1 17-1983-pr Griggs v. Lempke

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT


## SUMMARY ORDER

Rulings by summary order do not have precedential effe ct. Citation to a summary order filed on or after January 1, 2007, is pe rmitted 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 Fede ral Appendix or an electronic database (with the notation “summa ry order”). A party citing a summary order must serve a copy of it on any party not represented by counsel.

At a stated term of the United States Cour t 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 7 th day of January, two thousand twenty.
PRESENT: J OSÉ A. C ABRANES , G ERARD E. L YNCH ,

Circuit Judges
, C HRISTINA R EISS , * District Judge.

P ERRY G RIGGS , Plaintiff-Appellant, 17-1983-pr

v.
J OHN L EMPKE , Defendant-Appellee

.

FOR PLAINTIFF-APPELLANT: M ALVINA N ATHANSON , New York, NY.

FOR DEFENDANT-APPELLEE: D AVID A. H ERATY (Donna A. Milling on the brief ), Assistant District Attorneys, for

* Judge Christina Reiss, of the United States Dist rict Court for the District of Vermont, sitting by designation.2 John J. Flynn, District Attorney of Erie County, Buffalo, NY.
Appeal from a judgment of the United States District Court for the Western District of New York (Michael A. Telesca, Judge ).

UPON DUE CONSIDERATION WHEREO F, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgement of the District Court be and hereby is AFFIRMED.
Plaintiff-Appellant Perry Griggs (“Griggs”) appeals the dismissal of his petition, filed pursuant to 28 U.S.C. § 2254, as amended by th e Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), for a writ of habeas corpus. Griggs is currently serving a prison sentence of fifteen years to be followed by five years of pos t-release supervision. He was convicted of seconddegree criminal possession of a weapon in 2011, af ter a jury trial in Erie County Supreme Court. Two years later, his conviction was unanimously affirmed by the New York State Supreme Court, Appellate Division, Fourth Department.
He argues before us that the writ of habe as corpus should issue because of several constitutional deficiencies in his trial. First , he argues that his constitutional right to a fair trial was violated because of the admission of evidence of pr ior bad acts unrelated to the underlying charge. Second , he argues that his constitutional right to a fair trial was violated because of persistent prosecutorial misconduct during the prosecution’s summation. Third , he argues that he was deprived of his constitutional privilege against self-incrimina tion because of the prosecution’s reference to his silence during trial. Fourth , he argues that he was denied his constitutional right to effective assistance of counsel because his attorney repeatedly failed to object to the various instances of alleged prosecutorial misconduct during the prosecution’s summation.
We assume the parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

