Gutierrez v. Mcginnis

Decision Date15 November 2004
Docket NumberDocket No. 03-2560.
Citation389 F.3d 300
PartiesPedro GUTIERREZ Petitioner-Appellant, v. Michael McGINNIS, Superintendent, Attica Correctional Facility, Respondent-Appellee.
CourtU.S. Court of Appeals — Second Circuit

Robert J. Boyle, New York, NY, for petitioner-appellant.

Yael V. Levy, Assistant District Attorney for Bronx County, New York (Robert T. Johnson, District Attorney, Joseph N. Ferdenzi, Assistant District Attorney, on the brief), Bronx, NY, for respondent-appellee.

Before: CALABRESI, SOTOMAYOR, Circuit Judges, and COTE, District Judge.*

SOTOMAYOR, Circuit Judge.

Petitioner-appellant Pedro Gutierrez appeals from a denial of a petition for a writ of habeas corpus under 28 U.S.C. § 2254, entered on July 31, 2003, in the United States District Court for the Southern District of New York (Baer, J.). Petitioner contends that the New York state trial court admitted into evidence the recording of an anonymous 911 call in contravention of the Sixth Amendment's Confrontation Clause. On direct appeal, the Appellate Division ruled that the trial court had properly admitted the evidence and that, even if the court had erroneously admitted the tape, such error was harmless in light of overwhelming evidence of petitioner's guilt. People v. Gutierrez, 248 A.D.2d 295, 295, 670 N.Y.S.2d 85 (1st Dep't 1998), leave to appeal denied, 92 N.Y.2d 925, 680 N.Y.S.2d 467, 703 N.E.2d 279 (1998) (Bellacosa, J.) (upon reconsideration). On collateral review, Judge Harold Baer, Jr. denied the writ on the grounds that the evidence had properly been admitted, but noted that had such admission been erroneous, the error would not have been harmless. Gutierrez v. McGinnis, No. 00 Civ. 395, 2003 WL 21782628, at *5 (S.D.N.Y. July 31, 2003). We hold that when a state appellate court explicitly engages in harmless error review, a habeas court must assess whether the state court unreasonably applied Supreme Court precedent governing direct review of constitutional error. Because the Appellate Division reasonably applied that precedent in this case, we affirm the denial of the writ of habeas corpus.


A jury in the Supreme Court of New York, Bronx County, convicted Gutierrez of assorted crimes arising from a fatal shooting incident among rival drug dealers. The prosecution's central theory was that the episode involved three shooters rather than two. The ballistics evidence recovered from the scene of the crime only corroborated the existence of two guns. Three witnesses testifying pursuant to federal cooperation agreements, two of whom testified to being the two other perpetrators in the shooting incident, provided eyewitness testimony directly identifying petitioner as a third shooter. The testimony of several non-cooperating witnesses was more equivocal. Over defense objection, the court admitted into evidence a 911 call from an anonymous driver, made within three minutes of the incident, under New York's present sense impression exception to the rule against hearsay. The caller repeatedly described three young men as shooters. During summation, the prosecution highlighted the call as "one of the most important pieces of evidence."

The Appellate Division, First Department, held that the call was sufficiently contemporaneous with the described event to qualify for admission under New York's present sense impression exception, and "any error in admission of this evidence was harmless in view of the overwhelming evidence of defendant's guilt." Gutierrez, 248 A.D.2d at 295, 670 N.Y.S.2d 85. On habeas review, Judge Baer held that the tape's admission satisfied the federal Confrontation Clause as a "firmly rooted exception" to the hearsay rule, and denied the writ. Gutierrez, 2003 WL 21782628, at *4. Concerned that an appellate court would disagree, and that the 911 call otherwise lacked inherent indicia of reliability, Judge Baer granted a certificate of appealability on the admissibility of the 911 call. Id. at *7. In light of this concern, Judge Baer noted that if the disputed evidence had been erroneously admitted, the error would not have been harmless. Id. at *4-*5.


We review the denial of a writ of habeas corpus de novo. Francolino v. Kuhlman, 365 F.3d 137, 140 (2d Cir.2004). We need not reach petitioner's complex claim that the 911 call's admission into evidence violated the Confrontation Clause.1 Rather we examine whether the purported error was harmless. We take this opportunity to settle the question of whether the Antiterrorism and Effective Death Penalty Act ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996), in amending the relevant federal habeas statute, 28 U.S.C. § 2254, has altered the inquiry into harmless error on collateral review.

