     13-723-pr
     Samuel v. LaValley

                                    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.

 1          At a stated term of the United States Court of Appeals for the Second Circuit, held
 2   at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 14th day of January, two thousand fourteen.
 4
 5   PRESENT: REENA RAGGI,
 6            DENNY CHIN,
 7            CHRISTOPHER F. DRONEY,
 8                     Circuit Judges.
 9
10   -------------------------------------------------------------------------------------
11   DARRAN SAMUEL,
12                                          Petitioner-Appellant,
13                                v.                                                         No. 13-723-pr
14
15   THOMAS LAVALLEY,                           Superintendent,            Clinton
16   Correctional Facility,
17
18   ERIC T. SCHNEIDERMAN, New York State Attorney
19   General,
20
21                                          Respondents-Appellees.
22   -------------------------------------------------------------------------------------
23
24   APPEARING FOR APPELLANT:                                   PAUL WIENER, The Legal Aid Society,
25                                                              Criminal Appeals Bureau, New York,
26                                                              New York.
27
28   APPEARING FOR APPELLEES:                                   MORGAN J. DENNEHY, Assistant District
29                                                              Attorney, Of Counsel (Leonard Joblove, Ann
30                                                              Bordley, on the brief), for Charles J. Hynes,
31                                                              District Attorney, Kings County, Brooklyn,
32                                                              New York.

                                                                    1
 1
 2          Appeal from a judgment of the United States District Court for the Eastern District

 3   of New York (Brian M. Cogan, Judge).

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

 5   AND DECREED that the judgment that became final on July 12, 2013, is AFFIRMED.

 6          Darran Samuel, who stands convicted in New York following a jury trial for

 7   murder in the second degree (felony murder), robbery in the first degree, and attempted

 8   robbery in the second degree, see N.Y. Penal Law §§ 125.25(3), 160.15(1) and

 9   110.00/160.10(2)(a), appeals from the denial of his petition pursuant to 28 U.S.C. § 2254

10   for habeas corpus relief from conviction. Samuel contends that the district court erred in

11   failing to conclude that the Appellate Division, Second Department, unreasonably applied

12   federal law on direct appeal in rejecting his claim of ineffective assistance of trial

13   counsel. The district court granted a certificate of appealability, see 28 U.S.C.

14   § 2253(c)(3), upon determining that the “question of whether the Appellate Division’s

15   determination of lack of prejudice reasonably applied Strickland is one as to which

16   petitioner has made a substantial showing of the possible denial of a constitutional right.”

17   Samuel v. LaValley, No. 12 Civ. 2372 (BMC), 2013 WL 550688, at *12 (E.D.N.Y. Feb.

18   12, 2013). We assume the parties’ familiarity with the facts and record of the underlying

19   proceedings, which we reference only as necessary to explain our decision to affirm. 1


     1
       The district court determined that Samuel just “barely” exhausted his ineffective
     assistance claim under the standard set forth in Daye v. Attorney Gen., 696 F.2d 186, 191
     (2d Cir. 1982) (en banc), and noted that this court might consider at some point “whether
     Daye’s definition of exhaustion should be revisited in light of the subsequent enactment
     of AEDPA.” Samuel v. LaValley, No. 12 Civ. 2372(BMC), 2013 WL 550688, at *2 &
                                                  2
 1   1.     Standard of Review

 2          Although we review a district court’s denial of a habeas petition de novo, see

 3   Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012), our review is cabined by double layers

 4   of deference when, as here, the state court rejects an ineffective assistance of counsel

 5   claim, see Cullen v. Pinholster, 131 S. Ct. 1388, 1403 (2011); accord Burt v. Titlow, 134

 6   S. Ct. 10, 13 (2013). First, we may grant habeas relief only if the state court decision

 7   “was contrary to, or involved an unreasonable application of, clearly established Federal

 8   law, as determined by the Supreme Court of the United States,” or “was based on an

 9   unreasonable determination of the facts in light of the evidence presented in the State

10   court proceeding.” 28 U.S.C. § 2254(d)(1)–(2); see Burt v. Titlow, 134 S. Ct. at 15.

11   Pursuant to that standard, we “may reverse a state court ruling only where it was ‘so

12   lacking in justification that there was . . . [no] possibility for fairminded disagreement.’”

13   Vega v. Walsh, 669 F.3d at 126 (quoting Harrington v. Richter, 131 S. Ct. 770, 786–87

14   (2011)).

