Frederick Grim v. Marshall Fisher

Case: 15-60720 Document: 00513410316 Page: 1 Date Filed: 03/08/2016

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit

FILED
No. 15-60720 March 8, 2016
Lyle W. Cayce
FREDERICK DENELL GRIM, Clerk

Petitioner - Appellee,

v.

MARSHALL L. FISHER, COMMISSIONER, MISSISSIPPI DEPARTMENT
OF CORRECTIONS; TIMOTHY OUTLAW, Warden, Marshall County
Correctional Facility,

Respondents - Appellants.

Appeal from the United States District Court
for the Northern District of Mississippi

Before JONES and SMITH, Circuit Judges, and FITZWATER *, District Judge.
FITZWATER, District Judge:
This appeal from a judgment granting habeas relief based on the Sixth
Amendment Confrontation Clause turns on whether, as the district court held,
the Supreme Court=s decision in Bullcoming v. New Mexico, 564 U.S. ___, 131
S.Ct. 2705 (2011), clearly establishes as federal law that, when the prosecution
introduces a forensic laboratory report in evidence, the criminal defendant has
a right to confront the analyst who performed the underlying analyses. 1 The

* District Judge of the Northern District of Texas, sitting by designation.

1 Bullcoming recognizes that, under Crawford v. Washington, 541 U.S. 36 (2004), the
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question presented in this case is whether Bullcoming clearly establishes that
the prosecution cannot introduce a forensic laboratory report containing a
testimonial certification of an analystCmade for the purpose of proving a
particular factCthrough the testimony of a technical reviewer who verified the
analyst=s findings, agreed with a reasonable degree of scientific certainty with
the analyst=s examinations and the results of the analyst=s report, and signed
the certification. Because we hold that Bullcoming does not clearly establish
this as federal law, we reverse the district court=s judgment and render
judgment denying habeas relief.
I
Petitioner-appellee Frederick Denell Grim (AGrim@) was convicted in
Mississippi circuit court of the offense of sale of cocaine as a habitual and
second and subsequent offender and sentenced to life imprisonment without
parole. The trial judge permitted Erik Frazure (AFrazure@), a forensic scientist
with the Mississippi Crime Laboratory who specialized in drug analysis or
controlled substance analysis, to testify over Grim=s objection that the
substance in question was cocaine base. 2 Frazure was a technical reviewer
who had neither observed nor participated in the testing of the substance.

accused need not be confronted with the analyst if the analyst is unavailable at trial and the
accused had an opportunity before trial to cross-examine the analyst. Bullcoming, 131 S.Ct.
at 2713; see Crawford, 541 U.S. at 59. Because this exception is not at issue in this appeal,
we assume that it applies and do not refer to it except where the context requires.

2 Grim did not object to Frazure=s testifying as an expert in forensic science and drug
analysis.
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Gary Fernandez (AFernandez@), the analyst who performed the testing and
generated the report concluding that the substance was cocaine base, did not
testify. See Grim v. State, 102 So.3d 1073, 1075, 1077 (Miss. 2012), cert. denied,
___ U.S. ___, 133 S.Ct. 2856 (2013).
At trial, Frazure briefly described his education, background, and
experience working in the Mississippi Crime Laboratory, he explained the
process followed when an item is received for forensic examination, and he
testified concerning the procedures followed by the analyst assigned to the
case. According to Frazure, after the analyst performs examinations on an
item of evidence to determine whether it contains a controlled substance, the
analyst prepares a report containing his conclusions. The report is given to a
technical reviewer like Frazure, who looks at the report and all of the data,
including everything the analyst did to the item of evidence. The technical
reviewer ensures that the analyst did proper examinations, that the analyst=s
interpretation of the results of the examinations is correct, that the conclusion
of the analyst from the collective examinations is correct, and that the
conclusion is conveyed in an understandable manner in the report. The
purpose of having a technical reviewer is part of the quality assurance and
quality control methods within the crime laboratory and ensures that the
laboratory is doing quality work or correct work each and every time.
After offering Frazure=s foundational testimony, the State sought to
introduce in evidence the crime lab report containing Fernandez=s signature
and Frazure=s signature and initials, and the item of evidence alleged to be
cocaine. When the State attempted to introduce Frazure=s testimony

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concerning the tests performed, Grim objected on confrontation grounds,
contending that he was entitled to have the person who actually analyzed the
drugs present for questioning, and that Frazure was merely a technical
reviewer who went through the process of quality assurance but did not do the
analysis. In a hearing outside the jury=s presence, Frazure testified that he did
not physically analyze the item of evidence; instead, Fernandez completed his
examinations using a gas chromatograph and mass spectrometer and
generated a work packet containing the results. Frazure then reviewed the
work packet to ensure that Fernandez had done the proper tests for this type
of evidence. Frazure testified:
I took that work packet and I reviewed the work
packet to ensure that he did the proper tests, which
was in this case a color test and a [gas chromatograph,
mass spectrometer], ensured that those were both
proper tests for this type of evidence, and I looked to
see the results that he had and made sure the results
from those two examinations did coincide with the
results that he C or the conclusion that he formed, and
I made sure that that C the conclusion that he formed
with his report was correct[] with the conclusion that
was in his work packet.

