     15-1604
     Kelley v. Larkin

                                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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
 3   on the 21st day of February, two thousand seventeen.
 4
 5   PRESENT:
 6              PIERRE N. LEVAL,
 7              GUIDO CALABRESI,
 8              SUSAN L. CARNEY,
 9                    Circuit Judges.
10   _____________________________________
11
12   BEN KELLEY,
13                           Petitioner-Appellant,
14
15                      v.                                              No. 15-1604
16
17   ROLLIN LARKIN,
18                    Respondent-Appellee.
19   _____________________________________
20
21   FOR PETITIONER-APPELLANT:                            ROBERT A. CULP, Garrison, NY.
22
23   FOR RESPONDENT-APPELLEE:                            MICHAEL J. MILLER, Assistant District
24                                                       Attorney, for Thomas J. Spota, District
25                                                       Attorney of Suffolk County, Riverhead,
26                                                       NY.
27
28             Appeal from a judgment of the United States District Court for the Eastern District of
29   New York (Korman, J.).
 1          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
 2   ADJUDGED, AND DECREED that the April 27, 2015 judgment of the District Court is
 3   AFFIRMED.
 4          After a jury trial in New York state court, petitioner-appellant Ben Kelley was
 5   convicted of second-degree felony murder under New York Penal Law § 125.25(3), arising
 6   from his participation in an armed robbery of a Radio Shack in Oakdale, New York. The
 7   evidence against him included a confession obtained after police arrested and held him for
 8   approximately fifteen hours, during which time he was taken to the hospital for evaluation of
 9   injuries he sustained during the arrest. Before trial, Kelley sought, unsuccessfully, to suppress
10   the confession on the ground that it was given involuntarily. In post-conviction proceedings,
11   the New York courts rejected Kelley’s efforts to overturn the judgment. Kelley then filed the
12   instant 28 U.S.C. § 2254 habeas petition in the District Court, which denied the petition. He
13   has now appealed that denial. He argues (1) that the confession should have been suppressed
14   because it was involuntary, (2) that his trial counsel was ineffective for failing to pursue and
15   present evidence that he was given opioid medications while at the hospital before confessing,
16   and (3) that the prosecution violated the Confrontation Clause by inviting the jury to infer that
17   his codefendants had implicated him in the robbery while they were briefly together in the
18   same police interrogation room. We assume the parties’ familiarity with the underlying facts
19   and the procedural history of the case, to which we refer only as necessary to explain our
20   decision to affirm.
21          We review the District Court’s denial of the petition de novo. Clark v. Perez, 510 F.3d 382,
22   389 (2d Cir. 2008). As to the state court’s decision on the merits, we ask whether the decision
23   “was contrary to, or involved an unreasonable application of, clearly established Federal law”
24   or “was based on an unreasonable determination of the facts in light of the evidence presented
25   in the State court proceeding.” 28 U.S.C. § 2254(d).
26          Kelley has failed to show that it was unreasonable for the state court to reject his claim
27   that the confession was involuntarily given. A court reviewing the totality of circumstances
28   surrounding Kelley’s confession could reasonably conclude that his “will was [not] overborne

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 1   by the police.” United States v. Taylor, 745 F.3d 15, 25 (2d Cir. 2014) (internal quotation marks
 2   omitted).
 3          The testimony about the medications that Kelley received came to light only at trial,
 4   after the suppression motion had been denied, and trial counsel did not renew the motion or
 5   move to reopen the suppression hearing. These circumstances make it doubtful, at best, that
 6   the testimony is properly part of the record to which we may refer in reviewing the
 7   reasonableness of the state court’s decision. Even taking account of that testimony, however,
 8   we find the state court’s decision to be reasonable. The record reveals almost nothing about
 9   the effects of the medications he received. It does not suggest that the medications had any
10   adverse effects on his coherence, lucidity, or competence to confess. Further, we are directed
11   to no record evidence that the police knew about, much less exploited, any effects that the
12   medications might have had on Kelley. See Colorado v. Connelly, 479 U.S. 157, 167 (1986)
13   (rejecting the view that the Due Process Clause requires “sweeping inquiries into the state of
14   mind of a criminal defendant who has confessed . . . divorced from any coercion brought to
15   bear on the defendant by the State”).
16          Kelley’s ineffective-assistance claim also lacks merit. “To succeed on a claim of
17   ineffective assistance of counsel in violation of the Sixth Amendment . . . a defendant must
18   demonstrate (1) that his attorney’s performance ‘fell below an objective standard of
19   reasonableness,’ and (2) that ‘there is a reasonable probability that, but for counsel’s
20   unprofessional errors, the result of the proceeding would have been different.’” Wilson v.
21   Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (citations omitted) (quoting Strickland v. Washington,
22   466 U.S. 668, 688, 694 (1984)). “The standards created by Strickland and § 2254(d) are both
23   highly deferential, and when the two apply in tandem, review is doubly so.” Fischer v. Smith, 780
24   F.3d 556, 561 (2d Cir. 2015) (internal quotation marks omitted).
25          It was not unreasonable for the state court to conclude that Kelley failed to meet
26   Strickland’s standards. As to Strickland’s second prong, it would be reasonable to conclude that
27   no prejudice resulted from trial counsel’s omissions, given the weaknesses in the



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 1   involuntariness argument and the substantial incriminating evidence aside from Kelley’s
 2   confession.
 3          We also deny Kelley’s request that we remand the case for further factual development
 4   of the ineffective-assistance claim. In reviewing a state court’s decision on the merits under
 5   § 2254(d), federal courts are generally not permitted to expand the record beyond what was
 6   before the state court. See Cullen v. Pinholster, 563 U.S. 170, 181-85 (2011). Also, Kelley has not
 7   described in any detail the evidence that he would expect to be developed on remand and that
 8   could render his habeas claims meritorious.
 9          Finally, Kelley’s Confrontation Clause claim fails. If the prosecution’s presentation of
10   the testimony regarding Kelley’s encounter with his codefendants invited any inference, it was
11   that Kelley confessed because he feared that his codefendants might cooperate with the
12   authorities and implicate him, or might have already done so. That inference, unlike a
13   suggestion by the prosecution that a codefendant had implicated Kelley, raises no
14   Confrontation Clause concern.
15                                                  ***
16          We have considered Kelley’s remaining arguments and find them to be without merit.
17   Accordingly, we AFFIRM the judgment of the District Court.
18
19                                                        FOR THE COURT:
20                                                        Catherine O’Hagan Wolfe, Clerk of Court




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