No. 18-2288
Miller v. Warden of Sing Sing


                                     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.

       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 12th day of March, two thousand twenty.

PRESENT:
           RALPH K. WINTER,
           SUSAN L. CARNEY,
           JOSEPH F. BIANCO,
                        Circuit Judges.
_________________________________________

JAMES MILLER,

                    Petitioner-Appellant,

                                v.                                              No. 18-2288

WARDEN OF SING SING CORRECTIONAL FACILITY,

           Respondent-Appellee.*
_________________________________________

FOR PETITIONER-APPELLANT:                                   RANDALL D. UNGER, ESQ., Bayside, NY.

FOR RESPONDENT-APPELLEE:                                    CAMILLE O’HARA GILLESPIE (Leonard
                                                            Joblove, Amy Appelbaum, on the brief),


 *   The Clerk of Court is directed to amend the caption as above.
                                                    Assistant District Attorneys of Counsel, for
                                                    Eric Gonzalez, District Attorney, Kings
                                                    County, Brooklyn, NY.

       Appeal from the judgment and order of the United States District Court for the
Eastern District of New York (Cogan, J.).

       UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
ADJUDGED, AND DECREED that the judgment entered on July 23, 2018, is
AFFIRMED.

       Petitioner-Appellant James Miller appeals from a judgment of the United States
District Court for the Eastern District of New York denying Miller’s petition for a writ of
habeas corpus. The District Court certified two questions for appeal under 28 U.S.C.
§ 2253(c). This Court accepted and expanded the certification in a December 21, 2018 order.

       In April 2010, after a jury trial in Kings County Supreme Court, Miller was convicted
of Burglary in the Second Degree (under N.Y. Penal Law § 140.25(2)) and Grand Larceny in
the Fourth Degree (under N.Y. Penal Law § 155.30(1)) for his role in a March 2009 burglary.
Only two latent fingerprints found at the scene linked Miller to the crimes. At trial, New
York Police Department (NYPD) fingerprint examiner Rosemarie Simonetti testified to her
analysis of the two fingerprints. In addition to providing the results of her own
examination—including her conclusion that the prints were Miller’s—she stated briefly that
two other NYPD fingerprint examiners had checked her work and agreed with her
conclusion. Miller’s trial counsel did not object to this testimony.

       Upon the jury’s guilty verdict, the court sentenced Miller as a persistent violent felony
offender to concurrent prison terms of sixteen years to life on the burglary conviction and
one and one-half to three years on the grand larceny conviction. Miller unsuccessfully
appealed the judgment of conviction in state court and he then, again unsuccessfully,
challenged his conviction under New York Criminal Procedure Law § 440.10. The District
Court denied Miller’s federal habeas petition in 2018 after the section 440.10 proceedings




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ended. See Miller v. Warden of Sing Sing Corr. Facility, No. 13-cv-4576, 2018 WL 3518503, at *1
(E.D.N.Y. July 20, 2018).

          Our Court reviews de novo the District Court’s denial of a petition for a writ of habeas
corpus. Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir. 2001). We assume the parties’ familiarity
with the underlying facts, procedural history, and arguments on appeal, to which we refer
only as necessary to explain our decision to affirm.

          Under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), federal
courts must apply a deferential standard of review to state court rulings “with respect to any
claim that was adjudicated on the merits in State court proceedings.” 28 U.S.C. § 2254(d). If
the state court did not decide the claim “on the merits,” however, federal courts will review
the state court’s ruling de novo. Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001) (internal
quotation marks omitted) (“If a state court has not adjudicated the claim ‘on the merits,’ we
apply the pre-AEDPA standards, and review de novo the state court disposition of the
petitioner’s federal constitutional claims.”). Miller argues that the New York courts did not
adjudicate his ineffective assistance claim on the merits. Therefore, he urges that, like the
District Court, our Court should review the ineffective assistance claim de novo. Because we
conclude that the result is the same whether we review de novo or apply the AEDPA
standard, we need not resolve the question whether the state court decided Miller’s
ineffective assistance claim on the merits.

