12-323
     Miller v. Phillip

                          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.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 13th day of December, two thousand twelve.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                RALPH K. WINTER,
 9                              Circuit Judge,
10                LAURA TAYLOR SWAIN,
11                              District Judge.*
12
13       - - - - - - - - - - - - - - - - - - - -X
14       RICHARD MILLER,
15                Petitioner-Appellant,
16
17                    -v.-                                               12-323
18
19       WILLIAM E. PHILLIP, Superintendent,
20       Green Haven Correctional Facility,
21                Respondent-Appellee,
22       - - - - - - - - - - - - - - - - - - - -X
23


                *
                Judge Laura Taylor Swain, of the United States
         District Court for the Southern District of New York,
         sitting by designation.
                                                  1
 1   FOR APPELLANT:             BARBARA ZOLOT (Robert S. Dean,
 2                              on the brief), Center for
 3                              Appellate Litigation, New York,
 4                              New York.
 5
 6   FOR APPELLEE:              PATRICIA CURRAN (Susan Gliner,
 7                              on the brief), Assistant
 8                              District Attorneys, for Cyrus R.
 9                              Vance, Jr., District Attorney
10                              for New York County, New York,
11                              New York.
12
13        Appeal from a judgment of the United States District
14   Court for the Southern District of New York (Sweet, J.).
15
16        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
17   AND DECREED that the judgment of the district court be
18   AFFIRMED.
19
20        Petitioner-Appellant Richard Miller appeals from the
21   judgment of the United States District Court for the
22   Southern District of New York (Sweet, J.), denying Miller’s
23   petition for a writ of habeas corpus. Miller claimed
24   ineffective assistance of counsel, based on his counsel’s
25   failure to object to certain jury instructions at trial. We
26   assume the parties’ familiarity with the underlying facts,
27   the procedural history, and the issues presented for review.
28
29        We review a district court’s denial of a writ of habeas
30   corpus de novo. Jenkins v. Artuz, 

, 290 (2d
31   Cir. 2002). Under the Antiterrorism and Effective Death
32   Penalty Act of 1996 (“AEDPA”), “[w]hen the state court has
33   adjudicated the merits of the petitioner’s claim . . . we
34   may grant a writ of habeas corpus only if the state court’s
35   adjudication ‘was contrary to, or involved an unreasonable
36   application of, clearly established Federal law as
37   determined by the Supreme Court of the United States.’”
38   Dolphy v. Mantello, 

, 238 (2d Cir. 2009)
39   (quoting 28 U.S.C. § 2254(d)(1)).
40
41        “The benchmark for judging any claim of ineffectiveness
42   must be whether counsel’s conduct so undermined the proper
43   functioning of the adversarial process that the trial cannot
44   be relied on as having produced a just result.” Strickland
45   v. Washington, 

, 686 (1984). We are to assess
46   whether “counsel’s performance was objectively reasonable,”
47   Brown v. Greene, 

, 110 (2d Cir. 2009), and in

                                  2
 1   doing so, “we must indulge a strong presumption that
 2   counsel’s conduct falls within the wide range of reasonable
 3   professional assistance . . . ,” Aparicio v. Artuz, 

  78, 95 (2d Cir. 2001) (internal quotation marks omitted).
 5
 6        In rejecting Miller’s ineffective assistance of counsel
 7   claim, the state courts determined that Miller’s failure to
 8   object to the challenged instructions fell within the wide
 9   range of reasonable professional assistance. Given the law
10   at the time, we cannot disturb that determination. The
11   challenged jury instructions, given by Justice Edward J.
12   McLaughlin of the New York County Supreme Court, are nearly
13   inscrutable, potentially confusing, and certainly
14   undesirable. Nonetheless, the jury charge as a whole made
15   clear to the jury that it was the State’s responsibility to
16   prove guilt beyond a reasonable doubt. Under the
17   appropriate standards, we cannot find that the state courts
18   unreasonably applied established Supreme Court law. This
19   Court recently affirmed the denial of writs for habeas
20   corpus in two cases involving nearly identical jury
21   instructions. See Jones v. Poole, 403 F. App’x 617, 619-20
22   (2d Cir. 2010); 

.
23
24        For the foregoing reasons, and finding no merit in
25   Miller’s other arguments, we hereby AFFIRM the judgment of
26   the district court.
27
28                              FOR THE COURT:
29                              CATHERINE O’HAGAN WOLFE, CLERK
30
31




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