later, at 7:00

p.m., when the investigators attempted to re-initiate the

conversation. 

After waiting in the interview room by himself until 12:30

a.m., Perkins met with Investigators Thomas Janus and Glenn

Weather (“Inv. Janus” and “Inv. Weather”). Inv. Janus and Inv.
 After conducting a pre-trial suppression hearing, the 4

trial court determined that the written confession was

admissible. However, both the New York Appellate Division and

the magistrate judge below disagreed, and found that the written

statement should have been suppressed. See Perkins III, 537 F.

Supp.2d at 502 (“[T]he admission of his written statement was

made in violation of the Fifth Amendment right against selfincrimination . . . .”); Perkins II, 289 A.D.2d 940 at 941,

735 N.Y.S.2d at 275 (“[T]he court should have suppressed

defendant's written statement.”).

7

Weather had been investigating a homicide that had occurred

earlier that day at 295 Avenue C, the same site that Lucky had

visited in search of Hector’s drugs and money. Unaware that

Perkins had earlier invoked his right to remain silent, Inv.

Weather said to Perkins: “Victor, I realize that you have been -

you have been read your rights and you agreed to waive them. 

They still stand here during the conversation we’re having now

and that we’re going to be having over the next few minutes.” 

Perkins replied, “[Y]eah, no problem.”

The two investigators informed Perkins that they wished to

discuss what had happened earlier that day, as well as a homicide

that had occurred at 295 Avenue C. Under questioning about the

robbery at Willie’s Grocery Store, and its potential connection

to the homicide at 295 Avenue C, Perkins produced a written

statement detailing his involvement in the robbery of Cruz and

the plot to steal Hector’s drugs and money. According to 4

Perkins’s written statement, he had personally taken Cruz’s
8

chains, ring, and gold watch at gunpoint. However, Perkins also

claimed that he had not visited 295 Avenue C on the date of the

robbery. Instead, Perkins claimed in his written statement that

Lucky was the only one to visit 295 Avenue C in search of

Hector’s drugs and money. 

Approximately one month after the robbery, on March 29,

1998, the police discovered that Perkins’s accomplice Lucky had

been the victim of a homicide as well. The police suspected that

Ted, whom Perkins had identified as the lookout in the initial

robbery, had either participated in, or had knowledge of, Lucky’s

death. Furthermore, the police learned that Ted had personally

approached Cruz on one occasion, reminding her of Lucky’s

homicide and warning her not to testify. Ted had also contacted

her step-father and boyfriend on separate occasions, conveying

the same message. As a result, Cruz refused to testify against

Perkins at trial. 

(2)

The Sirois Hearing

Under New York law, when a defendant is accused of causing

the unavailability of a witness, the court will hold a pre-trial

Sirois hearing to determine whether the defendant actually did

procure the absence of the witness, in which case the admission

of un-cross examined testimony of the absent witness will be
9

permitted. See People v. Cotto, 92 N.Y.2d 68, 75-76, 699 N.E.2d

394, 398, 677 N.Y.S.2d 35, 39 (1998) (“[A]t a Sirois hearing, the

People must demonstrate by clear and convincing evidence that the

defendant, by violence, threats or chicanery, caused a witness's

unavailability.”). Although the Supreme Court has taken “no

position on the standards necessary to demonstrate such

forfeiture,” Davis v. Washington, 547 U.S. 813, 833 (2006), New

York courts have required the prosecution to show that the

defendant procured the absence of the witness by “clear and

convincing evidence,” People v. Geraci, 85 N.Y.2d 359, 362,

649 N.E.2d 817, 818, 625 N.Y.S.2d 469, 470 (1995) (internal

quotation marks omitted), whereas the Second Circuit has adopted

a “preponderance of the evidence” standard, United States v.

Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). 

On February 22, 1999, the trial court held a Sirois hearing

to determine whether the prosecution could introduce the grand

jury testimony and supporting depositions of Cruz into evidence

in lieu of her live testimony. According to the prosecution,

Perkins had enlisted the aid of Ted to warn Cruz not to testify,

and thereby waived his right to cross-examine Cruz. This Sirois

hearing was intended to determine whether or not Perkins had, in

fact, caused Cruz’s unavailability. See Cotto, 92 N.Y.2d at 75-

76, 699 N.E.2d at 398, 677 N.Y.S.2d at 39. 
10

The prosecution first called Inv. Janus, who testified as to

the contents of several conversations he had had with Cruz

regarding her testimony against Perkins. According to Inv.

Janus, Cruz was initially reluctant to mention Ted by name. 

However, Cruz soon “indicated that she was seeing Ted on a

regular basis driving by looking at her and that she had been

approached” by Ted on one occasion. Ted reminded Cruz of the

murder of Lucky, a co-conspirator in Cruz’s robbery, saying that

“Lucky was one of their own people and look what happened to

him.” Ted further explained, in the words of Inv. Janus, that

“it would . . . not [be] a good idea for [Cruz] to testify.” 

Cruz told Inv. Janus that Ted had also contacted her step-father

and boyfriend, on separate occasions, suggesting to both men that

Cruz should not testify. 

As a result, Cruz refused to testify against Perkins, and

expressed anger at Inv. Janus for continuing to request her

testimony. When Inv. Janus ultimately served Cruz with a

subpoena for the Sirois hearing, Cruz began to cry and said that

Inv. Janus “might as well have issued her a death warrant.” Cruz

also remarked that Lucky had been killed “because . . . he had

been talking.” 

Throughout these conversations, Cruz never mentioned to Inv.

Janus whether she had ever been contacted by Perkins himself, and
11

never alleged that Ted had conveyed these warnings on Perkins’s

behalf. Indeed, Perkins had been imprisoned continuously since

his arrest on February 26, 1998, and the prison record logs

reveal no contact with Ted. 

Inv. Janus further testified that Ted himself was suspected

of acting as the lookout in the robbery of Cruz and of possibly

being involved in the homicide at 295 Avenue C that occurred the

same day. Additionally, Perkins himself had identified Ted as an

accomplice in the robbery, even though “he feared for his safety

by identifying him.” Furthermore, Cruz had confirmed that there

was a third robber just outside the grocery store, although she

told Inv. Janus that she did not see this person’s face. 

