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- 2210 Stevenson v. Capra 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 COU RT’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 TO A SUMMARY ORDER MUST SERVE A COPY OF I T 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 2 2 nd d ay of June, two thousand twenty

- three.
PRESENT: R OSEMARY S. P OOLER , S USAN L. C ARNEY , B ETH R OBINSON , Circuit Judges

.

_________________________________________ F RANK R. S TEVENSON , Petitioner

- Appellant ,

v. No. 2 1

- 2210
S UPERINTENDENT M ICHAEL C APRA , Respondent

- Appellee

.

_________________________________________ FOR APPELLANT: D ANIEL M. P EREZ , Law Offices of Daniel M. Perez , Newton, NJ

.2 FOR APPELLEE: J ORDAN C ERRUTI , Assistant District Attorney , Kings County ( Eric Gonzalez, District Attorney, Leonard Joblove, Assistant District Attorney , on the brief ) , Brooklyn , NY

. Appeal from a judgment of the United States District Court for the Eastern District of New York ( Brodie , J .). UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment appealed from entered on August 23, 2021 is AFFIRMED

. Petitioner

- Appellant Frank Stevenson appeals from the denial of his petition for a writ of habeas corpus , brought under 28 U.S.C. § 2254. Stevenson
was convicted in New York state co urt in 2013 of one count of rape, two counts of sexual abuse, and two counts of endangering a minor. Following the affirmance of his convictions on direct appeal, Stevenson filed a petition with the
Eastern District of New York for habeas relief, arguing that the trial court, in giving an intoxication instruction to the jury over his objection, violated his asserted Sixth Amendment right to chart his own defense as well as his due3 process right to a fair trial

. The district court denied h is petition but granted a certificate of appealability. 1 For the reasons explained below, we agree with the district court that habeas relief is un warranted. We assume the parties’ familiarity with the underlying facts, procedural history, and argumen ts on appeal, to which we refer only as necessary to explain our decision to affirm

. In 2011, the ten

- year - old daughter of Stevenson’s girlfriend (the “complainant”) told her teacher Stevenson had sexually assaulted her on two
occasions. Stevenson was arrested and charged with rape, sexual abuse, and endangering a minor

. During Stevenson’s trial, the complainant, her mother, her teacher, a doctor at the practice where the complainant had been examined following the alleged assault, and a child psychologist all testified on behalf of the prosecution

. Over Stevenson’s objection, t he court also admitted into
evidence a recording in which Stevenson made a phone call to his sister while he was held in pre

- trial detention

. In the recording , St evenson stated he was “ a bout to admit the truth to my family , ” and then said to his sister , “I was smoking

1 The district court’s certificate of appealability also extended to other issues , but o n appeal, Stevenson advances only his challenge to the jury instruction.4 some shit

. . . I think it made me do some stuff

. . . that wasn’t right.” App’x 89, 95, 126

. Stevenson’s sole defense at trial was that he had not committed the alleged
acts

. But d uring the charge conference, the prosecutor moved for an intoxication
instruction on the basis of Stevenson’s statements during the phone call. Stevenson objected, arg uing there was no evidence that he was intoxicated at the
time of the alleged offenses, and that the recorded statement was not on its face tied to the complainant’s allegations. The trial court disagreed, stating a
“reasonable inference can be made” that the statement “related to the allegations.” App’x 79.
The intoxication instruction was ultimately read to the jury four times:
twice wh en the instructions were initially read (once each for the sexual abuse and endangering child welfare counts), and twice when the jury, during deliberations, asked to hear the specifics of the charges again

. 2 The jury found

2 With respect to the sexual abuse charge, for example, t he instruction read : Under our law, intoxication is not, as such, a defense to a criminal charge but evidence of the defendant’s intoxication may be considered whenever it is relevant to negative an element [of the crime charged] . Thus, in determining whether the defendant ha d the purpose of gratifying the sexual desire of either party, you may consider whether the defendant’s mind was affected by intoxicants to such a degree that he was incapable of forming the purpose necessary for the commission of the crime of sexual abuse in the first degree

. E.g. , App’x 100.5 Stevenson guilty of all counts

. He was sentenced to an aggregate term of twenty

five years in prison followed by twenty

- five years of post

- release supervision. On direct appeal, Stevenson argued that the trial court’s intoxication instruction, based solely on the recorded phone call , deprived him of his
constitutional right s to chart his own defense and to a fair trial. He argued that
the instruction “suggest[ed] that [he] was offering an intoxication defense” rather than arguing for his complete innocence, and therefore “significantly compounded the prejudice caused by admitting the tape.” App’x 147

- 48. He argued this was not harmless error because evidence of his guilt was not “overwhelming,” reasoning that the prosecutors’ case had rested on the complainant’s testimony and credibility alone, given the complainant’s

“ unremarkable ” medical examination. App’x 148. The Appellate Division concluded that the trial court erred in giving the
intoxication instruction because , in its view, there was insufficient evidence of
intoxication related to the crimes charged

