18-3010 Carmichael v. Chappius 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 28th day of April, two thousand twenty.

PRESENT: RALPH K. WINTER, RICHARD C. WESLEY, RICHARD J. SULLIVAN, Circuit Judges. ------------------------------------------------------------------ BRIAN CARMICHAEL,

Petitioner-Appellant,

v. No. 18-3010-pr

SUPERINTENDENT PAUL J. CHAPPIUS, JR., ELMIRA CORRECTIONAL FACILITY,

Respondent-Appellee. ------------------------------------------------------------------ FOR PETITIONER-APPELLANT: JOSEPH M. NURSEY (Christina Swarns, on the brief), Office of the Appellate Defender, New York, NY. FOR RESPONDENT-APPELLEE: DEBORAH L. MORSE, Assistant District Attorney (Christopher P. Marinelli, Assistant District Attorney, on the brief), for Cyrus R. Vance, Jr., District Attorney for New York County, New York, NY.

Appeal from a judgment of the United States District Court for the Southern

District of New York (Katherine Polk Failla, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

Petitioner-Appellant Brian Carmichael appeals from a judgment of the

district court (Katherine Polk Failla, Judge) denying his petition for a writ of habeas

corpus under

for relief from his New York state convictions for

second-degree sale of a controlled substance. Carmichael claims that he received

ineffective assistance of counsel when his trial attorney inadequately challenged

the prosecution’s striking of African-American jurors during voir dire. The district

court denied the petition, holding that the state court did not unreasonably apply

Strickland v. Washington,

(1984), when it determined that counsel’s

allegedly deficient performance did not result in actual prejudice. The district

2 court further held that “[c]ounsel’s alleged failure to craft more comprehensive

challenges for his Batson[ v. Kentucky,

(1986),] claims [did] not rise to

the level of deficient performance under Strickland.” Carmichael v. Chappius,

(S.D.N.Y. 2018). The district court subsequently granted a

certificate of appealability on two issues: whether (1) “there was a reasonable basis

for the state court’s analysis that Batson errors are not structural,” and (2) “trial

counsel’s failure to present available arguments that the prosecution was striking

[b]lack prospective jurors based upon their race did not constitute ineffective

assistance under Strickland’s performance prong.” Joint App’x at 10. Because we

determine that counsel’s performance in raising his Batson challenges was not

deficient under Strickland’s first prong, we affirm without addressing Strickland’s

prejudice prong and whether there was a reasonable basis for the state court’s

analysis that Batson errors are not structural.

Our previous opinion in this case provides a thorough review of the relevant

facts and procedural history. See Carmichael v. Chappius,

, 540–43 (2d

Cir. 2017). We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal, to which we refer only as necessary to

explain our decision.

3 I. Applicable Legal Framework

A. Review of State Court Decisions Under the AEDPA

“We review de novo a district court’s denial of a petition for a writ of habeas

corpus.” Dixon v. Miller,

(2d Cir. 2002). Under the Anti-Terrorism

and Effective Death Penalty Act of 1996 (the “AEDPA”), a federal court cannot

grant a petition for a writ of habeas corpus based on a claim that was “adjudicated

on the merits in State court proceedings” unless the state court’s decision (1) “was

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

law, as determined by the Supreme Court of the United States;” or (2) “was based

on an unreasonable determination of the facts in light of the evidence presented in

the State court proceeding.”

(d).

A state court decision is “contrary to . . . clearly established Federal law, as

determined by the Supreme Court,” when “the state court arrives at a conclusion

opposite to that reached by [the Supreme Court] on a question of law or if the state

court decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.” Williams v. Taylor,

, 412–13 (2000) (first

alteration in original). An “unreasonable application” of Supreme Court

precedent, on the other hand, occurs when a state court “identifies the correct

4 governing legal principle from [the Supreme Court’s] decisions but unreasonably

applies that principle to the facts of the prisoner’s case.”

.

This is a “highly deferential standard for evaluating state-court rulings,

which demands that state-court decisions be given the benefit of the doubt.”

Cullen v. Pinholster,

(2011) (quoting Woodford v. Visciotti,

(2002)). “A state court’s determination that a claim lacks merit precludes

federal habeas relief so long as ‘fairminded jurists could disagree’ on the

correctness of the state court’s decision.” Harrington v. Richter,

(2011) (quoting Yarborough v. Alvarado,

(2004)).

To merit federal habeas relief under the “unreasonable application” prong

of § 2254(d)(1), a petitioner “must show that the state court’s ruling on the claim

being presented in federal court was so lacking in justification that there was an

error well understood and comprehended in existing law beyond any possibility

for fairminded disagreement.” Id. at 103. Consequently, a federal court may not

issue a writ of habeas corpus “simply because that court concludes in its

independent judgment that the relevant state-court decision applied clearly

established federal law erroneously or incorrectly. Rather, that application must

also be unreasonable.” Williams,

.

5 B. Strickland Ineffective Assistance of Counsel Claims

In Strickland, the Supreme Court established a two-prong test for evaluating

Sixth Amendment ineffective assistance of counsel claims. See

.

First, a defendant must prove that counsel’s performance was deficient – “that

counsel’s representation fell below an objective standard of reasonableness.”

. Second, a defendant must establish that counsel’s deficient performance

resulted in actual prejudice by showing “that there is a reasonable probability that,

but for counsel’s unprofessional errors, the result of the proceeding would have

been different.”

. “Judicial scrutiny of counsel’s performance” under the

first prong “must be highly deferential” and include “a strong presumption that

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

assistance.”

. A court must make allowances for counsel’s strategic

choices and apply “a heavy measure of deference to counsel’s judgments.”

.

A court has flexibility in how it decides a claim of ineffective assistance.