In response to questions from the trial judge, Frazure confirmed that he had
reviewed the results of Fernandez=s tests and signed off on them. The trial
judge then concluded that Frazure had enough dealings with the technical
review of the cocaine to be allowed to testify.
After the trial judge made this ruling, the State offered Frazure=s
testimony that he was the technical reviewer in the case; he reviewed the work

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packet and report that Fernandez had generated; the work packet contained
all the examinations that were performed on the item of evidence and the
results of any data generated for the particular tests; Frazure looked at the
examinations to ensure that the proper ones were done; Frazure looked at the
results to ensure that Fernandez had interpreted the results correctly; and
Frazure looked to ensure that the results of the examinations coincided with
the conclusion in the report, and that this was stated in a readable or
understandable manner. Frazure then testified over Grim=s objection that the
item of evidence contained cocaine base, and that the amount submitted to the
laboratory was 3.2 grams.
On cross-examination, Grim=s counsel established that Fernandez had
actually done the testing of the item of evidence and determined that it was
cocaine; Fernandez was the case analyst; although Frazure was likely present
within the laboratory when the testing was done, he did not actually test the
evidence in question or observe the testing; Frazure checked the results of all
of Fernandez=s examinations but did not do any firsthand scientific analysis of
the item; and he basically analyzed the paperwork to ensure that Fernandez
had followed the proper procedure to obtain the result. Frazure also testified
that Fernandez did proper examinations on the item of evidence, and that
Frazure could look at the data generated from the examinations, and Awith a
reasonable degree of scientific certainty I agree with his examinations and the
results of hisCor the results of the report.@ On redirect examination, Frazure
testified that, after going over the work that Fernandez had done, Frazure had
no doubts based on the paperwork that the item in question was cocaine.

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The jury convicted Grim, and his conviction and sentence were affirmed
on appeal. Grim v. State, 102 So.3d 1123 (Miss. Ct. App. 2010), aff=d, 102 So.3d
1073 (Miss. 2012). The Supreme Court of the United States denied Grim=s
petition for a writ of certiorari. Grim v. State, ___ U.S. ___, 133 S.Ct. 2856
(2013).
While Grim=s petition for a writ of certiorari to the Supreme Court of
Mississippi was pending, the Supreme Court of the United States decided
Bullcoming. Grim filed a supplemental brief in which he argued, in pertinent
part, that, under Mississippi case law and Bullcoming, his right of
confrontation was violated when the State was permitted to present a technical
reviewer to testify regarding tests that the witness had not performed and for
which the witness had not been present when the tests were performed.
The Supreme Court of Mississippi granted Grim=s petition for a writ of
certiorari Ato examine whether the trial court erred by allowing a laboratory
supervisor, who neither observed nor participated in the testing of the
substance, to testify in place of the analyst who had performed the testing.@
Grim, 102 So.3d at 1075. After discussing federal and Mississippi
Confrontation Clause jurisprudence, including Melendez-Diaz v.
Massachusetts, 557 U.S. 305 (2009), Bullcoming, and one of its own decisions,
Conners v. State, 92 So.3d 676 (Miss. 2012), the court concluded that A[n]one of
these cases stands for the proposition that, in every case, the only person
permitted to testify is the primary analyst who performed the test and
prepared the report.@ Id. at 1079. The court then explained that it Ahas said
that there are instances in which >someone other than the primary analyst who

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conducted the test can testify regarding the results,=@ id. (quoting Conners, 92
So.3d at 690), and that it applies a two-part test “[t]o determine if a witness
satisfies the defendant=s right to confrontation.@ Id. (citing McGowen v. State,
859 So.2d 320 (Miss. 2003)). Under this bipartite test, the Supreme Court of
Mississippi asks, first, A>whether the witness has >intimate knowledge= of the
particular report, even if the witness was not the primary analyst or did not
perform the analysis firsthand.=@ Id. (quoting Conners, 92 So.3d at 690). The
court then asks, second, A>whether the witness was >actively involved in the
production= of the report at issue.=@ Id. (quoting Conners, 92 So.3d at 690). A
witness must A>be knowledgeable about both the underlying analysis and the
report itself to satisfy the protections of the Confrontation Clause.=@ Id.
(quoting Conners, 92 So.3d at 690).
The court then explained that, in McGowen, it held that there is no Sixth
Amendment violation A>when the testifying witness is a court-accepted expert
in the relevant field who participated in the analysis in some capacity, such as
by performing procedural checks.=@ Id. (quoting McGowen, 859 So.2d at 339)
(emphasis omitted). In McGowen Aalthough one analyst had performed most
of the testing, a second analyst who had assisted in the testing and in
preparing the report was qualified to testify about the crime lab report@
because A[t]he testifying analyst was >actively involved in the production of the
report and had intimate knowledge of the analyses even though she did not
perform the tests first hand.=@ Id. at 1079-80 (quoting McGowen, 859 So.2d at
340).
The Supreme Court of Mississippi noted that, in Brown v. State, 999

