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 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.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at 

2 the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, 

on the 21st 3 day of February, two thousand seventeen. 

4 

5 PRESENT: 

6 PIERRE N. LEVAL, 

7 GUIDO CALABRESI, 

8 SUSAN L. CARNEY, 

9 Circuit Judges. 

10 _____________________________________ 

11 

12 BEN KELLEY, 

13 Petitioner-Appellant, 

14 

15 v. No. 15-1604 

16 

17 ROLLIN LARKIN, 

18 Respondent-Appellee. 

19 _____________________________________ 

20 

21 FOR PETITIONER-APPELLANT: ROBERT A. CULP, Garrison, NY. 

22 

23 FOR RESPONDENT-APPELLEE: MICHAEL J. MILLER, Assistant District 

24 Attorney, for Thomas J. Spota, District 

25 Attorney of Suffolk County, Riverhead, 

26 NY. 

27 

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

29 New York (Korman, J.). 
2 

1 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, 

2 ADJUDGED, AND DECREED that the April 27, 2015 judgment of the District Court is 

3 AFFIRMED. 

4 After a jury trial in New York state court, petitioner-appellant Ben Kelley was 

5 convicted of second-degree felony murder under New York Penal Law § 125.25(3), arising 

6 from his participation in an armed robbery of a Radio Shack in Oakdale, New York. The 

7 evidence against him included a confession obtained after police arrested and held him for 

8 approximately fifteen hours, during which time he was taken to the hospital for evaluation of 

9 injuries he sustained during the arrest. Before trial, Kelley sought, unsuccessfully, to suppress 

10 the confession on the ground that it was given involuntarily. In post-conviction proceedings, 

11 the New York courts rejected Kelley’s efforts to overturn the judgment. Kelley then filed the 

12 instant 28 U.S.C. § 2254 habeas petition in the District Court, which denied the petition. He 

13 has now appealed that denial. He argues (1) that the confession should have been suppressed 

14 because it was involuntary, (2) that his trial counsel was ineffective for failing to pursue and 

15 present evidence that he was given opioid medications while at the hospital before confessing, 

16 and (3) that the prosecution violated the Confrontation Clause by inviting the jury to infer that 

17 his codefendants had implicated him in the robbery while they were briefly together in the 

18 same police interrogation room. We assume the parties’ familiarity with the underlying facts 

19 and the procedural history of the case, to which we refer only as necessary to explain our 

20 decision to affirm. 

21 We review the District Court’s denial of the petition de novo. Clark v. Perez, 510 F.3d 382, 

22 389 (2d Cir. 2008). As to the state court’s decision on the merits, we ask whether the decision 

23 “was contrary to, or involved an unreasonable application of, clearly established Federal law” 

24 or “was based on an unreasonable determination of the facts in light of the evidence presented 

25 in the State court proceeding.” 28 U.S.C. § 2254(d). 

26 Kelley has failed to show that it was unreasonable for the state court to reject his claim 

27 that the confession was involuntarily given. A court reviewing the totality of circumstances 

28 surrounding Kelley’s confession could reasonably conclude that his “will was [not] overborne 
3 

1 by the police.” United States v. Taylor, 745 F.3d 15, 25 (2d Cir. 2014) (internal quotation marks 

2 omitted). 

3 The testimony about the medications that Kelley received came to light only at trial, 

4 after the suppression motion had been denied, and trial counsel did not renew the motion or 

5 move to reopen the suppression hearing. These circumstances make it doubtful, at best, that 

6 the testimony is properly part of the record to which we may refer in reviewing the 

7 reasonableness of the state court’s decision. Even taking account of that testimony, however, 

8 we find the state court’s decision to be reasonable. The record reveals almost nothing about 

9 the effects of the medications he received. It does not suggest that the medications had any 

10 adverse effects on his coherence, lucidity, or competence to confess. Further, we are directed 

11 to no record evidence that the police knew about, much less exploited, any effects that the 

12 medications might have had on Kelley. See Colorado v. Connelly, 479 U.S. 157, 167 (1986) 

13 (rejecting the view that the Due Process Clause requires “sweeping inquiries into the state of 

14 mind of a criminal defendant who has confessed . . . divorced from any coercion brought to 

15 bear on the defendant by the State”). 

16 Kelley’s ineffective-assistance claim also lacks merit. “To succeed on a claim of 

17 ineffective assistance of counsel in violation of the Sixth Amendment . . . a defendant must 

18 demonstrate (1) that his attorney’s performance ‘fell below an objective standard of 

19 reasonableness,’ and (2) that ‘there is a reasonable probability that, but for counsel’s 

20 unprofessional errors, the result of the proceeding would have been different.’” Wilson v. 

21 Mazzuca, 570 F.3d 490, 502 (2d Cir. 2009) (citations omitted) (quoting Strickland v. Washington, 

22 466 U.S. 668, 688, 694 (1984)). “The standards created by Strickland and § 2254(d) are both 

23 highly deferential, and when the two apply in tandem, review is doubly so.” Fischer v. Smith, 780 

24 F.3d 556, 561 (2d Cir. 2015) (internal quotation marks omitted). 

25 It was not unreasonable for the state court to conclude that Kelley failed to meet 

26 Strickland’s standards. As to Strickland’s second prong, it would be reasonable to conclude that 

27 no prejudice resulted from trial counsel’s omissions, given the weaknesses in the 
4 

1 involuntariness argument and the substantial incriminating evidence aside from Kelley’s 

2 confession. 

3 We also deny Kelley’s request that we remand the case for further factual development 

4 of the ineffective-assistance claim. In reviewing a state court’s decision on the merits under 

5 § 2254(d), federal courts are generally not permitted to expand the record beyond what was 

6 before the state court. See Cullen v. Pinholster, 563 U.S. 170, 181-85 (2011). Also, Kelley has not 

7 described in any detail the evidence that he would expect to be developed on remand and that 

8 could render his habeas claims meritorious. 

9 Finally, Kelley’s Confrontation Clause claim fails. If the prosecution’s presentation of 

10 the testimony regarding Kelley’s encounter with his codefendants invited any inference, it was 

11 that Kelley confessed because he feared that his codefendants might cooperate with the 

12 authorities and implicate him, or might have already done so. That inference, unlike a 

13 suggestion by the prosecution that a codefendant had implicated Kelley, raises no 

14 Confrontation Clause concern. 

15 * * * 

16 We have considered Kelley’s remaining arguments and find them to be without merit. 

17 Accordingly, we AFFIRM the judgment of the District Court. 

18 

19 FOR THE COURT: 

20 Catherine O’Hagan Wolfe, Clerk of Court