15-2227-pr
Gillespie v. Uhler

                                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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
21st day of June, two thousand sixteen.

Present:             ROSEMARY S. POOLER,
                     DEBRA ANN LIVINGSTON,
                     SUSAN L. CARNEY,
                                Circuit Judges.

_____________________________________________________

JAMES GILLESPIE,

                                  Petitioner-Appellant,

                           v.                                                  15-2227-pr

SUPERINTENDENT D. UHLER,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:          Shireen A. Barday, Kirkland & Ellis LLP (Andrew Genser, Megan
                                  Byrne, on the brief), New York, NY.

Appearing for Appellee:           Johnnette G. A. Traill, Assistant District Attorney (John M.
                                  Castellano, on the brief), for Richard A. Brown, District Attorney
                                  for Queens County, NY.

Appeal from the United States District Court for Eastern District of New York (Cogan, J.).
     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the order of said District Court be and it hereby is AFFIRMED.

         Petitioner-appellant James Gillespie, who seeks to vacate his state court conviction for
first degree rape, first degree criminal sexual act, and third degree robbery, appeals from the June
15, 2015 judgment of the United States District Court for the Eastern District of New York
(Cogan, J.) denying his petition pursuant to 28 U.S.C. § 2254 for habeas corpus relief. Gillespie
contends that the district court erred in concluding that the New York State Appellate Division’s
denial of his claim of ineffective assistance of counsel amounted to an “unreasonable application
of[] clearly established federal law” as set forth in Strickland v. Washington, 466 U.S. 668
(1984). See 28 U.S.C. § 2254(d)(1). Although the district court denied Gillespie’s petition, it
observed that “objective unreasonableness is likely present, and [the] case did not present the
‘overwhelming’ evidence of guilt that characterizes many cases in which habeas relief is
unavailable despite the likelihood that error was committed at trial.” App’x at 257. Therefore, the
district court concluded that “the issue of prejudice is one as to which petitioner has made a
substantial showing of the possible denial of a constitutional right” warranting a certificate of
appealability pursuant to 28 U.S.C. § 2253(c)(2). App’x at 257. We assume the parties’
familiarity with the underlying facts, procedural history, and specification of issues for review.

         Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), a
petitioner whose claim has been adjudicated on the merits in state court may obtain habeas
corpus relief only by showing that the state court’s denial of his or her claim was either “contrary
to, or involved an unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States,” or “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).
Accordingly, we may “reverse a state court ruling only where it was ‘so lacking in justification
that there was . . . [no] possibility for fairminded disagreement.’” Vega v. Walsh, 669 F.3d 123,
126 (2d Cir. 2012) (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). Under Strickland, a
defendant’s counsel is constitutionally ineffective if (1) counsel’s representation “fell below an
objective standard of reasonableness” measured under “prevailing professional norms,” and (2)
prejudice resulted such that “there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland, 466
U.S. at 687-88, 694. “A reasonable probability is a probability sufficient to undermine
confidence in the outcome.” Id. at 694.

        Gillespie argues his counsel was ineffective for making two affirmative misstatements in
his closing statement. First, counsel stated to the jury that vaginal lacerations had been found on
the victim despite the fact that he had elicited testimony on cross-examination of the
prosecution’s medical expert that there was no evidence of any lacerations. Second, counsel
misstated the time stamp that appeared on surveillance footage recorded by a bagel store at
which Gillespie was present the evening of the incident, stating, incorrectly, that the footage
showed Gillespie leaving the store at 11:44 PM, and not 11:46 PM, as it actually showed.
Gillespie contends that these statements were both material and damaging. The defense’s case
turned on the credibility of Gillespie’s testimony that the sexual encounter between Gillespie and
the complainant was consensual. Thus, Gillespie argues that defense counsel’s suggestion that
there were vaginal lacerations undermined this defense. Because complainant testified that she

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placed a call to 911 during the attack, and the police record of this call was time stamped at
11:46 PM, Gillespie argues defense counsel’s misstatement regarding the time stamp on the
surveillance footage supported the prosecutor’s timeline: that Gillespie had time to exit the store,
forcibly grab the complainant, and sexually assault her.

