21-1281-pr Ross v. Annucci

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.

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 17th day of November, two thousand twenty-two. Present: JOHN M. WALKER, JR., WILLIAM J. NARDINI, BETH ROBINSON, Circuit Judges.

_____________________________________ GERALD ROSS, Petitioner-Appellant, v. 21-1281-pr ANTHONY J. ANNUCCI, LETITIA JAMES,

Respondents-Appellees.

For Petitioner-Appellant: ANGIE LOUIE, The Legal Aid Society, New York, NY

For Respondent-Appellee: PRISCILLA STEWARD, Assistant Attorney General (Barbara D. Underwood, Solicitor General, Nikki Kowalski, Deputy Solicitor General for Criminal Matters, on the brief), for Letitia James, Attorney General, State of New York, New York, NY

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

New York (Analisa Torres, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Petitioner-Appellant Gerald Ross appeals from the district court’s judgment, entered April

21, 2021, denying his petition for a writ of habeas corpus under

. After a jury

trial in the New York Supreme Court, Ross was found guilty of two counts of attempted sexual

abuse in the first degree (

and 130.65(3)) and one count of endangering

the welfare of a child (

(1)) on March 7, 2011. Ross asserts that he was

denied effective assistance of counsel when his trial attorney incorrectly advised him, during the

plea-bargaining process, of the maximum sentencing exposure he faced.

On April 7, 2011, Ross was sentenced to (1) the maximum four-year determinate sentence

on each of the two counts of attempted sexual abuse in the first degree, to run consecutively to

each other for a total of eight years; and (2) a one-year definite sentence for endangering the

welfare of a child to run concurrently with the eight-year sentence. He was also sentenced to ten

years of post-release supervision. Thus, in total, Ross was sentenced to eight years of

imprisonment to be followed by ten years of post-release supervision. Prior to his trial, Ross

rejected an offer to plead guilty to one count of attempted sexual abuse in exchange for a two-year

prison term with five years of post-release supervision (the “Plea Offer”).

In a sworn affidavit, Ross averred to the state courts that his attorney had “extensive

conversations” with him about the Plea Offer, but that she failed to advise him that sentences for

the two counts of attempted sexual abuse in the first degree could run consecutively. Joint App’x

at 38–40. He stated that his attorney instead advised him that his potential maximum sentencing

2 exposure would only be four years of imprisonment with five years of post-release supervision.

. However, had he known he was potentially facing eight years of imprisonment to be

followed by ten years of post-release supervision, he “would have seriously considered accepting”

the Plea Offer.

The state trial court denied Ross’s motion to vacate his sentence based on

ineffective assistance of counsel, and the state appellate division affirmed that denial. The district

court then denied § 2254 relief. On appeal, Ross argues that the state courts’ rejection of his claim

amounted to an unreasonable application of Supreme Court precedent. We assume the parties’

familiarity with the case.

A district court’s denial of a § 2254 petition is reviewed de novo. Bierenbaum v. Graham,

(2d Cir. 2010). As relevant here, when a state court adjudicates a habeas

petitioner’s claim on the merits, a district court may grant relief if the state court’s decision

“involved an unreasonable application of[] clearly established Federal law, as determined by the

Supreme Court of the United States.”

(d)(1). A state court unreasonably applies

federal law when it “correctly identifies the governing legal rule but applies it unreasonably to the

facts of a particular prisoner’s case.” Williams v. Taylor,

, 407–08 (2000). This

standard is “difficult to meet.” Harrington v. Richter,

(2011). Courts should

“not lightly conclude that a State’s criminal justice system has experienced the extreme

malfunction for which federal habeas relief is the remedy.” Burt v. Titlow,

(2013)

(cleaned up).

The Supreme Court articulated the governing legal rule for this case in Strickland v.

Washington,

(1984), and its progeny. Under Strickland, to establish that counsel

was constitutionally ineffective, a defendant must demonstrate that (1) counsel’s performance fell

below an objective standard of reasonableness, and (2) the deficient representation prejudiced the

3 defendant.

at 687–88. To satisfy the second, “prejudice” prong of the Strickland test under the

circumstances of this case, Ross must show, among other things, that “but for the ineffective advice

of counsel there is a reasonable probability that the [Plea Offer] would have been presented to the

court (i.e., that the defendant would have accepted the plea and the prosecution would not have

withdrawn it in light of intervening circumstances).” Lafler v. Cooper,

(2012).

Our question is not whether Ross would have satisfied the two-part test if we were

analyzing his claim in the first instance. Bell v. Cone,

, 698–99 (2002). Instead, we

ask whether the state courts applied Strickland to the facts of Ross’s case in an objectively

unreasonable manner.

. We therefore apply a “doubly deferential” standard of review

“to a Strickland claim evaluated under the § 2254(d)(1) standard.” Knowles v. Mirzayance,

(2009). 1

We hold that the state courts’ conclusion that Ross failed to make the necessary showing

under the prejudice prong of the Strickland test was not unreasonable. Therefore, we need not

reach Ross’s allegations that his attorney’s performance was deficient. Strickland,

(“[A] court need not determine whether counsel’s performance was deficient before examining the

prejudice suffered by the defendant as a result of the alleged deficiencies.”).

Here, even if his attorney failed to advise him of his maximum sentencing exposure, Ross

has not shown that, but for this alleged error, there is a “reasonable probability” that he would have

1 To the extent that the state court’s determination that Ross had failed to establish prejudice constitutes a factual determination, we need not decide whether Ross not only must establish that the state court’s factual determination was unreasonable pursuant to

(d)(2), but also must overcome a presumption of correctness by clear and convincing evidence pursuant to

(e)(1). We conclude that even if the presumption in § 2254(e)(1) does not apply, Ross has failed to show that the state court’s factual determination was unreasonable under the § 2254(d)(2) standard. See Brumfield v. Cain,

(2015) (recognizing that the Court has not yet “defined the precise relationship between § 2254(d)(2) and § 2254(e)(1)” and declining to do so where not required by the circumstances of the case (internal quotation marks omitted)); see also Wood v. Allen,

(2010) (concluding that the Court need not address the relationship between § 2254(d)(2) and (e)(1) because the state court’s factual determination was reasonable even under the petitioner’s reading of § 2254(d)(2)).

4 accepted the Plea Offer. Lafler,

. His statement that, had he been properly advised,

he “would have seriously considered accepting” the Plea Offer does not clearly meet this standard.

Joint App’x at 40. Indeed, Ross declined the Plea Offer only after his “extensive conversations”

with his attorney, id. at 39, which implies that his “serious consideration” of a plea offer would

not, of itself, suggest any particular likelihood that he would accept that offer. To the contrary, to

the extent there are any indications of what Ross was or was not likely to do, the record shows that

he steadfastly maintained his innocence; this certainly does not suggest he was likely to accept a

plea. Since we cannot conclude that the state courts’ conclusion on this point was an unreasonable

application of Strickland and its progeny, Ross has not met his burden under

(d).

* * *

We have considered all of Ross’s arguments and find them to be without merit.

Accordingly, we AFFIRM the judgment of the district court.

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

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