     13-2062
     Haigler v. Conway


                             UNITED STATES COURT OF APPEALS
                                 FOR THE SECOND CIRCUIT

                                          SUMMARY ORDER
1    RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
2    SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY
3    FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN
4    CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
5    EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION
6    “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY
7    PARTY NOT REPRESENTED BY COUNSEL.
8
 9          At a stated term of the United States Court of Appeals for the Second Circuit, held at the
10   Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
11   17th day of February, two thousand fifteen.
12
13   PRESENT:
14
15          AMALYA L. KEARSE,
16          DEBRA ANN LIVINGSTON,
17          SUSAN L. CARNEY,
18
19                           Circuit Judges.
20   ______________________________________________
21
22   ROBERT HAIGLER,
23
24                                Petitioner-Appellant,
25
26                  -v.-                                               No. 13-2062
27
28   JAMES CONWAY,
29
30                           Respondent-Appellee.
31   __________________________________________
32
33   FOR PETITIONER-APPELLANT:           Robert Haigler, pro se, Malone, NY.
34
35   FOR RESPONDENT-APPELLEE:            Eric T. Schneiderman, Attorney General of the State of New
36                                       York, Barbara D. Underwood, Solicitor General, Nikki
37                                       Kowalski, Deputy Solicitor General for Criminal Matters,
38                                       Joanna Hershey, Assistant Attorney General, New York, NY.

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 1
 2
 3          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

 4   DECREED that the judgment of the District Court is AFFIRMED.

 5          In 2005, Petitioner Robert Haigler was convicted of three counts of robbery in the first degree.

 6   The Appellate Division of the New York Supreme Court upheld his conviction, People v. Haigler,

 7   843 N.Y.S.2d 36 (App. Div. 2007), and the New York Court of Appeals denied leave to appeal,

 8   People v. Haigler, 880 N.E.2d 880 (N.Y. 2007). Haigler, proceeding pro se, petitioned the United

 9   States District Court for the Southern District of New York (Sand, J.) for a writ of habeas corpus

10   pursuant to 28 U.S.C. § 2254. By an order filed on April 30, 2013, the district court denied Haigler’s

11   petition and granted a certificate of appealability on whether Haigler was denied a fair trial in

12   violation of his Fourteenth Amendment right to due process because: (1) the trial court did not

13   declare a mistrial when a prosecution witness testified that prosecutors “offer[ed]” Haigler “too much

14   time” in prison; (2) the prosecutor’s summation cautioned the jury against being “manipulate[d]” by

15   Haigler; and (3) the prosecutor’s summation incorrectly stated that Haigler placed an intimidating

16   phone call to a particular witness. R.A. 19. We assume the parties’ familiarity with the underlying

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

18          This Court reviews a district court’s decision to deny a habeas petition de novo. Bierenbaum

19   v. Graham, 607 F.3d 36, 47 (2d Cir. 2010). Under 28 U.S.C. § 2254(d), as amended by the

20   Antiterrorism and Effective Death Penalty Act (“AEDPA”), Pub. L. No. 104-132, § 104, 110 Stat.

21   1214, 1219 (1996), “a writ of habeas corpus may not issue for any claim adjudicated on the merits

22   by a state court unless the state-court decision was ‘contrary to, or involved an unreasonable

23   application of, clearly established Federal law, as determined by the Supreme Court of the United

24   States,’ . . . or was ‘based on an unreasonable determination of the facts in light of the evidence

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 1   presented’ in state court.” Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) (quoting 28 U.S.C.

 2   § 2254(d)(1)-(2)). A state court unreasonably applies clearly established federal law as determined

 3   by the Supreme Court “if [it] identifies the correct governing legal principle . . . but unreasonably

 4   applies that principle to the particular facts of [a] prisoner’s case.” Williams v. Taylor, 529 U.S. 362,

 5   413 (2000). “[A]n unreasonable application of federal law is different from an incorrect or erroneous

 6   application of federal law,” and requires “[s]ome increment of incorrectness beyond error.” Overton

 7   v. Newton, 295 F.3d 270, 277 (2d Cir. 2002) (emphases and internal quotation marks omitted).

