23-357-pr Lloyd v. Morton

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 23rd day of September, two thousand twenty-four.

PRESENT: JON O. NEWMAN, JOHN M. WALKER, JR. RAYMOND J. LOHIER, JR., Circuit Judges. ------------------------------------------------------------------ DERRICK LLOYD,

Petitioner-Appellant,

v. No. 23-357-pr

ROBERT MORTON,

Respondent-Appellee. ------------------------------------------------------------------ FOR APPELLANT: Lawrence Gerzog, Law Offices of Lawrence Gerzog, New York, NY

FOR APPELLEE: Leonard Joblove, Amy Appelbaum, Terrence F. Heller, Assistant District Attorneys, Kings County District Attorney’s Office, Appeals Bureau, Brooklyn, NY

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

District of New York (William F. Kuntz, II, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the District Court is AFFIRMED.

Derrick Lloyd appeals from a judgment of the United States District Court

for the Eastern District of New York (Kuntz, J.) denying his petition for a writ of

habeas corpus pursuant to

. Lloyd argues that during his state

court trial, the Kings County District Attorney’s Office engaged in prosecutorial

misconduct, resulting in his conviction in violation of his due process rights. We

assume the parties’ familiarity with the underlying facts and the record of prior

proceedings, to which we refer only as necessary to explain our decision to

affirm.

2 Following a state jury trial in 2016, Lloyd was convicted of murder in the

second degree and criminal possession of a weapon in the third degree. On

direct appeal he argued that the Government engaged in prosecutorial

misconduct by asking race-based questions in its cross-examination of a defense

witness and by making improper arguments in its summation. The New York

Appellate Division rejected those arguments as unpreserved for appellate review

and in the alternative concluded that they were without merit or did not warrant

reversal. People v. Lloyd,

(2d Dep’t 2020).

Lloyd petitioned for a writ of habeas corpus, reiterating the arguments that

he made to the Appellate Division. The District Court concluded that while

Lloyd had preserved his challenge to the prosecutor’s cross-examination, the

Appellate Division’s alternative holding that this argument lacked merit was not

contrary to or an unreasonable application of federal law. The District Court

further concluded that Lloyd was procedurally barred from challenging the

Government’s summation because he had not preserved that argument for

appellate review. On de novo review, see Scrimo v. Lee,

(2d Cir.

2019), we affirm.

3 “A federal court may not review federal claims that were procedurally

defaulted in state court—that is, claims that the state court denied based on an

adequate and independent state procedural rule.” Garner v. Lee,

(2d Cir. 2018) (cleaned up). “[W]hen a state court says that a claim is not

preserved for appellate review but then rules in any event on the merits, such a

claim is [still] procedurally defaulted.” Green v. Travis,

(2d Cir.

2005) (quotation marks omitted).

Here, the Appellate Division rejected Lloyd’s prosecutorial misconduct

claims based on a state procedural rule: New York’s contemporaneous objection

rule. Lloyd,

; see also

(2). This rule requires

that “a defendant specify the grounds of alleged error in sufficient detail so that

the trial court may have a fair opportunity to rectify any error.” Garvey v.

Duncan,

(2d Cir. 2007). A “general objection is not sufficient to

preserve an issue since such would not alert the court to defendant’s position.”

; see People v. Tevaha,

(1994) (holding that “[t]he word

‘objection’ alone [i]s insufficient to preserve [an] issue” for appellate review).

Moreover, if the trial court sustains an objection, to preserve the issue for

appellate review the defendant must move for a mistrial or curative instructions

4 on the specific grounds later raised on appeal. See People v. Weston,

(1982).

The Appellate Division correctly determined that Lloyd failed to preserve

for appellate review his claims of prosecutorial misconduct during

cross-examination and summation. During the challenged cross-examination,

Lloyd’s counsel lodged general objections to the prosecutor’s questions

regarding the racial makeup of the jury but failed to specify the basis for the

objections. The judge overruled counsel’s general objections but then sustained

its own objection to the prosecutor’s question regarding the race of the victim.

And after cross-examination, Lloyd’s counsel moved for a mistrial based on a set

of questions from the prosecutor about Lloyd’s dissatisfaction with his lawyer,

but failed to move for a mistrial based on the prosecutor’s questions regarding

the racial composition of the jury or the race of the victim. Lloyd’s counsel

likewise lodged several general objections during the prosecution’s summation

without specifying the basis for those objections. 1 In sum, Lloyd never alerted

1 Lloyd’s counsel made one specific objection during the summation: to the prosecutor’s statement implying that one of the defense witnesses had discussed the trial proceedings with Lloyd prior to her testimony. On direct appeal, however, Lloyd’s counsel did not challenge this particular statement. This specific challenge to the prosecutor’s summation “is therefore both unexhausted and procedurally defaulted.” Hawthorne v. Schneiderman,

(2d Cir. 2012). 5 the trial court to the specific errors he raised on appeal to the Appellate Division:

the race-based cross-examination and the prosecution’s allegedly improper

arguments in summation.

The Appellate Division thus relied on New York’s contemporaneous

objection rule to reject Lloyd’s prosecutorial misconduct arguments. We have

held that the contemporaneous objection rule is “firmly established and regularly

followed,” and is an adequate and independent state law ground for decision.

Downs v. Lape,

(2d Cir. 2011); see Green,

.

It’s true that the “exorbitant application of a generally sound rule renders

the state ground inadequate to stop consideration of a federal question.” Lee v.

Kemna,

(2002); see Cotto v. Herbert,

(2d Cir.

2003). But the Appellate Division’s application of the contemporaneous objection

rule in Lloyd’s case was hardly “exorbitant.” Garvey,

. To the

contrary, New York law “indicate[s] that compliance with the rule was

demanded in the specific circumstances” of Lloyd’s trial.

(quotation marks

omitted); see, e.g., People v. Hobson,

(2d Dep’t 2023); People v.

Balls,

(1986). “[D]emanding perfect compliance with the rule .

. . serve[s] a legitimate governmental interest” — namely, giving the trial court

6 “the first opportunity to rule on and possibly rectify any alleged legal error.”

Garvey, 485 F.3d at 719–20 (quotation marks omitted). Yet Lloyd did not even

“substantially compl[y] with the rule.”

(quotation marks omitted). By

failing to make substantive objections, and by failing to move for a mistrial on

the specific grounds raised on appeal, 2 Lloyd did not put the trial court on notice

of his specific challenges or provide it an opportunity to remedy any misconduct.

We have considered Lloyd’s remaining arguments 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

2 We therefore reject the District Court’s conclusion that the Appellate Division exorbitantly applied the contemporaneous objection rule with respect to Lloyd’s cross-examination challenge. The District Court erroneously determined that Lloyd’s mistrial motion based on the prosecutor’s questions regarding Lloyd’s satisfaction with his attorney preserved Lloyd’s separate challenge on appeal to the prosecutor’s race- based questions regarding the jury and the victim. 7