15-1193-pr
Hamilton v. Lee

                           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
31st day of August, two thousand seventeen.

Present:    ROSEMARY S. POOLER,
            GERARD E. LYNCH,
                        Circuit Judges.
            BRIAN M. COGAN,1
                        District Judge.
_____________________________________________________

ROHAN HAMILTON,

                              Petitioner-Appellant,

                      v.                                                   15-1193-pr

WILLIAM LEE, Superintendent, Green Haven Correctional Facility,

                        Respondent-Appellee.
_____________________________________________________

Appearing for Appellant:      Lawrence Mark Stern, New York, NY.

Appearing for Appellee:       Anthea H. Bruffee, Assistant District Attorney (Leonard Joblove,
                              Sholom J. Twersky, Assistant District Attorneys, on the brief), for
                              Eric Gonzalez, Acting District Attorney, Kings County, Brooklyn,
                              NY.
1
  Judge Brian M. Cogan, United States District Court for the Eastern District of New York,
sitting by designation.



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      Appeal from the United States District Court for the Eastern District of New York
(Weinstein, J.).

     ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.

         Petitioner-Appellant Rohan Hamilton appeals from the March 27, 2015 judgment of the
United States District Court for the Eastern District of New York (Weinstein, J.), denying
Hamilton’s petition for a writ of habeas corpus and granting Hamilton a certificate of
appealability with respect to Hamilton’s claims regarding his right to confrontation and his right
to effective assistance of counsel. We assume the parties’ familiarity with the underlying facts,
procedural history, and specification of issues for review.

   I. Standard of Review

         This Court reviews the district court’s denial of a 28 U.S.C. § 2254 petition de novo and
its factual findings for clear error. Ponnapula v. Spitzer, 297 F.3d 172, 175, 179 (2d Cir. 2002).
Under the Antiterrorism and Effective Death Penalty Act, “[t]he circumstances under which we
may grant the writ are strictly limited,” id., and the writ should not be granted unless a state
court’s adjudication on the merits:

       (1) resulted in a decision that was contrary to, or involved an unreasonable
       application of, clearly established Federal law, as determined by the Supreme
       Court of the United States; or (2) resulted in a decision that 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)(1)-(2).

   II. Confrontation Clause: Procedural Bar

        The district court found that Hamilton’s Confrontation Clause claims were procedurally
barred. We agree.

        “In all cases in which a state petitioner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as
a result of the alleged violation of federal law, or demonstrate that failure to consider the claims
will result in a fundamental miscarriage of justice.” Coleman v. Thompson, 501 U.S. 722, 750
(1991).

       Here, the Appellate Division held that Hamilton’s Confrontation Clause claims were
procedurally barred because his trial counsel objected to the disputed testimony on hearsay
grounds, but not on the confrontation grounds he now attempts to raise in his federal habeas




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petition. See People v. Hamilton, 887 N.Y.S.2d 261, 262 (2d Dep’t 2009). It also determined, in
the alternative, that such claims were “in any event” without merit. Id.

         The state law ground on which the Appellate Division found Hamilton’s claim
procedurally barred was New York’s contemporaneous objection rule. See N.Y. Crim. P. Law
§ 470.05(2). New York’s contemporaneous objection rule “require[s] at the very least, that any
matter which a party wishes the appellate court to decide have been brought to the attention of
the trial court at a time and in a way that gave the latter the opportunity to remedy the problem
and thereby avert reversible error.” Garcia v. Lewis, 188 F.3d 71, 77 (2d Cir. 1999). In
particular, “[u]nder New York law, a defendant does not preserve a Confrontation Clause claim
unless he specifically objects to the introduction of the relevant evidence on constitutional
grounds.” Chrysler v. Guiney, 806 F.3d 104, 119 (2d Cir. 2015); People v. Fleming, 70 N.Y.2d
947, 948 (1988); People v. Lopez, 808 N.Y.S.2d 648, 649 (1st Dep’t 2006) (finding that claim
under Confrontation Clause is unpreserved even where a defendant raised a hearsay objection to
the same evidence); People v. Bones, 793 N.Y.S.2d 545, 546 (2d Dep’t 2005) (finding that claim
under Confrontation Clause is unpreserved where defendant “failed to object with any
specificity” that the evidence in question “violated his Sixth Amendment right to confront
witnesses against him”). Because Hamilton’s hearsay objection failed to bring any confrontation
issue to the state trial court’s attention, Hamilton did not preserve this claim.

        New York’s contemporaneous objection rule is an independent and adequate state
procedural rule. “[T]here is no question that the claimed procedural bar,” the failure to comply
with New York’s contemporaneous objection rule, “constitutes an ‘independent’ state ground of
decision.” Cotto v. Herbert, 331 F.3d 217, 239 (2d Cir. 2003). Moreover, “in accordance with
New York case law, application of the state’s preservation rule is adequate—i.e., firmly
established and regularly followed.” Richardson v. Greene, 497 F.3d 212, 219 (2d Cir. 2007).

         As the district court explained in its well-reasoned opinion, Hamilton failed to
sufficiently demonstrate either cause for the default and actual prejudice, or that a failure to
consider the claims will result in a fundamental miscarriage of justice. “[B]ecause § 470.05(2) is
a state law ground on which the New York appellate court’s decision is based, and that ground is
both independent of any federal question and adequate under firmly established and regularly
followed state law, we will not disturb the state appellate court’s ruling that [Hamilton’s] protest
at trial was insufficient to preserve the arguments he wishes to raise on appeal.” Garvey v.
Duncan, 485 F.3d 709, 720 (2d Cir. 2007).