        Respondent-appellee Superintendent D. Uhler concedes that defense counsel’s
misstatements fell below an objective standard of reasonableness. We agree that both
misstatements were material and arguably inculpatory, but we need not ultimately determine the
question of objective unreasonableness as we cannot say that the Appellate Division was
unreasonable when it found that the defense counsel’s misstatements were not sufficiently
prejudicial under Strickland. The jury heard testimony from the prosecution’s medical expert that
there were no vaginal lacerations as well as testimony that the surveillance footage showed
Gillespie leaving the bagel store at 11:46 PM. Although the manager of the bagel store testified
that the surveillance system had not been serviced in several years and the time stamp on the
footage could be off by one to two minutes, we agree with the district court that the jury was not
under any obligation to credit the accuracy of the time stamp, and could well have concluded that
the time stamp must have been off by more than one or two minutes. Further, the jury was
specifically instructed that defense counsel’s closing argument was not evidence and could not
be considered in reaching a verdict, and the jury is presumed to have followed that instruction
appropriately. See United States v. Batista, 684 F.3d 333, 342 (2d Cir. 2012). “In assessing
prejudice under Strickland, the question is not whether a court can be certain counsel's
performance had no effect on the outcome or whether it is possible a reasonable doubt might
have been established if counsel acted differently.” Harrington, 562 U.S. at 111. “The likelihood
of a different result must be substantial, not just conceivable.” Id. at 112. Thus, we cannot
conclude that the Appellate Division’s decision that these statements were not sufficiently
prejudicial was “error . . . beyond any possibility for fairminded disagreement.” Id. at 103.

        Gillespie next argues that his counsel’s failure to object during the prosecutor’s
summation deprived him of effective assistance of counsel under Strickland. Among other
things, Gillespie argues that his counsel failed to object when the prosecutor stated that the
complainant was “forced to come into court . . . and face[] the man who attacked her, face [the
jury], 16 strangers, a room full of people who she’s never seen or met before and describe[] the
most horrifying, embarrassing, invasive story that she’s been asked to tell in her short life.”
App’x at 233. Gillespie alleges this statement inappropriately invoked Gillespie’s Sixth
Amendment right “to be confronted with the witnesses against him.” U.S. Const., amend VI. In
support of this argument, Gillespie largely relies on Burns v. Gammon, 260 F.3d 892 (8th Cir.
2001). But the facts in Burns are significantly different than those in this case. In Burns, the
prosecutor specifically “asked the jury, while considering guilt and sentencing, to consider the
fact that [the defendant], by exercising his constitutional right to a jury trial and to confront
witnesses, forced the victim to attend trial, take the stand and relive the attack.” Burns, 260 F.3d
at 896. In this case, it is clear from the full context of the prosecutor’s summation that the
prosecutor was not saying that Gillespie “forced” the complainant to testify, but rather that the
fact that the complainant testified supported the likelihood that her testimony was credible. We
cannot conclude that it was unreasonable for the Appellate Division to hold that there was no
“substantial” likelihood that had Gillespie’s counsel objected during the prosecutor’s summation
Gillespie would not have been convicted.


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         Although the district court noted that the prosecution’s case was not “overwhelming,”
AEDPA does not permit us to grant habeas relief unless we can conclude that “no fairminded
jurist” could agree with the Appellate Division’s decision that defense counsel’s misstatements
and failure to object were not sufficiently prejudicial under Strickland. We conclude that
Gillespie failed to make that showing. Therefore, his claim that his attorney failed to provide him
with constitutionally effective representation provides no basis for granting a writ of habeas
corpus.

        We have reviewed Gillespie’s remaining arguments and find them to be without merit.
For the foregoing reasons, the judgment of the District Court is AFFIRMED.



                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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