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So.2d 853 (Miss. Ct. App. 2008), the Mississippi Court of Appeals had correctly
applied the principles from McGowen. In Brown the testifying analyst was the
laboratory manager rather than the primary analyst who had performed the
tests at issue. But A[t]he testifying analyst had reviewed the work of the
analyst who had performed the DNA tests, had conducted her own analysis of
the testing, and had reached her own conclusions.@ Id. at 1080 (citing Brown,
999 So.2d at 860). The Court of Appeals concluded that the laboratory
manager=s testimony did not violate the defendant=s right of confrontation
because the manager was sufficiently involved with the analysis and overall
process.
Regarding Grim=s Confrontation Clause challenge, the Supreme Court of
Mississippi concluded that although Frazure was the laboratory supervisor
and Awas not involved in the actual testing, he had reviewed [Fernandez=s]
report for accuracy and signed the report as the >case technical reviewer.=@
Grim, 102 So.3d at 1081. The court held that AFrazure satisfied the McGowen
test because he had >intimate knowledge= about the underlying analysis and
the report prepared by the primary analyst.@ Id. He was Amuch like the
laboratory manager in Brown, who the Court of Appeals held was >sufficiently
involved with the analysis and overall process= so that his testimony did not
violate the defendant=s Sixth Amendment right of confrontation.@ Id. (quoting
Brown, 999 So.2d at 861).

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Frazure was able to explain competently the types of
tests that were performed and the analysis that was
conducted. He had performed Aprocedural checks@ by
reviewing all of the data submitted to ensure that the
data supported the conclusions contained in the
report. Based on the data reviewed, Frazure had
reached his own conclusion that the substance tested
was cocaine. His conclusion was consistent with the
report, and he had signed the report as the technical
reviewer. Frazure satisfied the McGowen test because
he had Aintimate knowledge@ about the underlying
analysis and the report prepared by the primary
analyst.
Id.
Grim filed a timely petition for a writ of habeas corpus in federal district
court, 3 contending that the decision of the Supreme Court of Mississippi
affirming his conviction was contrary to, or an unreasonable application of,
Bullcoming. The petition was referred to the magistrate judge, who
recommended that the petition be granted. In his report and recommendation,
the magistrate judge first discussed the decision of the Supreme Court of
Mississippi and its reliance on McGowen and Brown. He concluded that Athere
[was] little doubt that the Supreme Court of Mississippi was entirely correct
in its application of Mississippi law.@ Grim v. Epps, 2015 WL 5883163, at *8
(N.D. Miss. Apr. 6, 2015), rec. adopted, 2015 WL 5883163, at *1 (N.D. Miss.
Oct. 8, 2015) (collectively, AGrim I@), rev=d, ___ F.3d ___ (5th Cir. 2016). The
magistrate judge then discussed the reasoning on which the Supreme Court of

3 Grim filed an earlier petition that he voluntarily dismissed without prejudice.
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Mississippi had relied to distinguish Grim=s case from Bullcoming.
Turning to the determination of clearly established law, the magistrate
judge framed the question as being Awhether clearly established federal law
forbids introducing a forensic lab report into evidence through the testimony
of an analyst who reviewed the raw data and report, but neither observed nor
performed any of the underlying analyses.@ Id. at *9. After discussing
Bullcoming, the magistrate judge considered the Acontrary to@ provision of §
2254(d). He concluded that A[w]hen the prosecution introduces a forensic
laboratory report into evidence, Bullcoming clearly establishes that the
criminal defendant has a right to confront the analyst who performed the
underlying analyses.@ Id. at *11. The magistrate judge concluded that the
decision of the Supreme Court of Mississippi was Acontrary to@ clearly
established federal law because that court held that Grim=s right of
confrontation was satisfied on the basis that Frazure had intimate knowledge
about the underlying analysis and the report prepared by the analyst who
performed the analysis, but Bullcoming requires more than mere familiarity
with the underlying analyses and laboratory procedures. The magistrate judge
did not reach the Aunreasonable application@ provision of § 2254(d) because he
had already concluded that the Supreme Court of Mississippi failed to identify
the correct legal principle. 4
The district judge conducted de novo review and adopted the magistrate
judge=s report and recommendation. Her order focused primarily on

