     13-350-pr
     Brown v. Ercole

                                           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 at
 2   the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
 3   York, on the 25th day of April, two thousand fourteen.
 4
 5   PRESENT:
 6
 7              GUIDO CALABRESI,
 8              JOSÉ A. CABRANES,
 9              DEBRA ANN LIVINGSTON,
10                                   Circuit Judges.
11   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
12   ROHAN BROWN (STATE PRISONER: 03-A-6919),
13
14                        Petitioner-Appellant,
15
16                                  -v.-                                                              No. 13-350-pr
17
18   ROBERT E. ERCOLE, SUPERINTENDENT, GREEN HAVEN
19   CORRECTIONAL FACILITY,
20
21                         Respondent-Appellee.
22   - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
23
24   FOR PETITIONER-APPELLANT:                                                 Sally Wasserman, New York, NY.
25
26   FOR RESPONDENT-APPELLEE:                                                  Joseph N. Ferdenzi, Justin J. Braun, Assistant
27                                                                             District Attorneys, for Robert T. Johnson,
28                                                                             District Attorney, Bronx County, Bronx, NY.
29
30           Appeal from a judgment, entered December 12, 2012, of the United States District Court
31   for the Southern District of New York (Naomi Reice Buchwald, Judge).


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

 3          Petitioner Rohan Brown appeals from the District Court’s denial of a motion under Federal
 4   Rule of Civil Procedure 60(b) seeking to vacate the prior dismissal of his habeas petition.

 5            Brown was convicted November 25, 2003 of depraved indifference murder (N.Y. Penal Law
 6   § 125.25(2)) and sentenced December 17, 2003 to an indeterminate sentence of eighteen years to life
 7   in state prison.

 8            Brown initially filed a petition for habeas corpus in the District Court for the Southern District
 9   of New York, arguing that the evidence at trial was legally insufficient to support his conviction for
10   depraved indifference murder, because the evidence showed an intentional killing. Although he
11   acknowledged that this claim had not been preserved at trial, in the face of that procedural default
12   he argued (1) that it would have been futile for his trial counsel to contemporaneously object, and (2)
13   that his counsel’s failure to raise the legal insufficiency argument at trial constituted ineffective
14   assistance, which in turn constituted cause for the default. The District Court granted habeas relief
15   on the grounds that it would have been futile for trial counsel to object. It did not address the
16   ineffectiveness grounds for default. Brown v. Ercole, No. 07 Civ. 11609 (NRB), 2009 WL 857625
17   (S.D.N.Y. Mar. 31, 2009).

18             On appeal, we reversed. Brown v. Ercole, 353 F. App’x 518 (2d Cir. 2009) (summary order).
19   The panel concluded that the futility argument failed, because “New York state courts had not
20   consistently rejected the claim that a conviction for depraved indifference murder was unsupported by
21   the evidence.” Id. at 520 (internal quotation marks omitted) (emphasis original). Accordingly, the
22   panel concluded that Brown’s habeas claims were procedurally forfeited. The summary order did not
23   address (or even mention) the alternative grounds of ineffectiveness, but in its decretal language
24   stated:

25           Because Brown has not shown cause for the procedural default of his constitutional
26           claim, we need not consider whether he suffered prejudice. We have considered Brown’s
27           other arguments and find them to be without merit, though he may have redress in state court for
28           claims we do not address here.

29           Accordingly, we REVERSE the District Court’s grant of Brown’s habeas petition
30           and REMAND with directions to dismiss the petition.

31   Id. at 520–21 (emphasis supplied).

32           On remand, the District Court dismissed the petition with prejudice.



                                                            2
 1           Thereafter, Brown brought a pro se habeas petition in the New York state courts seeking to
 2   vacate his conviction based on ineffective assistance of counsel (“Section 440 petition”). Brown’s
 3   Section 440 petition was denied. See People v. Brown, 938 N.Y.S.2d 229 (table) (Sup. Ct. 2011).

 4          This case followed. Brown seeks Rule 60(b)(6) relief on two grounds: (1) our previous
 5   Order failed to rule on his argument that his counsel’s ineffective assistance constituted cause for the
 6   procedural default; and (2) the District Court failed to hold his habeas petition in abeyance while
 7   Brown pursued his Section 440 petition in state court. Brown contends that relief is warranted
 8   because of “changed circumstances,” since he has now exhausted his state court remedies.

 9           The District Court found that it was “possible” that the Second Circuit had previously
10   denied Brown’s ineffective assistance claim on the merits, rather than on exhaustion grounds, and
11   thus the District Court was without jurisdiction to consider the 60(b)(6) motion.

12           We granted a certificate of appealability on several questions, including “[w]hether this
13   Court, in its previous Orders relating to this case, has already denied Brown’s ineffective assistance
14   claim on the merits.”