. But it nonetheless affirmed the conviction, concluding that the error was harmless based on “overwhelming evidence of the defendant’s guilt” and “no significant probability that the error
contributed to his convictions.” People v. Stevenson , 11 N.Y.S.3d 646, 647 (2d Dep’t6 2015). Stevenson’s application for leave t o appeal to the New York Court of Appeals was denied. People v. Stevenson , 26 N.Y.3d 1092 (2015).
In 2017 , Stevenson filed a pro se petition for writ of habeas corpus in federal
court. His initial petition was stayed for a period, and in 2019, Stevenson filed
the amended habeas petition at issue here

. As relevant to this appeal, he argued
that the intoxication instruction undermined his constitutional right to chart his
own defense , and because th is violation was structural error, it was unreasonable for the Appellate Division to apply a harmless error analysis. He further argued the Appellate Division failed to give sufficient weight to the injurious effects the intoxication charge had at his trial.
T he d istri ct c ourt denied Stevenson’s petition , concluding that the Appellate Division reasonably ruled that the trial court’s instruction was
harmless error. The d istrict c ourt nonetheless granted a certificate of appealability as to the jury instruction claim, among others, viewing the claims
as “debatable.” See Sp. App’x 67.
On appeal, represented by counsel, Stevenson argues that the Appellate Division’s holding that the intoxication instruction was harmless error was
cont rary to, or involved an unreasonable application of, clearly established federal law. He argues that the Supreme Court has recognized the Sixth7 Amendment protects a criminal defendant ’s right to make fundamental choices
about their own defense , and the Fourteenth Amendment protects the right to a
fair trial. Stevenson argues that t he intoxication instruction rendered his trial fundamentally unfair and was therefore structural error. Al ternatively, he
contends that e ven under the harmless error framework, the Appellate Division’s
assessment was objectively unreasonable because the instruction denied Stevenson a protected autonomy right to make fundamental choices about his
own defense. For the reasons stated below, we disagree.
We review a district court’s denial of a petition for habeas corpus without
deference. Cornell v. Kirkpatrick , 665 F.3d 369, 374 (2d Cir. 2011). 3
T he Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “ adjudicated on the merits in State court ” to show that the relevant state

- court ” decision ” (1) “ was contrary to, or in volved an unreasonable application of, clearly establish ed Federal law, “ or (2)

“ was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” Wilson v. Sellers , 138 S. Ct. 1188, 1191 (2018) ( quoting 28 U.S.C. § 2254(d)). This analysis “requires the federal habeas court to train its attention on the particular

reasons
— both legal and factual

— why state courts rejected a state prisoner’s

3 In quotations from caselaw, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.8 federal claims, and to give appropriate deference to that d ecision.” Id. at 1191

- 92. 4 For law to be “clearly established” for purposes of habeas relief under AEDPA, it must have been “determined by the Supreme Court of the United States,” 28 U.S.C. § 2254(d)(1), rather than by the lower federal courts, Willia ms v. Taylor , 529 U.S. 362, 381 (2000). If a rule is “dictated by precedent existing at the time the defendant’s conviction became final,” it may provide a basis for habeas relief; h owever, if it “breaks new ground or imposes a new obligation on the States or the Federal Government,” it falls outside the universe of clearly
established federal law. Id. Additionally, i n evaluating whether a decision is contrary to or an unreasonable application of federal law, a state court must be granted “deferen ce and latitude” inapplicable when a case is before a federal court on direct review. Harrington v. Richter , 562 U.S. 86 , 101 (2011). Accordingly, “ e ven a strong case for relief does not mean the state court’s contrary conclusion was unreasonable.” Id.
at 102

. As long as “fairminded jurists could disagree” with the conclusion that

4 Wilson further provides that wh ere, as here, the final State court decision on a d efendant’s case consists of a one

- word order, we “ look through” this unexplained decision “to the last related state

- court decision that does provide a relevant rationale”

— here, the New York Appellate Divi sion decision. See 138 S. Ct. at 1192.9 the State court’s decision conflicts with Supreme Court precedent , habeas relief is
unavailable. Id.
Stevenson relies on the Supreme Court’s recent decision in McCoy v.
Louisiana to argue that the trial court’s decision to give the intoxication instruction over his objection violated his Sixth Amendment right to autonomy

. 138 S. Ct. 1500 (2018). In McCoy , the defendant wa s charged with three counts of
first

- degree murder. Id. at 1506. McCoy’s lawyer, against McCoy’s wishes, admitted to the jury that McCoy had committed the crim e s , hoping this admission would allow McCoy to avoid a death sentence

. Id. at 1506

- 07

. The Court held this violated McCoy’s Sixth Amendment autonomy right to decide the objective of his own defense, explaining : Trial management is the lawyer ’ s province: Counsel provides his or her assistance by making decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Some decisions, however, are reserved for the client

— notably, whether to plead guilty, waive the right to a jury trial, testify in one ’ s own behalf, and forgo an appeal. Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category. Id. at 1508. Assuming without deciding that McCoy , w hich post

