    10-5175
    Assadourian v. Brown


                           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 TO 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, 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.
    ______________________________________________

    Joseph Assadourian,

                            Petitioner-Appellant,

                    v.                                                    10-5175

    William D. Brown, Superintendent,

                            Respondent-Appellee.

    ______________________________________________

    FOR PETITIONER-APPELLANT:                       Joseph Assadourian, pro se, Otisville, N.Y.

    FOR RESPONDENT-APPELLEE:                        Alyson J. Gill, Assistant Attorney General, Roseann
                                                    B. MacKechnie, Deputy Solicitor General for
                                                    Criminal Matters, Barbara D. Underwood, Solicitor
                                                    General, for Eric T. Schneiderman, Attorney
                                                    General of the State of New York, New York, N.Y.
       Appeal from a judgment of the United States District Court for the Southern District of

New York (Sweet, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Appellant Joseph Assadourian, pro se, appeals the district court’s judgment denying his

28 U.S.C. § 2254 petition for a writ of habeas corpus. We assume the parties’ familiarity with

the underlying facts, the procedural history of the case, and the issues on appeal.

       This Court conducts a de novo review of a district court’s denial of a § 2254 petition. See

Bierenbaum v. Graham, 607 F.3d 36, 47 (2d Cir. 2010). However, we may set aside a district

court’s factual findings only if those findings are clearly erroneous. See Amadeo v. Zant, 486

U.S. 214, 223 (1988). Under the Antiterrorism and Effective Death Penalty Act of 1996, when

the state courts have adjudicated a petitioner’s claim on the merits, a federal court may grant

habeas relief only if the state court’s adjudication of that claim resulted in a decision that was

either (1) “contrary to, or involved an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United States,” or (2) “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). An unreasonable application of federal law occurs when a

“state court identifies the correct governing legal principle from [the Supreme] Court’s decisions

but unreasonably applies that principle to the facts of the [petitioner’s] case.” Williams v.

Taylor, 529 U.S. 362, 413 (2000). For a state court’s application of federal law to be

unreasonable, the application must be “objectively unreasonable.” Id. at 409. Where there has

been an adjudication on the merits in the state court proceeding, review under § 2254(d)(1) does


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not permit consideration of new evidence in an evidentiary hearing before the federal habeas

court, and review is limited to the record that was before the state court that adjudicated the

claim on the merits. Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

       To prevail on a claim of ineffective assistance of counsel, a petitioner must demonstrate

that: (1) counsel’s representation fell below an objective standard of reasonableness; and

(2) there is a reasonable probability that, but for counsel’s errors, the result of the proceeding

would have been different. See Strickland v. Washington, 466 U.S. 668, 687-88, 694 (1984). “A

reasonable probability is a probability sufficient to undermine confidence in the outcome [of the

proceeding].” Id. at 694. In order for a defendant to demonstrate prejudice in the context of a

claim of ineffective assistance resulting in the rejection of a plea offer,

       a defendant must show that but for the ineffective advice of counsel there is a
       reasonable probability that the plea offer would have been presented to the court
       (i.e., that the defendant would have accepted the plea and the prosecution would
       not have withdrawn it in light of intervening circumstances), that the court would
       have accepted its terms, and that the conviction or sentence, or both, under the
       offer’s terms would have been less severe than under the judgment and sentence
       that in fact were imposed.

Lafler v. Cooper, 132 S. Ct. 1376, 1385 (2012).

       As an initial matter, because Assadourian’s appellate brief fails to challenge the district

court’s denial of his claim for ineffective assistance of appellate counsel, we deem the claim

abandoned, and do not address it in this opinion. See LoSacco v. City of Middletown, 71 F.3d 88,

92-93 (2d Cir. 1995). Additionally, we decline to reach the merits of the State’s argument that

the district court failed to afford appropriate deference to the state trial court’s determination that

trial counsel did not perform unreasonably in failing to discover Assadourian’s non-predicate

felon status, as Assadourian’s failure to establish that he was prejudiced by counsel’s actions is

dispositive of this appeal. See Strickland, 466 U.S. at 687.

                                                   3
       We conclude that the district court properly denied Assadourian’s claim that counsel’s

actions prejudiced him by depriving him of the chance to receive a more favorable plea offer.

Given that the prosecutor repeatedly asserted that the State had no intention of offering him a

plea to a sentence under ten years, and that the offer was not based on a mistaken belief as to the

applicable statutory minimum, the state court’s determination that Assadourian had not been

prejudiced was completely reasonable, thus satisfying § 2254(d)(1)’s deferential standard. See

Premo v. Moore, 131 S. Ct. 733, 743 (2011). Moreover, even assuming arguendo that the State

initially considered a plea to a lower sentence, the record does not reflect that there was a

reasonable probability that such a plea offer would have ultimately been presented to the state

trial court, which is also fatal to Assadourian’s claim of prejudice. See Lafler, 132 S. Ct. at

1385. As the state court’s decision on this claim did not involve an unreasonable application of

clearly established federal law, we affirm the district court’s denial of the claim.

       Assadourian’s arguments on appeal are unpersuasive.1 Assadourian’s argument that the

state court unreasonably applied federal law because its decision was inconsistent with this

Court’s holding in Mask v. McGinnis, 233 F.3d 132, 140-42 (2d Cir. 2000), is without merit, as

habeas relief is only warranted where a state court unreasonably applies clearly established

Supreme Court law, which, as discussed above, did not occur in this case. See 28 U.S.C.

§ 2254(d); see also Mask v. McGinnis, 252 F.3d 85, 90 (2d Cir. 2001) (per curiam).




       1
         We acknowledge that, in light of the Supreme Court’s subsequent holding that review
under § 2254(d) is to be limited to the record before the state court, see Cullen, 131 S. Ct. at
1398, the district court erred in holding an evidentiary hearing as to the issue of prejudice.
However, we conclude that the error was harmless. In our review, we have not considered any
of the evidence that was presented only to the district court.

                                                  4
       As for Assadourian’s claim that he was prejudiced by trial counsel’s failure to discover

his non-predicate felon status because this resulted in his being deprived of his Fifth Amendment

right to testify on his own behalf, our independent review of the record and relevant case law

reveals that the district court properly denied this claim as well. We thus affirm the denial of this

claim for substantially the same reasons stated by the district court in its July 16, 2009 decision.

       We have considered Assadourian’s remaining arguments and find them to be without

merit. Accordingly, we AFFIRM the judgment of the district court.


                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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