Pushkarow v. Ndoh

• Court: District Court, N.D. California
• Decided: March 18, 2021
• Docket: 3:20-cv-06282
• Status: Unknown

Opinion

1 2 3 4 UNITED STATES DISTRICT COURT 5 NORTHERN DISTRICT OF CALIFORNIA 6 7 MICHAEL ALEX PUSHKAROW, Case No. 20-cv-06282-EMC

8 Plaintiff, ORDER DENYING PETITION FOR 9 v. WRIT OF HABEAS CORPUS

10 ROSEMARY NDOH, et al., Docket No. 1 11 Defendants.

12 13 14 Petitioner Michael Alex Pushkarow has filed a petition for a writ of habeas corpus 15 pursuant to 28 U.S.C. § 2254. In his petition, Mr. Pushkarow asserts two claims: (1) the testimony 16 of a DNA expert at his jury trial violated his rights as protected by the Confrontation Clause of the 17 Sixth Amendment and (2) there was insufficient evidence to support his convictions for burglary. 18 Having considered the parties’ briefs and accompanying submissions, the Court hereby DENIES 19 the petition for relief. 20 I. FACTUAL & PROCEDURAL BACKGROUND 21 Following a jury trial, Mr. Pushkarow was found guilty of two counts of first-degree 22 burglary, one count of misdemeanor shoplifting, and one count of forgery. He was sentenced to 23 seven years of imprisonment. See Pet. at 1-2. 24 The facts underlying the convictions are described in the state appellate court decision 25 denying Mr. Pushkarow’s direct appeal. Those facts are briefly described below. 26 A. Burglaries 27 Two burglaries took place in Napa in the February-April 2013 period. The first burglary 1 Clevelands’ residence, located on Big Ranch Road. 2 1. Wooden Valley Road Burglary 3 Regarding the Wooden Valley Road burglary, the Boyles were away for a vacation. The 4 burglary was discovered by individuals who worked for the Boyles. The individuals noted, inter 5 alia, that a window to the garage had been broken as well as a window from a door to the house. 6 When a police officer arrived, he investigated and found a piece of a blue rubber glove on the 7 garage floor beneath the broken window. He also found more pieces of blue rubber gloves in in 8 the house. 9 When the Boyles returned home, they found that many items were missing, including a 10 Mini Cooper. The Mini Cooper was subsequently located in the Sacramento area with an 11 individual named Timothy Miller inside. Mr. Miller was arrested for possession of the stolen car. 12 Thereafter, the police obtained a DNA swab from Mr. Miller. The police sent the swab 13 and the glove pieces found at the burglary to Orchid Cellmark Forensics (“Cellmark”) in Dallas, 14 Texas, for testing. Mr. Miller’s DNA was not a match. 15 Approximately a month after the burglary, Mr. Boyle discovered that there had been 16 fraudulent activity on his checking account. Through his bank statements, Mr. Boyle determined 17 that three checks had been written neither by him or Mrs. Boyle. Two of the checks were written 18 to CVS Pharmacy; the third was written to a Safeway in American Canyon. Safeway informed the 19 police that the check to Safeway had been used to purchase, inter alia, a pack of Marlboro King 20 cigarettes and Dreyers double fudge brownie ice cream. Safeway also told the police that a club 21 card under the name Antonia Pushkarow was used to purchase the items. 22 2. Big Ranch Road Burglary 23 Regarding the Big Ranch Road Burglary, the Clevelands were also away from their home 24 for an extended period of time when the burglary took place. Mrs. Cleveland discovered the 25 burglary when she returned home. Many items had been stolen. When the police investigated, 26 they found a broken glass panel on a breezeway with a rubber adhesive patch over the edge of the 27 broken glass. 1 nitrile glove inside a box in the breezeway near the broken window. The police noticed that there 2 was a dot on the interior part of the glove that looked like dried blood. The police sent the glove 3 to Cellmark for analysis. Cellmark informed that the police that there was a partial DNA profile 4 from the glove and sent the profile to a law enforcement agency to be entered into the “Combined 5 DNA Identification System.” 6 Subsequently, Mr. Cleveland discovered that his checkbooks had been stolen based on 7 letters he had received letters from collection agencies. Mr. Cleveland obtained copies of the 8 relevant checks. One check had been written to CVS, and the other to a Safeway in Healdsburg. 9 The checks bore the Clevelands’ names and their address, but the signatures on the checks were 10 not theirs. Also, one of the checks had a driver’s license number on it that was neither Mr. nor 11 Mrs. Cleveland’s, and the other check had a phone number that the Clevelands did not recognize. 12 Finally, the checks did not list the Clevelands’ correct account number (i.e., they had been forged). 13 The police followed up with the Safeway in Healdsburg and learned that the items 14 purchased at the store included Marlboro King cigarettes and Dreyers double fudge brownie ice 15 cream. A club card belonging to Antonia Pushkarow was used in conjunction with the purchase. 16 The police found an address for Ms. Pushkarow in Napa and found that she had a relative – i.e., 17 Mr. Pushkarow – who used her address for his business, All-Temp Heating & Air Conditioning.1 18 The police also followed up with the CVS store and learned that it had surveillance tape of 19 the person making the relevant purchase. The man had a distinctive hairline and mustache that 20 matched Mr. Pushkarow’s description. 21 Mr. Pushkarow was then arrested. While he was in custody, Mr. Pushkarow called his 22 girlfriend at the phone number that was written on the check at the Healdsburg Safeway. 23 B. DNA Evidence 24 As indicated above, Cellmark did DNA testing for (1) the glove pieces found at the 25 Boyles’ residence on Wooden Valley Road and (2) the glove found at the Clevelands’ residence 26 1 Mrs. Cleveland informed the police that she had previously hired All-Temp to replace the 27 heating and air conditioning at the Clevelands’ home. The Clevelands paid $10,000 for the work 1 on Big Ranch Road. At trial, Jill Cramer, a DNA analyst for Cellmark, testified. 2 Ms. Cramer described the DNA testing process, which consists of multiple steps such as 3 extraction, quantification, amplification, and genetic analysis. Cellmark has a team approach so 4 that different people were involved in different steps. However, Ms. Cramer was the only 5 Cellmark employee who testified at Mr. Pushkarow’s trial. 6 For the glove pieces found at the Boyles’ residence at Wooden Valley Road, Ms. Cramer 7 did the interpretation at the end of the DNA testing process and determined that the pieces had one 8 common major profile. She compared the profile to Mr. Miller’s DNA and determined that he 9 was not the contributor. 10 The police obtained a DNA swab from Mr. Pushkarow and sent the sample to Cellmark. 11 Again, Ms. Cramer did the interpretation at the end of the DNA testing process. She determined 12 that there was a complete match between Mr. Pushkarow’s DNA swab and the DNA from the 13 Wooden Valley Road burglary. Results were inconclusive, however, as to Mr. Pushkarow’s DNA 14 swab and the DNA from the Big Ranch Road burglary. 15 II. DISCUSSION 16 A. Legal Standard 17 Mr. Pushkarow’s habeas petition is governed by the Antiterrorism and Effective Death 18 Penalty Act of 1996 (“AEPDA”). Under AEPDA,