Next, Inv. Weather testified that Perkins had identified Ted

as an accomplice. According to Inv. Weather, Perkins had

revealed that Ted had acted as a lookout during the robbery. 

Accordingly, Ted remained a suspect in the robbery. 

Additionally, Inv. Weather noted that Ted was a suspect in a

homicide that occurred on the same day at 295 Avenue C, which the

police believed may have been linked to the robbery. 

The prosecution next called Investigator James Rossiter

(“Inv. Rossiter”), who testified that he had served Cruz with a

material witness order, compelling her presence at the Sirois

hearing. Upon receiving the order, Cruz began to cry, stating
12

that she didn’t want “to be the next homicide victim” and that

she was fearful of coming to court due to the threats she had

received. Nonetheless, Inv. Rossiter escorted Cruz to the

District Attorney’s Office. Inside the District Attorney’s

Office, Inv. Rossiter overheard part of a conversation that Cruz

was having with her boyfriend. According to Inv. Rossiter, Cruz

said that “they don’t care about the robbery, it’s the homicide

they’re concerned with.” Inv. Rossiter, however, did not know to

whom Cruz was referring when she used the word “they.” 

Finally, the prosecution called Pedro Oliver (“Oliver”),

Cruz’s step-father. Oliver testified that a black male had

approached him in his driveway, saying “make sure you tell your

daughter not to go to court.” The man said nothing more before

walking away. 

After hearing testimony from these witnesses, Cruz’s

attorney addressed the court. According to Cruz’s attorney, Cruz

“has explained to me that as a result of threats that have been

made to her, she is fearful that if she testifies, even as to the

threats themselves, and implicates anyone in relation to those

threats, that her life will be in danger.” Therefore, the

attorney then represented to the court that Cruz “is not willing

to testify and would not answer questions if called.”

After hearing that Cruz refused to testify in open court,
13

and that Perkins refused to waive his presence during her

testimony, the trial court conducted an in camera proceeding,

over defendant’s objection, in which the court questioned Cruz

outside the presence of both the defendant and the defendant’s

counsel, as well as the prosecution. The trial court permitted

the defendant to submit written questions, which the court would

ask of Cruz, but did not allow any direct questioning. 

Additionally, the court did not allow the defendant to see an

actual transcript of the in camera proceeding. Instead, the

court provided the defendant with a written summary. The court

explained that it believed such a procedure “could safeguard the

rights of the defendant by posing relevant questions to the

victim and listening to her answers, while protecting the rights

of the obviously distraught witness by excluding the defendant

and his counsel.” People v. Perkins, 180 Misc.2d 495, 498,

691 N.Y.S.2d 273, 275 (Sup. Ct., Monroe County 1999) (“Perkins

I”).

During her in camera testimony, which largely overlapped

with the testimony of the investigators, Cruz noted that she “had

a feeling that [Ted] was involved” in the robbery because “he

used to hang around with [Perkins and Lucky].” Therefore, she

was fearful of Ted, and reluctant to speak with Ted when he

approached her after the robbery. Cruz told the judge that Ted
14

had personally warned her on one occasion not to testify,

reminding her of Lucky’s murder. Ted had also approached her

boyfriend, while Cruz waited inside her car, conveying a similar

message. Ted had even approached her step-father with the same

message. 

In response to written questions from Perkins’s attorney,

Cruz confirmed that she had not had any contact with Perkins

since the date of the robbery. Furthermore, Cruz did not at any

point testify that she believed that Perkins had orchestrated the

threats. Nonetheless, the trial court ruled that Perkins had

waived his Sixth Amendment right of confrontation, and that

Cruz’s grand jury testimony and supporting depositions could be

admitted at trial. Perkins I, 180 Misc.2d at 500, 691 N.Y.S.2d

at 277. Although the court acknowledged that “there was no

direct evidence to demonstrate that the defendant orchestrated

the intimidation of the victim,” it nonetheless held that “the

prosecutor proved the same by presenting sufficient

circumstantial evidence.” Id. Particularly, the court

emphasized that “there was no suggestion that anyone else stood

to gain from the witness’s silence.” Id. at 500, 691 N.Y.S.2d at

276 (quoting Cotto, 92 N.Y.2d at 77, 699 N.E.2d at 398,

677 N.Y.S.2d at 39). In a footnote, the court explained that Ted

didn’t have anything to gain because he was never identified by
 According to Cruz, Lucky demanded that she lift her shirt 5

and unbutton her pants to make sure that she was not armed.

15

Cruz as a participant in the robbery and had not been charged. 

Perkins I, 180 Misc.2d at 500 n.13, 691 N.Y.S.2d at 276 n.13.

(3)

The Trial

At trial, the prosecution introduced the testimony of

various officers who had responded to the robbery that took place

at Willie’s Grocery Store. According to the testimony of these

officers, Perkins had been seen fleeing from the basement of

Willie’s Grocery Store on February 26, 1998, leaving behind Cruz

and Hector. The responding officers testified that when they

arrived at the scene, Cruz appeared to be hysterical, and Hector

was duct taped to a chair and bleeding from the head. Cruz’s

pants were unbuttoned and unzipped, and she was trembling and

crying. However, she pointed in Perkins’s direction, saying 5

“[H]e’s over there,” before Perkins could flee from the basement. 

Once the officers apprehended Perkins, they discovered him to be

carrying numerous items of jewelry, $78.60 in cash, and a gun

holster. Along Perkins’s flight path, the officers also found a

roll of duct tape, a .22 caliber semiautomatic pistol, a .380

caliber semiautomatic pistol, and a spent casing that matched the

.22 caliber pistol. Perkins asked the officers if they caught
16

“the other guy” and offered to cooperate, stating that he did not

wish to go to prison. 

Additionally, the prosecution introduced testimony from Inv.

