     11-435-pr
     Carncross v. Poole

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 30th day of November, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                JOSÉ A. CABRANES,
 9                DEBRA ANN LIVINGSTON,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       James J. Carncross,
14                Petitioner-Appellant,
15
16                    -v.-                                               11-435-pr
17
18       Thomas Poole, Superintendent, Five
19       Points Correctional Facility
20                Respondent-Appellee.*
21       - - - - - - - - - - - - - - - - - - - -X
22
23       FOR PETITIONER-APPELLANT:             Stewart F. Hancock, Jr., Esq.,
24                                             Mitchell Goris & Stokes, LLC,


                *
               The Clerk of Court is directed to amend the official
         caption as shown above.
                                                  1
 1                                 Cazenovia, NY (Randi Juda
 2                                 Bianco, Esq., Bianco Law
 3                                 Offices, Syracuse, NY; Gregory
 4                                 W. Dewan, Esq., Cazenovia, NY on
 5                                 the brief)
 6
 7   FOR RESPONDENT-APPELLEE:      Ashlyn Dannelly Beck, Assistant
 8                                 Attorney General, New York, NY
 9                                 (Eric T. Schneiderman, Attorney
10                                 General of the State of New
11                                 York; Barbara D. Underwood,
12                                 Solicitor General; Roseann B.
13                                 MacKechnie, Deputy Solicitor
14                                 General for Criminal Matters, on
15                                 the brief)
16
17       Appeal from the judgment of the District Court for the

18   Northern District of New York (Kahn, J.) denying petitioner

19   Carncross’s petition for habeas corpus.

20

21       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

22   AND DECREED that the judgment of the District Court is

23   AFFIRMED.

24

25       Petitioner James J. Carncross appeals from the denial

26   of a writ of habeas corpus.    He argued below that he was

27   deprived of his right to his choice of counsel when his

28   initial defense counsel was disqualified due to a conflict

29   of interest and, separately, that his replacement counsel

30   afforded ineffective assistance.    The District Court granted

31   a Certificate of Appealability as to his choice-of-counsel



                                    2
1    claim.   We assume the parties’ familiarity with the

2    underlying facts and the procedural history of the case.

3

4        We review de novo the denial of a habeas petition.

5    Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006).     A

6    district court reviews a habeas petition seeking vacatur of

7    a state conviction under the rules set out in the

8    Antiterrorism and Effective Death Penalty Act of 1996, which

9    provides that a federal court may grant such a habeas

10   petition only if the petitioner demonstrates that the state

11   court’s decision was (1) “contrary to, or involved an

12   unreasonable application of, clearly established Federal

13   law, as determined by the Supreme Court of the United

14   States” or (2) “was based on an unreasonable determination

15   of the facts in light of the evidence presented in the State

16   court proceeding,” 28 U.S.C. § 2254(d).   See Cullen v.

17   Pinholster, -- U.S. --, 131 S. Ct. 1388, 1398 (2011).

18       As the District Court concluded, Carncross failed to

19   establish that the trial court’s disqualification of his

20   initial defense counsel was unreasonable under clearly

21   established Supreme Court authority or in light of the

22   evidence presented.   Initial defense counsel represented two

23   grand jury witnesses who provided testimony inculpating

24   Carncross.   There was a substantial risk that those

                                   3
1    witnesses would be called at trial, given that at the time

2    the trial court disqualified counsel, the defense was

3    unwilling to disavow strategies that would have been

4    impaired by the testimony of these witnesses.

5        A defendant’s “right to counsel of [his] choice ‘is

6    circumscribed in several important respects.’”   United

7    States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting

8    Wheat v. United States, 486 U.S. 153, 159 (1988)).     Although

9    a trial court “must recognize a presumption in favor of [a

10   defendant’s] counsel of choice, . . . that presumption may

11   be overcome not only by a demonstration of actual conflict

12   but by a showing of a serious potential for conflict.”

13   Wheat, 486 U.S. at 164.   In such a case, “evaluation of the

14   facts and circumstances . . . must be left primarily to the

15   informed judgment of the trial court,” id., which is

16   afforded “substantial latitude” in rejecting waivers of

17   conflicts of interest and disqualifying counsel, id. at 163.

18       Carncross has not shown that the trial court’s decision

19   was contrary to, or involved an unreasonable application of,

20   clearly established Supreme Court authority in light of the

21   circumstances of the case.   Nor has Carncross established

22   the same as to the New York Court of Appeals’s decision,

23   affirming the disqualification of Carncross’s initial

24   defense counsel.

                                   4
1       Finding no merit in Carncross’s remaining arguments, we

2   hereby AFFIRM the judgment of the District Court.

3
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7
8




                                 5