4 The magistrate judge then concluded that Grim=s claim was not procedurally barred
and that the error in admitting Frazure=s testimony was not harmless.
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respondents-appellants= two objections to the report and recommendation. But
in overruling the objection that Bullcoming did not clearly establish federal
law as to the amount of involvement required by the testifying witness, the
district judge held that, as the report and recommendation recognized,
Bullcoming A>clearly establishes that the criminal defendant has a right to
confront the analyst who performed the underlying analyses.=@ Grim I, 2015
WL 5883163, at *1 (quoting magistrate judge report and recommendation).
The district judge granted the petition for a writ of habeas corpus and ordered
the State of Mississippi to commence a new prosecution and/or trial of Grim
within 120 days; otherwise, he was to be released.
Respondents-appellants appeal, contending that the decision of the
Supreme Court of Mississippi is neither contrary to, nor an unreasonable
application of, clearly established federal law. A panel of this court granted
their motion for a stay pending appeal and ordered expedited briefing and oral
argument.
II
The question whether Grim is entitled to habeas relief is governed by the
Antiterrorism and Effective Death Penalty Act of 1996 (AAEDPA@).
Under AEDPA, a federal court may not issue a
writ of habeas corpus for a state conviction 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; or
(2) resulted in a decision that was based
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on an unreasonable determination of the
facts in light of the evidence presented in
the State court proceedings.

Young v. Stephens, 795 F.3d 484, 489 (5th Cir. 2015) (quoting 28 U.S.C. §
2254(d)) (denying certificate of appealability), petition for cert. filed, ___
U.S.L.W. ___ (U.S. Dec. 9, 2015) (No. 15-7349).
Analyzing § (d)(1), a state court=s decision is contrary
to clearly established federal law if: (1) the state court
applies a rule that contradicts the governing law
announced in Supreme Court cases, or (2) the state
court decides a case differently than the Supreme
Court did on a set of materially indistinguishable
facts. Similarly, § (d)(2) requires that we accord the
state trial court substantial deference. If reasonable
minds reviewing the record might disagree about the
finding in question, on habeas review that does not
suffice to supersede the trial court=s determination.

Id. at 489-90 (citations, internal quotation marks, brackets, and ellipsis
omitted). 5 ASection 2254(d) sets forth a >highly deferential standard for
evaluating state-court rulings, which demands that state-court decisions be
given the benefit of the doubt.=@ Miller v. Thaler, 714 F.3d 897, 901 (5th Cir.
2013) (quoting Cullen v. Pinholster, 563 U.S. 170, 181 (2011)) (citation and
some internal quotation marks omitted). As the Supreme Court reemphasized
this Term: “[t]his Court, time and again, has instructed that AEDPA, by
setting forth necessary predicates before state-court judgments may be set

5 Section 2254(d)(2) is not implicated here.
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aside, ‘erects a formidable barrier to federal habeas relief for prisoners whose
claims have been adjudicated in state court.’” White v. Wheeler, ___ U.S. ___,
136 S.Ct. 456, 460 (2015) (per curiam) (quoting Burt v. Titlow, 571 U.S. ___,
134 S.Ct. 10, 16 (2013)). “Under § 2254(d)(1), a state prisoner must show that
the state court’s ruling on the claim being presented in federal court was so
lacking in justification that there was an error well understood and
comprehended in existing law beyond any possibility for fairminded
disagreement.” Id. (quoting White v. Woodall, 572 U.S. ___, 134 S.Ct. 1697,
1702 (2014)) (internal quotation marks omitted). AIf this standard is difficult
to meet, that is because it was meant to be.@ Harrington v. Richter, 562 U.S.
86, 102 (2011).
In this appeal from a judgment granting habeas relief, A[w]e review the
district court=s conclusions of law de novo and findings of fact for clear error.@
Young, 795 F.3d at 490 (citing Thompson v. Cain, 161 F.3d 802, 805 (5th Cir.
1998)). When examining mixed questions of law and fact, we adhere to a de
novo standard under which we independently apply the law to the facts found
by the district court, as long as the district court=s factual findings are not
clearly erroneous. Fratta v. Quarterman, 536 F.3d 485, 499 (5th Cir. 2008)
(citing Barrientes v. Johnson, 221 F.3d 741, 750 (5th Cir. 2000)). The question
whether a defendant=s Confrontation Clause rights were violated is a mixed
question of law and fact. Id. (citing Horn v. Quarterman, 508 F.3d 306, 312
(5th Cir. 2007)).

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III
AEDPA Arequires federal habeas courts to deny relief that is contingent
upon a rule of law not clearly established at the time the state conviction
became final.@ Williams v. Taylor, 529 U.S. 362, 380 (2000). Thus our first
taskCand, as it turns out, our lastCis to decide what constitutes Aclearly
established federal law@ in the context of this Confrontation Clause case. See
Lockyer v. Andrade, 538 U.S. 63, 71 (2003) (quoting 28 U.S.C. § 2254(d)) (AAs a
threshold matter here, we first decide what constitutes >clearly established
Federal law.=@); see also Yarborough v. Alvarado, 541 U.S. 652, 660 (2004) (AWe
begin by determining the relevant clearly established law.@); Chester v. Thaler,
666 F.3d 340, 345 (5th Cir. 2011) (citation omitted) (AThe first step in
determining whether a state court unreasonably applied clearly established
federal law is to identify the Supreme Court holding that the state court
supposedly unreasonably applied.@).
A
Under § 2254(d)(1), clearly established law refers to Athe governing legal
principle or principles set forth by the Supreme Court at the time the state
court render[ed] its decision.@ Lockyer, 538 U.S. at 71-72 (citing Williams, 529
U.S. at 405, 413). It includes only the Aholdings, as opposed to the dicta,@ of
these Supreme Court opinions. Williams, 529 U.S. at 412. When determining
what is clearly established federal law, we are not permitted to frame Supreme
Court precedents at a high level of generality; otherwise, we Acould transform
even the most imaginative extension of existing case law into >clearly
established Federal law, as determined by the Supreme Court.=@ Nevada v.