Baccanti and Inv. McAuliffe, both stating that Perkins had orally

admitted to the robbery of Cruz. According to both

investigators, Inv. Baccanti had accused Perkins of pointing a

gun at Cruz and taking her jewelry, and Perkins had responded by

saying, “[Y]es, that’s the way it happened.” 

Furthermore, pursuant to the trial court’s ruling at the

Sirois hearing, the prosecution introduced the Grand Jury

testimony of Cruz, as well as two of Cruz’s depositions. 

According to Cruz’s statements, Perkins had pointed a gun at Cruz

and had stolen her jewelry under threat of force. 

Finally, again, pursuant to the trial court’s ruling at the

pre-trial suppression hearing, the prosecution introduced

Perkins’s written confession. According to this written

statement, Perkins confessed that he had taken Cruz’s jewelry. 

Perkins also confessed to conspiring with Lucky to “go to the

store . . . and make [Cruz] page [Hector]” so that the two men

could rob Hector as well. The prosecution would ultimately

stress the importance of this written statement in closing

arguments, encouraging the jurors to “read[] that statement aloud

[and] keep in mind [that the testimony of] the different police
17

officers . . . supports, corroborates, [and] confirms what is

within that statement.” 

In his closing arguments, Perkins’s attorney suggested that

Cruz may have been an accomplice in the robbery of Hector, rather

than a victim herself. To support this theory, Perkins

introduced evidence that Cruz had been previously convicted of

welfare fraud, and that, as a condition of her probation, Cruz

was required to make restitution in excess of $9,000. In his

closing statement, Perkins’s attorney argued that this provided a

financial motive for Cruz to conspire with Perkins and Lucky to

rob Hector. With respect to the jewelry that Perkins had been

carrying when he was apprehended, Perkins’s attorney suggested

that Cruz may have actually handed this to Perkins voluntarily. 

According to Perkins’s attorney, Cruz may have given Perkins her

jewelry in order to convince Hector that she was a victim, rather

than a participant, in the robbery at Willie’s Grocery Store. 

Prior to deliberations, the parties agreed to present all of

the exhibits to the jury, which then commenced deliberations and

found Perkins guilty of first degree robbery and two counts of

third degree criminal possession of a weapon. However, the jury

acquitted Perkins on the unlawful imprisonment count and the two
 Although the jury’s reasoning is not apparent from the 6

record, the jurors may have found that the prosecution had failed

to establish that Cruz had been “expose[d] . . . to a risk of

serious physical injury” as required to secure a conviction for

unlawful imprisonment in the first degree. N.Y. Penal Law

§ 135.10.

18

counts of second degree criminal possession of a weapon.6

(4)

The Appellate Division Ruling

On direct appeal following his conviction, Perkins asserted

a constitutional challenge under the Confrontation Clause of the

Sixth Amendment, arguing that the trial court erred in admitting

the Grand Jury testimony and supporting depositions of Cruz

without allowing Perkins the opportunity to cross-examine her.

Perkins II, 289 A.D.2d at 940-41, 735 N.Y.S.2d at 274. Perkins

also contended that the trial court erred in refusing to suppress

his written confession, which was obtained after he had invoked

his right to remain silent. Id. at 941, 735 N.Y.S.2d at 274.

The Appellate Division unanimously agreed with Perkins

regarding the constitutional violations, and found that the trial

court had erred in admitting the Grand Jury testimony of Cruz in

lieu of her live testimony. Id. According to the Appellate

Division, the prosecution had failed to establish that Perkins

had procured the absence of Cruz, and thus had failed to

establish that Perkins waived his right to cross-examination. 
19

Id. (emphasizing that the warnings against Cruz had been made by

a suspected accomplice rather than by Perkins himself). 

Furthermore, the Appellate Division found that the trial court

erred by failing to suppress Perkins’s written confession. Id.

at 941, 735 N.Y.S.2d at 274-75 (quoting People v. Brown,

266 A.D.2d 838, 838, 700 N.Y.S.2d 605, 607 (4th Dep’t 1999)

(after a suspect has invoked his right to remain silent,

interrogation must cease, and can resume “only where a

significant period of time has passed since the invocation of the

right to remain silent and where the police have reiterated the

requisite warnings”), lv. denied, 94 N.Y.2d 860, 725 N.E.2d 1098,

704 N.Y.S.2d 536 (1999)). The Appellate Division held that

Perkins had invoked his right to remain silent, and that

custodial interrogation could not have constitutionally resumed

unless the interrogating officer waited a significant period of

time and re-read Perkins his Miranda rights. Perkins II,

289 A.D.2d at 941, 735 N.Y.S.2d at 274-75 (citing Brown,

266 A.D.2d at 839, 700 N.Y.S.2d at 607); see also Michigan v.

Mosley, 423 U.S. 96, 106-07 (1975). Because the interrogating

officer resumed questioning without reiterating the requisite

warnings, and in fact told Perkins that he had waived his rights,

the Appellate Division found that the trial court should have

suppressed Perkins’s subsequent written confession. Perkins II,
20

289 A.D.2d at 941, 735 N.Y.S.2d at 274-75.

Despite having found two constitutional violations, a

divided Appellate Division ultimately upheld Perkins’s

conviction. Id. at 941, 735 N.Y.S.2d at 275. According to the

majority, these errors were “harmless beyond a reasonable doubt”

because “[d]efendant’s oral admission of guilt was properly

admitted, defendant was identified by an officer who saw him

inside the store, and defendant was apprehended immediately after

the robbery while in possession of the stolen property.” Id.

(citing Brown, 266 A.D.2d at 839, 700 N.Y.S.2d at 607). 

Therefore, the Appellate Division concluded, “there is no

reasonable possibility that the errors might have contributed to

the conviction.” Id. Two judges dissented, arguing that the

constitutional errors were not harmless. Perkins II, 289 A.D.2d

at 942, 735 N.Y.S.2d at 275-76 (arguing that “there is a

reasonable possibility that the error in admitting that evidence

might have contributed to defendant’s conviction”) (quoting

People v. Crimmins, 36 N.Y.2d 230, 237, 326 N.E.2d 787, 791,

367 N.Y.S.2d 213, 218 (1975) (internal quotation marks omitted)).

(5)

The District Court’s Order Granting the Writ

In a pro se petition for habeas corpus under 28 U.S.C.

