08-5283-pr
Forte v. LaClair

                                      UNITED STATES COURT OF APPEALS
                                         FOR THE SECOND CIRCUIT

                                               SUMMARY ORDER
        Rulings by summary order do not have precedential effect. Citation to summary orders
filed after January 1, 2007, is permitted and is governed by this court’s Local Rule 32.1 and
Federal Rule of Appellate Procedure 32.1. In a brief or other paper in which a litigant cites a
summary order, in each paragraph in which a citation appears, at least one citation must either
be to the Federal Appendix or be accompanied by the notation: “(summary order).” A party
citing a summary order must serve a copy of that summary order together with the paper in
which the summary order is cited on any party not represented by counsel unless the summary
order is available in an electronic database which is publicly accessible without payment of fee
(such as the database available at http://www.ca2.uscourts.gov/ ). If no copy is served by
reason of the availability of the order on such a database, the citation must include reference to
that database and the docket number of the case in which the order was entered.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
on the second day of December, two thousand and nine.

PRESENT:

          JOSÉ A. CABRANES,
          ROBERT D. SACK ,
                               Circuit Judges,
         PAUL A. CROTTY ,
                               District Judge.*
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ANTHONY FORTE ,

                     Petitioner-Appellant,

                     -v.-                                                                  No. 08-5283-pr

DARWIN LA CLAIR ,

                     Respondent-Appellee.
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            *
            The Honorable Paul A. Crotty, of the United States District Court for the Southern
  District of New York, sitting by designation.
                                                  1
FOR PETITIONER-APPELLANT:                                              SALLY WASSERMAN , New York,
                                                                       NY.

FOR RESPONDENT-APPELLEE:                                               CHRISTOPHER J. BLIRA-
                                                                       KOESLLER, Assistant District
                                                                       Attorney (Joseph N. Ferdenzi,
                                                                       Nancy D. Killian, Assistant
                                                                       District Attorneys, of counsel)
                                                                       Robert T. Johnson, Office of the
                                                                       District Attorney for Bronx
                                                                       County, Bronx, NY.

        Appeal from a September 5, 2008 order of the United States District Court for the Southern
District of New York (Denise Cote, Judge).

    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the District Court be AFFIRMED.

        Petitioner-appellant Anthony Forte (“defendant”) was convicted after a jury trial in New York
State Supreme Court, Bronx County, of Rape in the First Degree, Sodomy in the First Degree, and
Kidnaping in the Second Degree. On May 24, 2000, defendant was sentenced, as a second-violent-
felony offender to three determinate terms of 15 years’ imprisonment, to run consecutively. The
Appellate Division, First Department, modified defendant’s sentence by ordering that the term for
kidnaping run concurrently with the other sentences, and otherwise affirmed the state trial court
judgment, in an order dated February 5, 2004. People v. Forte, 4 A.D.3d 123 (1st Dep’t 2004). Judge
Albert M. Rosenblatt of the New York State Court of Appeals denied defendant’s application for leave
to appeal. People v. Forte, 2 N.Y.3d 762 (2004).

        On February 28, 2007, defendant filed pro se a petition in the United States District Court for a
writ of habeas corpus, pursuant to 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective
Death Penalty Act, Pub. L. No. 104-132, § 104, 110 Stat. 1214, 1219 (1996), asserting that the state trial
court should have ordered a mistrial based on an outburst by the victim and, defendant argued, because
his appellate counsel was ineffective. The District Court referred the matter to Magistrate Ronald L.
Ellis, who recommended that defendant’s petition be denied in its entirety in a Report and
Recommendation dated April 24, 2008 (“R&R”). Defendant filed objections to the R&R, asking that
the District Court either grant a writ of habeas corpus or a Certificate of Appealability (“COA”). In an
opinion and order dated September 5, 2008, the District Court denied his petition for a writ of habeas
corpus and declined to issue a COA.

        Defendant moved for a COA by a panel of this Court, which granted the COA on the following
issue: whether appellate counsel was constitutionally ineffective for failing to appeal the trial court’s
denial of the motion to suppress identification testimony due to unduly suggestive pretrial identification
procedures. We assume the parties’ familiarity with the underlying facts and procedural history not
outlined here.

        We review de novo a district court’s ruling on a petition for a writ of habeas corpus. See, e.g.,
Overton v. Newton, 295 F.3d 270, 275 (2d Cir. 2002). Pursuant to 28 U.S.C. § 2254(d), a writ of habeas
corpus may not issue for any claim adjudicated on the merits by a state court unless the state court
decision was “contrary to, or involved an unreasonable application of, clearly established Federal law, as
                                                      2
determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), or was “based on an
unreasonable determination of the facts in light of the evidence presented” in state court, id. §
2254(d)(2). We have been reminded that “clearly established Federal law, as determined by the Supreme
Court of the United States,” id. § 2254(d)(1), refers to “the holdings, as opposed to the dicta, of [the
Supreme] Court’s decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529
U.S. 362, 412 (2000); Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) (quoting Williams).

