King v. Greiner, 453 F. App'x 88

King v. Greiner

453 F. App'x 88

2d Cir.

2011

Check Treatment

Docket

Bruce KING, Petitioner-Appellant, v. Charles R. GREINER, Attorney General of the State of New York, Respondents-Appellees.

No. 10-480-pr.

United States Court of Appeals, Second Circuit.

Dec. 23, 2011.

461 Fed. Appx. 88

Present: ROBERT D. SACK, ROBERT A. KATZMANN, and B.D. PARKER, Circuit Judges.

include in his hypothetical question symptoms and limitations that he had reasonably rejected. See, e.g., Dumas v. Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983). Accordingly, the ALJ properly relied upon Dr. Manzi‘s testimony in determining that Priel was not disabled.

We have considered Priel‘s remaining arguments and find them to be without merit. For the reasons stated herein, the judgment of the district court is AFFIRMED.

Randa D. Maher, Great Neck, N.Y., for Petitioner-Appellant.

Alyson J. Gill, Assistant Attorney General, of counsel (Barbara D. Underwood, Solicitor General, Roseann B. MacKechnie, Deputy Solicitor General, on the brief), for Eric T. Schneiderman, Attorney General of the State of New York, New York, N.Y., for Respondent-Appellee.

SUMMARY ORDER

Petitioner-Appellant Bruce King appeals from a final judgment entered on July 13, 2009 by the United States District Court for the Southern District of New York (Cote, J.), following a July 8, 2009 Opinion and Order denying King‘s petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The district court issued a certificate of appealability on King‘s claim that his trial counsel was ineffective in failing to object to certain comments made during the prosecutor‘s second summation. We assume the parties’ familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision to affirm.

We review a district court‘s denial of a petition for a writ of habeas corpus de novo. Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006). Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA“), when a federal claim has been adjudicated on the merits in state court, a federal court may overrule the state court only where its decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States,” or was “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). Clearly established Federal law in § 2254(d)(1) “refers to the holdings, as opposed to the dicta, of [Supreme Court] decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). In order to prevail under the “unreasonable application” clause, petitioner must demonstrate that while the state court identified the correct governing legal principle from Supreme Court precedent, it “unreasonably applie[d] that principle to the facts” of his case. Id. at 413, 120 S.Ct. 1495. If the federal claim has not been adjudicated on the merits, then a de novo standard of review applies. Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009).

As an initial matter, the parties dispute whether AEDPA requires that we afford deference to the county court‘s decision denying King‘s motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440.10. While it is true that the county court rejected King‘s ineffective assistance of counsel claim on the merits, it is not clear that deference is appropriate under AEDPA because King‘s ineffective assistance of counsel claim was at least partially predicated on claims that New York‘s highest court declined to reach on direct review. People v. Anonymous, 96 N.Y.2d 839, 840, 729 N.Y.S.2d 434, 754 N.E.2d 193 (2001) (concluding that King‘s claims regarding the prosecutor‘s allegedly improper comments were not preserved for appellate review, but noting that it did “not condone” the prosecutor‘s summation). In Cotto v. Herbert, 331 F.3d 217 (2d Cir. 2003), we noted that we were “inclined to conclude that the Court of Appeals’ holding that [petitioner‘s claim] was unpreserved mean[t] that the claim was not ‘adjudicated on the merits’ in the state courts,” and thus that we should not defer to the lower court decisions addressing the merits of the claim. Id. at 231. Of course, in that case, we did not definitively resolve the issue as we proceeded to “assume without deciding that there was an ‘adjudication on the merits’ in the state courts,” and held that the state court‘s merits adjudication failed even under AEDPA‘s deferential standard of review. Id. at 231, 252-53. In this case, we also need not reach whether AEDPA deference is warranted because we conclude that King‘s claim fails even under de novo review.

In order to prevail on an ineffective assistance of counsel claim, King (1) “must show that counsel‘s representation fell below an objective standard of reasonableness,” and (2) “that there is a reasonable probability that, but for counsel‘s unprofessional errors, the result of the proceeding would have been different.” Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). In evaluating whether counsel‘s performance was deficient, “[t]he question is whether an attorney‘s representation amounted to incompetence under ‘prevailing professional norms,’ not whether it deviated from best practices or most common custom.” Harrington v. Richter, — U.S. —, 131 S.Ct. 770, 788, 178 L.Ed.2d 624 (2011). In evaluating whether the proceeding would have been different but for counsel‘s error, “[t]he likelihood of a different result must be substantial, not just conceivable.” Id. at 791-92.

Without addressing whether counsel was deficient in failing to object to the prosecutor‘s second summation, we conclude that King cannot prevail on his ineffective assistance of counsel claim because he has not demonstrated a substantial likelihood that, but for counsel‘s allegedly deficient performance, the result of the proceeding would have been different. See id. As the district court observed in its thorough and well-reasoned opinion, the evidence against King was substantial:

Two eyewitnesses identified King as the robber during line-ups and at trial. King himself identified his accomplices to the police during his interviews at the precinct. At trial, the alibi testimony that King offered for the robberies was shown to be fabricated. Finally, King‘s testimony at trial essentially corroborated the other evidence against King. Among other things, it confirmed his association with his accomplices and further undermined his purported alibi testimony.

King v. Greiner, 02 Civ. 5810(DLC), 2009 WL 2001439, at *10 (S.D.N.Y. July 8, 2009). Thus, even assuming arguendo that King‘s trial counsel was deficient in failing to object to certain remarks made by the prosecutor during the second summation, given the strong evidence of King‘s guilt, he cannot establish that he was prejudiced by his trial counsel‘s performance.

We have considered King‘s remaining arguments and find them to be without merit. Accordingly, for the foregoing reasons, the judgment of the district court is AFFIRMED.

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