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Jackson, ___ U.S. ___, 133 S.Ct. 1990, 1994 (2013) (per curiam) (quoting 28
U.S.C. § 2254(d)(1)).
B
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held
that the Confrontation Clause bars the admission of Atestimonial statements@
made by a non-testifying witness, unless the witness is unavailable and the
defendant had a prior opportunity to cross-examine him. Id. at 59.
In Melendez-Diaz, 557 U.S. 305, the Court concluded that an analyst=s
sworn certificatesCoffered by the prosecution to prove that the results of
forensic analysis showed that the seized substances were cocaine, and created
specifically to serve as evidence in a criminal proceedingCwere Atestimonial,@
and that A[a]bsent a showing that the analysts were unavailable to testify at
trial and that petitioner had a prior opportunity to cross-examine them,
petitioner was entitled to be >confronted with= the analysts at trial.@ Id. at 311
(quoting Crawford, 541 U.S. at 54). The Court viewed the case as involving
Alittle more than the application of our holding in Crawford.@ Id. at 329.
Melendez-Diaz Arefused to create a >forensic evidence= exception to this rule.@
Bullcoming, 131 S.Ct. at 2713 (citing Melendez-Diaz, 129 S.Ct. at 2536-38).
In Bullcoming the Aquestion presented [was] whether the Confrontation
Clause permits the prosecution to introduce a forensic laboratory report
containing a testimonial certificationCmade for the purpose of proving a
particular factCthrough the in-court testimony of a scientist who did not sign
the certification or perform or observe the test reported in the certification.@
Id. at 2710. The defendant, Donald Bullcoming (ABullcoming@), was charged

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with driving while under the influence of intoxicating liquor. At his trial, the
prosecution introduced the Report of Blood Alcohol Analysis (ABAC report@) of
the New Mexico Department of Health, Scientific Laboratory Division (ASLD@).
Curtis Caylor (ACaylor@), an SLD forensic analyst, had analyzed Bullcoming=s
blood sample. Caylor completed and signed the Acertificate of analyst@ portion
of the report, certifying that: the blood alcohol content (ABAC@) in Bullcoming=s
sample was 0.21 grams per hundred milliliters, an inordinately high level; he
had received the blood sample intact, and the seal was broken in the
laboratory; his statements in the report were correct; and he had followed the
procedures set out on the reverse of the report, including that he had noted any
circumstances or conditions that might affect the integrity of the sample or
otherwise affect the validity of the analysis. Id. at 2710-11. Caylor had been
placed on unpaid leave, and the prosecution did not call him to testify at trial.
Instead, Gerasimos Razatos (ARazatos@), an SLD scientist Awho had neither
observed nor reviewed Caylor=s analysis,@ was allowed to testify in his place.
Id. at 2712. The prosecution proposed to introduce Caylor=s finding as a
business record during Razatos= testimony.
The Bullcoming Court held that the BAC report was testimonial, id. at
2717, and that Razatos= testimony did not satisfy the Confrontation Clause, id.
at 2716 (AIn short, when the State elected to introduce Caylor=s certification,
Caylor became a witness Bullcoming had the right to confront.@). The Court
began by discussing its decisions in Crawford and Melendez-Diaz, noting that
the State never asserted that Caylor, the analyst who signed the certification,
was unavailable, that the record showed only that Caylor was placed on unpaid

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leave for an undisclosed reason, and that Bullcoming did not have an
opportunity to cross-examine Caylor. The Court concluded that Crawford and
Melendez-Diaz weighed heavily in Bullcoming=s favor. It then addressed why
Razatos= appearance did not meet the Confrontation Clause requirement and
why the State was mistaken in arguing that the BAC report was non-
testimonial and therefore not subject to the Confrontation Clause.
The Court rejected the holding of the New Mexico Supreme Court that
Razatos could testify in place of Caylor because Caylor was simply transcribing
the result generated by the gas chromatograph machine, that he was
presenting no interpretation and exercising no independent judgment, and
that his role was that of a mere scrivener. The Court explained that Caylor=s
certification involved more specific representations about Bullcoming=s blood
sample than a machine-generated number, and that A[t]hese representations,
relating to past events and human actions not revealed in raw, machine-
produced data, are meet for cross-examination.@ Id. at 2714.
The Court then posed and rejected a hypothetical that illustrated the red
flags raised by the potential ramifications of the New Mexico Supreme Court=s
reasoning. The Court disagreed with the premise that the prosecution could
call in place of a police officer who had recorded an objective factCsuch as an
observation of a factual condition or eventCan officer other than the one who
made the observation, provided that the testifying officer was equipped to
testify about any technology that the observing officer deployed and the police
department=s standard operating procedures.
The Court next declined to credit the New Mexico Supreme Court=s

