12-2353-pr
Lopez v. Graham


                               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 13th
day of May, two thousand thirteen.

PRESENT:
            JOSÉ A. CABRANES,
            BARRINGTON D. PARKER,
            RAYMOND J. LOHIER, JR.,
                         Circuit Judges.
_____________________________________

ERNESTO LOPEZ,

                  Petitioner-Appellant,

                          v.                                                No. 12-2353-pr

HAROLD D. GRAHAM, Superintendent,

            Respondent-Appellee.
_____________________________________

FOR PETITIONER-APPELLANT:                                   Ernesto Lopez, pro se, Coxsackie, NY.

FOR RESPONDENT-APPELLEE:                                    Camille O’Hara Gillespie, Leonard
                                                            Joblove, Amy Appelbaum, for Charles
                                                            J. Hynes, Kings County District
                                                            Attorney, Kings County District
                                                            Attorney’s Office, Brooklyn, NY.
        Appeal from a judgment and order of the United States District Court for the Eastern
District of New York (Nicholas G. Garaufis, Judge).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the District Court’s May 24, 2012 judgment is AFFIRMED.

         Petitioner-appellant Ernesto Lopez, proceeding pro se, appeals from the District Court’s
denial of his habeas corpus petition brought pursuant to 28 U.S.C. § 2254. He argues that the state
trial court deprived him of his right to counsel and due process by failing to give proper
consideration to his motion to replace his court-appointed attorney. We assume the parties’
familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

                                            DISCUSSION

                                                   A.

         We review de novo a district court’s denial of a § 2254 petition. See Bierenbaum v. Graham, 607
F.3d 36, 47 (2d Cir. 2010). Under the Antiterrorism and Effective Death Penalty Act (“AEDPA”),
when a state court has 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 . . . but unreasonably applies that principle to the facts of
[petitioner’s] case.” Williams v. Taylor, 529 U.S. 362, 413 (2000). A state court’s application of federal
law cannot be deemed unreasonable under § 2254(d)(1) “so long as ‘fairminded jurists could
disagree’ on the correctness of the state court’s decision.” Harrington v. Richter, 131 S. Ct. 770, 786
(2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664 (2004)). Where there has been an
adjudication on the merits in the state court proceeding, § 2254(d)(1) limits a federal court’s review
“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).

                                                   B.

        In this case, the District Court noted that no Supreme Court precedents directly addressed
(1) whether a trial court violates a defendant’s Sixth Amendment right to counsel by denying his
request to replace his court-appointed attorney during trial (following a pre-trial reassignment
motion), or (2) what kind of inquiry the trial court must make in order to determine whether such a
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defendant is entitled to reassignment of counsel. In light of the lack of Supreme Court precedents
directly on point, we conclude that the District Court properly held that the Appellate Division’s
rejection of Lopez’s claim was not “contrary to, or involved an unreasonable application of, clearly
established Federal law.” 28 U.S.C. § 2254(d); see Miranda v. Bennett, 322 F.3d 171, 178-79 (2d Cir.
2003) (affirming a district court’s denial of habeas relief where a petitioner argued that “the trial
court should have replaced his assigned counsel” because “no error [existed] in the district court’s
conclusion that the Appellate Division’s rejection of those claims was not contrary to or an
unreasonable application of clearly established federal law or an unreasonable determination of the
facts”).

        Moreover, as the District Court found, the state trial court conducted a reasonable inquiry
into Lopez’s reassignment of counsel request, despite its initial statements that reassignment was
“not going to happen” and that it had an apparent policy against “interrupt[ing] trials for the
purpose of changing lawyers.” Simply put, the record demonstrates that the state trial court
reviewed Lopez’s motion, which contained only conclusory statements and did not specifically
address his issues with counsel, and gave Lopez an opportunity to explain his basis in court. In any
event, even if the state trial court’s inquiry was inadequate, the District Court correctly explained that
such error was harmless as the grounds for reassignment given by Lopez at the time were
insubstantial, and Lopez was competently represented by counsel throughout his trial. See Norde v.
Keane, 294 F.3d 401, 412 (2d Cir. 2002) (noting that the failure of a trial court to inquire into a state
prisoner’s request for new counsel during trial did not warrant habeas relief because the record
demonstrated that the petitioner “received vigorous and capable representation by his assigned
counsel”).

                                           CONCLUSION

       We have considered all of Lopez’s arguments on appeal and conclude that they are without
merit. Accordingly, the May 24, 2012 judgment of the District Court is AFFIRMED.

                                                                 FOR THE COURT:
                                                                 Catherine O’Hagan Wolfe, Clerk




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