Ernest Likely v. PAUL RUANE, Superintendent, Pondville Correctional Center

Of the District of Maine, sitting by designation. *
United States Court of Appeals
For the First Circuit
No. 10-1262
ERNEST LIKELY,
Petitioner, Appellant,
v.
PAUL RUANE, Superintendent, Pondville
Correctional Center
Respondent, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Patti B. Saris, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez, Circuit Judge,
and Woodcock, District Judge. *
Michael A. Nam-Krane, for petitioner.
James J. Arguin, Assistant Attorney General, with whom
Martha Coakley, Attorney General, was on brief for respondent.
April 25, 2011

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LYNCH, Chief Judge. Supreme Court decisions foreclose
this habeas corpus petition brought under 28 U.S.C. § 2254, which
was correctly denied by the district court.
Petitioner, Ernest Likely, was convicted on May 17, 2002
in Massachusetts of distributing a controlled substance--cocaine--
in violation of Mass. Gen. Laws ch. 94C, § 32A(c). On appeal, he
argued it was error to admit evidence that the substance was
cocaine on the ground that the admission at trial of the chemical
certificate of analysis with an affidavit but without the testimony
of the chemist violated his Confrontation Clause rights under the
Sixth Amendment. He relied on the 2004 Supreme Court decision in
Crawford v. Washington, 541 U.S. 36 (2004), which had been issued
while his appeal was pending.
The state Appeals Court rejected his federal
constitutional argument in a decision dated November 16, 2005, and
so adjudicated the claim on its merits. See Commonwealth v.
Likely, 65 Mass. App. Ct. 1103 (2005). On December 21, 2005, the
Massachusetts Supreme Judicial Court denied Likely's petition for
Further Appellate Review. See Commonwealth v. Likely, 840 N.E.2d
56 (Mass. 2005). That meant his conviction became final under
state law as of the date the state Appeals Court issued its
rescript. See Foxworth v. St. Amand, 929 N.E.2d 286, 291 (Mass.
2010).

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In 2010, the Supreme Court re-affirmed the reasoning of 1
Melendez-Diaz in Briscoe v. Virginia, 130 S. Ct. 1316 (2010).
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Some years later, the Supreme Court decided Melendez-Diaz
v. Massachusetts, 129 S. Ct. 2527 (2009). Melendez-Diaz supported
Likely's claim of a Confrontation Clause violation. It held that
such analysts' affidavits were testimonial statements, the analysts
were witnesses for purposes of the Sixth Amendment, and that
analysts therefore had to be available for examination and
confrontation.1
If Melendez-Diaz had been decided before his state
conviction became final and if the state courts had properly been
presented with a Melendez-Diaz claim, the state courts would have
evaluated his claims under that standard. See Foxworth v. St.
Amand, 570 F.3d 414, 431 (1st Cir. 2009). But the claim was not so
analyzed because Melendez-Diaz had not yet been decided.
The question on petition for habeas relief is a very
different one. It is whether Likely has made out a claim for
relief under the federal habeas corpus act, as amended by the
Antiterrorism and Effective Death Penalty Act of 1996, (AEDPA), 28
U.S.C. § 2254. See Evans v. Thompson, 518 F.3d 1, 6 (1st Cir.
2008) cert. denied, 129 S. Ct. 255 (2008) (upholding
constitutionality of AEDPA).
The pertinent text of AEDPA, at § 2254(d), states:
An application for a writ of habeas corpus on
behalf of a person in custody pursuant to the

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The terms of 28 U.S.C. § 2254(d)(2) are not at issue in 2
this case.
"In most cases, . . . the date of finality of the state 3
court conviction determines the time line to be used for
determining what Supreme Court decisions comprise the corpus of
this 'clearly established Federal law.'" Foxworth v. St. Amand,
570 F.3d 414, 430 (1st Cir. 2009). There is some ambiguity, not
relevant here, as to whether the relevant time is at the time the
state court decision became final or as of the time of the state
court decision. See id.; Brown v. Greiner, 409 F.3d 523, 533 n.3
(2d Cir. 2005).
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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 . . . .
The Supreme Court has firmly reiterated that this language "bars
relitigation of any claim 'adjudicated on the merits' in state
court subject only to the exceptions in §§ 2254(d)(1) and (d)(2)."
Harrington v. Richter, 131 S. Ct. 770, 784 (2011) (emphasis
added).2
This habeas petition fails for reasons having to do with
the clearly established federal law requirement. First, the
relevant period for determining what was "clearly established
Federal law" ended here well before Melendez-Diaz was decided.3
State court decisions under AEDPA are measured against the Supreme
Court's precedents that exist as of "the time of the relevant
state-court decision." Lockyer v. Andrade, 538 U.S. 63, 71 (2003)

