13-1137-pr
McCray v. New York

                        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
17th day of July, two thousand fourteen.

PRESENT:        BARRINGTON D. PARKER,
                DEBRA ANN LIVINGSTON,
                CHRISTOPHER F. DRONEY,
                                   Circuit Judges.

JOSEPH MCCRAY,
                                     Petitioner-Appellant,

       - v. -                                                              No. 13-1137-pr

STATE OF NEW YORK, DEPARTMENT OF PAROLE,
                                     Respondent-Appellee.


                                             SALLY WASSERMAN, New York, NY, for Petitioner-
                                             Appellant.

                                             CAMILLE O’HARA GILLESPIE (Leonard Joblove,
                                             Ann Bordley, on the brief), Assistant District
                                             Attorneys, for Kenneth P. Thompson, District
                                             Attorney, Kings County, Brooklyn, NY, for
                                             Respondent-Appellee.




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       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-Appellant Joseph McCray appeals from a judgment of the United States District

Court for the Eastern District of New York (Dearie, J.), entered February 21, 2013. The district

court denied McCray’s petition for habeas corpus, which was premised on a claim of ineffective

assistance of trial counsel. McCray contends that his lawyer should have moved to dismiss the

indictment in McCray’s underlying state criminal case due to the allegedly improper size of the

grand jury that issued the indictment. In that case, McCray was convicted after a jury trial of grand

larceny, criminal possession of a forged instrument, falsifying business records, offering a false

instrument for filing, criminal mischief, and criminal trespass, and was sentenced in October 2006

to four to twelve years’ imprisonment on the top count, with lesser sentences on the other counts to

run concurrently. His conviction was affirmed by the Appellate Division, and leave to appeal to the

Court of Appeals was denied. McCray’s motion under New York Criminal Procedure Law § 440.10

was also denied by the state court, and the Appellate Division denied leave to appeal the decision.

McCray was released from state prison in November 2009 and discharged from parole in November

2011. We assume the parties’ familiarity with the underlying facts, the procedural history of the

case, and the issues on appeal.1




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          As a preliminary matter, we note that McCray has been released from prison and is also no
longer serving a term of parole. However, he nonetheless meets the statutory requirement that he
was “in custody” at the time of the filing of his petition, 28 U.S.C. § 2254(a), because he was then
on state parole, see Maleng v. Cook, 490 U.S. 488, 490-91 (1989) (citing Jones v. Cunningham, 371
U.S. 236, 242 (1963)). Moreover, because McCray challenges his conviction, his petition is not
mooted by his release from custody and parole supervision. See Wilson v. Mazzuca, 570 F.3d 490,
493 n.1 (2d Cir. 2009) (citing Sibron v. New York, 392 U.S. 40, 57 (1968)).

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                                                   I.

        The federal habeas corpus statute generally requires a petitioner for a writ of habeas corpus

to show that he has “exhausted the remedies available in the courts of the State” in order for the writ

to be granted. 28 U.S.C. § 2254(b)(1)(A). “Exhaustion of state remedies requires that a petitioner

fairly present federal claims to the state courts in order to give the state the opportunity to pass upon

and correct alleged violations of its prisoners’ federal rights.” Carvajal v. Artus, 633 F.3d 95, 104

(2d Cir. 2011) (quoting Duncan v. Henry, 513 U.S. 364, 365 (1995) (per curiam)) (brackets and

internal quotation marks omitted). Even if a claim was not exhausted, however, the habeas statute

permits a petition to “be denied on the merits, notwithstanding the failure of the applicant to exhaust

the remedies available in the courts of the State.” 28 U.S.C. § 2254(b)(2); see also Abuzaid v.

Mattox, 726 F.3d 311, 321-22 & n.8 (2d Cir. 2013).

        Like the district court, we are inclined to think that McCray has exhausted his state remedies

on his claim of ineffectiveness due to his counsel’s failure to object to the allegedly oversized grand

jury: he attempted to present this claim in his pro se motion under New York Criminal Procedure

Law § 440.10. But we need not decide this question because, in any event, McCray’s petition was

properly denied on the merits. See 28 U.S.C. § 2254(b)(2).

                                                   II.

        To prevail on a claim of ineffective assistance of counsel, a defendant must demonstrate both

(1) that counsel’s performance was “deficient” as measured by an “objective standard of

reasonableness,” and (2) that “the deficient performance prejudiced the defense.” Strickland v.

Washington, 466 U.S. 668, 687-88 (1984). On the first prong, “[a] court considering a claim of

ineffective assistance must apply a strong presumption that counsel’s representation was within the



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wide range of reasonable professional assistance.” Harrington v. Richter, 131 S. Ct. 770, 787 (2011)

(internal quotation marks omitted). With respect to the second element, “a challenger must

demonstrate a reasonable probability that, but for counsel’s unprofessional errors, the result of the

proceeding would have been different. A reasonable probability is a probability sufficient to

undermine confidence in the outcome.” Id. (internal quotation marks omitted). “[A] petitioner

cannot show prejudice if the claim or objection that an attorney failed to pursue lacks merit.”

Harrington v. United States, 689 F.3d 124, 130 (2d Cir. 2012) (citations omitted).

       We conclude that McCray’s claim fails on the second prong because he cannot show that

prejudice resulted from any error that his counsel may have committed by failing to object to a grand

jury composed of more members than are permitted under New York state law. The Supreme Court

has never held that state criminal defendants enjoy a federal constitutional right to an indictment.

See Alexander v. Louisiana, 405 U.S. 625, 633 (1972). The right to indictment in a New York state

court prosecution stems from the state constitution, and the particulars of New York grand jury

practice are laid out in state law. See N.Y. Const. art. I, § 6; N.Y. Crim. Proc. Law art. 190. Given

the evidence at McCray’s trial and his subsequent conviction by a petit jury, there is not a reasonable

probability that the result of the proceeding would have been different had his attorney objected to

the allegedly oversized grand jury. See People v. Wiggins, 675 N.E.2d 845, 845-46 (N.Y. 1996)

(stating that the court would not “elevate the kind of representational lapse” that may have precluded

a criminal defendant from testifying in his grand jury proceeding “to an automatic delayed reversal

device,” given that he had been convicted by jury verdict); see also United States v. Mechanik, 475

U.S. 66, 70 (1986) (holding that “any error in the grand jury proceeding connected with the charging

decision was harmless beyond a reasonable doubt” where a petit jury had convicted the defendants



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beyond a reasonable doubt). Accordingly, McCray cannot show prejudice under Strickland, and

thus his petition for habeas corpus must be denied.

       We have considered all of McCray’s remaining arguments and find them to be without merit.

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

                                                      FOR THE COURT:
                                                      Catherine O’Hagan Wolfe, Clerk




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