§ 2254, Perkins challenged his conviction on the same grounds,
21

asserting violations of his Fifth and Sixth Amendment rights, and

arguing that those errors had not been harmless. Perkins III,

537 F. Supp. 2d at 484. After a lengthy discussion, the

magistrate judge found that the Appellate Division was correct in

determining that Perkins’s Fifth and Sixth Amendment rights had

been violated. Id. at 494-502. With respect to the Sixth

Amendment Confrontation Clause issue, the magistrate judge agreed

with the Appellate Division that the state trial court had failed

to establish that Perkins procured the absence of Cruz,

emphasizing that Ted had an independent motive to threaten Cruz

on his own behalf. Id. at 494-97 (“I agree with the Appellate

Division’s finding on this point . . . . Singularly lacking on

this record is any proof — direct or circumstantial — that Ted

Francis’ threats toward Cruz were made at Perkins’ behest.”). 

Likewise, the magistrate judge agreed with the Appellate

Division’s finding that the trial court had violated Perkins’s

Fifth Amendment right against self-incrimination by admitting

Perkins’s written confession into evidence. Id. at 501-02. 

Furthermore, the magistrate judge found that Perkins’s Fifth and

Sixth Amendment rights had also been violated by his exclusion

from Cruz’s questioning at the Sirois hearing itself, which the

magistrate judge found to be a material stage of the trial. Id.

at 497-501. 
 The Appellate Division used the harmless error standard of 7

review from Crimmins, 36 N.Y.2d at 237, 326 N.E.2d at 791,

367 N.Y.S.2d at 218, which incorporates the standard of review

from Chapman. Gutierrez v. McGinnis, 389 F.3d 300, 307-08

(2d Cir. 2004).

22

After finding these three constitutional violations, the

magistrate judge proceeded to analyze the harmfulness of these

violations under the standard set forward in Brecht. Id. at 502-

05 (citing Brecht, 507 U.S. at 623). Although the Appellate

Division had found the errors to be harmless under the Chapman

test, the magistrate judge still found that “a habeas court’s 7

task is to apply the Brecht standard independently,” whether or

not the state court had found harmlessness on its own. Perkins

III, 537 F. Supp. 2d at 503 (citing Fry, 127 S.Ct. at 2321). 

Accordingly, rather than reviewing the state court’s application

of the Chapman test, the magistrate judge proceeded to

independently analyze whether the constitutional error “had

substantial and injurious effect or influence in determining the

jury's verdict.” Perkins III, 537 F. Supp. 2d at 503 (quoting

Brecht, 507 U.S. at 635) (internal quotation marks omitted). 

In applying the Brecht standard for harmlessness, the

magistrate judge relied on Delaware v. Van Arsdall, 475 U.S. 673

(1986), a case that developed five factors to assess when
 Although the Supreme Court initially developed the Van 8

Arsdall factors under Chapman review, we have analyzed these same

factors when evaluating the harmfulness of a constitutional

violation under Brecht analysis as well. See, e.g., Brinson v.

Walker, 547 F.3d 387, 395 (2d Cir. 2008).

23

evaluating whether a Confrontation Clause error is harmless.8

Perkins III, 537 F. Supp. 2d at 504-05. The magistrate judge

also stressed that there is a “substantial burden of persuasion

on the State” to prove harmlessness to a federal habeas court,

id. at 503 (quoting Fry, 551 U.S. at 122 (Stevens, J.,

concurring) (internal quotation marks omitted)), and that a

federal court’s “grave doubt” regarding harmlessness should be

resolved in favor of the habeas petitioner, id.

After evaluating the five Van Arsdall factors, the

magistrate judge concluded that the constitutional errors “had

substantial and injurious effect or influence in determining the

jury’s verdict,” and issued the writ of habeas corpus. Id. at

505-06 (quoting Brecht, 507 U.S. at 623) (internal quotation

marks omitted).

Discussion

(1)

Constitutional Violations

On appeal, appellant Herbert argues that the magistrate

judge erred in finding that Perkins’s Fifth and Sixth Amendment
24

rights had been violated by the admission of Cruz’s testimony and

Perkins’s written confession. Even though the Appellate Division

and magistrate judge below both agreed that the trial court

violated Perkins’s constitutional rights by admitting this

evidence, Herbert urges this court to find otherwise, and to hold

that the state trial court acted reasonably in making its

determination. Perkins III, 537 F. Supp. 2d at 496; Perkins II,

289 A.D.2d at 941, 735 N.Y.S.2d at 274. For the reasons below,

we decline to do so.

With respect to the Confrontation Clause error in admitting

Cruz’s testimony, Herbert argues that the state trial court acted

reasonably in determining that Perkins procured the absence of

Cruz, notwithstanding the Appellate Division’s rebuke of that

very same position. Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d

at 274 (“[A]ll of the threats warning [Cruz] not to testify were

made by a suspected accomplice [Ted], not defendant [Perkins].”

(emphasis added)). In support of this contention, Herbert

reiterates the trial court’s argument that Perkins had a motive

to procure the absence of Cruz, and that Perkins was the “only

person who stood to gain” from Cruz’s silence. However, the

Appellate Division and magistrate judge both correctly observed
 The Appellate Division found that “[t]he People failed to 9

establish that the witness’s unavailability was procured by

[Perkins]” under New York’s application of the Confrontation

Clause, Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d at 274, which

requires the prosecution to demonstrate that the defendant

procured the absence of the witness by “clear and convincing

evidence,” People v. Geraci, 85 N.Y.2d 359, 362, 649 N.E.2d 817,

818, 625 N.Y.S.2d 469, 470 (1995) (internal quotation marks

omitted). However, this court requires the prosecution to prove

the same by a “preponderance of the evidence.” United States v.