“We review a district court’s denial of a petition for a writ of habeas corpus de novo .” Rivas v. Fischer , 780 F.3d 529, 546 (2d Cir. 2015). In unde rtaking such review, “[w]e focus on the state appellate court’s decision and, for issues adjudicate d on the merits in state court, we apply a ‘highly deferential standard for eval uating state-court rulings.’” Evans v. Fischer , 712 F.3d 125, 132 (2d Cir. 2013) (quoting Renico v. Lett , 559 U.S. 766, 773 (2010)). Indeed, “[w]e are required to defer to a state court’s adjudication of an issue on the merits, unle ss the state court’s decision is ‘contrary to, or involve[s] an unreasonable application of, clearly established Federal law . . . [or is] based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.’” Hawthorne v. Schneiderman , 695 F.3d 192, 196 (2d Cir. 2012) (quoting 28 U.S.C. § 2254(d)). When, as for several of the claims raised here, the state court disposes of a Federal claim3 in summary fashion, the Federal court “must determi ne what arguments or theories . . . could have supported the state court’s decision; and then it m ust ask whether it is possible fairminded jurists could disagree that those arguments or theories ar e inconsistent with the holding in a prior decision of th[e Supreme] Court. If such disagreement is possible, then the petitioner’s claim must be denied.” Sexton v. Beaudreaux , 138 S.Ct. 2555, 2558 (2018) (quoting Harrington v. Richter , 562 U.S. 86, 102 (2011)) (internal quotation marks and citations omitted). “Whether the state court’s application [of Supreme Court precedent] is ‘objectively unreas onable’ depends, in part, on the specificity of the clearly established rule of law. If a legal rule is very specific, then the range of reasonable applications of that rule is correspondingly narrow. By contrast, ‘[t]he more general the rule, the more leeway [state] courts have in reaching outcomes in case-by-case determinations.’” Jackson v. Conway , 763 F.3d 115, 135 (2d Cir. 2014) (quoting Yarborough v. Alvarado , 541 U.S. 652, 664 (2004)) (citations omitted; first alteration added).
I: Admission of Prior Bad Acts into Evidence
First, Griggs argues that, over his counsel’ s objection, the trial court erroneously admitted evidence of prior bad acts that were unrelated to the underlying charge of possession of a weapon. Such evidence—which included references to ac ts of domestic abuse committed by Griggs and references to Griggs’s possession and use of dr ugs—was admitted through Griggs’s grand jury testimony and the testimony of Gr iggs’s ex-girlfriend, Givonne Young (“Young”). These references to prior bad acts, Griggs argues, were irrelevant to proving the fact that Griggs possessed the weapon in question. He suggests that the state cour t admitted the evidence in violation of the New York rule governing evidence of prior bad acts. See People v. Molineux
, 168 N.Y. 264 (1901).
On appeal, the Fourth Department agreed with Griggs, insofar as it found that some of the evidence to which Griggs objected “c oncerning prior drug sales and acts of domestic violence . . . was not relevant to a material issue at trial an d, furthermore, [that] its probative value was outweighed by its prejudicial effect.” App. 53. Y et despite that finding, the Fourth Department proceeded to determine that the error of admi tting such evidence was “harmless.” App. 53.
We agree with the Fourth Department that such error does not rise to the level of a Constitutional violation. As we have previously noted:
to establish that an erroneous application of state rules of evidence violates the federal guarantee of due process, [petitioner] must . . . demonstrate that the state court’s erroneous conclusions about New York evidence law were so egregious as to implicate the Fourteenth Amendment’s guarantee of due process. That guarantee, in this case, is one of “fundamental fairness,” a principle that the Supreme Court has “defined . . . very narrowly.”

Evans
, 712 F.3d at 133 (quoting Dowling v. United States , 493 U.S. 342, 352 (1 990)). Merely showing that the state court admitted evidence in violation of state rules of evidence is not enough, for such a4 state court decision on state law, even if erroneous, is not an independent ground for the writ of habeas corpus to issue under AEDPA.
Here, the Fourth Department correctly deter mined that, in light of all of the evidence presented a trial, the evidence of prior bad acts wa s not sufficiently prejudicial to render Griggs’s trial fundamentally unfair. In light of the streng th of the properly admitted evidence of Griggs’s guilt, the state court’s conclusion that the error was harmless was not unreasonable. Accordingly, the state court reasonably applied the relevant Federa l law on the erroneous admission of evidence: the error was not “so egregious as to implicate the Fourteenth Amendment” and to require that we upset Griggs’s conviction.

II: Prosecutorial Miscondu ct: Due Process Violations
Second, Griggs argues that during summation the prosecutor repeatedly made improper remarks that collectively amounted to a Due Process violation, indelibly tainting his trial. Among the allegedly improper remarks were: claims that the defense counsel engaged in “spin” and, among other things, was “talk[ing] out both sides of [his ] mouth;” references to the aforementioned prior bad acts of Griggs and statements portraying Grig gs as an individual with criminal propensities; misstatements of police testimony, including missta tements about Griggs’s placement of the weapon in question; statements designed to bolster the credibility of a police officer’s testimony against Griggs; and descriptions of Young as a sympathetic “victim” meant to appeal to the jury’s emotions. Griggs points to several cases from this Circuit in which we have taken issue with prosecutorial remarks like those that he describes. He suggests that such alleged misconduct, taken as a whole, rendered his trial fundamentally unfair.
The Fourth Department rejected Griggs’s a llegations of prosecutorial misconduct without addressing each individual claim. We therefore m ust affirm the denial of habeas corpus if fairminded jurists could reach that result based on a reasonable interpretation of Supreme Court precedent. Applying this principle, we conclude that there was a reasonable basis for the Fourth Department to deny relief.
The Supreme Court has instructed that habeas relief is appropriate based on improper prosecutorial comments in summation only where the prosecutor’s comments “so infected the trial with unfairness as to make the resulting conviction a denial of due process.” Darden v. Wainwright
, 477 U.S. 168, 181 (1986). We have held that “[t]he habeas court must consider the record as a whole when making this determination, because even a prosecutor’s inappropriate or erroneous comments or conduct may not be sufficient to undermine the fairness of the proceedings when viewed in context.” Jackson , 763 F.3d at 146. This standard is highly general, such that a wide range of state court applications of the standard must be considered reasonable. Id. at 135.5 There is no question that some of the pr osecutor’s remarks here were improper. The disparagement of the role of defense counsel was error, the statement that Griggs had hit Young with his gun had no basis in the evidence, and th e statement that Griggs had “hidden” the gun misstated the testimony of the officer who found it . But not all of the statements to which Griggs objects were improper. The state court could reas onably have concluded that the prosecutor’s defense of the credibility of the police officers and of Young was within proper bounds. In any event, “it is not enough that [some of] the prosecutors’ remarks were undesirable or even universally condemned.” Darden , 477 U.S. at 181 (internal quotation marks omitted). Taken in light of the strength of the case against Griggs, and viewing the improper remarks against the background of the entire summation, the defense summation to which it replied, and the evidence as a whole, we cannot find that the state court’s conclusion that th e summation did not deprive Griggs of a fair trial was an unreasonable application of clearly established Federal law.

