577 F.3d 107 (2nd Cir. 2009), 07-5383-pr, Brown v. Greene

Docket Nº:07-5383-pr.
Citation:577 F.3d 107
Opinion Judge:FEINBERG, Circuit Judge.
Party Name:Dwayne BROWN, Petitioner-Appellant, v. Jerry GREENE, Superintendent, Great Meadow Correctional Facility, Andrew M. Cuomo,[1] Attorney General of New York State, Respondent.
Attorney:Susan Epstein (Steven Banks, on the brief), The Legal Aid Society, New York, NY, for Petitioner-Appellant. Ashlyn Dannelly, Assistant Attorney General (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy-Solicitor General; Andrew M. Cuomo, Attorney General, on the brief), New Y...
Judge Panel:Before: FEINBERG, STRAUB, and RAGGI, Circuit Judges. Judge STRAUB dissents in a separate opinion. STRAUB, Circuit Judge, dissenting:
Case Date:August 11, 2009
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 107

577 F.3d 107 (2nd Cir. 2009)

Dwayne BROWN, Petitioner-Appellant,

v.

Jerry GREENE, Superintendent, Great Meadow Correctional Facility, Andrew M. Cuomo,
1 Attorney General of New York State, Respondent.

No. 07-5383-pr.

United States Court of Appeals, Second Circuit.

August 11, 2009

         Argued: March 25, 2009.

         Amended: Aug. 13, 2009.

Page 108

         Susan Epstein (Steven Banks, on the brief), The Legal Aid Society, New York, NY, for Petitioner-Appellant.

          Ashlyn Dannelly, Assistant Attorney General (Barbara D. Underwood, Solicitor General; Roseann B. MacKechnie, Deputy-Solicitor General; Andrew M. Cuomo, Attorney General, on the brief), New York, NY, for Respondents-Appellees.

          Before: FEINBERG, STRAUB, and RAGGI, Circuit Judges.

          Judge STRAUB dissents in a separate opinion.

          FEINBERG, Circuit Judge.

         Petitioner-Appellant Dwayne Brown was convicted of second-degree robbery after a jury trial in 2002 in the New York State Supreme Court. On appeal thereafter to the First Department of the Appellate Division of the New York Supreme Court, Brown argued that his trial counsel was constitutionally ineffective. The jury charge, Brown contended, may have led the jury to convict him under a preponderance of the evidence standard and not, as is constitutionally required, under the beyond a reasonable doubt standard. According to Brown, trial counsel's failure to object to the charge constituted ineffective assistance of counsel. The Appellate Division rejected this argument. People v. Brown, 14 A.D.3d 356, 789 N.Y.S.2d 106, 108 (1st Dep't 2005). Thereafter, the New York Court of Appeals denied leave to appeal. People v. Burwell, 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 (2005). Then, in June 2006, Brown brought a habeas petition pursuant to 28 U.S.C § 2254 in the United States District Court for the Southern District of New York (Kimba M. Wood, Chief Judge). The district court denied the petition, finding that the Appellate Division's opinion was not contrary to, or an unreasonable application of, federal law. Brown v. Green, No. 06 Civ. 4824, 2007 U.S. Dist. LEXIS 82152 (S.D.N.Y. Nov. 6, 2007). We agree.

         I. BACKGROUND

          In January 2002, two men stopped Claudio Degli-Adalberti in a subway station on the Upper West Side of Manhattan and, after a brief scuffle, stole his wallet. A

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few minutes later, Degli-Adalberti contacted the police. He described the physical appearance of the two thieves, which the officers quickly broadcast over the police radio. A nearby squad car stopped two men thought to match the description: Brown and Eric Burwell. The police took Degli-Adalberti to view Brown and Burwell; he indicated that they were the men who had robbed him.

         Brown and Burwell were charged with second degree robbery and tried jointly before New York State Supreme Court Justice Edward J. McLaughlin (hereafter " the trial judge"). The key issue at trial was whether Brown and Burwell were the two individuals who had robbed Degli-Adalberti. The opening and closing statements of both the defense and the prosecution focused on this aspect of the case and also included numerous statements to the effect that the jury must employ the reasonable doubt standard.2

         The jury charge also included the following language:

A jury makes factual findings. 50.1 to 49.9, factual findings can be made, although they are not established beyond a reasonable doubt. The elements must be established beyond a reasonable doubt if they're going to be established at all.