Mastrangelo, 693 F.2d 269, 273 (2d Cir. 1982). Regardless, the

prosecution here clearly failed to demonstrate that Perkins

procured the absence of the witness, even under this court’s more

forgiving “preponderance of the evidence” standard. 

25

that this argument misstates the facts presented below.9

In this case, the prosecution merely demonstrated that

Perkins had a motive to procure Cruz’s silence. It did not

demonstrate, however, that Perkins took any steps to orchestrate

the intimidation of Cruz. It did not even demonstrate that

Perkins had the opportunity to do so, which is particularly

significant due to the fact that Perkins was incarcerated

continuously since the date of the robbery, and the prison record

logs reveal no contact with either Cruz or Ted. Cf. Cotto v.

Herbert, 331 F.3d 217, 233 (2d Cir. 2003) (finding that defendant

procured the absence of a witness in part because the defendant

“had the opportunity to arrange for [the witness’s] intimidation

because he was out on bail both prior to and during the trial”

(internal quotation marks omitted)). 

Furthermore, even Perkins’s motive to silence Cruz — the
 Nonetheless, during her in camera testimony, Cruz noted 10

that she “had a feeling that [Ted] was involved, being that he

used to hang around with [Perkins and Lucky].”

26

only real evidence linking Perkins to the threats — was shared by

Ted, the man who personally conveyed the threats to Cruz. 

Perkins III, 537 F. Supp. 2d at 497. Ted had already been

identified by Perkins as an accomplice in the robbery of Cruz,

and the Sirois hearing demonstrated that the police suspected Ted

of being involved in two related homicides, as well as in the

robbery itself. According to Inv. Janus, even Cruz had

acknowledged that there was a third robber just outside Willie’s

Grocery Store, although she claimed that she did not see this

person’s face. Although Cruz may not have explicitly 10

identified Ted as a participant in the robbery, there has been no

showing that Ted was aware of this fact. Furthermore, even if he

were aware that Cruz had failed to explicitly identify him, Ted

would still have a motive to prevent Cruz from testifying under

oath about the facts of the robbery and potentially revealing his

involvement. Given these circumstances, Ted had a strong,

independent incentive to prevent Cruz from testifying in court

and potentially implicating him. When we further consider that

Cruz herself never indicated that Perkins had orchestrated the

threats, we must conclude that the prosecution failed to meet its

burden in showing that Perkins procured the absence of the
 According to the magistrate judge, the admission of 11

Cruz’s testimony was caused by two separate constitutional

violations. First, it was caused by the trial court’s violation

of Perkins’s right of confrontation, and, second, it was caused

by the trial court’s violation of Perkins’s constitutional right

to be present at a material stage of the trial (i.e., the Sirois

hearing). Perkins III, 537 F. Supp. 2d at 494-501. With respect

to the second violation, the magistrate judge noted that

Perkins’s presence at the Sirois hearing could have produced more

effective cross-examination, which might have ultimately led to

the exclusion of Cruz’s testimony from the trial. Id. at 497-

501. However, whether or not there was an exclusion from a

material stage of the trial that contributed to the admission of

Cruz’s testimony, we still find that the trial court erred in

admitting the testimony of Cruz. Therefore, there is no need to

discuss the merits of the magistrate judge’s second argument, and

we can proceed to analyze whether the admission of Cruz’s

testimony amounted to harmless error. 

27

witness, and that the Appellate Division and magistrate judge,

therefore, both correctly concluded that Perkins did not waive

his right of confrontation.11

With respect to the Miranda violation in admitting the

written confession of Perkins, Herbert argues that the state

trial court was correct in finding that Perkins’s written

confession was not obtained in violation of his right to remain

silent, due to the fact that the police waited several hours

after Perkins invoked his right before resuming questioning, and

“advised [Perkins] that the rights and warnings he was previously

given still applied.” However, again, this statement does not

accurately reflect the facts of the case, and we therefore agree

with the Appellate Division and magistrate judge, which both
28

found that Perkins’s right to remain silent was not “scrupulously

honored” by the interrogating officers. See Mosley, 423 U.S. at

104 (explaining that, after one invokes his right to remain

silent, the admissibility of any further statements depends upon

whether that right to remain silent has been “scrupulously

honored.” (internal quotation marks omitted)).

In this case, the interrogating officers failed to re-read

Perkins his Miranda rights before resuming questioning, even

though Perkins had previously invoked his right to remain silent. 

See Campaneria v. Reid, 891 F.2d 1014, 1021 (2d Cir. 1989)

(“Questioning can be resumed after fresh Miranda warnings are

given and the right to remain silent is otherwise scrupulously

honored.” (emphasis added)); Wilson v. Henderson, 584 F.2d 1185,

1187-88 (2d Cir. 1978) (Where a person has invoked his right to

remain silent, “[Q]uestioning can resume after new warnings have

been given.” (emphasis added)); see also Brown, 266 A.D.2d at

838, 700 N.Y.S.2d at 607 (interrogation can resume “only where a

significant period of time has passed since the invocation of the

right to remain silent and where the police have reiterated the

requisite warnings.” (emphasis added)). Additionally, even

though Herbert suggests that the officers “reminded” or “advised”

Perkins that he had previously been read his rights, the record

reveals that the officers positively stated that Perkins had
29

“waived” these rights. Perkins III, 537 F. Supp. 2d at 485

(before resuming questioning, the investigator stated: “Victor, I

realize that you have been - you have been read your rights and

you agreed to waive them.” (emphasis added)). Therefore, under

these facts, we adhere to the determinations of both the

Appellate Division and magistrate judge, finding that the

interrogating officers did not honor Perkins’s right to remain

silent, and that the subsequently obtained written confession was

erroneously admitted.

Nonetheless, Confrontation Clause errors and Miranda

violations are both subject to harmless error review. Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986) (Confrontation Clause

errors are subject to harmless error review.); Zappulla v. New

York, 391 F.3d 462, 466 (2d Cir. 2004) (Miranda violations are

subject to harmless error review.). For the reasons discussed

below, we find both of these errors to be harmless.