15          Where the claimed constitutional error on habeas review is ineffective assistance

16   of counsel, a second level of deference applies to the strategic decisions of counsel,

17   unless petitioner can show that (1) counsel’s performance was objectively deficient, and

18   (2) he suffered ensuing prejudice. See Strickland v. Washington, 466 U.S. 668, 688,

19   692–93 (1984). With respect to the first prong, we “indulge a strong presumption that

20   counsel’s conduct falls within the wide range of reasonable professional assistance.” Id.

     n.1 (E.D.N.Y. Feb. 12, 2013). Because defendants do not argue exhaustion on appeal,
     there is no need to reconsider Daye here, something that, in any event, might well have to
     be pursued by the court en banc.
                                                  3
 1   at 689; accord Raysor v. United States, 647 F.3d 491, 495 (2d Cir. 2011). With respect to

 2   the second prong, we will identify prejudice only if petitioner shows that, but for

 3   counsel’s deficient performance, there is a “reasonable probability that . . . the result of

 4   the proceeding would have been different.” Strickland v. Washington, 466 U.S. at 694;

 5   accord Santone v. Fischer, 689 F.3d 138, 154 (2d Cir. 2012). In this respect, it is not

 6   enough to show that counsel’s errors had “some conceivable effect on the outcome of the

 7   proceeding.”    Strickland v. Washington, 466 U.S. at 693.        Rather, “[a] reasonable

 8   probability is a probability sufficient to undermine confidence in the outcome.” Id. at

 9   694; accord Gonzalez v. United States, 722 F.3d 118, 135 (2d Cir. 2013). In short, the

10   inquiry is “whether counsel’s conduct so undermined the proper functioning of the

11   adversarial process that the trial cannot be relied on as having produced a just result.”

12   Strickland v. Washington, 466 U.S. at 686; accord Cullen v. Pinholster, 131 S. Ct. at

13   1403.

14   2.      Ineffective Assistance of Counsel

15           We assume the parties’ familiarity with the misconduct attributed to the prosecutor

16   on cross-examination of Samuel and in summation, and we assume without deciding that

17   it was objectively unreasonable for trial counsel not to object to the prosecutor’s actions.

18   Samuel argues that counsel’s failure prejudiced his ability to present himself as a credible

19   trial witness, which was critical to success on his “non-slayer” affirmative defense to the

20   felony murder charge, see N.Y. Penal Law § 125.25(3). Pet’r’s Br. 37. That defense

21   required Samuel to show by a preponderance of the evidence that he had “no reasonable

22   ground to believe” that any other participant in the felony robbery was armed with a

                                                  4
 1   dangerous weapon and intended to engage in conduct likely to cause death or serious

 2   injury. See N.Y. Penal Law § 125.25(3);2 id. § 25.00(2); People v. Bornholdt, 33 N.Y.2d

 3   75, 83, 350 N.Y.S.2d 369, 375 (1973) (stating defendant bears burden of establishing

 4   non-slayer affirmative defense to felony murder by preponderance of evidence); accord

 5   People v. Jeanty, 268 A.D.2d 675, 677, 702 N.Y.S.2d 194, 198 (3d Dep’t 2000). This

 6   prejudice argument is unavailing because the trial record, even without the alleged

 7   prosecutorial misconduct, seriously undermined both Samuel’s credibility and his

 8   affirmative defense. In these circumstances, we cannot conclude that clearly established

 9   federal law precluded the Appellate Division from finding that Samuel had not satisfied

10   Strickland’s prejudice prong.

11          The trial evidence showed that on the evening of July 2, 2005, then-16-year-old

12   Samuel and two other boys approached 15-year-old Christopher Rose and three of his

13   friends—one of whom was only 11 years old—at the corner of Avenue D and 40th Street

14   in Brooklyn.    Samuel instigated the encounter that would lead to Rose’s death by

15   demanding an iPod from one of the boys and, when the boy refused, jumping on the 11-


     2
       N.Y. Penal Law § 125.25(3), which establishes the crime of felony murder, provides
     that “it is an affirmative defense that the defendant:
         (a) Did not commit the homicidal act or in any way solicit, request, command,
         importune, cause or aid the commission thereof; and
         (b) Was not armed with a deadly weapon, or any instrument, article or substance
         readily capable of causing death or serious physical injury and of a sort not ordinarily
         carried in public places by law-abiding persons; and
         (c) Had no reasonable ground to believe that any other participant was armed with
         such a weapon, instrument, article or substance; and
         (d) Had no reasonable ground to believe that any other participant intended to engage
         in conduct likely to result in death or serious physical injury.”


                                                  5
 1   year-old who was then holding the iPod. Further, Samuel then signaled for his older

 2   cousin Aaron Farrell, whom he knew to be a member of the Crips, a violent street gang,

 3   to join the fray. Farrell and approximately ten to fifteen of his friends began fighting

 4   with the four younger boys, whereupon someone yelled “poke him,” and Rose was fatally

 5   stabbed. At trial, Samuel denied summoning Farrell and his friends, claiming instead that

 6   they joined the fight on their own volition. This testimony was contradicted by the three

 7   boys who survived the attack.        Moreover, Samuel’s testimony and his post-arrest

 8   statements to police were so rife with inconsistency (entirely independent of the

 9   prosecutor’s alleged misconduct) as to undermine his own credibility and, consequently,

10   the plausibility of his non-slayer defense.

