Shane Mitchell v. Bennie Kelly

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 13a0296n.06
No. 11-3807
UNITED STATES COURT OF APPEALS
FILED
Mar 25, 2013
FOR THE SIXTH CIRCUIT
DEBORAH S. HUNT, Clerk
SHANE MITCHELL, )
)
Petitioner-Appellant, ) ON APPEAL FROM THE
) UNITED STATES DISTRICT
v. ) COURT FOR THE NORTHERN
) DISTRICT OF OHIO
BENNIE KELLY, Warden, )
)
Respondent-Appellee. )
)
BEFORE: MARTIN, GUY, and McKEAGUE, Circuit Judges.
PER CURIAM. Shane Mitchell, who is represented by counsel, appeals a district court
judgment denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. The
district court granted Mitchell a certificate of appealability regarding his Confrontation Clause claim.
For the reasons set forth below, we affirm the district court’s judgment.
In 2005, a jury in the Columbiana County (Ohio) Court of Common Pleas convicted Mitchell
of murder, aggravated robbery, and tampering with evidence. At trial, Dr. William Graham, the
Columbiana County Coroner, testified concerning an autopsy report prepared by Dr. Stan Seligman
of the Cuyahoga County (Ohio) coroner’s office. Mitchell objected to the admissibility of the
autopsy report in the absence of Dr. Seligman, as well as Dr. Graham’s testimony regarding the
report. The trial court overruled Mitchell’s objections. On direct appeal, the Ohio Court of Appeals
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held that the trial court did not abuse its discretion in admitting the autopsy report and Dr. Graham’s
testimony because an autopsy report “is a business record, is not hearsay, and does not violate any
right to confront the maker of that record.” State v. Mitchell, No. 05 CO 63, 2008 WL 850179, at
*17 (Ohio Ct. App. Mar. 19, 2008), app. not accepted for rev., 893 N.E.2d 516 (Ohio 2008).
Mitchell subsequently filed the instant habeas corpus petition. As one of his grounds for
habeas corpus relief, Mitchell claimed that the admission of the autopsy report and Dr. Graham’s
testimony violated his right to confrontation. A magistrate judge recommended that Mitchell’s
habeas corpus petition be denied. Over Mitchell’s objections, the district court adopted the
magistrate judge’s report and denied Mitchell’s habeas corpus petition. However, the court did grant
Mitchell a certificate of appealability as to the Confrontation Clause claim. With respect to that
claim, the district court determined that the state courts did not unreasonably refuse to extend
Crawford v. Washington, 541 U.S. 36 (2004), to exclude the autopsy report admitted at Mitchell’s
trial.
We review the district court’s denial of Mitchell’s habeas corpus petition de novo. Amos v.
Renico, 683 F.3d 720, 726 (6th Cir.), cert. denied, 133 S. Ct. 664 (2012). A federal court may not
grant habeas corpus relief with respect to a “claim that was adjudicated on the merits in State court
proceedings” unless the state court’s adjudication “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.” 28 U.S.C. § 2254(d)(1). “To analyze whether a state court
decision is contrary to or an unreasonable application of clearly established Supreme Court
precedent, courts look only to the holdings of the Supreme Court’s decisions as of the time of the
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Mitchell v. Kelly
relevant state court decision.” Moore v. Mitchell, __ F.3d __, Nos. 08-3167, 08-3230, 2013 WL
673524, at *5 (6th Cir. Feb. 26, 2013).
In Crawford, the Supreme Court held that the Sixth Amendment’s Confrontation Clause
prohibits the “admission of testimonial statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior opportunity for cross-examination.”
Crawford, 541 U.S. at 53–54. The Supreme Court left “for another day any effort to spell out a
comprehensive definition of ‘testimonial.’” Id. at 68. While subsequent Supreme Court decisions
addressed whether forensic laboratory reports are testimonial, see Bullcoming v. New Mexico, 131
S. Ct. 2705 (2011); Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009), at the time of Mitchell’s
direct appeal, no Supreme Court precedent clearly established that an autopsy report constitutes
testimonial evidence. See Vega v. Walsh, 669 F.3d 123, 127–28 (2d Cir. 2012); Nardi v. Pepe, 662
F.3d 107, 112 (1st Cir. 2011).
In affirming the admission of the autopsy report and Dr. Graham’s testimony, the Ohio Court
of Appeals relied on the Ohio Supreme Court’s decision in State v. Craig, 853 N.E.2d 621 (Ohio
2006), which addressed the question of whether an autopsy report is testimonial under Crawford.
Craig adopted the majority view that autopsy reports are admissible as nontestimonial business
records. Mitchell, 2008 WL 850179, at *17 (citing Craig, 853 N.E.2d at 638–39). We agree with
the district court that the decision of the Ohio Court of Appeals was not an unreasonable application
of Crawford given the lack of Supreme Court precedent establishing that an autopsy report is
testimonial.
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Mitchell contends that the Supreme Court in Davis v. Washington, 547 U.S. 813, 822 (2006),
provided precedent that a statement is testimonial if its primary purpose “is to establish or prove past
events potentially relevant to later criminal prosecution.” According to Mitchell, every autopsy
report is prepared with the knowledge that the pathologist might be called as a witness in a criminal
prosecution. Mitchell, however, overstates the narrow holding of Davis:
Statements are nontestimonial when made in the course of police interrogation under
circumstances objectively indicating that the primary purpose of the interrogation is
to enable police assistance to meet an ongoing emergency. They are testimonial
when the circumstances objectively indicate that there is no such ongoing emergency,
and that the primary purpose of the interrogation is to establish or prove past events
potentially relevant to later criminal prosecution.
Id. As Mitchell’s case did not involve statements made in response to police interrogation, Davis
would have given little guidance to the Ohio Court of Appeals.
For the foregoing reasons, we affirm the district court’s judgment denying Mitchell’s habeas
corpus petition.
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