   III. Confrontation Clause: Merits

        The Appellate Division found, in the alternative, that Hamilton’s Confrontation Clause
claims were without merit. Hamilton, 88 N.Y.S.2d at 261-62. This was an adjudication on the
merits for the purposes of AEDPA. See Zarvela v. Artuz, 364 F.3d 415, 417 (2d Cir. 2004). We
agree with the district court that the state court’s decision was neither contrary to nor involved an
unreasonable application of federal law as established by the Supreme Court.

        Under the Confrontation Clause, a court generally cannot admit testimonial statements
absent the in-court testimony of the declarant. See Crawford v. Washington, 541 U.S. 36, 53-54



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(2004). “The crux of [the Confrontation Clause] is that the government cannot introduce at trial
statements containing accusations against the defendant unless the accuser takes the stand against
the defendant and is available for cross examination.” United States v. Taylor, 745 F.3d 15, 28
(2d Cir. 2014). “[W]hen the declarant appears for cross-examination at trial, the Confrontation
Clause places no constraints at all on the use of his prior testimonial statements.” Crawford, 541
U.S. at 59 n.9. In other words, “[t]he [Confrontation] Clause does not bar admission of a
statement so long as the declarant is present at trial to defend or explain it.” Id.

        As recognized by the district court, “[Hamilton] had the opportunity to cross-examine
Jean, who lifted the latent print; Kennedy, who made the accusatory match; and Dryver, whose
name was noted on the ink fingerprint card.” Hamilton v. Lee, 94 F. Supp. 3d 460, 473
(E.D.N.Y. 2015). Hamilton had a sufficient opportunity to confront those who bore testimony
against him in the form of the palm prints and notated fingerprint cards, and therefore suffered
no violation of his rights under the Confrontation Clause. We therefore need not decide whether,
as the district court also held, the fingerprint cards are non-testimonial in nature.

   IV. Ineffective Assistance of Counsel

        In order to prevail on an ineffective assistance of counsel claim, Hamilton must show that
the state court’s denial of such claim was “contrary to” or involved an “unreasonable
application” of Strickland v. Washington, 466 U.S. 668 (1984), the relevant Supreme Court
precedent. See 28 U.S.C. § 2254(d)(1); Henry v. Poole, 409 F.3d 48, 67 (2d Cir. 2005) (“[A]
petitioner whose claim is that he received ineffective assistance of counsel not only must satisfy
the Strickland standard but also must show that the state court’s rejection of his claim either was
contrary to Strickland or was an unreasonable application of Strickland.”). We have said that:

       Under Strickland, . . . a defendant must meet a two-pronged test: (1) he “must
       show that counsel’s performance was deficient,” so deficient that, “in light of all
       the circumstances, the identified acts or omissions were outside the wide range of
       professionally competent assistance,” and (2) he must show “that the deficient
       performance prejudiced the defense,” in the sense that “there is a reasonable
       probability that, but for counsel’s unprofessional errors, the result of the
       proceeding would have been different.”

Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687,
690, 694) (internal citations omitted). A defendant’s ineffective assistance of counsel claim fails
if the defendant does not meet both prongs of the Strickland standard. Id. at 85.

        Although “[w]e review a district court’s denial of a petition for writ of habeas corpus de
novo, and its factual findings for clear error,” Ponnapula, 297 F.3d at 179 (internal citations
omitted), “AEDPA requires the federal habeas court to accord deference to the state court’s
ruling on claims of ineffective assistance of counsel.” Santone v. Fischer, 689 F.3d 138, 154 (2d
Cir. 2012). A court reviewing an ineffective assistance of counsel claim “must apply ‘a strong
presumption that counsel’s conduct falls within the wide range of reasonable professional
assistance.’” Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015) (quoting Strickland, 466 U.S. at




                                                 4
689). “[S]trategic choices made after thorough investigation of law and facts relevant to plausible
options are virtually unchallengeable[.]” Strickland, 466 U.S. at 690.

         Here, Hamilton is unable to show that the state court’s determination—that Hamilton’s
ineffective assistance claims were without merit—was an unreasonable application of Strickland.
His primary claim is that his trial counsel was ineffective for failing to call an expert to
adequately challenge the palm print evidence. “But Strickland does not enact Newton’s third law
for the presentation of evidence, requiring for every prosecution expert an equal and opposite
expert from the defense.” Harrington v. Richter, 562 U.S. 86, 111 (2011); see also Gersten v.
Senkowski, 426 F.3d 588, 609 (2d Cir. 2005) (“[T]here is no per se rule that requires trial
attorneys to seek out an expert.”). Furthermore, “[i]n many instances, cross-examination will be
sufficient to expose defects in an expert’s presentation.” Richter, 562 U.S. at 111. Hamilton’s
trial counsel adequately challenged the prosecution’s fingerprint expert on cross-examination and
the palm print evidence in his summation. And in light of the risks involved in calling a
competing expert who may have corroborated the state’s expert’s views, trial counsel’s decision
to call a defense expert was a reasonable strategic choice. The district court correctly held that
the state court’s denial of Hamilton’s ineffective assistance claim was not an unreasonable
application of Strickland.

        Even if Hamilton were able to show that his counsel’s performance was inadequate, he
failed to show that he suffered sufficient prejudice. “Even serious errors by counsel do not
warrant granting habeas relief where the conviction is supported by overwhelming evidence of
guilt.” Lindstadt v. Keane, 239 F.3d 191, 204 (2d Cir. 2001). Substantial evidence (e.g.,
Hamilton’s own confessions, testimony from third parties about his actions before and after the
victim’s death, and forensic evidence) points to Hamilton’s guilt. Given the strength of the
evidence against Hamilton, any potential ineffectiveness did not rise to prejudicial error under
the deferential standard of review under AEDPA and Strickland.

       We have considered the remainder of Hamilton’s arguments and find them to be without
merit. Accordingly, the order of the district court hereby is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




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