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statement that the number registered by the gas chromatograph machine did
not call for Caylor to interpret or exercise independent judgment. And it
reiterated that the comparative reliability of an analyst=s testimonial report
drawn from machine-produced data did not overcome the Sixth Amendment
bar, considering that Crawford had settled that the obvious reliability of a
testimonial statement did not dispense with the Confrontation Clause.
The Court also rejected the New Mexico Supreme Court=s belief that
Razatos could substitute for Caylor on the basis that Razatos qualified as an
expert witness with respect to the gas chromatograph machine and the SLD=s
laboratory procedures. This was because Razatos= surrogate testimony could
not convey what Caylor knew or observed about the events his certification
concerned, such as the particular test and testing process he employed, nor
could Razatos= testimony expose any lapses or lies on the certifying analyst=s
part. Significantly, Razatos had no knowledge of the reason why Caylor had
been placed on unpaid leave, thus precluding Bullcoming=s counsel from
questioning Caylor about whether he was placed on unpaid leave due to
incompetence, evasiveness, or dishonesty. “Nor did the State assert that
Razatos had any >independent opinion= concerning Bullcoming=s BAC.@ Id. at
2716. More fundamentally, the Confrontation Clause Adoes not tolerate
dispensing with confrontation simply because the court believes that
questioning one witness about another=s testimonial statements provides a fair
enough opportunity for cross-examination.@ Id.
The Court also rejected the State=s contention that the SLD=s blood-
alcohol analysis reports were non-testimonial, concluding that Melendez-Diaz

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Aleft no room for that argument.@ Id.; id. at 2717 (AIn all material respects, the
laboratory report in this case resembles those in Melendez-Diaz.@); id. (AIn sum,
the formalities attending the >report of blood alcohol analysis= are more than
adequate to qualify Caylor=s assertions as testimonial.@). The Court agreed
with the New Mexico Supreme Court, which had held that Caylor=s report was
testimonial.
C
In Bullcoming the Court did not clearly establish the categorical rule
that the district court effectively recognized in this case: that when the
prosecution introduces a forensic laboratory report containing a testimonial
certificationCmade for the purpose of proving a particular factCthe only
witness whose in-court testimony can satisfy the Confrontation Clause is the
analyst who performed the underlying analyses contained in the report.
First, this interpretation of Bullcoming requires that we ignore the
question presented in Bullcoming. The Court stated that
[t]he question presented is whether the Confrontation
Clause permits the prosecution to introduce a forensic
laboratory report containing a testimonial
certificationCmade for the purpose of proving a
particular factCthrough the in-court testimony of a
scientist who did not sign the certification or perform
or observe the test reported in the certification.

Bullcoming, 131 S.Ct. at 2710.
We granted certiorari to address this question: Does
the Confrontation Clause permit the prosecution to
introduce a forensic laboratory report containing a
testimonial certification, made in order to prove a fact
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No. 15-60720

at a criminal trial, through the in-court testimony of
an analyst who did not sign the certification or
personally perform or observe the performance of the
test reported in the certification.

Id. at 2713. Neither formulation limits the question presented to whether the
only scientist or analyst who can testify is the scientist or analyst who
performed the underlying analyses.
Second, at most, the holding of Bullcoming clearly establishes that, when
one scientist or analyst performs a test reported in a forensic laboratory report
containing a testimonial certificationCmade for the purpose of proving a
particular factCand the prosecution introduces the report and certification to
prove that particular fact, the Confrontation Clause forbids the prosecution
from proving that particular fact through the in-court testimony of a scientist
or analyst who neither signed the certification nor performed or observed the
test reported in the certification. Bullcoming does not clearly establish what
degree of involvement with the forensic testing, beyond what was present in
Bullcoming, is required of a testifying witness. In other words, at most,
Bullcoming holds that if scientist A performed the test, the prosecution cannot
prove a particular fact contained in scientist A=s testimonial certification by
offering the in-court testimony of scientist B, if scientist B neither signed the
certification nor performed or observed the test. But Bullcoming does not hold
that scientist B cannot testify even if he has a sufficient degree of involvement
with the forensic testing.
This limitation on Bullcoming=s reach is illustrated by the facts of the

