11-3434-pr
Pagan v. Brown

                  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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of June, two thousand twelve.
PRESENT:
            RALPH K. WINTER,
            DENNY CHIN,
            CHRISTOPHER F. DRONEY,
                      Circuit Judges.

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CHRISTOPHER PAGAN,
          Petitioner-Appellant,

                  -v.-                                  11-3434-pr

WILLIAM D. BROWN, SUPERINTENDENT OF
EASTERN CORRECTIONAL FACILITY,
          Respondent-Appellee.

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FOR PETITIONER-APPELLANT:            ALAN M. NELSON, Lake Success, New
                                     York.



FOR RESPONDENT-APPELLEE:             MICHAEL J. MILLER, Assistant
                                     District Attorney, for Thomas J.
                                     Spota, District Attorney, Suffolk
                                     County, Riverhead, New York.

            Appeal from the United States District Court for the

Eastern District of New York (Seybert, J.).
          UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

          Petitioner-appellant Christopher Pagan appeals from the

district court's judgment entered on July 29, 2011, pursuant to

the district court's memorandum and order dated July 27, 2011,

denying Pagan's petition for a writ of habeas corpus.
          We assume the parties' familiarity with the underlying

facts, the procedural history of the case, and the issue on

appeal.

          We review a district court's denial of a writ of habeas

corpus de novo, reviewing any factual findings for clear error.

Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009).     Under the

Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),

a federal court may not grant a habeas petition on a claim that

was adjudicated on the merits in state court unless the

adjudication "was contrary to, or involved 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);

see Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).

          On appeal to the Appellate Division, Second Department,

Pagan contended, inter alia, that the trial court committed
reversible error in permitting reference to his post-arrest

silence, thus violating his constitutional rights under Doyle v.

Ohio, 426 U.S. 610 (1976).   The Appellate Division affirmed

Pagan's conviction.   People v. Pagan, 805 N.Y.S.2d 557, 558 (2d

Dep't 2005).


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           We have independently reviewed the record in light of

these principles, and we conclude that the state court's

adjudication of Pagan's Doyle claim was not contrary to or an

unreasonable application of Federal law.   Accordingly, we affirm

the district court's denial of Pagan's habeas petition for

substantially the reasons articulated by the district court.

           In Doyle, the Supreme Court held that "the use for

impeachment purposes of [a defendant's] silence, at the time of

arrest and after receiving Miranda warnings, violated the Due

Process Clause of the Fourteenth Amendment."   426 U.S. at 619.

The Court reasoned that "it would be fundamentally unfair and a

deprivation of due process to allow the arrested person's silence

to be used to impeach an explanation subsequently offered at

trial."   Id. at 618.
           On collateral review of an alleged Doyle violation, we

apply the harmless error standard set forth in Kotteakos v.

United States, 328 U.S. 750 (1946), analyzing "whether the error

'had substantial and injurious effect or influence in determining

the jury's verdict.'"   Brecht v. Abrahamson, 507 U.S. 619, 629-30
637-38 (1993) (quoting Kotteakos, 328 U.S. at 776, and rejecting

the more stringent "harmless-beyond-a-reasonable-doubt standard"

set forth in Chapman v. California, 386 U.S. 18 (1967)); accord

Fry v. Pliler, 551 U.S. 112, 119-22 (2007) (discussing Brecht

post-AEDPA); see also Wood v. Ercole, 644 F.3d 83, 93-94 (2d Cir.

2011) (recognizing Fry).




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           Pagan contends the following testimony elicited by the

trial court from an arresting officer during direct examination

by the state constituted a violation of his due process rights

under Doyle:

           THE COURT:      Tell me what you did
                           concerning this arrest with
                           this defendant.

           A (continuing) I read him his rights. I told
                          him he has the right to remain
                          silent. I told him that
                          anything he said can and would
                          be used against him in a court
                          of law. I told him that if he
                          had to go to trial over this
                          matter, if he couldn't afford
                          an attorney, that an attorney
                          would be provided for him by
                          the Court. And I asked him if
                          he understands these rights,
                          he indicated that he did and I
                          asked him if there was
                          anything he wanted to say to
                          us at this time and he said
                          no.

(Trial Tr. 146-47).     This exchange was prompted by defense

counsel's request that the arresting officer explain to the jury

what he did when he "Mirandized" Pagan at the time of his arrest.

(See id. at 142-43, 145-46).     Indeed, the prosecutor wanted to

"move on" for fear the officer would volunteer that Pagan invoked

his right to remain silent (see id. at 142-43), but defense

counsel persisted (see id. at 145).     The prosecutor's fear was

realized when the officer explained what he did to "Mirandize"

Pagan.   (See id. at 146-47).

           We conclude that the state court's decision to reject

the Doyle claim was neither contrary to nor involved an


                                  -4-
unreasonable application of clearly established Federal law.        See

28 U.S.C. § 2254(d)(1).   First, it is not clear that the trial

court's inquiry and the arresting officer's testimony violated

Pagan's constitutional rights under Doyle.    The elicitation

itself was not improper, nor was the resulting testimony used for

impeachment or argued to the jury.    See Greer v. Miller, 483 U.S.

756, 764 (1987) (finding no constitutional violation where

prosecution was not permitted to impeach on or "call attention

to" defendant's post-arrest silence (internal quotation marks

omitted)); Doyle, 426 U.S. at 619 (specifying impermissible "use"
of defendant's post-arrest silence "for impeachment purposes");

United States v. Grubczack, 793 F.2d 458, 462 (2d Cir. 1986)

(finding no constitutional violation where government did not use

testimony of defendant's post-arrest silence to impeach defendant

or argue significance of defendant's post-arrest silence).

          Second, even assuming there was a Doyle violation, any

such error did not have a "substantial and injurious effect" on

the jury's verdict and was therefore harmless.    See Brecht, 507

U.S. at 637 (internal quotation marks omitted).   Pagan was

convicted of Criminal Possession of a Weapon in the Second

Degree, which required proof of possession of a loaded firearm

with intent to use it unlawfully against another person.      See
N.Y. Penal Law § 265.03(2) (effective to Dec. 20, 2005).      The

jury heard testimony that the police recovered a loaded gun from




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the car that Pagan was driving.1    (Trial Tr. 136, 150, 225-26).

Pagan admitted in subsequent post-arrest statements that the gun

was in his possession.     (Id. at 278-79).   Further, the parties

stipulated on the record that Pagan did not have a New York State

pistol permit or license to carry a firearm at the time of his

arrest.2   (Id. at 215).   Moreover, police recovered a mask, a fake

beard, gloves, and other items from the car Pagan was driving

(id. at 134-36, 140), which indicated he planned to use the

firearm to commit a robbery.     Even absent the arresting officer's

testimony regarding Pagan's post-arrest silence, the evidence was

more than sufficient to establish Pagan's guilt, rendering any

potential error harmless.

           We have considered Pagan's other arguments on appeal

and find them to be without merit.      Accordingly, the judgment of

the district court is hereby AFFIRMED.



                            FOR THE COURT:
                            CATHERINE O'HAGAN WOLFE, CLERK




     1
           In New York, the presence of a firearm in an automobile
is presumptive evidence of its possession by any person inside
the automobile. N.Y. Penal Law § 265.15(3) (effective to Oct.
31, 2000).
     2
          Possession of an unlicensed, loaded firearm is
"presumptive evidence of . . . intent to use it unlawfully
against another" and permits the jury "to infer such intent."
People v. Wooten, 540 N.Y.S.2d 533, 534 (2d Dep't 1989).

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