No. 10-4424-pr
     McClary v. Conway

 1                            UNITED STATES COURT OF APPEALS
 2                                FOR THE SECOND CIRCUIT
 3
 4                                          SUMMARY ORDER
 5
 6   RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
 7   CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007,
 8   IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
 9   PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1. WHEN CITING A
10   SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
11   MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
12   DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING
13   A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT
14   REPRESENTED BY COUNSEL.
15
16         At a stated term of the United States Court of Appeals for the Second Circuit, held at
17   the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New
18   York, on the 17th day of July, two thousand twelve.
19
20          PRESENT: JON O. NEWMAN,
21                           RAYMOND J. LOHIER, JR.,
22                           CHRISTOPHER F. DRONEY,
23                                                    Circuit Judges.
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25
26          DAVID McCLARY,
27
28                                           Petitioner-Appellant,
29
30                                   v.                                          No. 10-4424-pr
31
32          JAMES T. CONWAY,
33
34                                           Respondent-Appellee.
35
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37
38          FOR APPELLANT:                   JEREMY GUTMAN, ESQ., New York, NY.
39
40          FOR APPELLEE:                    SHULAMIT ROSENBLUM NEMEC, Assistant District
41                                           Attorney (Leonard Joblove, Victor Barall, Assistant
42                                           District Attorneys, on the brief) for Charles J. Hynes,
43                                           District Attorney for Kings County, Brooklyn, NY.
44
45          Appeal from a judgment of the United States District Court for the Eastern District
                                                         1
 1   of New York (Eric N. Vitaliano, Judge).

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

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

 4          Petitioner-Appellant David McClary appeals from a judgment entered on October

 5   6, 2010, dismissing his petition for habeas corpus relief pursuant to 28 U.S.C. § 2254, but

 6   issuing a certificate of appealability as to his claim of ineffective assistance of counsel.

 7   McClary killed a man with a single punch to the head. McClary was convicted in 2002,

 8   after a jury trial in the Supreme Court of New York, of murder in the second degree, for

 9   which he was sentenced to a term of imprisonment of twenty-five years to life (later

10   reduced by the Appellate Division, Second Department, to twenty years to life). On

11   appeal, he asserts that the District Court improperly denied his petition, and did so

12   without the benefit of the complete state court record. We assume the parties’ familiarity

13   with the facts and record of the prior proceedings, which we reference only as necessary

14   to explain our decision to affirm.

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

16   corpus.” Parker v. Ercole, 

, 834 (2d Cir. 2012). Where a state court

17   adjudicated a claim on the merits, such a petition may not be granted unless the state

18   court’s decision “was contrary to, or involved an unreasonable application of, clearly

19   established Federal law,” or was “based on an unreasonable determination of the facts in

20   light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(1) -

21   (2). On appeal, McClary contends that his trial counsel’s performance was inadequate

22   because he failed effectively to pursue a motion seeking to suppress McClary’s post-

23   arrest confession pursuant to Dunaway v. New York, 

, 218-19 (1979), which

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 1   requires the exclusion of statements obtained as a result of an unlawful arrest made

 2   without probable cause. The state court rejected this argument when McClary raised it on

 3   direct appeal.

 4          To succeed on a claim of ineffective assistance of counsel, a petitioner must show

 5   “that (1) the performance of his counsel was objectively unreasonable and (2) there is a

 6   reasonable probability that, but for [the] deficient performance, the result of the

 7   proceeding would have been different.” 

; see Strickland v.

 8   Washington, 

, 687-88, 694 (1984). In order to satisfy the prejudice prong of

 9   the Strickland test, McClary must show, at a minimum, that he could have prevailed on a

10   properly pursued Dunaway motion. See Kimmelman v. Morrison, 

, 375

11   (1986); United States v. Matos, 

, 32 (2d Cir. 1990).

12          McClary cannot make this showing. Under New York law, hearsay information

13   provided by an informant can establish probable cause for a warrantless arrest if law

14   enforcement demonstrates both the basis of the informant’s knowledge and the reliability

15   of the informant. People v. Ketcham, 

, 420 (1999); People v. DiFalco, 80

, 696 (1993). Here, the Government satisfied the first prong by submitting an

17   affidavit stating that McClary had been named as the “attacker” by two informants, both

18   of whom were “‘known to’ the People,” and that he had admitted the crime to them. See

19   

. Moreover, the record indicates that at least one of the

20   informants was a citizen informant “from the neighborhood.” The reliability of identified

21   citizen informants is presumed under New York law. Caldarola v. Calabrese, 

  156, 165 (2d Cir. 2002); People v. Parris, 

, 350 (1994). Because McClary

23   has not presented any evidence rebutting this presumption, or, more generally, indicating

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 1   that he would have prevailed if his counsel had pursued the Dunaway motion, he has not

 2   established any prejudice resulting from the allegedly ineffective actions of his trial

 3   counsel.

 4          We also reject McClary’s contention that the District Court erroneously concluded

 5   that his trial counsel’s failure to pursue the Dunaway motion was not objectively

 6   unreasonable. “‘[I]t is not sufficient for [a] habeas petitioner to show merely that counsel

 7   omitted a nonfrivolous argument, for counsel does not have a duty to advance every

 8   nonfrivolous argument that could be made.’” Ramchair v. Conway, 

, 73 (2d

 9   Cir. 2010) (quoting Mayo v. Henderson, 

, 533 (2d Cir. 1994)). In addition,

10   we must “‘indulge a strong presumption that counsel’s conduct falls within the wide

11   range of reasonable professional assistance; that is, the defendant must overcome the

12   presumption that, under the circumstances, the challenged action might be considered

13   sound trial strategy.’” Bierenbaum v. Graham, 

, 51 (2d Cir. 2010) (quoting

14   

). Under these circumstances, we agree with the District Court

15   that McClary’s trial counsel, having learned that McClary’s arrest resulted from his

16   admissions to two known informants, may reasonably have reevaluated the likelihood of

17   success of the Dunaway motion and decided, as a matter of trial strategy, not to pursue it.

18   The state court’s decision that McClary was provided with effective assistance of counsel

19   was, therefore, not contrary to, nor an unreasonable application of, established federal

20   law.

21          Finally, the District Court had before it the relevant portions of the state court

22   record from which to make this determination. That included copies of the relevant

23   portions of both Appellant’s and Respondent’s state court appellate briefs, which quoted

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 1   extensively from the Dunaway motion papers. The contents of the affidavit submitted in

 2   opposition to the Dunaway motion are, in any event, undisputed. In addition, all the

 3   relevant identifying information regarding the two informants was provided in the

 4   prosecutor’s opening statement at trial, which was also included in the record provided to

 5   the District Court.

 6            We have considered McClary’s other arguments and conclude that they are

 7   without merit. For the foregoing reasons, we AFFIRM the judgment of the District

 8   Court.

 9

10                                                   FOR THE COURT:

11                                                   Catherine O’Hagan Wolfe, Clerk of Court

12

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