19 [a]n 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 20 granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim – 21 (1) resulted in a decision that was contrary to, or involved an 22 unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United 23 States . . . . 24 28 U.S.C. § 2254(d)(1). 25 The "'contrary to' and 'unreasonable application of' clauses in § 26 2254(d)(1) are distinct and have separate meanings." Under the "contrary to" clause of § 2254(d)(1), a federal court may grant relief 27 only when "the state court arrives at a conclusion opposite to that set of materially indistinguishable facts." 1 Under the "unreasonable application" clause of § 2254(d)(1), "a 2 state-court decision involves an unreasonable application of [the Supreme Court's] precedent if the state court identifies the correct 3 governing legal rule . . . but unreasonably applies it to the facts of the particular state prisoner's case." "And an 'unreasonable 4 application of' [the Supreme Court's] holdings must be objectively unreasonable, not merely wrong; even clear error will not suffice." 5 "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court 6 was so lacking in justification that there was an error well understood and comprehended in existing law beyond any 7 possibility for fairminded disagreement.'" 8 Loher v. Thomas, 825 F.3d 1103, 1111-12 (9th Cir. 2016). 9 In the instant case, the state court decision to which the Court applies the above analysis is 10 the decision found at People v. Pushkarow, No. A148092, 2019 Cal. App. Unpub. LEXIS 1860 11 (2019). Both parties agree that this is “the decision of the highest state court to have provided a 12 reasoned decision.” McKinney v. Ryan, 813 F.3d 798, 819 (9th Cir. 2015). See, e.g., Traverse at 13 2) (arguing that “the California Court of Appeal unreasonably concluded that there was no 14 Confrontation Clause [violation]”); Resp. at 6 (arguing to the contrary).2 15 B. Confrontation Clause Claim 16 The Sixth Amendment’s Confrontation Clause provides in relevant part as follows: “In all 17 criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses 18 against him.” U.S. Const., amend. VI. The Confrontation Clause bars the “admission of 19 testimonial statements of a witness who did not appear at trial unless [1] he was unavailable to 20 testify, and [2] the defendant had had a prior opportunity for cross-examination.” Crawford v. 21 Wash., 541 U.S. 36, 53-54 (2004). In the instant case, Mr. Pushkarow argues that Ms. Cramer’s 22 testimony at trial violated his rights under the Confrontation Clause because she relied on what 23 other Cellmark employees did and/or said as part of the DNA testing process and none of the those 24 employees testified at trial. See Pet. Memo. at 5 (arguing that “Cramer’s opinion depended on the 25 2 The Court notes that both parties have cited to the state appellate court’s decision on direct 26 appeal. Mr. Pushkarow claims that, at the time he filed his direct appeal, he filed a companion state habeas petition. See Pet. at 2. Although there is no record of such a petition, or of any ruling 27 by a state court on such a petition, the issues presented in this federal habeas petition were raised 1 work of several other live Cellmark analysts who analyzed samples for the presence of blood, 2 extracted DNA from samples, multiplied the tiny samples of DNA to samples sufficiently large to 3 be analyzed, took other steps to create that could be loaded into the machine, and actually loaded 4 the DNA into the machine”). 