15-1604 Kelley v. Larkin

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 FILE D WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN EL ECTRONIC 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 Seco nd Circuit, held at 1 the Thurgood Marshall United States Courthou se, 40 Foley Square, in the City of New York, 2 on the 21 st day of February, two thousand seventeen. 3 4 PRESENT: 5 P IERRE N. L EVAL , 6 G UIDO C ALABRESI , 7 S USAN L. C ARNEY , 8 Circuit Judges

. 9

___________________ __________________ 10 11 B EN KELLEY , 12 Petitioner-Appellant
, 13 14 v. No. 15-1604 15 16 R OLLIN L ARKIN , 17 Respondent-Appellee

. 18

___________________ __________________ 19 20 FOR PETITIONER-APPELLANT: R OBERT A. C ULP , Garrison, NY. 21 22 FOR RESPONDENT-APPELLEE: M ICHAEL J. M ILLER , Assistant District 23 Attorney, for Thomas J. Spota, District 24 Attorney of Suffolk County, Riverhead, 25 NY. 26 27 Appeal from a judgment of the United States District Court for the Eastern District of 28 New York (Korman, J .). 292 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 1 ADJUDGED, AND DECREED that the April 27, 2015 judgme nt of the District Court is 2
AFFIRMED

. 3 After a jury trial in New York state co urt, petitioner-appellant Ben Kelley was 4 convicted of second-degree felony murder un der New York Penal Law § 125.25(3), arising 5 from his participation in an armed robbery of a Radio Shac k in Oakdale, New York. The 6 evidence against him included a confession obtained after poli ce arrested and held him for 7 approximately fifteen hours, during which time he was taken to the hospital for evaluation of 8 injuries he sustained during the arrest. Before trial, Kelley sought, unsuccessfully, to suppress 9 the confession on the ground that it was give n involuntarily. In post- conviction proceedings, 10 the New York courts rejected Kelley’s efforts to overturn the judgment. Kelley then filed the 11 instant 28 U.S.C. § 2254 habeas petition in the Di strict Court, which denied the petition. He 12 has now appealed that denial. He argues (1) th at the confession should have been suppressed 13 because it was involuntary, (2) that his trial co unsel was ineffective for failing to pursue and 14 present evidence that he was given opioid medica tions while at the hospi tal before confessing, 15 and (3) that the prosecution violated the Confrontat ion Clause by inviting the jury to infer that 16 his codefendants had implicated him in the ro bbery while they were briefly together in the 17 same police interrogation room. We assume the part ies’ familiarity with the underlying facts 18 and the procedural history of the case, to which we refer only as necessary to explain our 19
decision to affirm. 20
We review the District Cour t’s denial of the petition de novo

. Clark v. Perez , 510 F.3d 382, 21 389 (2d Cir. 2008). As to the state court’s deci sion on the merits, we ask whether the decision 22 “was contrary to, or involved an unreasonable a pplication of, clearly established Federal law” 23
or “was based on an unreasonable determination of the facts in light of the evidence presented 24 in the State court proceeding.” 28 U.S.C. § 2254(d). 25 Kelley has failed to show that it was unreasona ble for the state court to reject his claim 26 that the confession was involuntarily given. A court reviewing the totality of circumstances 27 surrounding Kelley’s confession could reasonably conclude that his “will was [not] overborne 283 by the police.” United States v. Taylor , 745 F.3d 15, 25 (2d Cir. 2014) (internal quotation marks 1 omitted). 2 The testimony about the medications that Kell ey received came to light only at trial, 3 after the suppression motion ha d been denied, and trial counse l did not renew the motion or 4 move to reopen the suppression hearing. These ci rcumstances make it doubtful, at best, that 5 the testimony is properly part of the record to which we may refer in reviewing the 6
reasonableness of the state cour t’s decision. Even taking acco unt of that testimony, however, 7
we find the state court’s decision to be reas onable. The record reveals almost nothing about 8
the effects of the medications he received. It does not suggest that the medications had any 9 adverse effects on his coherence, lucidity, or co mpetence to confess. Further, we are directed 10 to no record evidence that the police knew about, much less exploited, any effects that the 11 medications might have had on Kelley. See Colorado v. Connelly , 479 U.S. 157, 167 (1986) 12 (rejecting the view that the Due Process Clause requires “sweepin g inquiries into the state of 13
mind of a criminal defendant who has confessed . . . divorced from any coercion brought to 14 bear on the defendant by the State”). 15 Kelley’s ineffective-assistance claim also lacks merit. “To succeed on a claim of 16
ineffective assistance of counsel in violation of the Sixth Amendment . . . a defendant must 17 demonstrate (1) that his attorney’s performa nce ‘fell below an objective standard of 18 reasonableness,’ and (2) that ‘there is a re asonable probability that, but for counsel’s 19 unprofessional errors, the result of the proceeding would have been different.’” Wilson v. 20 Mazzuca , 570 F.3d 490, 502 (2d Cir. 2009) (citations omitted) (quoting Strickland v. Washington
, 21 466 U.S. 668, 688, 6 94 (1984)). “The standards created by Strickland and § 2254(d) are both 22 highly deferential, and when the two apply in tand em, review is doubly so.” Fischer v. Smith , 780 23 F.3d 556, 561 (2d Cir. 2015) (int ernal quotation marks omitted). 24
It was not unreasonable for the state court to conclude that Kelley failed to meet 25
Strickland ’s standards. As to Strickland ’s second prong, it would be reasonable to conclude that 26 no prejudice resulted from trial counsel’ s omissions, given the weaknesses in the 274 involuntariness argument and the substantia l incriminating evidence aside from Kelley’s 1
confession. 2 We also deny Kelley’s request that we rema nd the case for further factual development 3 of the ineffective-assistance claim. In reviewing a state court’s decision on the merits under 4 § 2254(d), federal courts are generally not perm itted to expand the r ecord beyond what was 5
before the state court. See Cullen v. Pinholster , 563 U.S. 170, 181-85 (20 11). Also, Kelley has not 6 described in any detail the evid ence that he would expect to be developed on remand and that 7
could render his habeas claims meritorious. 8 Finally, Kelley’s Confrontation Clause claim fails. If the prosecution’s presentation of 9 the testimony regarding Kelley’s encounter with hi s codefendants invited any inference, it was 10 that Kelley confessed because he feared that his codefendants might cooperate with the 11 authorities and implicate him, or might have already done so. That inference, unlike a 12 suggestion by the prosecution that a codefe ndant had implicated Kelley, raises no 13
Confrontation Clause concern. 14
* * * 15 We have considered Kelley’s remaining argume nts and find them to be without merit. 16 Accordingly, we AFFIRM the judgment of the District Court. 17
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FOR THE COURT: 19 Catherine O’Hagan Wolfe, Clerk of Court 20