         The charge contained many other references (seven, by our count) to the beyond a reasonable doubt standard; most either told the jury to apply that standard or described how it functioned. For example, the trial judge told the jury: " The focus of a trial is to determine whether or not the prosecution can prove the elements of a crime beyond a reasonable doubt." J.A. 98. Later, the trial judge said, " [i]f the people prove the three elements ... beyond a reasonable doubt ... you must convict the person. If [they cannot prove] one or more or all of the elements, miss proving that beyond a reasonable doubt, you have no choice, you have to acquit the person." J.A. 104-05.3 Finally, the charge also included the following statement, which we will call the " election example" :

[F]or centuries elections have been closely decided. 50.1 beats 49.9 every time.... And yet, for 230 years now, juries, the same pool of people who can't agree on a candidate, have been unanimously deciding cases. So, how does that happen? It happens, obviously, because within the jury deliberation context, people sometimes change their minds. You can change your mind if somebody by reason, logic and reliance on the record of this case can cause you to change a position that you may have originally held.

No party objected to the charge.

          The jury convicted Brown and Burwell after two and one-half hours of deliberation, and Brown received a sentence of 11 years to life in prison. As already indicated, on appeal to the Appellate Division, Brown argued that the jury charge was

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constitutionally deficient because it may have confused the jury, causing it to convict Brown based on a preponderance of the evidence standard. Brown also argued that trial counsel's failure to object to the jury charge constituted ineffective assistance of counsel. The Appellate Division found that " defendants received effective assistance of counsel" and that the direct challenge to the jury charge was unpreserved. Brown , 789 N.Y.S.2d at 108. The New York Court of Appeals denied leave to appeal. Burwell , 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325.

         In June 2006, Brown brought this habeas petition in the Southern District, arguing only that trial counsel's failure to object to the jury charge constituted ineffective assistance of counsel. The petition was assigned to Chief Judge Wood, who referred it to Magistrate Judge Andrew J. Peck. The Magistrate Judge recommended that the petition be granted. Brown v. Greene, No. 06 Civ. 4824, 2007 WL 1379873, 2007 U.S. Dist. LEXIS 34460 (S.D.N.Y. May 11, 2007). Judge Wood disagreed and in a careful opinion denied the petition, but granted a certificate of appealability. Brown , 2007 U.S. Dist. LEXIS 82152. This appeal followed.

         II. ANALYSIS

         Brown's sole claim before us is that his trial counsel's failure to object to the jury charge constituted ineffective assistance of counsel.

         A. Standard of Review

          Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), " [w]hen the state court has adjudicated the merits of the petitioner's claim ... we may grant a writ of habeas corpus only if the state court's adjudication ‘ was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.’ " Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009) (quoting 28 U.S.C. § 2254(d)(1)). When a district court has denied a habeas petition, we review its legal conclusions de novo and its factual findings for clear error. Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir.2009).

         B. Ineffective Assistance and the Jury Charge

         1. The Strickland and Winship Standards

         Under Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on an ineffective assistance of counsel claim, petitioner " must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness ... and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation." Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008) (internal quotation marks omitted). In assessing whether counsel's performance was objectively reasonable, " we must ‘ indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance, and be watchful ‘ to eliminate the distorting effects of hindsight.’ " Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Moreover, counsel " cannot be deemed incompetent for failing to predict" that a higher court would overrule its earlier precedent. Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir.1994).

          It has long been the law that the " Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt...."

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In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). If there is a " reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard," then the charge is constitutionally deficient. Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); see also Estelle v. McGuire, 502 U.S. 62, 72 & n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). However, " [i]n making this assessment, the challenged instructions must be viewed in context, not only with respect to the overall charge, but also with respect to the entire trial record." Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir.2000) (citing Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)).

         2. The " 50.1 to 49.9" Instruction: Brown's Argument

         Brown's principal contention is that the " 50.1 to 49.9" instruction made it likely that the jury did not correctly apply the beyond a reasonable doubt standard. According to Brown, the " 50.1 to 49.9" instruction told the jurors to make factual findings under the " 50.1 to 49.9" rubric. This, Brown contends, may have led the jury to apply the " 50.1 to 49.9" standard when determining...

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