- dated the Appellate
Division’s decision on review , did not break new ground in holding the Sixth Amendment reserves to a criminal defendant an autonomy right to decide the10 objective of the defense , 5 we cannot conclude that the trial court’s decision to give the challenged jury instruction violates the clearly established federal law McCoy embodies

. Stevenson does not argue that he was not able to make his chosen argument to the jury , or that he and his lawyer parted ways on a key objective of the defense . Indeed, Stevenson’s attorney repeatedly e mphasized in his closing argument Stevenson’s complete innocence defense. Stevenson argues instead that his defense’s objective was undermined
when the trial judge , over his objection, approved the intoxication instruction and
read it to the jury four times in the course of reading (and later repeating) the complete jury instructions

. We need not decide whether , in a context in which the AEDPA limitations did not apply, we would conclude that the Sixth Amendment right that was decisive in McCoy ex tends to a case like this. For purposes of this appeal, what matters is that we cannot conclude that the Sixth Amendment right, understood as clearly established, applies here.
The state court decisions Stevenson relies on in arguing otherwise hinge on
violations of s tate law ; they do not support his argument that the court’s

5 “ Prior to McCoy , the Supreme Court had never explicitly used the term ‘ right to autonomy ’ in the criminal context. The Supreme Court has long recognized, however, that an accused has the right to make certain decisions, particularly with respect to self

- representation.” United States v. Rosemond , 958 F.3d 111, 120 n.3 (2d Cir. 2020).11 instruction in this case violates a cl early established federal, Sixth Amendment autonomy right

. See People v. DeGina , 72 N.Y.2d 768 , 776

- 78 (1988) (New York law) ; State v. R.T. , 205 N.J. 493 , 511

- 12 (2011) (Long, J ., concurring) (New Jersey law)

. Accordingly, the Sixth Amendment autonomy right which Stevenson
articulates is not a basis for habeas relief.
As to Stevenson’s Fourteenth Amendment due process argument, we

assume without deciding that the challenged jury instruction violated
Stevenson’s clearly established federal due process right at the time his state
court conviction became final

. W e reject Stevenson’s argum ent that the Appellate Division unreasonably applied clearly established law in concluding
that the trial court ’s error was harmless. In particular, we conclude that t he Appellate Division did not unreasonably apply clearly established law by applying a “harmless error” rather than a “ structural error ” analysis , and did not unreasonably determine the facts in light of the evidence presented in the State court proceeding in concluding the error was harmless. The “defining feature of a structur al error is that it affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself.” Weaver v. Massachusetts , 582 U.S. 286, 295 (2017). The Supreme Court has recognized structural error where a defend ant is denied the right to12 conduct his own defense without an attorney , the right to select his or her own attorney, or a judge fails to give a reasonable doubt instruction. Id. at 295

- 96.
These errors are considered structural because their effect on th e trial’s fairness is
hard to measure ; they result in fundamental unfairness ; or their violation endangers a right beyond simple error. Id.
While McCoy establishes that the violation of a defendant’s Sixth Amendment autonomy right constitutes structural error, Stevenson identifies no caselaw supporting the proposition that in the Fourteenth Amendment context, giving an instruction that is accurate as to the law but unwarranted by the
evidence can constitute structural error. Cf. DeGina , 72 N.Y.2d at 778 (applying harmless error analysis in holding trial court erred in giving jury instruction). Accordingly, the Appellate Division’s use of the harmless error framework is not
a basis for habeas relief.
And the Appellate Division’s concl usion that the intoxication instruction
was harmless error was not unreasonable. Given the testimony from the complainant , corroborating testimony from her mother and teacher, and Stevenson’s own statements suggesting consciousness of guilt, w e cannot

con clude that no “ fairminded jurist [], ” Harrington , 562 U.S. at 101, c ould agree with the Appellate Division’s determination that the evidence against Stevenson13 was “overwhelming , ” Stevenson , 11 N.Y.S.3d at 647. Moreover, we agree with
the district court that Steven son’s possible intoxication at the time he committed
the crimes was not a significant element of the State’s case. See Sp. App’x 51.
The evidence of Stevenson’s potentially inculpatory statement that he “ was smoking some shit ” that “ made [him] do some stuff

. . . that wasn’t right” would have been before the jury with or without the instruction to which Stevenson objected

. See App’x 68 ( tape admitted over Stevenson’s objection). In the face of this evidence, the marginal impact of the unwarranted instruction is minimal. For these reasons, and with deference to the Appellate Division’s similar conclusion, see Stevenson , 11 N.Y.S.3d at 647 , we conclude that any error was “harmless beyond a reasonable doubt , ” Chapman v. California , 386 U.S. 18, 24 (1967)

. Therefore, the Fourteenth Amendment also provides no basis to grant
Stevenson’s habeas petition.
* * * Accordingly, the d istrict c ourt ’s judgment dismissing Stevenson’s petition
is AFFIRMED

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