12-323

Miller v. Phillip

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.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 13th 4 day of December, two thousand twelve.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 RALPH K. WINTER,

9 Circuit Judge,

10 LAURA TAYLOR SWAIN,

District Judge.* 11

12

13 - - - - - - - - - - - - - - - - - - - -X

14 RICHARD MILLER, 

15 Petitioner-Appellant,

16

17 -v.- 12-323

18

19 WILLIAM E. PHILLIP, Superintendent,

20 Green Haven Correctional Facility, 

21 Respondent-Appellee,

22 - - - - - - - - - - - - - - - - - - - -X

23

* Judge Laura Taylor Swain, of the United States

District Court for the Southern District of New York,

sitting by designation.

1
1 FOR APPELLANT: BARBARA ZOLOT (Robert S. Dean,

2 on the brief), Center for

3 Appellate Litigation, New York,

4 New York.

5

6 FOR APPELLEE: PATRICIA CURRAN (Susan Gliner,

7 on the brief), Assistant

8 District Attorneys, for Cyrus R.

9 Vance, Jr., District Attorney

10 for New York County, New York,

11 New York.

12

13 Appeal from a judgment of the United States District

14 Court for the Southern District of New York (Sweet, J.).

15

16 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

17 AND DECREED that the judgment of the district court be

18 AFFIRMED. 

19

20 Petitioner-Appellant Richard Miller appeals from the

21 judgment of the United States District Court for the

22 Southern District of New York (Sweet, J.), denying Miller’s

23 petition for a writ of habeas corpus. Miller claimed

24 ineffective assistance of counsel, based on his counsel’s

25 failure to object to certain jury instructions at trial. We

26 assume the parties’ familiarity with the underlying facts,

27 the procedural history, and the issues presented for review. 

28

29 We review a district court’s denial of a writ of habeas

30 corpus de novo. Jenkins v. Artuz, 294 F.3d 284, 290 (2d

31 Cir. 2002). Under the Antiterrorism and Effective Death

32 Penalty Act of 1996 (“AEDPA”), “[w]hen the state court has

33 adjudicated the merits of the petitioner’s claim . . . we

34 may grant a writ of habeas corpus only if the state court’s

35 adjudication ‘was contrary to, or involved an unreasonable

36 application of, clearly established Federal law as

37 determined by the Supreme Court of the United States.’”

38 Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir. 2009)

39 (quoting 28 U.S.C. § 2254(d)(1)). 

40

41 “The benchmark for judging any claim of ineffectiveness

42 must be whether counsel’s conduct so undermined the proper

43 functioning of the adversarial process that the trial cannot

44 be relied on as having produced a just result.” Strickland

45 v. Washington, 466 U.S. 668, 686 (1984). We are to assess

46 whether “counsel’s performance was objectively reasonable,”

47 Brown v. Greene, 577 F.3d 107, 110 (2d Cir. 2009), and in

2
1 doing so, “we must indulge a strong presumption that

2 counsel’s conduct falls within the wide range of reasonable

3 professional assistance . . . ,” Aparicio v. Artuz, 269 F.3d

4 78, 95 (2d Cir. 2001) (internal quotation marks omitted).

5

6 In rejecting Miller’s ineffective assistance of counsel

7 claim, the state courts determined that Miller’s failure to

8 object to the challenged instructions fell within the wide

9 range of reasonable professional assistance. Given the law

10 at the time, we cannot disturb that determination. The

11 challenged jury instructions, given by Justice Edward J.

12 McLaughlin of the New York County Supreme Court, are nearly

13 inscrutable, potentially confusing, and certainly

14 undesirable. Nonetheless, the jury charge as a whole made

15 clear to the jury that it was the State’s responsibility to

16 prove guilt beyond a reasonable doubt. Under the

17 appropriate standards, we cannot find that the state courts

18 unreasonably applied established Supreme Court law. This

19 Court recently affirmed the denial of writs for habeas

20 corpus in two cases involving nearly identical jury

21 instructions. See Jones v. Poole, 403 F. App’x 617, 619-20

22 (2d Cir. 2010); Brown, 577 F.3d at 110-14.

23

24 For the foregoing reasons, and finding no merit in

25 Miller’s other arguments, we hereby AFFIRM the judgment of

26 the district court.

27

28 FOR THE COURT:

29 CATHERINE O’HAGAN WOLFE, CLERK

30

31

3