III: Prosecutorial Misconduct : Fifth Amendment Violations
Third, Griggs argues that he was deprived of his Fifth Amendment privilege against selfincrimination when the prosecutor faulted him for failing to testify during trial. Specifically, he alleges that the prosecution made a constitutiona l error when it said the following during summation:
Defendant’s version of the struggle, just bi zarre. Defendant’s silence about the gun being fired. The defendant’s silence about the gun bein g fired. Never addressed at all during trial. Just quietly ignored.
Tr. 664-65. Such a reference to his silence, Griggs contends, was clearly prejudicial.
The Fourth Department rejected this argument as well, also without analysis. We cannot conclude that this determination was unreasonable. “The Fifth Amendment . . . forbids . . . comment by the prosecution on the accused’s silence.” Griffin v. California , 380 U.S. 609, 615 (1965). Such comments, however, are reviewed for harmless error. Chapman v. California , 386 U.S. 18 (1967).
Here, although Griggs did not testify at trial, he did testify before the grand jury, and his account of the events was read into evidence at tr ial. Accordingly, Defendant-Appellee argues that the prosecutor’s remarks, which focused on Griggs’s fa ilure to address a specific point, are best read as commenting on his omission of that arguably sign ificant detail from the testimony that he did give, and not on his complete silence at trial. We ar e hard pressed to say that no fair-minded jurist could accept that interpretation. But even assumin g without deciding that the prosecutor’s remark was an improper reference to Griggs’s silence at tr ial, we cannot say that no fair-minded jurist could accept the state court’s implicit conclusion that this si ngle reference, in the context of a trial in which Griggs’s sworn account of events was heard by the jury, was harmless.6 IV: Ineffective Assistance of Counsel
Finally, Griggs argues that he was deprived of his Sixth Amendment right to effective counsel because his attorney unreasonably failed to object to the instances of prosecutorial misconduct enumerated above. Such a failure to object, he contends, was ultimately prejudicial under Strickland v. Washington , 466 U.S. 668 (1984).
The Fourth Department summarily concluded th at his counsel’s assistance was not deficient. Once again, in reviewing this determination, we ev aluate the reasoning that the Fourth Department hypothetically would have used to reach such a conclusion. See Hawthorne , 695 F.3d at 196.
In doing so, we determine that Griggs’s coun sel was not defective merely because he failed to object during the prosecution’s summation. Th e relevant Federal law is provided by Strickland
, which stipulates that “[a]n error by counsel, even if professionally unreasonable, does not warrant setting aside the judgment of a criminal proceedin g if the error had no effect on the judgment.” 466 U.S. at 691. A judgment may only be s et aside if the defendant can “show that there is a reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Id. at 694.
Here, Griggs has not made such a showing. Ev en assuming arguendo that defense counsel’s failure to object to at least some of the prosecu tor’s remarks was professionally unreasonable, the Fourth Department could reasonably have conclude d that there was no reasonable probability that an objection to the prosecutor’s remarks, which we have concluded above could reasonably be seen as harmless, would have produced a different result.

CONCLUSION
We have reviewed all of the arguments raised by Griggs on appeal and find them to be without merit. For the foregoing reasons, we AFFIRM the June 2, 2017 judgment of the District Court.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk