10-480-pr
King v. Greiner

                             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 United States Courthouse, at 500 Pearl Street, in the City of New York,
on the 23rd day of December, two thousand eleven.

Present:
           ROBERT D. SACK,
           ROBERT A. KATZMANN,
           BARRINGTON D. PARKER,
                      Circuit Judges.
_______________________________________________________________________

BRUCE KING,

                            Petitioner-Appellant,

                            - v. -                        No. 10-480-pr

CHARLES R. GREINER, ATTORNEY GENERAL OF THE STATE OF NEW YORK,

                            Respondents-Appellees.

____________________________________________________________

For Petitioner-Appellant:                  RANDA D. MAHER, Great Neck, N.Y.

For Respondent-Appellee:                   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.
        Appeal from the United States District Court for the Southern District of New York
(Cote, J.).

       ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

       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 (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


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applie[d] that principle to the facts” of his case. Id. at 413. 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 (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.




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       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

(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,

131 S. Ct. 770, 788 (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




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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.


                                                 FOR THE COURT:
                                                 CATHERINE O’HAGAN WOLFE, CLERK




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