11          First, the jury heard testimony that, after waiving his Miranda rights, Samuel gave

12   four different statements to the police over the course of July 2 and 3, 2005, contradicting

13   the version of events that Samuel gave at trial. During the first statement, which Samuel

14   signed and which was read to the jury, and the second statement, which was videotaped

15   and shown to the jury, Samuel mentioned an incident involving a fight over a bicycle but

16   omitted any involvement in the robbery that led to Rose’s death. A detective testified

17   that in his third statement, Samuel admitted involvement in the robbery, but stated that a

18   boy named “Bugs” approached the four boys and demanded the iPod, that his cousin

19   Farrell joined the fight only after one of the boys punched Bugs, and that a boy named

20   “Funko” stabbed Rose. Another detective testified that, in a fourth statement, Samuel

21   stated that Funko and Farrell both stabbed Rose. At trial, Samuel testified that he did not

22   know anyone named Funko or Bugs and accused police of fabricating the third and fourth

                                                   6
 1   statements. Samuel acknowledged that he approached the boys and demanded the iPod

 2   and that Farrell stabbed Rose. While Samuel argues that he offered a viable explanation

 3   for his omissions, inconsistencies, and misstatements, i.e., that he was afraid of Farrell,

 4   the Second Department could reasonably have found that these discrepancies by

 5   themselves so seriously undermined Samuel’s credibility that the prosecutor’s allegedly

 6   improper attacks on his credibility did not undermine confidence in the trial outcome.

 7          Second, Samuel gave such evasive and implausible testimony regarding his

 8   familiarity with Farrell, Farrell’s friends, their gang membership, and their dangerousness

 9   as to preclude a reasonable jury from finding that he had no reason to know that they

10   presented a threat of deadly force. That conclusion is only reinforced by the fact that, in

11   the course of his evasive answers, Samuel admitted knowing that his cousin Farrell was a

12   member of the Crips gang known by the name “Doom,” that on the evening of July 2,

13   Farrell and the “majority” of his friends were wearing blue t-shirts and blue doo-rags,

14   Trial Tr. 702, Joint App. 406, symbolic of membership in the Crips, and that he knew that

15   the Crips are dangerous. Indeed, Samuel eventually admitted knowing that Farrell got

16   into fights and that on July 2, 2005, Farrell had challenged Samuel to “beat up” a random

17   boy for no reason other than to prove he was not “soft.” Trial Tr. 685, Joint App. 389.

18          Samuel further compromised his own credibility when he described how earlier in

19   the evening of July 2, 2005, he had accompanied “Jamar,” one of his accomplices in the

20   charged robbery and murder, in order to “watch his back” while Jamar forcibly took a

21   bicycle from a child. Notwithstanding Samuel’s testimony that Jamar specifically called

22   Samuel to request his assistance in this altercation, Samuel insisted that they were not

                                                 7
 1   friends, only later to admit that they were. Thus, the inherent contradictions in Samuel’s

 2   testimony and the implausibility of his attempted minimizations seriously undermined

 3   Samuel’s credibility even without any prosecutorial misconduct.

 4          Finally, contrary to Samuel’s argument that the evidence of felony murder was

 5   “extraordinarily weak,” Pet’r’s Br. 64, both the district court and, more important, the

 6   Second Department, properly concluded that the trial evidence—including testimony

 7   from the three surviving victims, multiple eyewitnesses and one witness who testified

 8   that Samuel told him he had previously observed his cousin with a folding knife—

 9   convincingly established Samuel’s guilt. In that context, and in light of the pervasive

10   contradictions and implausibilities in Samuel’s own testimony denying any reason to

11   anticipate the use of deadly force, we are obliged to defer to the Appellate Division’s

12   reasonable determination that counsel’s failure to object to prosecutorial misconduct did

13   not undermine the outcome of the trial. See Lindstadt v. Keane, 239 F.3d 191, 204 (2d

14   Cir. 2001) (“Even serious errors by counsel do not warrant granting habeas relief where

15   the conviction is supported by overwhelming evidence of guilt.”).

16   3.     Conclusion

17          For these reasons, as well as those identified by the district court in its thorough

18   and well-reasoned opinion, see Samuel v. LaValley, 2013 WL 550688, at *10–12, we

19   conclude that Samuel’s habeas petition must be denied.3


     3
       Samuel’s contention that the district court erred in failing to evaluate the prejudice
     determination “in its totality,” Pet’r’s Br. 37, is belied by the court’s thorough opinion.
     In any event, the Second Department expressly determined that “[c]onsidering the totality
     of the evidence, the law, and the circumstances of the case, trial counsel provided
                                                 8
1         We have considered Samuel’s remaining arguments and conclude that they are

2   without merit. The judgment of the district court is AFFIRMED.

3                                     FOR THE COURT:
4                                     CATHERINE O’HAGAN WOLFE, Clerk of Court
5




    meaningful representation.” People v. Samuel, 88 A.D.3d 1020, 1021–22, 931 N.Y.S.2d
    403, 405 (2d Dep’t 2011). We have ourselves considered the cumulative effect of
    counsel’s alleged errors, see Gersten v. Senkowski, 426 F.3d 588, 611 (2d Cir. 2005), and
    conclude that the Second Department’s Sixth Amendment prejudice ruling was not
    unreasonable.
                                               9