         A state court decision is “contrary to” clearly established federal law if the state court’s
conclusion on a question of law is “opposite” to that of the Supreme Court or if the state court reaches
a different outcome than the Supreme Court “on a set of materially indistinguishable facts.” Williams,
529 U.S. at 413; Alexander, 543 F.3d at 100 (quoting Williams). A state court decision “involves an
unreasonable application of” clearly established federal law as determined by the Supreme Court if it
“identifies the correct governing legal principle from [the Supreme Court’s] decisions but unreasonably
applies that principle to the particular facts of [a defendant’s] case.” Williams, 529 U.S. at 413. A federal
habeas court should not “conflat[e] ‘unreasonableness’ with ‘clear error’ . . . because ‘[t]he gloss of clear
error fails to give proper deference to state courts.’” Brisco v. Ercole, 565 F.3d 80, 87-88 (2d Cir. 2009)
quoting Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “Some increment of incorrectness beyond error is
required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). We have noted, however, “that the
increment [of error beyond clear error] need not be great; otherwise, habeas relief would be limited to
state court decisions so far off the mark as to suggest judicial incompetence.” Id. (internal quotation
marks omitted).

         Under the two-prong federal standard for evaluating claims of ineffective assistance of counsel, a
defendant must show (1) that his attorney’s performance was deficient, and (2) that this deficiency
caused him prejudice—“that there is 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.” Strickland v. Washington, 466 U.S. 668, 694 (1984).
Appellate counsel does not have a duty to raise all colorable claims on appeal; rather, counsel should use
reasonable discretion to determine which claims constitute a defendant’s best arguments for obtaining a
reversal of a conviction. See Jones v. Barnes, 463 U.S. 745, 751-52 (1983). We will find appellate counsel
ineffective for omitting a claim only if a defendant shows that “counsel omitted significant and obvious
issues while pursuing issues that were clearly and significantly weaker.” Mayo v. Henderson, 13 F.3d 528,
533 (2d Cir. 1994).

        Defendant argues that his appellate counsel was ineffective for failing to appeal the trial court’s
denial of the motion to suppress identification testimony due to unduly suggestive pretrial identification
procedures. Specifically, defendant claims that the photo array and pre-indictment lineup presented to
the victim were suggestive because, in each identification procedure, he was featured with a scar above
his left eyebrow. Defendant claims that this is significant because the victim’s sister had cut the
perpetrator over the left eye in a physical altercation on the evening that the victim was harmed.
Defendant also deems significant the fact that when the victim viewed earlier photo arrays (prior to the
one at issue here), she looked at a photo of a man who was not defendant and said that he had “similar
characteristics, but . . . is not the male that had raped her.” (Hearing Tr. 43, 46).

        A photo array is improperly suggestive if “the picture of the accused, matching descriptions
given by the witness, so stood out from all of the other photographs as to suggest to an identifying
witness that [that person] was more likely to be the culprit.” United States v. Thai, 29 F.3d 785, 808 (2d
                                                   3
Cir. 1994) (internal quotation marks omitted); see generally Brisco, 565 F.3d 80 (applying the Neil v. Biggers,
409 U.S. 188 (1972), factors to evaluate the reliability of identification procedures). The District Court
stated that it “examined the photograph of Forte used in the photo array as well as the photograph of
the lineup. As the [R&R] found, no scar is discernible above Forte’s eye in the photographs, and thus
there is no basis for Forte’s claim that the photo array and lineup were unduly suggestive.” Forte v.
LaClair, 2008 WL 4178143, at *5 (S.D.N.Y. Sept. 5, 2008). It is of no significance that the District Court
did not actually see the challenged photo array as a whole1 or the particular photo that defendant added
to the record on appeal. Both the District Court and the Magistrate Judge viewed a photo of defendant
that was substantially similar to the photo used in the identification array, viewed photos of the lineup,
and looked at the defendant himself. The District Court did not err in finding that there was no
discernible scar on defendant’s eyebrow so as to make his photograph “so st[and] out from all of the
other photographs as to suggest to an identifying witness that [defendant] was more likely to be the
culprit.” Thai, 29 F.3d at 808. Accordingly, defendant has not showed that “counsel omitted significant
and obvious issues while pursuing issues that were clearly and significantly weaker.” Mayo, 13 F.3d at
533. We agree with the District Court’s conclusion that “[a]ppellate counsel’s failure to raise the photo
array and lineup issue therefore does not constitute deficient performance.” Forte, 2008 WL 4178143, at
*5.

        Substantially for the reasons stated by the District Court in its careful and comprehensive order
of September 5, 2008, we conclude that the state court’s application of federal law as it pertains to the
effectiveness of counsel in this case was not “an unreasonable application of, clearly established Federal
law, as determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1) and, therefore,
defendant’s claim does not support the grant of a habeas corpus petition.



                                              CONCLUSION

        Accordingly, we AFFIRM the judgment of the District Court.


                                                 FOR THE COURT,
                                                 Catherine O’Hagan Wolfe, Clerk of Court

                                                 By _______________________________




          1
           The District Attorney’s office was unable to produce the photo array—that is, a series of
  separate photographs or “mug shots”—at issue at the time defendant requested it for purposes of
  his appeal.
                                                   4