          Turning, then, to the merits of Miller’s ineffective assistance claim: Miller argues that
his trial counsel’s failure to object to Simonetti’s discussion of the work of two other
fingerprint examiners ran afoul of the Sixth Amendment and satisfies the Strickland standard
for assessing whether he received unconstitutionally ineffective assistance of counsel. The
Strickland standard includes two prongs. First, “[t]he court must . . . determine whether, in
light of all the circumstances, the identified acts or omissions were outside the wide range of
professionally competent assistance.” Strickland v. Washington, 466 U.S. 668, 690 (1984).
Second, “[t]he defendant must show that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would have been different.” Id.
at 694.

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       We conclude that Miller’s claim fails to satisfy the second prong: he has not shown
that his trial counsel’s failure to object to the alleged Confrontation Clause violation
prejudiced him by likely changing the result of the proceedings. Miller’s argument that he
was prejudiced fails to persuade us primarily for the following two reasons.
       First: Simonetti’s testimony regarding the conclusions of the two other NYPD
fingerprint examiners was very brief—approximately 15 lines of the transcript of her direct
examination, which spanned approximately 25 pages. See Resp. to Order to Show Cause, Ex.
A at 461-62, 470, Miller v. Warden of Sing Sing Corr. Facility, No. 13-cv-4576 (E.D.N.Y. Nov.
15, 2013), ECF No. 9-1. It was never mentioned again at trial by either party. As the District
Court later described, the bulk of Simonetti’s testimony concerned her own process in
examining the fingerprints, and Miller’s counsel cross-examined her about this process.
Miller, 2018 WL 3518503, at *10. Thus, notwithstanding the crucial role that the fingerprints
played in Miller’s conviction, it is exceedingly difficult to infer that objections to these
relatively brief references without any subsequent highlighting by the prosecution might have
changed the result of the proceedings.
       Second: When ruling in the section 440.10 proceedings, the New York Supreme
Court judge explained that “[Miller’s t]rial counsel employed and consulted with a fingerprint
expert, and informed the Court that the expert may be called as a witness at trial . . . [but]
trial counsel chose not to call the fingerprint expert he had consulted with as a matter of trial
strategy.” People v. Miller, No. 4792/09, 2015 WL 458723, at *2 (N.Y. Sup. Ct. Jan. 8, 2015).
Miller does not contest this factual recitation. Accepting it then as true, trial counsel’s
decision also supports the inference that, if called to testify, the defense’s fingerprint expert
would have simply confirmed Simonetti’s findings. We see no basis to think that the direct
testimony by the two other NYPD examiners would have done anything different. These
observations reinforce the conclusion that the outcome for Miller would not have changed
in his favor had the other NYPD examiners testified.
       In sum, we decide that Miller has not shown that he was prejudiced by his counsel’s
failure to object. His Strickland claim therefore fails. We thus see no need to address




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Strickland’s first prong, whether “the identified acts or omissions were outside the wide range
of professionally competent assistance.” Strickland, 466 U.S. at 690.

       Since we conclude that Miller’s counsel was not constitutionally ineffective by failing
to object to this brief testimony, we may not review Miller’s substantive Confrontation
Clause claim. See Tavarez v. Larkin, 814 F.3d 644, 649-50 (2d Cir. 2016) (“Because . . . counsel
failed to object at trial, to succeed on the merits of the claim, [the petitioner] must first
overcome the procedural defect . . . . There is no doubt that ineffective assistance of counsel
can serve as cause to excuse a procedural default.”). Because counsel’s procedural default is
not excused, we do not reach the question whether Miller’s Confrontation Clause rights were
violated when he was unable to cross-examine the two non-testifying fingerprint examiners.

                                         *       *       *

       We have considered all of Miller’s remaining arguments and conclude that they are
without merit. The judgment of the District Court is AFFIRMED.

                                                     FOR THE COURT:

                                                     Catherine O’Hagan Wolfe, Clerk of Court




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