 8          The district court properly denied Haigler’s habeas petition and rejected each of the three

 9   claims on which it granted a certificate of appealability. First, the Appellate Division decided that

10   Haigler was not entitled to a mistrial after a witness for the prosecution testified that the government

11   “offer[ed]” Haigler significant prison time. “The presumption of innocence . . . is a basic component

12   of a fair trial under our system of criminal justice.” Estelle v. Williams, 425 U.S. 501, 503 (1976).

13   But the Supreme Court has never established that a fleeting suggestion that the government offered

14   the defendant a plea agreement impairs that presumption. See, e.g., id. at 505 (noting that a defendant

15   wearing prison attire “is so likely to be a continuing influence throughout the trial that . . . an

16   unacceptable risk is presented of impermissible factors coming into play”). Nor has it established

17   that such a suggestion “impair[s] the presumption of innocence to such an extent that a mistrial is

18   required.” United States v. Deandrade, 600 F.3d 115, 119 (2d Cir. 2010). We therefore conclude

19   that the state court’s decision was neither contrary to, nor an unreasonable application of, “clearly

20   established Federal law, as determined by the Supreme Court of the United States,” 28 U.S.C. §

21   2254(d)(1).

22          Second, the Appellate Division did not unreasonably apply clearly established federal law in

23   determining that Haigler was not deprived of a fair trial when the prosecutor’s summation cautioned

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 1   the jury against being “manipulated” by Haigler. A prosecutor’s improper comments “violate the

 2   Constitution only if they ‘so infected the trial with unfairness as to make the resulting conviction a

 3   denial of due process.’” Parker v. Matthews, 132 S. Ct. 2148, 2153 (2012) (quoting Darden v.

 4   Wainwright, 477 U.S. 168, 181 (1986)). The Supreme Court has emphasized that this “standard is

 5   a very general one, leaving courts more leeway . . . in reaching outcomes in case-by-case

 6   determinations.” Id. at 2155 (internal quotation marks omitted). In Haigler’s trial, the prosecutor’s

 7   summation addressed Haigler’s attempts to intimidate witnesses. The statement cautioning jurors

 8   against being “manipulated” came during that discussion. Although the comment was inappropriate,

 9   in context it did not stray far from the evidence and was not clearly designed to inflame the jury’s

10   passions. Cf. United States v. Marrale, 695 F.2d 658, 667 (2d Cir. 1982) (concluding that a

11   prosecutor’s “admonition to the jury not to ‘be fooled’” by the defense attorney did not “fall[] into

12   the category of impermissible conduct”). The Appellate Division’s determination that the comment

13   did not infect the trial with unfairness was therefore not an unreasonable application of clear Supreme

14   Court precedent.

15          Finally, the Appellate Division concluded that the prosecutor did not deprive Haigler of a fair

16   trial by incorrectly stating that Haigler made an intimidating phone call to John Maldonado, a

17   government witness. That decision did not involve an unreasonable application of clearly established

18   federal law. As the district court explained, Haigler made intimidating calls to two other government

19   witnesses, including one call in which, as the recipient told Maldonado, Haigler had recited both the

20   recipient’s home address and that of Maldonado. So “[w]hile [the] prosecution’s misstatement may

21   have made Haigler look a shade more sinister,” it did not deprive him of his right to a fair trial

22   because “whether or not Maldonado received a call [was] more or less immaterial with regards to the

23   jury’s picture of the overall verdict.” R.A. 16.

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1          We have reviewed the petitioner’s remaining arguments and find them to be without merit.

2   For the foregoing reasons, the judgment of the district court is AFFIRMED.

3                                                     FOR THE COURT:
4                                                     Catherine O’Hagan Wolfe, Clerk
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