Pushkarow v. Ndoh

Background

Michael Alex Pushkarow filed a federal petition under 28 U.S.C. § 2254, which permits a person in state custody to seek federal review of a conviction. After a jury trial, Pushkarow had been convicted of two counts of first-degree burglary, misdemeanor shoplifting, and forgery, and sentenced to seven years of imprisonment.

The petition raised two claims. First, Pushkarow argued that Jill Cramer, a DNA analyst for Orchid Cellmark Forensics, violated the Sixth Amendment’s Confrontation Clause because she testified about DNA testing that involved other Cellmark employees who did not testify. Second, he argued that the evidence was insufficient to support the burglary convictions.

Confrontation Clause claim

The court applied the deferential federal standard governing claims already decided by a state court. Under that standard, federal relief is available only if the state court’s decision was contrary to clearly established United States Supreme Court law or unreasonably applied that law.

The court held that Pushkarow’s Confrontation Clause claim failed because there was no clearly established Supreme Court rule requiring every laboratory employee involved in DNA testing to testify. Cramer had interpreted the DNA results and reviewed or participated in the laboratory’s work, although other employees performed different testing steps. The court relied on Ninth Circuit precedent rejecting a similar claim and noted that later Supreme Court authority had not clearly resolved how much participation in forensic testing the testifying analyst must have.

Sufficiency-of-the-evidence claim

Pushkarow argued that the DNA evidence was inadequate because it was found on movable glove pieces and lacked corroboration placing him at the burglary scenes. The court disagreed with his challenge to the state appellate court’s conclusion that the evidence was sufficient.

The court pointed to glove pieces near a broken window at the Wooden Valley Road residence that contained Pushkarow’s DNA, even though he had no lawful reason to be in the home or garage. It also considered stolen checks used at CVS and Safeway, similar purchases in connection with both burglaries, use of Antonia Pushkarow’s club card, a phone number corresponding to Pushkarow’s girlfriend, and video showing a purchaser with Pushkarow’s distinctive hairline and mustache. The court ruled that the state court’s decision was not objectively unreasonable.

Disposition

The court denied Pushkarow’s petition for habeas relief. It also declined to issue a certificate of appealability, directed the clerk to enter final judgment, and ordered the case closed. Judge Edward M. Chen signed the order on March 18, 2021.