5 Mr. Pushkarow’s argument lacks merit. He relies on a trio of Supreme Court cases – 6 Melendez-Diaz v. Massachusetts, 557 U.S. 305 (2009); Bullcoming v. New Mexico, 564 U.S. 647 7 (2011); and Williams v. Illinois, 567 U.S. 50, 56, 58 (2012) – as well as a California Supreme 8 Court case that analyzed Williams, see People v. Sanchez, 63 Cal. 4th 665 (2016). But in 9 Flournoy v. Small, 681 F.3d 1000 (9th Cir. 2012), the Ninth Circuit expressly rejected a 10 petitioner’s claim that his confrontation rights were violated when a forensic analyst testified 11 based on the results of tests performed and reports prepared by other analysts. The court stated: 12 “[T]here was no clearly established federal law, based on decisions of the United States Supreme 13 Court, that held such testimony to violate the Confrontation Clause in circumstances where the 14 testifying witness participated in and reviewed the crime lab’s work, even though she did not 15 personally conduct all the testing herself.” Id. at 1001; cf. Melendez-Diaz, 557 U.S. at 311 n.1 16 (noting that “we do not hold . . . that anyone whose testimony may be relevant in establishing the 17 chain of custody, authenticity of the sample, or accuracy of the testing device, must appear in 18 person as part of the prosecution’s case.”); Bullcoming, 564 U.S. at 651 (holding that defendant’s 19 right to confrontation violated where the prosecution did not call as a witness the forensic analyst 20 who signed the certification but rather called another analyst who was familiar with the lab’s 21 testing procedures but had neither participated in nor observed the test on the defendant’s blood 22 sample). 23 Admittedly, Flournoy was decided before Williams (a plurality decision), as well as 24 Sanchez, in which the California Supreme Court evaluated Williams. See, e.g., Sanchez, 63 Cal. 25 4th at 683-84, 695 (acknowledging the plurality decision in Williams but evaluating the opinions 26 of the four dissenting justices plus the opinion of Justice Thomas (who concurred with the 27 plurality) to divine what a majority of the Court would hold). But, if anything, Williams 1 Mr. Pushkarow. As Justice Breyer noted in his concurrence, neither the plurality nor the dissent 2 answered the following question: “How does the Confrontation Clause apply to the panoply of 3 crime laboratory reports and underlying technical statements written by (or otherwise made by) 4 laboratory technicians?” Williams, 567 U.S. at 86 (Breyer, J., concurring). As Justice Breyer put 5 it, “there would seem often to be no logical stopping place between requiring the prosecution to 6 call as a witness one of the laboratory experts who worked on the. matter and requiring the 7 prosecution to call all of the laboratory experts who did so.” Id. at 89 (Breyer, J., concurring) 8 (emphasis in original). Notably, post-Williams, two circuit courts have pointed out the uncertainty 9 that exists after Williams and thus denied habeas relief. See Grim v. Fisher, 816 F.3d 296, 408 10 (5th Cir. 2016) (noting that the Supreme Court Justices “are not alone in expressing uncertainty 11 about what degree of involvement in the underlying forensic testing and analysis is required of an 12 in-court witness”); Washington v. Griffin, 876 F.3d 395, 409 (2d Cir. 2017) (taking note of “the 13 difficulty in identifying a single holding of principle from the several opinions of the fractured 14 Williams Court”). 15 In the absence of clearly established law, Mr. Pushkarow’s claim under the Confrontation 16 Clause fails.3 17 C. Due Process Claim 18 According to Mr. Pushkarow, even if there were no Confrontation Clause violation, he is 19 still entitled to habeas relief for his burglary convictions because the evidence was insufficient to 20 support those convictions. Mr. Pushkarow asserts: “The only evidence connecting [him] with the 21 burglary of either residence is that his DNA was allegedly found on glove pieces located at the 22 Wooden Valley Road residence,” Pet. Mem. at 8, but the “DNA evidence . . . was not sufficient 23 for conviction because it was found on a movable object and there was no corroborating evidence 24 from which the trier of fact could reasonably infer that petitioner’s fingerprints were impressed on 25 the gloves contemporaneous to the burglary and not before.” Traverse at 3 (emphasis added). In 26