15                                               DISCUSSION

16           Rule 60(b)(6) provides that “[o]n motion and just terms, the court may relieve a party or its
17   legal representative from a final judgment, order, or proceeding for the following reasons: . . . (6) any
18   other reason that justifies relief.” Fed. R. Civ. P. 60(b). We review district court rulings on Rule
19   60(b) motions for abuse of discretion. Rodriguez v. Mitchell, 252 F.3d 191, 200 (2d Cir. 2001).

20           A motion to reopen a habeas proceeding under Rule 60(b) is permissible where it “relates to
21   the integrity of the federal habeas proceeding, not to the integrity of the state criminal trial.”
22   Rodriguez, 252 F.3d at 199; see also Gonzalez v. Crosby, 545 U.S. 524, 538 (2005). The remedy, if
23   granted, is simply “the reopening of the federal habeas proceeding.” Rodriguez, 252 F.3d at 199.
24   Here, Brown’s motion to reopen his previous federal habeas proceeding is not barred as a second or
25   successive petition, because it addresses itself to the prior habeas proceeding.

26            Where there has been a “‘change in circumstances’ that was not considered by the appellate
27   court, . . . the district court ha[s] jurisdiction to review [a] motion for relief under Rule 60(b).”
28   DeWeerth v. Baldinger, 38 F.3d 1266, 1271 (2d Cir. 1994). However, there is no Rule 60(b) jurisdiction
29   where “the doctrine of the law of the case applies to issues that have been decided either expressly
30   or by necessary implication.” Id. at 1271.




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1           Here, Brown argues there has been a “change in circumstances” because he has now
2    exhausted his ineffective assistance claim in the state courts. The relevant question is on what basis
3    we previously dismissed Brown’s petition: failure to exhaust or the merits. If it were on the merits,
4    Brown’s Rule 60(b) motion is barred by the law of the case. If it were for failure to exhaust, the
5    motion may be granted and the District Court may vacate its prior judgment and address the habeas
6    claim.

 7            As a general matter, arguments that are dismissed as “without merit” are considered to have
 8   been addressed on the merits, even where not expressly enumerated. See Francolino v. Kuhlman, 365
 9   F.3d 137, 141 (2d Cir. 2004). In addition, the previous panel remanded “with directions to dismiss
10   the petition,” which suggests that there were no remaining grounds for relief. However, the panel
11   explicitly noted that unaddressed claims might have redress in state court. Ineffective assistance of
12   counsel was the only possible such claim, because all other claims had either already been addressed
13   by the state court or were procedurally defaulted. It might well be that the prior panel decided
14   Brown’s federal ineffective assistance claim, and on remand, left open—for possible “redress in state
15   court”—only the question of ineffective assistance under state law. But the panel’s holding is not
16   entirely clear on this point. Nor did the panel specify whether the claims should be dismissed with
17   or without prejudice.

18           Under the circumstances, we deem it appropriate to interpret the Order of the prior panel to
19   have ruled on exhaustion grounds, and so we treat the question of whether petitioner has made out
20   a claim of ineffective assistance as an open one.

21            In most instances, we would vacate and remand to the district court for consideration of
22   that question. In this case, however, we do not believe that is necessary. The state court, in its
23   Section 440 decision, ruled that counsel was defective for failing to object to the depraved
24   indifference murder charge and verdict, but it explicitly ruled that this failure did not prejudice
25   Brown. As a result, petitioner’s ineffective assistance claim failed, and the state denied Brown’s
26   Section 440 petition. This holding constituted a state court determination that, on the facts before
27   it, and under the law of New York, petitioner could be found guilty of depraved indifference
28   murder. Accordingly, we may find the second prong of Strickland v. Washington, 466 U.S. 668
29   (1984)—which requires petitioner to show that counsel’s error caused him prejudice—met only if
30   the state’s holding is not merely wrong, but unreasonable.




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 1            Brown argues that no AEDPA deference is warranted, because the state court relied only on
 2   New York ineffective-assistance case law and did not cite Strickland. However, “this Court has
 3   repeatedly held that application of the New York state standard is not contrary to Strickland.”
 4   Rosario v. Ercole, 601 F.3d 118, 126 (2d Cir. 2010). A state court need not employ the precise
 5   language of the federal standard in order to qualify for AEDPA deference. Id. at 128. In cases of
 6   this sort, where the question of reasonableness involves a state court’s own interpretation of state
 7   law, our deference is doubly strong. It is, after all, up to New York to tell us what its law requires,
 8   and it is singularly difficult for us to hold that a New York court’s interpretation of New York law is
 9   not just wrong, but unreasonable. See, e.g., Garbutt v. Conway, 668 F.3d 79, 81 (2d Cir. 2012) (per
10   curiam) (specifically dealing with depraved indifference murder).

11          On the facts of this case, the state court’s holding was clearly not unreasonable.
12   Accordingly, we AFFIRM the order of the district court.

13

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




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