(2)

Harmless Error

a. Standard of Review

 Where a state appellate court has found that a state trial

court committed a constitutional violation but has held that the

violation was harmless, the standard of review for a federal

court conducting habeas corpus review has not yet been clearly
30

established. Compare Johnson v. Acevedo, 572 F.3d 398, 404

(7th Cir. 2009), with Ruelas v. Wolfenbarger, 580 F.3d 403, 412-

13 (6th Cir. 2009). Instead, federal courts have developed two

different approaches to the standard of review to apply on habeas

review. 

Under one approach, first outlined in Brecht v. Abrahamson,

a federal habeas court must assess, in its own judgment, whether

the constitutional error resulted in “actual prejudice” to the

defendant. 507 U.S. 619, 637-39 (1993) (internal quotation marks

omitted); see also id. at 639 (holding that the state’s

unconstitutional references to the habeas petitioner’s postMiranda silence amounted to harmless error where the references

were infrequent, the state’s properly admitted references to the

petitioner’s pre-Miranda silence were more frequent, and “the

State’s evidence of guilt was, if not overwhelming, certainly

weighty”); Ruelas, 580 F.3d at 412-13. Rather than requiring the

prosecution to demonstrate that the error was “harmless beyond a

reasonable doubt,” as has traditionally been required on direct

review, Brecht held that habeas relief is not warranted unless,

“in light of the record as a whole, [the constitutional

violation] had substantial and injurious effect or influence” in

securing the defendant’s conviction. 507 U.S. at 638 (emphasis

added). Due to its concerns with finality, comity and
31

federalism, the Brecht court intentionally designed this standard

to be “less onerous” to the state than the harmlessness test

generally used on direct review of a constitutional error. Id.

at 637.

Under the other approach, first outlined in Mitchell v.

Esparza, a federal habeas court must assess whether the state

appellate court acted reasonably in determining that the error

was “harmless . . . beyond a reasonable doubt.” 540 U.S. 12, 17-

19 (2003) (per curiam) (internal quotation marks omitted);

Gutierrez v. McGinnis, 389 F.3d 300, 306 (2d Cir. 2004). The

Mitchell court derived this approach from the Chapman test,

traditionally used on direct review, which requires the

prosecution to demonstrate that the error was harmless beyond a

reasonable doubt. Mitchell, 540 U.S. at 17-19; see also Chapman

v. California, 386 U.S. 18, 24 (1967). Subsequent to Chapman,

Congress tightened the statutory requirements for a writ of

habeas corpus by passing the Antiterrorism and Effective Death

Penalty Act of 1996 (“AEDPA”). See Fry v. Pliler, 127 S.Ct.

2321, 2326 (2007). Under AEDPA, an application for a writ of

habeas corpus may not be granted with respect to a claim that has

been adjudicated on the merits in state court unless the state

court’s adjudication:

(1) resulted in a decision that was contrary to, or involved

an unreasonable application of, clearly established Federal
32

law, as determined by the Supreme Court of the United

States; or

(2) 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.

28 U.S.C. § 2254(d). In applying the “unreasonable application”

clause of AEDPA to a state appellate court’s Chapman analysis,

Mitchell held that “[w]e may not grant respondent’s habeas

petition . . . if the state court simply erred in concluding that

the State’s errors were harmless [under Chapman’s ‘harmless

beyond a reasonable doubt’ standard]; rather, habeas relief is

appropriate only if the [state court of appeals] applied

harmless-error review in an ‘objectively unreasonable’ manner.” 

Mitchell, 540 U.S. at 18; see also id. at 17-19 (omitting any

mention of the Brecht test, and holding that a state court’s

harmlessness finding regarding improper jury instructions was not

“objectively unreasonable”); see also Gutierrez, 389 F.3d at 306

(“Mitchell signals, and we therefore hold, that when a state

court explicitly conducts harmless error review of a

constitutional error, a habeas court must evaluate whether the

state unreasonably applied Chapman.”); but see Fry, 551 U.S. at

121-22 (holding that Brecht applies on habeas corpus review

“whether or not” the state court conducted its own harmless-error

review under Chapman’s “harmless beyond a reasonable doubt”

standard). This AEDPA/Chapman test imposes a high burden on a
33

reviewing court, and requires a federal court on habeas review to

ask “whether the state court’s application of clearly established

federal law was objectively unreasonable.” Williams v. Taylor,

529 U.S. 362, 409 (2000) (emphasis added); see also id. at 410

(“[T]he most important point is that an unreasonable application

of federal law is different from an incorrect application of

federal law.”). Therefore, “a federal habeas court may not issue

the writ simply because that court concludes in its independent

judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that

application must also be unreasonable.” Id. at 411; see also

Sorto v. Herbert, 497 F.3d 163, 169 (2d Cir. 2007) (Under the

“unreasonable application” clause of AEDPA, “petitioner must

identify some increment of incorrectness beyond error in order to

obtain habeas relief.”).

Recently, the Seventh Circuit held that a habeas court must

explicitly find both a lack of reasonableness under AEDPA/Chapman

and harm under Brecht before issuing the writ of habeas corpus. 

Johnson, 572 F.3d at 404. The Sixth Circuit, by contrast, found

that the Brecht test “subsumes” the AEDPA/Chapman test, and that,

therefore, only the Brecht test should be applied on habeas

review of a state appellate court’s determination of

harmlessness. Ruelas, 580 F.3d at 412-13 (“[I]t certainly makes
34

no sense to require formal application of both tests

(AEDPA/Chapman and Brecht) when the latter obviously subsumes the

former.”) (quoting Fry, 127 S.Ct. at 2327). Both circuits agree,

however, that a finding of harmlessness under Brecht, by itself,

is sufficient to deny the writ of habeas corpus.