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Thus, the habeas petition, filed in 2006, should not have 4
been stayed until after the Supreme Court decided Melendez-Diaz,
but should have been dismissed.
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(quoting Williams v. Taylor, 529 U.S. 362, 412 (2000)). In Cullen
v. Pinholster, No. 09-1088, 2011 WL 1225705 (Apr. 4, 2011), the
Supreme Court reaffirmed that review under § 2254(d)(1) "requires
an examination of the state-court decision at the time it was
made," id. at *8, and focuses on what a state court knew and did at
the time, id. at *10. Cullen was, it is true, addressed to the
different question of whether the record under habeas review is
limited to the record "in existence at that same time-- i.e., the
record before the state court." Id. at *8. But its logic
reinforces our first point.
For purposes of this case, the more important point is
that during the relevant period, there was no "clearly established
Federal law, as determined by the Supreme Court of the United
States," 28 U.S.C. § 2254(d)(1), as to whether admission of this
evidence without the chemist being a witness violated the
Confrontation Clause. If the federal law is not clearly
established by the United States Supreme Court, then per force the
state court decision cannot be either contrary to or an
unreasonable application of clearly established federal law.4
Wright v. Van Patten, 552 U.S. 120, 126 (2008) (rejecting petition
under § 2254(d) because "our cases give no clear answer to the
question presented, let alone one in [petitioner's] favor"); Carey

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v. Musladin, 549 U.S. 70, 77 (2006) ("Given the lack of holdings
from this Court regarding the [issue presented by the habeas
petition], it cannot be said that the state court 'unreasonabl[y]
appli[ed] clearly established Federal law.'" (alteration in
original) (quoting 28 U.S.C. § 2254(d)(1))).
We reject Likely's argument that the analysis in Crawford
clearly established that the Confrontation Clause barred the
procedure used here in the state court. The phrase "clearly
established Federal law" refers to holdings, as opposed to dicta,
as of the time of the relevant state court decision. Williams, 529
U.S. at 412. Crawford contained no holding that supports Likely's
petition. In Crawford, the Supreme Court specifically left "for
another day any effort to spell out a comprehensive definition of
'testimonial,'" and acknowledged that "our refusal to articulate a
comprehensive definition in this case will cause interim
uncertainty." Crawford, 541 U.S. at 68 & n.10. The issue
presented in this case was exactly one of those areas of
uncertainty. When the Supreme Court itself acknowledges that an
issue has not been resolved and is fairly debatable, there is no
argument left that the state court's decision is contrary to or an
unreasonable application of "clearly established" Supreme Court
precedent. Foxworth, 570 F.3d at 436; L'Abbe v. DiPaolo, 311 F.3d

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In Foxworth, we observed that the "closeness of the 5
question left open [by then existing Supreme Court precedent] is
emphasized by the fact that in the subsequent [Supreme Court
decision], four justices dissented." Foxworth, 570 F.3d at 436
n.8. Likewise, that four justices dissented in Melendez-Diaz
reaffirms that Crawford had not resolved the question Melendez-Diaz
addressed.
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93, 98 (1st Cir. 2002). Indeed, certiorari was granted in 5
Melendez-Diaz precisely so the Supreme Court could resolve the
question presented. On March 17, 2008, the Supreme Court granted
certiorari in Melendez-Diaz to review the following question:
Whether a state forensic analyst's laboratory
report prepared for use in a criminal
prosecution is "testimonial" evidence subject
to the demands of the Confrontation Clause as
set forth in Crawford . . . .
Petition for Writ of Certiori, Melendez-Diaz, No. 07-591 (Oct. 26,
2007), 2007 WL 3252033, at *i; Melendez-Diaz, 552 U.S. 1256 (2008).
To put it differently, Crawford did not clearly establish
the answer to the question. The conclusion that there was no
pertinent clearly established law on the issue is itself not close,
and that disposes of this habeas petition.
The denial of the petition is affirmed.

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