The standard for harmless error on direct review is the familiar test established by Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967). The Chapman Court held "that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt." Id. at 24, 87 S.Ct. 824. The Court equated this standard to the way it framed the inquiry in a prior case, as "`whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction.'" Id. (quoting Fahy v. State of Connecticut, 375 U.S. 85, 86-87, 84 S.Ct. 229, 11 L.Ed.2d 171 (1963)); see United States v. Dominguez Benitez, ___ U.S. ___, 124 S.Ct. 2333, 2339 n. 7, 159 L.Ed.2d 157 (2004) (noting that to excuse an error under the Chapman standard, "it is not enough to negate an effect on the outcome of the case"); Schneble v. Florida, 405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972) (interpreting Chapman in concluding "that the `minds of an average jury' would not have found the State's case significantly less persuasive had the [disputed testimony] been excluded. The admission into evidence of these statements, therefore, was at most harmless error"). The burden of proving the error's harmlessness falls "to someone other than the person prejudiced by it." Id.; Brecht v. Abramson, 507 U.S. 619, 630, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993); see Dominguez Benitez, 124 S.Ct. at 2339 n.7 (noting Chapman standard as an example of when the government bears the burden of addressing prejudice).

A few years prior to AEDPA's enactment, the Supreme Court held that Chapman did not apply to cases on collateral review. Brecht, 507 U.S. at 623, 113 S.Ct. 1710. Rather, the state's interest in finality, the presumption of a conviction's legality, the competence of state fora to enforce federal rights, and the interests of federalism, id. at 633-37, 113 S.Ct. 1710, all counseled in favor of a standard "less onerous" on the state. Id. at 637, 113 S.Ct. 1710. Instead, the Court adopted the standard enunciated in Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946): "[W]hether the error `had substantial and injurious effect or influence in determining the jury's verdict.'" Id. (quoting Kotteakos, 328 U.S. at 776, 66 S.Ct. 1239). This standard was "better tailored to the nature and purpose of collateral review." Id. at 638, 113 S.Ct. 1710.2

AEDPA amended 28 U.S.C. § 2254, in pertinent part:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —

(1) 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...

AEDPA § 104, 110 Stat. 1219, codified at 28 U.S.C. § 2254(d)(1). Thus, federal courts sitting in habeas review of state convictions must grant a measure of deference to claims "adjudicated on the merits" by state courts. See Sellan v. Kuhlman, 261 F.3d 303, 310-11 (2d Cir.2001). For purposes of AEDPA deference in our Circuit, a state court "adjudicates" a state prisoner's federal claim on the merits when it "(1) disposes of the claim `on the merits,' and (2) reduces its disposition to judgment .... even if the state court does not explicitly refer to either the federal claim or to relevant federal case law." Id. at 312.

While AEDPA's amendments to 28 U.S.C. § 2254 do not expressly overrule the Brecht standard for harmless error on collateral review, as noted, the amended statute now requires habeas courts to evaluate state adjudications of federal claims with some deference. Chapman binds a state appellate court — directly reviewing a lower state court — to dispose of federal constitutional errors as harmless only if the error was harmless beyond a reasonable doubt. E.g. People v. Crimmins, 36 N.Y.2d 230, 240-42, 367 N.Y.S.2d 213, 326 N.E.2d 787 (1975) (interpreting Chapman for New York courts); see Sellan, 261 F.3d at 314 (citing Testa v. Katt, 330 U.S. 386, 67 S.Ct. 810, 91 L.Ed. 967 (1947)) ("Under the Supremacy Clause, state courts are obligated to apply and adjudicate federal claims fairly presented to them."). When a state court holds that a particular federal constitutional error at trial is harmless, that holding is an adjudication of a federal claim, in turn suggesting that AEDPA's deferential standards must attach. Thus AEDPA may not overrule Brecht directly, but the statute's implications do call Brecht's continuing viability into question. Accordingly, this Circuit has frequently questioned "whether, following the passage of AEDPA, the applicable test [for harmless error] on habeas review of a state conviction remains the one set forth in Brecht, or instead should be a determination `whether the state court's decision was `contrary to, or involved an unreasonable application of' Chapman.'" Brown v. Keane, 355 F.3d 82, 91 (2d Cir.2004) (quoting Noble v. Kelly, 246 F.3d 93, 101...

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