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case. Caylor was the forensic analyst who analyzed Bullcoming=s blood sample
and completed and signed the Acertificate of analyst@ portion of the report,
certifying to the BAC in the sample. Razatos had no role in performing the
testing that analyzed the BAC, or observing or reviewing Caylor=s analysis, or
signing the certification. Razatos was only able to testify about the testing
device used to analyze Bullcoming=s blood and the laboratory=s testing
procedures. Razatos= testimony violated the Confrontation Clause because the
prosecution sought to introduce a forensic laboratory report containing
Caylor=s testimonial certificationCmade in order to prove a fact (Bullcoming=s
BAC)Cthrough the in-court testimony of Razatos, an analyst who did not sign
the certification or personally perform or observe the performance of the test
reported in the certification.
Third, Justice Sotomayor=s concurring opinion in Bullcoming reinforces
our reading of what (at most) the decision clearly establishes as federal law. 6
Justice Sotomayor joined the majority opinion, providing the decisive fifth vote.
She also concurred in part, writing separately for two reasons, one of which
was Ato emphasize the limited reach of the Court=s opinion.@ Bullcoming, 131

6 We do not suggest that Justice Sotomayor=s concurring opinion is clearly established
law. See Williams, 529 U.S. at 412 (stating that clearly established law Arefers to the
holdings, as opposed to the dicta,@ of the Supreme Court); Jackson v. Coalter, 337 F.3d 74, 84
& n.6 (1st Cir. 2003) (explaining that Williams= rule regarding holdings, as opposed to dicta,
Aexcludes concurring and dissenting opinions of individual Justices as well as decisions of the
courts of appeals,@ but Aadd[ing] that authorities of this kind occasionally may offer insight
into a section 2254(d)(1) determination@). Justice Sotomayor=s concurring opinion offers
insights into her view of the majority=s holding in Bullcoming and provides support for our
conclusion that Bullcoming does not clearly establish what degree of involvement with the
forensic testing, beyond what was present in Bullcoming, is required of a testifying witness.
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S.Ct. at 2719 (Sotomayor, J., concurring in part). She specifically identified
Confrontation Clause questions that in her view remained unanswered by the
Court=s holding. Id. at 2721-22. For example, in addressing Asome of the
factual circumstances that this case does not present,@ id. at 2721-22, she
explained:
this is not a case in which the person testifying is a
supervisor, reviewer, or someone else with a personal,
albeit limited, connection to the scientific test at issue.
Razatos conceded on cross-examination that he played
no role in producing the BAC report and did not
observe any portion of Curtis Caylor=s conduct of the
testing. The court below also recognized Razatos= total
lack of connection to the test at issue. It would be a
different case if, for example, a supervisor who
observed an analyst conducting a test testified about
the results or a report about such results. We need not
address what degree of involvement is sufficient
because here Razatos had no involvement whatsoever
in the relevant test and report.

Id. at 2722 (citations omitted).
Moreover, in his concurrence in Williams v. Illinois, ___ U.S. ___, 132
S.Ct. 2221 (2012), Justice Breyer acknowledged that neither Melendez-Diaz
nor Bullcoming fully answers the Aquestion as to how, after Crawford,
Confrontation Clause >testimonial statement= requirements apply to crime
laboratory reports.” Id. at 2248 (Breyer, J., concurring). He pointedly
questioned, AWhat is to happen if the medical examiner dies before trial? Is
the Confrontation Clause effectively to function as a statute of limitations for
murder?@ Id. at 2251 (citations and internal quotation marks omitted).

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Fourth, Justices of the Supreme Court are not alone in expressing
uncertainty about what degree of involvement in the underlying forensic
testing and analysis is required of an in-court witness after Bullcoming. A
panel of this court stated in dicta in an unpublished opinion that, Aeven after
Bullcoming, it is not clear whether the testimony of the analyst in this
caseCwho supervised and worked in the same lab as the analyst who did the
actual testingCwould violate the Confrontation Clause.@ United States v.
Johnson, 558 Fed. Appx. 450, 453 (5th Cir.) (per curiam) (addressing motion
for certificate of appealability in § 2255 habeas petition asserting ineffective
assistance of counsel), cert. denied, ___ U.S. ___, 135 S.Ct. 278 (2014).
In Flournoy v. Small, 681 F.3d 1000 (9th Cir. 2012), the Ninth Circuit
considered, inter alia, whether the defendant=s right of confrontation was
violated when the trial court permitted a forensic analyst to testify based on
the results of scientific tests performed and reports prepared by other analysts.
Id. at 1001. Similar to Grim=s case, the testifying expert Aperformed a technical
review of all of [the primary analyst=s] work@ and confirmed that the primary
analyst Ahad followed all proper protocols and procedures for the testing and
calculations.@ Id. at 1002. The court held that there was no clearly established
federal law at the time the defendant=s conviction became final on direct appeal
Athat held such testimony to violate the Confrontation Clause in circumstances
where the testifying witness participated in and reviewed the crime lab=s work,
even though she did not personally conduct all the testing herself.@ Id. at 1001-
02. Although the defendant=s case became final on direct appeal before
Bullcoming was decided, the court stated in dicta that Bullcoming supported

