11-1441-pr
Emmons v. Artus

                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE
FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
“SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 29th day
of August, two thousand twelve.

Present:
         ROBERT A. KATZMANN,
         GERARD E. LYNCH,
         DENNY CHIN,
                     Circuit Judges.
________________________________________________

MARK L. EMMONS,

           Petitioner-Appellant,

                  v.                                               No. 11-1441-pr

DALE ARTUS,

         Respondent-Appellee.
________________________________________________

For Petitioner-Appellant:                JOSEPH M. LATINO, Croton on Hudson, N.Y.

For Respondent-Appellee:                 LISA ELLEN FLEISCHMANN, Assistant Attorney General
                                         (Barbara D. Underwood, Solicitor General, Roseann B.
                                         MacKechnie, Deputy Solicitor General for Criminal
                                         Matters, on the brief) for Eric T. Schneiderman,
                                         Attorney General of the State of New York, New York,
                                         N.Y.
       Appeal from the United States District Court for the Northern District of New York
(Hurd, J.).

       ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the judgment of the district court be and hereby is AFFIRMED.

       Petitioner-Appellant Mark L. Emmons appeals from a March 8, 2011 judgment of the

United States District Court for the Northern District of New York (Hurd, J.) denying his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In his petition, Emmons seeks

to collaterally attack his conviction in New York State Supreme Court, following a jury trial, for

attempted robbery and criminal possession of a weapon. We presume the parties’ familiarity

with the underlying facts and procedural history of this case, as well as with the issues on appeal.

       “We review de novo a district court’s denial of a petition for a writ of habeas corpus.”

Dixon v. Miller, 293 F.3d 74, 78 (2d Cir. 2002). Pursuant to 28 U.S.C. § 2254(d), a writ of

habeas corpus “shall not be granted . . . 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 on an unreasonable determination of the facts in light of the evidence

presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1)-(2). “A state court’s decision

is contrary to clearly established federal law, as expressed by the Supreme Court, if the state

court arrives at a conclusion opposite to that reached by the Court on a question of law or if the

state court decides a case differently than the Court has on a set of materially indistinguishable

facts.” Davis v. Grant, 532 F.3d 132, 140 (2d Cir. 2008) (internal brackets and quotation marks

omitted). A decision is based on “an unreasonable application of clearly established federal law

if the state court correctly identifies the governing legal rule but applies it unreasonably to the



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facts of a particular prisoner’s case, or refuses to extend a legal principle that the Supreme Court

has clearly established to a new situation in which it should govern.” Yung v. Walker, 468 F.3d

169, 176 (2d Cir. 2006) (internal citation and quotation marks omitted).

        To prevail on an ineffective assistance of counsel claim, a petitioner must show that: (1)

“counsel’s performance was deficient,” defined as “fall[ing] below an objective standard of

reasonableness”; and (2) counsel’s “deficient performance prejudiced the defense,” meaning that

“counsel’s errors were so serious [that they deprived] the defendant of a fair trial,” creating “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, 687-88, 694 (1984). There

is “a strong presumption that counsel’s conduct falls within the wide range of reasonable

professional assistance.” Id. at 689. But where counsel’s “omissions cannot be explained

convincingly as resulting from a sound trial strategy, but instead arose from oversight,

carelessness, ineptitude, or laziness, . . . the quality of representation [is] sufficiently deficient to

grant the writ.” Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).

        Emmons contends that his trial counsel was constitutionally ineffective for failing to

object to his appearance in handcuffs before the jury pool, prior to jury selection. Assuming

arguendo that Emmons has met his burden of establishing that this incident did, in fact, occur,

and that the claim was properly exhausted in the New York state courts, we nonetheless

conclude it is without merit. While “[f]orcing a party to appear at a jury trial in manacles and

other shackles may well deprive him of due process unless the restraints are necessary,”

Davidson v. Riley, 44 F.3d 1118, 1122 (2d Cir. 1995), “an inadvertent view by jurors of

defendants in handcuffs, without more, is not so inherently prejudicial as to require a mistrial,”

United States v. Taylor, 562 F.2d 1345, 1359 (2d Cir. 1977); see also Ghent v. Woodford, 279


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F.3d 1121, 1133 (9th Cir. 2002) (no constitutional violation for “brief or inadvertent” view of

defendant in shackles by jury). Accordingly, we cannot conclude that “clearly established

Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1),

dictates that Emmons’s counsel was constitutionally ineffective for failing to seek a new jury

panel after Emmons briefly appeared before the initial jury pool in handcuffs. Nor can we

conclude that denying such a claim would constitute a “refus[al] to extend a legal principle that

the Supreme Court has clearly established to a new situation in which it should govern,” under

28 U.S.C. § 2254(d)(2), Yung, 468 F.3d at 176.

       We have considered all of Emmons’s other arguments on appeal and find them to be

without merit. Accordingly, the judgment of the district court is hereby AFFIRMED.


                                             FOR THE COURT:
                                             CATHERINE O’HAGAN WOLFE, CLERK




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