23-357-pr

Lloyd v. Morton 

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 Thurgood Marshall United States Courthouse, 40 Foley Square, in the 

City of New York, on the 23rd day of September, two thousand twenty-four. 

PRESENT: JON O. NEWMAN,

JOHN M. WALKER, JR.

RAYMOND J. LOHIER, JR.,

Circuit Judges. 

 ------------------------------------------------------------------

DERRICK LLOYD, 

Petitioner-Appellant, 

v. No. 23-357-pr

ROBERT MORTON, 

Respondent-Appellee.

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FOR APPELLANT: Lawrence Gerzog, Law Offices 

of Lawrence Gerzog, New 

York, NY 

FOR APPELLEE: Leonard Joblove, Amy 

Appelbaum, Terrence F. 

Heller, Assistant District 

Attorneys, Kings County 

District Attorney’s Office, 

Appeals Bureau, Brooklyn, NY 

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

District of New York (William F. Kuntz, II, Judge). 

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, 

AND DECREED that the judgment of the District Court is AFFIRMED. 

Derrick Lloyd appeals from a judgment of the United States District Court

for the Eastern District of New York (Kuntz, J.) denying his petition for a writ of 

habeas corpus pursuant to 28 U.S.C. § 2254. Lloyd argues that during his state 

court trial, the Kings County District Attorney’s Office engaged in prosecutorial 

misconduct, resulting in his conviction in violation of his due process rights. We 

assume the parties’ familiarity with the underlying facts and the record of prior 

proceedings, to which we refer only as necessary to explain our decision to 

affirm. 
3 

Following a state jury trial in 2016, Lloyd was convicted of murder in the 

second degree and criminal possession of a weapon in the third degree. On 

direct appeal he argued that the Government engaged in prosecutorial 

misconduct by asking race-based questions in its cross-examination of a defense 

witness and by making improper arguments in its summation. The New York 

Appellate Division rejected those arguments as unpreserved for appellate review

and in the alternative concluded that they were without merit or did not warrant 

reversal. People v. Lloyd, 128 N.Y.S.3d 567, 569 (2d Dep’t 2020). 

Lloyd petitioned for a writ of habeas corpus, reiterating the arguments that 

he made to the Appellate Division. The District Court concluded that while 

Lloyd had preserved his challenge to the prosecutor’s cross-examination, the 

Appellate Division’s alternative holding that this argument lacked merit was not 

contrary to or an unreasonable application of federal law. The District Court 

further concluded that Lloyd was procedurally barred from challenging the 

Government’s summation because he had not preserved that argument for 

appellate review. On de novo review, see Scrimo v. Lee, 935 F.3d 103, 111 (2d Cir. 

2019), we affirm. 
4 

“A federal court may not review federal claims that were procedurally 

defaulted in state court—that is, claims that the state court denied based on an 

adequate and independent state procedural rule.” Garner v. Lee, 908 F.3d 845, 859 

(2d Cir. 2018) (cleaned up). “[W]hen a state court says that a claim is not 

preserved for appellate review but then rules in any event on the merits, such a 

claim is [still] procedurally defaulted.” Green v. Travis, 414 F.3d 288, 294 (2d Cir. 

2005) (quotation marks omitted). 

Here, the Appellate Division rejected Lloyd’s prosecutorial misconduct 

claims based on a state procedural rule: New York’s contemporaneous objection 

rule. Lloyd, 128 N.Y.S.3d at 569; see also N.Y. C.P.L. § 470.05(2). This rule requires 

that “a defendant specify the grounds of alleged error in sufficient detail so that 

the trial court may have a fair opportunity to rectify any error.” Garvey v. 

Duncan, 485 F.3d 709, 715 (2d Cir. 2007). A “general objection is not sufficient to 

preserve an issue since such would not alert the court to defendant’s position.” 

Id. at 714; see People v. Tevaha, 84 N.Y.2d 879, 881 (1994) (holding that “[t]he word 

‘objection’ alone [i]s insufficient to preserve [an] issue” for appellate review). 