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its conclusion. Id. at 1005. It reasoned that Bullcoming left certain issues
unresolved, such as Athe degree of proximity the testifying witness must have
to the scientific test,@ and that A[i]f those areas remained unsolved as of 2011,
it is impossible to conclude that the California court=s conclusions in this case
were contrary to clearly established federal law at the time.@ Id.; see also
United States v. James, 712 F.3d 79, 102 (2d Cir. 2013) (quoting Williams, 132
S.Ct. at 2246 (Breyer, J., concurring)) (AAs Justice Breyer pointed out in
Williams, it is still unsettled under the Court=s recent Confrontation Clause
jurisprudence whether there is a >logical stopping place between requiring the
prosecution to call as a witness one of the laboratory experts who worked on
the matter and requiring the prosecution to call all of the laboratory experts
who did so.=@); United States v. Sweeney, 70 M.J. 296, 311 n.13 (C.A.A.F. 2011)
(A[I]t is not clear after Bullcoming whether or not the testimony of [this
witness] as a lab supervisor is adequate under Crawford to satisfy the
confrontation clause with respect to the underlying tests and materials.@).
Widespread disagreement among courts regarding Bullcoming further
supports the conclusion that the Supreme Court has not clearly established
what degree of involvement with the forensic testing is required of an in-court
witness offered to prove a particular fact in a testimonial certification, beyond
what was deemed insufficient in Bullcoming. See, e.g., Carey v. Musladin, 549
U.S. 70, 76 (2006) (concluding that the fact that Alower courts have diverged
widely@ on the question presented A[r]eflect[s] the lack of guidance from this
Court@ and supports a finding of no clearly established law); compare United
States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir. 2012) (concluding admission

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into evidence of autopsy reports through testimony of medical examiner who
Adid not personally observe or participate in those autopsies@ violated
Confrontation Clause) with United States v. Summers, 666 F.3d 192, 202-03
(4th Cir. 2011) (concluding that supervisor=s testimony about his report that
was based on data produced by other analysts did not violate Confrontation
Clause).
D
Grim=s entitlement to habeas relief depends on a showing that the
prosecution cannot introduce a forensic laboratory report containing a
testimonial certification by one analystCmade for the purpose of proving a
particular fact (here, that the tested substance was cocaine)Cthrough the in-
court testimony of a technical reviewer, even though the technical reviewer
was more involved in the test and report than was the witness in Bullcoming.
In the present case, Frazure examined the analyst=s report and all of the data,
including everything the analyst did to the item of evidence; ensured that the
analyst did the proper tests and that the analyst=s interpretation of the test
results was correct; ensured that the results coincided with the conclusion in
the report; agreed with a reasonable degree of scientific certainty with the
examinations and results of the report; and signed the report. Grim cannot
make this showing because Bullcoming does not address this issue, i.e., it does
not address the degree of involvement that Frazure had. 7 Because Bullcoming

7 See, e.g., Wright v. Van Patten, 552 U.S. 120, 125 (2008) (per curiam) (ANo decision
of this Court, however, squarely addresses the issue in this case[.] . . . Our precedents do not
clearly hold that counsel=s participation by speakerphone should be treated as a >complete
denial of counsel,= on par with total absence.@); Musladin, 549 U.S. at 75-76 (explaining that
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No. 15-60720

does not clearly establish this as federal law, the decision of the Supreme Court
of Mississippi could not have been contrary to, or an unreasonable application
of, clearly established federal law. 8 AUnder the explicit terms of § 2254(d)(1),
therefore, relief is unauthorized.@ Wright v. Van Patten, 552 U.S. 120, 126
(2008) (per curiam).
* * *
Accordingly, because Bullcoming does not clearly establish that, when
the prosecution introduces a forensic laboratory report containing a
testimonial certificationCmade for the purpose of proving a particular factCthe
prosecution cannot do so through the in-court testimony of a technical reviewer
who signed the report and was more involved in the testing and report
preparation than was the witness in Bullcoming, we REVERSE the judgment
of the district court and RENDER judgment denying the petition for a writ of

Supreme Court cases have addressed defendants= fair-trial rights in the context of state-
sponsored courtroom practices, but not in the context of Athe spectator conduct to which
Musladin objects@); Buntion v. Quarterman, 524 F.3d 664, 674-75 (5th Cir. 2008) (ASupreme
Court case law does not clearly establish bias in a situation such as the one presently before
this court.@).

8 See Wright, 552 U.S. at 126 (quoting Musladin, 549 U.S. at 77) (some internal
quotation marks omitted) (ABecause our cases give no clear answer to the question presented,
. . . >it cannot be said that the state court unreasonabl[y] appli[ed] clearly established Federal
law.=@); Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir. 2007) (citation omitted) (ABecause
no decision of the Supreme Court obligates state courts to permit self-representation when
the defendant fails to invoke his Faretta right in a timely manner, we are compelled to find
that the state habeas court=s holding that Wood was not entitled to relief because his motion
was untimely was neither contrary to, nor an unreasonable application of, federal law.@); see
also Gomez v. Thaler, 526 Fed. Appx. 355, 359-60 (5th Cir. 2013) (per curiam) (concluding,
inter alia, that because no Supreme Court precedent had directly addressed issue presented,
it could not be said that state court unreasonably applied clearly established federal law).
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habeas corpus.

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