Pagan v. Brown

11-3434-pr
Pagan v. Brown
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 Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of New
York, on the 7th day of June, two thousand twelve.
PRESENT:
RALPH K. WINTER,
DENNY CHIN,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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CHRISTOPHER PAGAN,
Petitioner-Appellant,
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WILLIAM D. BROWN, SUPERINTENDENT OF
EASTERN CORRECTIONAL FACILITY,
Respondent-Appellee.
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FOR PETITIONER-APPELLANT: ALAN M. NELSON, Lake Success, New
York.
FOR RESPONDENT-APPELLEE: MICHAEL J. MILLER, Assistant
District Attorney, for Thomas J.
Spota, District Attorney, Suffolk
County, Riverhead, New York.
Appeal from the United States District Court for the
Eastern District of New York (Seybert, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court is AFFIRMED.
Petitioner-appellant Christopher Pagan appeals from the
district court's judgment entered on July 29, 2011, pursuant to
the district court's memorandum and order dated July 27, 2011,
denying Pagan's petition for a writ of habeas corpus.
We assume the parties' familiarity with the underlying
facts, the procedural history of the case, and the issue on
appeal.
We review a district court's denial of a writ of habeas
corpus de novo, reviewing any factual findings for clear error.
Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir. 2009). Under the
Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"),
a federal court may not grant a habeas petition on a claim that
was adjudicated on the merits in state court unless the
adjudication "was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by
the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1);
see Cullen v. Pinholster, 131 S. Ct. 1388, 1398 (2011).
On appeal to the Appellate Division, Second Department,
Pagan contended, inter alia, that the trial court committed
reversible error in permitting reference to his post-arrest
silence, thus violating his constitutional rights under Doyle v.
Ohio, 426 U.S. 610 (1976). The Appellate Division affirmed
Pagan's conviction. People v. Pagan, 805 N.Y.S.2d 557, 558 (2d
Dep't 2005).
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We have independently reviewed the record in light of
these principles, and we conclude that the state court's
adjudication of Pagan's Doyle claim was not contrary to or an
unreasonable application of Federal law. Accordingly, we affirm
the district court's denial of Pagan's habeas petition for
substantially the reasons articulated by the district court.
In Doyle, the Supreme Court held that "the use for
impeachment purposes of [a defendant's] silence, at the time of
arrest and after receiving Miranda warnings, violated the Due
Process Clause of the Fourteenth Amendment." 426 U.S. at 619.
The Court reasoned that "it would be fundamentally unfair and a
deprivation of due process to allow the arrested person's silence
to be used to impeach an explanation subsequently offered at
trial." Id. at 618.
On collateral review of an alleged Doyle violation, we
apply the harmless error standard set forth in Kotteakos v.
United States, 328 U.S. 750 (1946), analyzing "whether the error
'had substantial and injurious effect or influence in determining
the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 629-30
637-38 (1993) (quoting Kotteakos, 328 U.S. at 776, and rejecting
the more stringent "harmless-beyond-a-reasonable-doubt standard"
set forth in Chapman v. California, 386 U.S. 18 (1967)); accord
Fry v. Pliler, 551 U.S. 112, 119-22 (2007) (discussing Brecht
post-AEDPA); see also Wood v. Ercole, 644 F.3d 83, 93-94 (2d Cir.
2011) (recognizing Fry).
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Pagan contends the following testimony elicited by the
trial court from an arresting officer during direct examination
by the state constituted a violation of his due process rights
under Doyle:
THE COURT: Tell me what you did
concerning this arrest with
this defendant.
A (continuing) I read him his rights. I told
him he has the right to remain
silent. I told him that
anything he said can and would
be used against him in a court
of law. I told him that if he
had to go to trial over this
matter, if he couldn't afford
an attorney, that an attorney
would be provided for him by
the Court. And I asked him if
he understands these rights,
he indicated that he did and I
asked him if there was
anything he wanted to say to
us at this time and he said
no.
(Trial Tr. 146-47). This exchange was prompted by defense
counsel's request that the arresting officer explain to the jury
what he did when he "Mirandized" Pagan at the time of his arrest.
(See id. at 142-43, 145-46). Indeed, the prosecutor wanted to
"move on" for fear the officer would volunteer that Pagan invoked
his right to remain silent (see id. at 142-43), but defense
counsel persisted (see id. at 145). The prosecutor's fear was
realized when the officer explained what he did to "Mirandize"
Pagan. (See id. at 146-47).
We conclude that the state court's decision to reject
the Doyle claim was neither contrary to nor involved an
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unreasonable application of clearly established Federal law. See
28 U.S.C. § 2254(d)(1). First, it is not clear that the trial
court's inquiry and the arresting officer's testimony violated
Pagan's constitutional rights under Doyle. The elicitation
itself was not improper, nor was the resulting testimony used for
impeachment or argued to the jury. See Greer v. Miller, 483 U.S.
756, 764 (1987) (finding no constitutional violation where
prosecution was not permitted to impeach on or "call attention
to" defendant's post-arrest silence (internal quotation marks
omitted)); Doyle, 426 U.S. at 619 (specifying impermissible "use"
of defendant's post-arrest silence "for impeachment purposes");
United States v. Grubczack, 793 F.2d 458, 462 (2d Cir. 1986)
(finding no constitutional violation where government did not use
testimony of defendant's post-arrest silence to impeach defendant
or argue significance of defendant's post-arrest silence).
Second, even assuming there was a Doyle violation, any
such error did not have a "substantial and injurious effect" on
the jury's verdict and was therefore harmless. See Brecht, 507
U.S. at 637 (internal quotation marks omitted). Pagan was
convicted of Criminal Possession of a Weapon in the Second
Degree, which required proof of possession of a loaded firearm
with intent to use it unlawfully against another person. See
N.Y. Penal Law § 265.03(2) (effective to Dec. 20, 2005). The
jury heard testimony that the police recovered a loaded gun from
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the car that Pagan was driving.1 (Trial Tr. 136, 150, 225-26).
Pagan admitted in subsequent post-arrest statements that the gun
was in his possession. (Id. at 278-79). Further, the parties
stipulated on the record that Pagan did not have a New York State
pistol permit or license to carry a firearm at the time of his
arrest.2 (Id. at 215). Moreover, police recovered a mask, a fake
beard, gloves, and other items from the car Pagan was driving
(id. at 134-36, 140), which indicated he planned to use the
firearm to commit a robbery. Even absent the arresting officer's
testimony regarding Pagan's post-arrest silence, the evidence was
more than sufficient to establish Pagan's guilt, rendering any
potential error harmless.
We have considered Pagan's other arguments on appeal
and find them to be without merit. Accordingly, the judgment of
the district court is hereby AFFIRMED.
FOR THE COURT:
CATHERINE O'HAGAN WOLFE, CLERK
1
In New York, the presence of a firearm in an automobile
is presumptive evidence of its possession by any person inside
the automobile. N.Y. Penal Law § 265.15(3) (effective to Oct.
31, 2000).
2
Possession of an unlicensed, loaded firearm is
"presumptive evidence of . . . intent to use it unlawfully
against another" and permits the jury "to infer such intent."
People v. Wooten, 540 N.Y.S.2d 533, 534 (2d Dep't 1989).
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