We need not decide whether both tests apply in such a

scenario, or whether Brecht applies by itself. For present

purposes and in keeping with Second Circuit precedent, we now

“decline[] to decide the question because we conclude[] that the

result [is] the same under either test.” Brown v. Keane,

355 F.3d 82, 91 (2d Cir. 2004); see also Howard v. Walker,

406 F.3d 114, 123 (2d Cir. 2005) (“Where the question has arisen

[regarding the Chapman and Brecht standards of review], this

court has declined to resolve it, finding instead that the

harmlessness determination would be identical under either

analysis”); Benn v. Greiner, 402 F.3d 100, 105 (2d Cir. 2005)

(referring to the “open question” of whether AEDPA/Chapman or

Brecht applies, and declining to resolve that issue because the

standards both “produce the same result in this case”);

Gutierrez, 389 F.3d at 305 (noting the “persistent similarity in

outcomes” of the AEDPA/Chapman and Brecht tests, and stating that
35

it is “unlikely” for a constitutional harm under Brecht to be

harmless under AEDPA/Chapman). For the reasons that follow, we

hold that the errors were harmless under both tests.

b. The Constitutional Errors Were Harmless

In conducting our harmless error review, we must ultimately

decide whether the Confrontation Clause and Miranda violations at

issue resulted in “actual prejudice” to Perkins, Brecht, 507 U.S.

at 637 (internal quotation marks omitted), and whether the

Appellate Division acted unreasonably in finding harmlessness,

Mitchell, 540 U.S. at 18. This requires us to analyze several

factors in an effort to assess the “importance [that] the

error[s] should reasonably have had.” United States v. Mejia,

545 F.3d 179, 199 n.5 (2d Cir. 2008).

The factors to be assessed in determining the harmlessness

of Confrontation Clause and Miranda errors largely overlap. 

Under both the AEDPA/Chapman and Brecht analyses, when assessing

the harmlessness of the admission of testimony in violation of

the Confrontation Clause, this court has traditionally examined

several factors first discussed in the Van Arsdall case. See

Brinson, 547 F.3d at 395 (applying the Van Arsdall factors under

Brecht review); Benn, 402 F.3d at 105-06 (applying the Van
36

Arsdall factors under Brecht review, and noting that it produces

the same result as AEDPA/Chapman review); Gutierrez, 389 F.3d at

308 (applying the Van Arsdall factors under AEDPA/Chapman

review). “These factors include the importance of the witness'

testimony in the prosecution's case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points,

the extent of cross-examination otherwise permitted, and, of

course, the overall strength of the prosecution's case.” Van

Arsdall, 475 U.S. at 684. Additionally, when a confession has

been improperly admitted in violation of Miranda, this court has

assessed the harmlessness of the error by evaluating similar

factors, including: “(1) the overall strength of the

prosecution's case; (2) the prosecutor's conduct with respect to

the improperly admitted evidence; (3) the importance of the

wrongly admitted testimony; and (4) whether such evidence was

cumulative of other properly admitted evidence.” Zappulla,

391 F.3d at 467-68 (applying AEDPA/Chapman review to a state

court’s finding of harmlessness); Robinson v. Greene,

507 F. Supp. 2d 279, 300 (W.D.N.Y. 2007) (applying Zappulla

factors on Brecht review). 
 In granting the petition for habeas corpus, the 12

magistrate judge below did not specify whether the writ was

granted with respect to the robbery charge only, or with respect

to Perkins’s conviction of two counts of possession of a weapon

in the third degree as well. Perkins III, 537 F. Supp. 2d at

37

 Ultimately, however, “[t]he strength of the prosecution's

case is probably the single most critical factor” in a harmless

error analysis. United States v. Reifler, 446 F.3d 65, 87

(2d Cir. 2006) (quoting Latine v. Mann, 25 F.3d 1162, 1167-68

(2d Cir. 1994) (alteration in original)). “Although harmless

error analysis originally focused on whether the error had

affected the jury, over the years our focus has shifted from the

impact of the error on the jury's analysis to an assessment of

the strength of the remaining evidence of guilt.” Mejia,

545 F.3d at 199 n.5 (citations omitted).

Applying these factors here, we conclude that the

erroneously admitted evidence was cumulative of the properly

admitted evidence, and that the remaining evidence of guilt,

including Perkins’s oral confession, was strong. Therefore, we

hold that Perkins did not suffer “actual prejudice,” Brecht,

507 U.S. at 637 (internal quotation marks omitted), and that the

Appellate Division’s finding that the errors were harmless was

correct, and certainly not “objectively unreasonable.”12
484, 506. Because the judge stated that Perkins’s habeas

petition “challeng[es] his conviction . . . on one count of

robbery in the first degree and two counts of criminal possession

of a weapon in the third degree” and ultimately granted the

petition, we assume that the habeas petition was directed to all

counts of conviction.

38

Mitchell, 540 U.S. at 18; Williams, 529 U.S. at 409.

In this case, the testimony of Cruz constituted significant

evidence of guilt and, as such, was “important” to the

prosecution’s case. See Brinson, 547 F.3d at 395 (testimony of

the victim and sole witness to a robbery was “more than

important” to the prosecution’s case); Benn, 402 F.3d at 106-07

(holding that Confrontation Clause error was harmless “in the

face of the overwhelming evidence” of guilt, but noting that the

testimony of the rape victim herself was “certainly important to

the prosecution’s case”). However, Cruz’s testimony regarding

the robbery was merely cumulative of the properly admitted

evidence, which included an explicit oral confession from Perkins

himself. See United States v. Lee, 549 F.3d 84, 99 (2d Cir.

2008) (Straub, J., concurring in part and dissenting in part);

Reifler, 446 F.3d at 88 (2d Cir. 2006); United States v. McClain,

377 F.3d 219, 223 (2d Cir. 2004); Williams v. Greene, No.

04-CV-4507, 2009 WL 2579259, at *4 (E.D.N.Y. Aug. 20, 2009).
39

Although the magistrate judge below cited to several cases

in arguing that Cruz’s testimony could potentially have bolstered

Perkins’s confession, and therefore was not cumulative, Perkins

III, 537 F. Supp. 2d at 504, all of the cases cited by the

magistrate judge involved the bolstering of testimony of a third

party in a relatively weak case as compared to the present one. 