27 3 In his traverse, Mr. Pushkarow criticizes the state appellate court’s holding that the out-of-court 1 short, Mr. Pushkarow’s position is that, “[w]ithout corroborating evidence placing petitioner at the 2 scene of the burglaries, the glove evidence is inadequate.” Traverse at 4. 3 The state appellate court considered and rejected Mr. Pushkarow’s contention, noting as 4 follows:

5 Defendant claims that the DNA evidence, which he compares to fingerprint evidence, is sufficient only if “found [on] an immovable 6 object in an area of the burglarized structure that is inaccessible to the public.” However, People v. Huber (1986) 181 Cal. App. 3d 7 601, on which defendant relies, does not hold such evidence to be insufficient under other circumstances. The glove pieces with 8 defendant’s DNA found near the apparent entry points of the Wooden Valley home sufficiently connect defendant to that 9 burglary. And the glove made of the same material found at the Big Ranch Road home tends to connect him to that burglary. Beyond 10 that, both burglaries occurred while the homeowners were away on vacation. Both occurred in rural areas where there was little to no 11 contact with neighboring homes. Both burglaries employed similar access points for entry as evidenced by the broken glass at both 12 locations. Both victims had their check books stolen and checks from both homes were used by defendant either at a CVS pharmacy 13 or Safeway store to purchase similar goods. Finally, the Clevelands had a prior relationship with defendant that did not end amicably. 14 Pushkarow, 2019 Cal. App. Unpub. LEXIS 1860, at *18. 15 The state court’s decision that the evidence of record was sufficient to support the burglary 16 convictions is not objectively unreasonable. The glove pieces were found at the Boyles’ 17 residence. They had not been left there by the Boyles, and at least one piece was located near the 18 broken window in the garage. The glove pieces had Mr. Pushkarow’s DNA on them, even though 19 he had no lawful reason to be in the Boyles’ garage or home. How disposable gloves with Mr. 20 Pushkarow’s DNA could be on the Boyles’ property was not explained. Checks were stolen from 21 the Boyles and were used at the American Canyon Safeway and at CVS. The Safeway purchase 22 included Marlboro Kings and Dreyers double fudge brownie ice cream, and Ms. Pushkarow’s club 23 card was used to make the purchase. The Big Ranch Road burglary bore similarities to the 24 Wooden Valley Road burglary – e.g., checks for the Clevelands (albeit these checks were forged) 25 were used to make purchases at a Safeway and at CVS; the Safeway purchase included Marlboro 26 Kings and Dreyers double fudge brownie ice cream; and Ms. Pushkarow’s club card was used to 27 make the purchase. Moreover, one of the checks had a phone number that corresponded to the 1 number of Mr. Pushkarow’s girlfriend. Finally, the CVS purchase was captured on video, and the 2 individual making the purchase had Mr. Pushkarow’s same distinctive hairline and mustache. 3 III. CONCLUSION 4 For the foregoing reasons, the Court denies Mr. Pushkarow’s petition for habeas relief. 5 The Court also declines to issue a certificate of appealability. 6 The Clerk of the Court is directed to enter a final judgment in accordance with this opinion 7 and close the file in this case. 8 9 IT IS SO ORDERED. 10 11 Dated: March 18, 2021 12 13 ______________________________________ EDWARD M. CHEN 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 26 27