“[T]here is no reason for a court deciding an ineffective assistance claim to

approach the inquiry in the same order or even to address both components of the

inquiry if the defendant makes an insufficient showing on one.”

.

6 Consequently, if a defendant does not successfully establish either the

performance prong or the prejudice prong, the ineffective assistance claim fails,

and the remaining prong becomes moot. See

C. Review of Strickland Claims Under the AEDPA

Both Strickland and the AEDPA require highly deferential standards of

review. Accordingly, “[e]stablishing that a state court’s application of Strickland

was unreasonable under § 2254(d) is all the more difficult.” Richter,

. “The standards created by Strickland and § 2254(d) are both highly

deferential, and when the two apply in tandem, review is doubly so.” Id. (internal

quotation marks and citations omitted). To succeed on an ineffective assistance of

counsel claim, a defendant petitioning for federal habeas relief must show, not that

the state court applied Strickland incorrectly, but that the state court applied

Strickland “in an objectively unreasonable manner.” Bell v. Cone,

(2002). “The Strickland standard is rigorous, and the great majority of habeas

petitions that allege constitutionally ineffective counsel founder on that standard.”

Lindstadt v. Keane,

(2d Cir. 2001).

7 II. Discussion

Carmichael maintains that his “[t]rial counsel was unknowledgeable on the

applicable law on making a prima facie showing of discrimination under Batson’s

first stage,” and therefore that he made deficient Batson challenges when he

proffered only statistical data as support. Carmichael’s Br. at 34. He asserts that

supplemental information should have been readily apparent to counsel – namely,

“the fact that four of the six African-American prospective jurors stricken by the

prosecution had ‘pro-prosecution backgrounds’” – and that had counsel included

that additional information, his prima facie showing would have been “virtually

unassailable.” Id. at 27. Moreover, Carmichael asserts that “[d]espite the trial

court telling counsel that he was doing it wrong, counsel persisted in his

ineffective representation,” providing nothing “more than just statistics . . . to

establish the prima facie case.” Id. at 23. These purported errors, Carmichael

maintains, “cannot be explained convincingly as resulting from a sound trial

strategy, but instead arose from oversight, carelessness, [or] ineptitude,” id. at 33

(quoting Wilson v. Mazzuca,

(2d Cir. 2009)), so counsel’s

performance fell below an objective standard of reasonableness and violated

Strickland’s first prong. We disagree.

8 First, our previous rejection of Carmichael’s underlying Batson claim, see

Carmichael,

, severely undermines his ineffective assistance of

counsel claim as well. If the New York state court’s “conclusion that there was

insufficient evidence of discrimination” to raise a successful Batson claim was “not

unreasonable,”

then it logically follows that counsel’s performance could not

have been deficient based on his failure to make a successful Batson challenge.

Moreover, although Carmichael premises his ineffectiveness claim on his

counsel’s supposed lack of knowledge of, and conformity with, a New York-

specific Batson rule requiring “more than just statistics . . . to establish [a] prima

facie case,” Carmichael’s Br. at 23, both this Court and New York state courts have

held “that statistical evidence alone may, in some circumstances, suffice to

establish a prima facie case of discrimination during jury selection,” Carmichael,

; see also People v. Carmichael,

(1st Dep’t 2010)

(explaining that “numerical evidence may suffice” to establish a prima facie case

under Batson).

Second, we reject Carmichael’s assertion that counsel’s failure to raise the

prospective jurors’ pro-prosecution backgrounds in support of his Batson

challenges rendered his performance deficient. That the prosecution struck

9 African-American prospective jurors with purportedly pro-prosecution

backgrounds hardly indicates Batson discrimination since the prosecution also

challenged white prospective jurors with similar connections to law enforcement. 1

Thus, if counsel had raised exactly the arguments that Carmichael now identifies,

the prosecution undoubtedly would have drawn the court’s attention to these pro-

prosecution white prospective jurors who were also excluded. See Miller-El v.

Dretke,

(2005) (“More powerful than the bare statistics are side-

by-side comparisons of some black venire panelists who were struck and white

ones who were not.”). The fact that white potential jurors with pro-prosecution

backgrounds were also excluded suggests that the prosecution did not value this

characteristic highly. Consequently, the exclusion of African-American

prospective jurors with pro-prosecution connections is not compelling evidence

that the prosecution struck them based on their race.

1The record clearly establishes that the prosecution struck a white female prospective juror with a pro-prosecution background. The magistrate judge, after reviewing the record, further concluded that “it is impossible to ascertain from the record precisely which other non-African- American jurors with law enforcement connections the prosecutor peremptorily challenged[,] . . . [but] given the number of jurors who disclosed law enforcement connections and the number of peremptory strikes by the prosecutor, the Court is confident that [the above- referenced prospective juror was] not the only example.” Carmichael v. Chappius, No. 14-cv-10012 (KPF) (AJP),

, at *22 n.37 (S.D.N.Y. July 17, 2015). The district court found similarly, referring to the “white prospective jurors” with pro-prosecution backgrounds that the prosecution struck. Carmichael,

.

10 Counsel’s failure to proffer a decidedly weak argument – based on facts that

the trial court had been present to observe in real time – is not enough to overcome

Strickland’s “strong presumption that counsel’s conduct falls within the wide

range of reasonable professional assistance.” Strickland,

. On this

record, we find that counsel’s errors, if any, were not “so serious that counsel was

not functioning as the ‘counsel’ guaranteed the defendant by the Sixth

Amendment.”

. Carmichael’s ineffective assistance of counsel claim thus

fails on Strickland’s performance prong.

* * *

We have considered Carmichael’s remaining contentions and conclude that

they are without merit. For the foregoing reasons, the judgment of the district

court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

11