21-2210

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 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 TO 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 22nd day of June, two thousand twenty-three.

PRESENT:

ROSEMARY S. POOLER,

SUSAN L. CARNEY, 

BETH ROBINSON,

Circuit Judges.

_________________________________________

FRANK R. STEVENSON,

Petitioner-Appellant,

v. No. 21-2210

SUPERINTENDENT MICHAEL CAPRA,

Respondent-Appellee.

_________________________________________

FOR APPELLANT: DANIEL M. PEREZ, Law Offices of Daniel 

M. Perez, Newton, NJ.
 

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FOR APPELLEE: JORDAN CERRUTI, 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 court 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 due 
 

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process right to a fair trial. The district court denied his petition but granted a 

certificate of appealability.1 

For the reasons explained below, we agree with the district court that 

habeas relief is unwarranted. We assume the parties’ familiarity with the 

underlying facts, procedural history, and arguments 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, the 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, Stevenson stated he was “about 

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 on appeal, 

Stevenson advances only his challenge to the jury instruction.
 

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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 during the charge conference, the prosecutor moved for an intoxication 

instruction on the basis of Stevenson’s statements during the phone call.

Stevenson objected, arguing 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 when 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, the 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 had 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. 
 

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Stevenson guilty of all counts. He was sentenced to an aggregate term of twentyfive 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 rights 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’t 
 

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2015). Stevenson’s application for leave to 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 this 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. 

The district court denied Stevenson’s petition, concluding that the

Appellate Division reasonably ruled that the trial court’s instruction was 

harmless error. The district court 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 

contrary to, or involved an unreasonable application of, clearly established 

federal law. He argues that the Supreme Court has recognized the Sixth 
 

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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 the intoxication instruction rendered his trial 

fundamentally unfair and was therefore structural error. Alternatively, he 

contends that even 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 

The 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 involved an 

unreasonable application of, clearly established 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. 
 

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federal claims, and to give appropriate deference to that decision.” 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, Williams 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; however, 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, in evaluating whether a decision is contrary to or an 

unreasonable application of federal law, a state court must be granted “deference 

and latitude” inapplicable when a case is before a federal court on direct review. 

Harrington v. Richter, 562 U.S. 86, 101 (2011). Accordingly, “even 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 where, as here, the final State court decision on a defendant’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 Division decision. See 138 S. Ct. at 1192.
 

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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 was 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 crimes, 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, which 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 the 
 

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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 emphasized 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 extends 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 state 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). 
 

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instruction in this case violates a clearly 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. We reject Stevenson’s argument that the 

Appellate Division unreasonably applied clearly established law in concluding 

that the trial court’s error was harmless. In particular, we conclude that the 

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 structural 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 defendant is denied the right to 
 

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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 the 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 conclusion 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, we cannot 

conclude that no “fairminded jurist[],” Harrington, 562 U.S. at 101, could agree 

with the Appellate Division’s determination that the evidence against Stevenson 
 

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was “overwhelming,” Stevenson, 11 N.Y.S.3d at 647. Moreover, we agree with 

the district court that Stevenson’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 district court’s judgment dismissing Stevenson’s petition

is AFFIRMED. 

FOR THE COURT: 

Catherine O’Hagan Wolfe, Clerk of Court