See Arizona v. Fulminante, 499 U.S. 279, 299 (1991); Cotto,

331 F.3d at 254; Vasquez v. Jones, 496 F.3d 564, 576 (6th Cir.

2007); Stapleton v. Wolfe, 288 F.3d 863, 865-67, 868 (6th Cir.

2002). In this case, by contrast, Perkins was apprehended while

fleeing the scene with the stolen property, and personally

confessed to the investigators that he had robbed Cruz at

gunpoint. Under these circumstances, Cruz’s testimony regarding

the events of the robbery may be considered cumulative of the

other testimony and evidence clearly establishing Perkins’s

involvement in the robbery.

At trial, Perkins introduced no testimony or evidence

directly contradicting Cruz’s account of the robbery on any

material points, which also weighs in favor of finding harmless

error. Indeed, Cruz’s account of the robbery was strongly

corroborated by Perkins’s oral confession, as well as by the fact
40

that Perkins was apprehended while fleeing the scene with the

stolen property. While Perkins’s attorney did raise a possible

defense in his summation, suggesting that no actual robbery had

taken place at Willie’s Grocery Store, this defense was not

plausible and was not supported by other evidence. According to

Perkins’s attorney, Cruz may have been a co-conspirator in the

robbery of Hector, and may have voluntarily given Perkins her

jewelry in order to fool Hector into falsely believing that she

was a victim as well. 

Perkins’s proffered defense is undermined by the

observations of the police officers who arrived at Willie’s

Grocery Store. As the responding officers testified at trial,

Cruz was found in the basement of Willie’s Grocery Store with her

pants unbuttoned and unzipped. The responding officers observed

that Cruz was disheveled, hysterical and crying. She trembled as

she pointed towards Perkins, saying “[H]e’s over there.” This is

not the demeanor of a co-conspirator. Rather, this more closely

resembles what one would expect from a robbery victim. 

Therefore, although the complete preclusion of cross-examination

“weighs heavily in favor of” finding harm, the fact that Perkins

introduced no evidence disputing Cruz’s account of the robbery —
41

which was strongly corroborated by other admissible evidence —

similarly weighs against finding harm. See Herbert, 331 F.3d at

254.

With respect to the erroneously admitted confession, “[t]he

persuasive influence of a signed confession cannot be

[over]estimated.” Zappulla, 391 F.3d at 473. Indeed, this was

very strong evidence tending to demonstrate Perkins’s guilt. Id.

(“The fact that the evidence at issue is a signed detailed

confession should weigh heavily against finding that its

erroneous admission was harmless.”). However, the mere fact that

there is a recorded confession should not detract from the fact

that the prosecution already properly admitted an oral confession

from Perkins, stating essentially the same facts. See

Campaneria, 891 F.2d at 1022 (where the prosecution properly

admits an untainted oral confession, but also improperly admits a

subsequent recorded confession to the same crime, the recorded

confession is considered “entirely cumulative,” and its admission

is considered to be harmless error). “Although a recorded

confession can be impressive evidence in a criminal trial,” this

does not by itself warrant a finding of harmful error when there

is already a properly admitted oral confession “that came in
42

through the testimony of the police officers.” Id. In this

case, the properly admitted oral confession was not seriously

disputed, and there was no evidence that the confession was the

product of unlawful coercion of any kind. Therefore, the

existence of Perkins’s oral confession undercuts the impact of

the written confession.

With respect to the prosecution’s conduct, we must note that

the prosecution emphasized the importance of Perkins’s written

confession and Cruz’s testimony during closing arguments, which

weighs against finding harmless error. See Lee, 549 F.3d at 91-

92. However, “our focus [on harmless error review] has shifted

from the impact of the error on the jury’s analysis to an

assessment of the strength of the remaining evidence of guilt.” 

Mejia, 545 F.3d at 199 n.5; see also Brecht, 507 U.S. at 637

(“[G]ranting habeas relief merely because there is a reasonable

possibility that trial error contributed to the verdict is at

odds with the historic meaning of habeas corpus - to afford

relief to those whom society has grievously wronged.” (internal

quotation marks and citations omitted)). Therefore, the

prosecution’s conduct does not weigh as heavily in our analysis

as the overall strength of the prosecution’s remaining case. 
43

In sum, although some of the above-mentioned factors weigh

in favor of finding harmful error, the strength of the

prosecution’s case - the most important factor in our inquiry -

weighs heavily in favor of finding harmless error. Contrary to

the magistrate judge’s assessment that the prosecution’s case was

“fairly weak” without these items of evidence, we conclude that

the remaining evidence against Perkins was quite strong. Perkins

III, 537 F. Supp. 2d at 505; see also Brecht, 507 U.S. at 639

(finding harmless error where “the State's evidence of guilt was,

if not overwhelming, certainly weighty”). Here, as the Appellate

Division stated, “[Perkins’s] oral admission of guilt was

properly admitted, [Perkins] was identified by an officer who saw

him inside the store, and [Perkins] was apprehended immediately

after the robbery while in possession of the stolen property.” 

Perkins II, 289 A.D.2d at 941, 735 N.Y.S.2d at 275. This

constitutes very significant evidence of guilt, particularly

given Perkins’s oral confession. Fulminante, 499 U.S. at 296

(“[T]he defendant's own confession is probably the most probative

and damaging evidence that can be admitted against him.”

(internal quotation omitted)). Furthermore, as previously

discussed, Perkins’s explanation of why he was fleeing with
44

Cruz’s jewelry was not plausible and was contradicted by other

evidence. Therefore, because the remaining evidence of guilt was

so strong, and because the erroneously admitted evidence was

cumulative of the properly admitted evidence, we find that the

erroneously admitted evidence did not result in “actual

prejudice” to Perkins, Brecht, 507 U.S. at 637 (internal

quotation marks omitted), and that the Appellate Division

reasonably concluded that the errors were harmless. Mitchell,

540 U.S. at 18.

Conclusion

Because we hold that the constitutional violations at issue

were harmless, we reverse the district court’s grant of the writ

of habeas corpus.