Moreover, if the trial court sustains an objection, to preserve the issue for 

appellate review the defendant must move for a mistrial or curative instructions 
5 

on the specific grounds later raised on appeal. See People v. Weston, 56 N.Y.2d 

844, 846 (1982). 

The Appellate Division correctly determined that Lloyd failed to preserve 

for appellate review his claims of prosecutorial misconduct during 

cross-examination and summation. During the challenged cross-examination, 

Lloyd’s counsel lodged general objections to the prosecutor’s questions 

regarding the racial makeup of the jury but failed to specify the basis for the 

objections. The judge overruled counsel’s general objections but then sustained 

its own objection to the prosecutor’s question regarding the race of the victim. 

And after cross-examination, Lloyd’s counsel moved for a mistrial based on a set 

of questions from the prosecutor about Lloyd’s dissatisfaction with his lawyer, 

but failed to move for a mistrial based on the prosecutor’s questions regarding 

the racial composition of the jury or the race of the victim. Lloyd’s counsel 

likewise lodged several general objections during the prosecution’s summation 

without specifying the basis for those objections.1 In sum, Lloyd never alerted

1 Lloyd’s counsel made one specific objection during the summation: to the prosecutor’s

statement implying that one of the defense witnesses had discussed the trial 

proceedings with Lloyd prior to her testimony. On direct appeal, however, Lloyd’s 

counsel did not challenge this particular statement. This specific challenge to the 

prosecutor’s summation “is therefore both unexhausted and procedurally defaulted.” 

Hawthorne v. Schneiderman, 695 F.3d 192, 197 (2d Cir. 2012). 
6 

the trial court to the specific errors he raised on appeal to the Appellate Division: 

the race-based cross-examination and the prosecution’s allegedly improper

arguments in summation. 

The Appellate Division thus relied on New York’s contemporaneous 

objection rule to reject Lloyd’s prosecutorial misconduct arguments. We have 

held that the contemporaneous objection rule is “firmly established and regularly 

followed,” and is an adequate and independent state law ground for decision. 

Downs v. Lape, 657 F.3d 97, 104 (2d Cir. 2011); see Green, 414 F.3d at 294. 

It’s true that the “exorbitant application of a generally sound rule renders 

the state ground inadequate to stop consideration of a federal question.” Lee v. 

Kemna, 534 U.S. 362, 376 (2002); see Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 

2003). But the Appellate Division’s application of the contemporaneous objection 

rule in Lloyd’s case was hardly “exorbitant.” Garvey, 485 F.3d at 719. To the 

contrary, New York law “indicate[s] that compliance with the rule was 

demanded in the specific circumstances” of Lloyd’s trial. Id. (quotation marks 

omitted); see, e.g., People v. Hobson, 198 N.Y.S.3d 709, 711 (2d Dep’t 2023); People v. 

Balls, 69 N.Y.2d 641, 642 (1986). “[D]emanding perfect compliance with the rule . 

. . serve[s] a legitimate governmental interest” — namely, giving the trial court 
7 

“the first opportunity to rule on and possibly rectify any alleged legal error.” 

Garvey, 485 F.3d at 719–20 (quotation marks omitted). Yet Lloyd did not even 

“substantially compl[y] with the rule.” Id. at 719 (quotation marks omitted). By 

failing to make substantive objections, and by failing to move for a mistrial on 

the specific grounds raised on appeal,2 Lloyd did not put the trial court on notice 

of his specific challenges or provide it an opportunity to remedy any misconduct. 

 We have considered Lloyd’s remaining arguments and conclude that they 

are without merit. For the foregoing reasons, the judgment of the District Court 

is AFFIRMED. 

FOR THE COURT:

Catherine O’Hagan Wolfe, Clerk of Court 

2 We therefore reject the District Court’s conclusion that the Appellate Division 

exorbitantly applied the contemporaneous objection rule with respect to Lloyd’s 

cross-examination challenge. The District Court erroneously determined that Lloyd’s 

mistrial motion based on the prosecutor’s questions regarding Lloyd’s satisfaction with 

his attorney preserved Lloyd’s separate challenge on appeal to the prosecutor’s racebased questions regarding the jury and the victim.