10-4648-pr
Moore v. Conway
                          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 23rd day of April, two thousand twelve.

PRESENT: JOHN M. WALKER, JR.,
         CHESTER J. STRAUB,
         GERARD E. LYNCH,
                        Circuit Judges.

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MELVIN MOORE,

                                         Petitioner-Appellant,

                         v.                                            No. 10-4648-pr

JAMES T. CONWAY, Warden Attica Correctional Facility,

                                         Respondent-Appellee.

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FOR APPELLANT:                           JANE S. MEYERS, Law Office of Jane S. Meyers,
                                         Brooklyn, NY.


FOR APPELLEE:                            GEOFFREY KAEUPER, Assistant District Attorney
                                         for Michael C. Green, Monroe County District
                                         Attorney, Rochester, NY.

      Appeal from the United States District Court for the Western District of New York
(Michael A. Telesca, Judge).
    UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.

       Petitioner Melvin Moore was indicted in state court in 2001 for seven offenses

relating to three separate attacks on young women in Rochester in 1999. He was tried before

a jury in 2003, and convicted of all four of the counts concerning two of the victims. With

respect to the third victim (“Victim 3”), who was twelve years old when she was attacked,

the jury found petitioner not guilty of two sexual abuse charges, but convicted him of

unlawful imprisonment in the second degree, in violation of New York Penal Law § 135.05.

After unsuccessfully appealing his convictions in the New York state courts, petitioner filed

a timely application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on August 28,

2008. The district court denied the petition in its entirety. Petitioner was granted a certificate

of appealability, limited to the issue of whether his unlawful imprisonment conviction, for

which he received a sentence of one year in prison, which under New York law was to run

concurrently with sentences totaling twenty-seven years in prison he received on the counts

involving the other victims, was obtained in violation of his constitutional rights due to the

prosecution’s misconduct during trial. We now affirm for substantially the reasons given by

the district court.

          We review a district court’s denial of a § 2254 petition de novo. Harris v.

Kuhlmann, 346 F.3d 330, 342 (2d Cir. 2003). We may grant habeas relief under § 2254 if

the state court’s adjudication of a claim on the merits “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). A state court decision is an unreasonable application of

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clearly established federal law if it “correctly identifies the governing legal rule but applies

it unreasonably to the facts of a particular prisoner’s case.” Williams v. Taylor, 529 U.S.

362, 407-08 (2000). To meet this demanding standard, a prisoner must show that the state

court’s ruling was “so lacking in justification that there was . . . [no] possibility for

fairminded disagreement.” Harrington v. Richter, 131 S. Ct. 770, 786-87 (2011).

       “The appropriate standard of review for a claim of prosecutorial misconduct on a writ

of habeas corpus is the narrow one of due process, and not the broad exercise of supervisory

power.” Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (internal quotation marks

omitted). To prevail on such a claim, a state habeas corpus petitioner must show that the

prosecutor’s conduct “‘so infected the trial with unfairness as to make the resulting

conviction a denial of due process.’” Darden v. Wainwright, 477 U.S. 168, 181 (1986)

(quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Tankleff v.

Senkowski, 135 F.3d 235, 252 (2d Cir. 1998) (“In order to grant relief, we would have to find

that the prosecutor’s comments constituted more than mere trial error, and were instead so

egregious as to violate the defendant’s due process rights.”). In determining whether the

prosecutor’s behavior deprived the petitioner of a fair trial, we consider “the severity of the

misconduct, the measures adopted to cure the misconduct, and the certainty of conviction

absent the misconduct.” United States v. Elias, 285 F.3d 183, 190 (2d Cir. 2002).

       Petitioner identifies three examples of prosecutorial misconduct during trial. Appellee

concedes that the challenged conduct was improper, but argues that, even considered

cumulatively, the prosecutor’s misconduct was insufficient to render petitioner’s conviction


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for unlawful imprisonment a violation of due process. We agree, primarily because all of the

misconduct of which petitioner complains was promptly and effectively cured by the alert

trial judge, fully protecting his right to a fair trial.

       The first instance of misconduct involved the prosecutor’s attempt to rehabilitate

Victim 3’s testimony concerning a photo array that the police had originally shown to her a

week after her attack. During cross-examination, defense counsel asked Victim 3 if the

photo array had a picture of petitioner in it, and she pointed to photo number one in the array.

During redirect examination, the prosecutor asked, “wouldn’t it be fair to say that the person

in number one isn’t the defendant but, in fact, it’s number three?” Defense counsel

immediately objected on the ground that the prosecutor was attempting to testify, and the trial

court sustained the objection and struck both the question and the answer. We agree with the

district court that the prosecutor’s improper question likely worked to petitioner’s benefit by

drawing the jury’s attention to the fact that Victim 3 was unable to identify him during cross-

examination. Moreover, any potential prejudice from the prosecutor’s impropriety was

remedied by the trial court’s prompt curative instruction.

       The second instance of prosecutorial misconduct involved two photographs of

petitioner’s basement. Victim 3 testified that petitioner had assaulted her in his basement,

and she described the basement as having weights, a dark rug, and white couches. The

prosecutor possessed two photographs depicting the basement, but he did not ask Victim 3

about them because, as he admitted to the trial court, he was unsure whether Victim 3 would

recognize the basement from the photographs. Instead, the prosecutor initially attempted to



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introduce the photographs into evidence through a police investigator. The district court

sustained defense counsel’s objection to the photographs, concluding that they would

improperly invite the jury to speculate that Victim 3 had been assaulted in petitioner’s

basement. Despite this ruling, during the prosecutor’s subsequent cross-examination of

petitioner’s sister, the prosecutor showed her a copy of one of the basement photographs for

identification, holding the photograph so that the jury could see it. The trial court sustained

defense counsel’s objection, and immediately gave a strong curative instruction to the jury,

stating that the prosecutor’s effort to offer the exhibit was “improper in the extreme” and that

showing the photograph to the jury was “also extremely improper.” The court further

instructed that any member of the jury who saw the photo was to “disregard your knowledge

of [its] contents” because the photograph was “completely unreliable evidence” and “would

tend to mislead you in your decision making.” Petitioner’s argument that the prosecutor’s

misconduct so prejudiced him as to deny him a fair trial is unavailing. It is not clear from

the trial record whether any members of the jury actually saw the photo, and in any event the

trial court gave the jury a very strong curative instruction that emphasized not only the

impropriety of the prosecutor’s action but also the unreliability of the evidence. See United

States v. Stewart, 590 F.3d 93, 124 (2d Cir. 2009) (noting that we presume that jurors follow

curative instructions). Petitioner’s suggestion that a jury note shows that the jury relied on

the photographs is unpersuasive, as the note inquiring about Victim 3’s testimony about

photographs referred to other photographs that were admitted into evidence, not to the

photographs of petitioner’s basement.


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       Third, petitioner claims that his trial was rendered unfair by the prosecutor’s reference

to him during summation as a “predator.” Once again, the judge sustained a defense

objection to this comment, and subsequently instructed the jury that the arguments of counsel

are not evidence. As a result, we conclude that the prosecutor’s statement did not, either in

isolation or in conjunction with the prosecutor’s other misconduct, deprive petitioner of due

process. Cf. United States v. Newton, 369 F.3d 659, 681-82 (2d Cir. 2004) (concluding that

prosecutor’s statement during summation implying that defendant was a “predator” did not

warrant reversal).

       We have considered petitioner’s other arguments and find them to be without merit.

For the foregoing reasons, the judgment of the District Court is AFFIRMED.

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




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