Stevenson v. Capra

• Court: Court of Appeals for the Second Circuit
• Decided: June 22, 2023
• Docket: 21-2210
• Status: Unpublished

Opinion

21-2210 Stevenson v. Capra

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 TO 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 22nd day of June, two thousand twenty-three.

PRESENT: ROSEMARY S. POOLER, SUSAN L. CARNEY, BETH ROBINSON, Circuit Judges. _________________________________________

FRANK R. STEVENSON,

Petitioner-Appellant,

v. No. 21-2210

SUPERINTENDENT MICHAEL CAPRA,

Respondent-Appellee. _________________________________________

FOR APPELLANT: DANIEL M. PEREZ, Law Offices of Daniel M. Perez, Newton, NJ. FOR APPELLEE: JORDAN CERRUTI, Assistant District Attorney, Kings County (Eric Gonzalez, District Attorney, Leonard Joblove, Assistant District Attorney, on the brief), Brooklyn, NY.

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

District of New York (Brodie, J.).

UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,

ADJUDGED, AND DECREED that the judgment appealed from entered on

August 23, 2021 is AFFIRMED.

Petitioner-Appellant Frank Stevenson appeals from the denial of his

petition for a writ of habeas corpus, brought under 28 U.S.C. § 2254. Stevenson

was convicted in New York state court in 2013 of one count of rape, two counts

of sexual abuse, and two counts of endangering a minor. Following the

affirmance of his convictions on direct appeal, Stevenson filed a petition with the

Eastern District of New York for habeas relief, arguing that the trial court, in

giving an intoxication instruction to the jury over his objection, violated his

asserted Sixth Amendment right to chart his own defense as well as his due

2 process right to a fair trial. The district court denied his petition but granted a

certificate of appealability. 1

For the reasons explained below, we agree with the district court that

habeas relief is unwarranted. We assume the parties’ familiarity with the

underlying facts, procedural history, and arguments on appeal, to which we refer

only as necessary to explain our decision to affirm.

In 2011, the ten-year-old daughter of Stevenson’s girlfriend (the

“complainant”) told her teacher Stevenson had sexually assaulted her on two

occasions. Stevenson was arrested and charged with rape, sexual abuse, and

endangering a minor. During Stevenson’s trial, the complainant, her mother, her

teacher, a doctor at the practice where the complainant had been examined

following the alleged assault, and a child psychologist all testified on behalf of

the prosecution. Over Stevenson’s objection, the court also admitted into

evidence a recording in which Stevenson made a phone call to his sister while he

was held in pre-trial detention. In the recording, Stevenson stated he was “about

to admit the truth to my family,” and then said to his sister, “I was smoking

1 The district court’s certificate of appealability also extended to other issues, but on appeal, Stevenson advances only his challenge to the jury instruction.

3 some shit . . . I think it made me do some stuff . . . that wasn’t right.” App’x 89,

95, 126.

Stevenson’s sole defense at trial was that he had not committed the alleged

acts. But during the charge conference, the prosecutor moved for an intoxication

instruction on the basis of Stevenson’s statements during the phone call.

Stevenson objected, arguing there was no evidence that he was intoxicated at the

time of the alleged offenses, and that the recorded statement was not on its face

tied to the complainant’s allegations. The trial court disagreed, stating a

“reasonable inference can be made” that the statement “related to the

allegations.” App’x 79.

The intoxication instruction was ultimately read to the jury four times:

twice when the instructions were initially read (once each for the sexual abuse

and endangering child welfare counts), and twice when the jury, during

deliberations, asked to hear the specifics of the charges again. 2 The jury found

2 With respect to the sexual abuse charge, for example, the instruction read: Under our law, intoxication is not, as such, a defense to a criminal charge but evidence of the defendant’s intoxication may be considered whenever it is relevant to negative an element [of the crime charged]. Thus, in determining whether the defendant had the purpose of gratifying the sexual desire of either party, you may consider whether the defendant’s mind was affected by intoxicants to such a degree that he was incapable of forming the purpose necessary for the commission of the crime of sexual abuse in the first degree. E.g., App’x 100.

4 Stevenson guilty of all counts. He was sentenced to an aggregate term of twenty-

five years in prison followed by twenty-five years of post-release supervision.

On direct appeal, Stevenson argued that the trial court’s intoxication

instruction, based solely on the recorded phone call, deprived him of his

constitutional rights to chart his own defense and to a fair trial. He argued that

the instruction “suggest[ed] that [he] was offering an intoxication defense” rather

than arguing for his complete innocence, and therefore “significantly

compounded the prejudice caused by admitting the tape.” App’x 147-48. He

argued this was not harmless error because evidence of his guilt was not

“overwhelming,” reasoning that the prosecutors’ case had rested on the

complainant’s testimony and credibility alone, given the complainant’s

“unremarkable” medical examination. App’x 148.

The Appellate Division concluded that the trial court erred in giving the

intoxication instruction because, in its view, there was insufficient evidence of

intoxication related to the crimes charged. But it nonetheless affirmed the

conviction, concluding that the error was harmless based on “overwhelming

evidence of the defendant’s guilt” and “no significant probability that the error

contributed to his convictions.” People v. Stevenson, 11 N.Y.S.3d 646, 647 (2d Dep’t

5 2015). Stevenson’s application for leave to appeal to the New York Court of

Appeals was denied. People v. Stevenson, 26 N.Y.3d 1092 (2015).

In 2017, Stevenson filed a pro se petition for writ of habeas corpus in federal

court. His initial petition was stayed for a period, and in 2019, Stevenson filed

the amended habeas petition at issue here. As relevant to this appeal, he argued

that the intoxication instruction undermined his constitutional right to chart his

own defense, and because this violation was structural error, it was unreasonable

for the Appellate Division to apply a harmless error analysis. He further argued

the Appellate Division failed to give sufficient weight to the injurious effects the

intoxication charge had at his trial.

The district court denied Stevenson’s petition, concluding that the

Appellate Division reasonably ruled that the trial court’s instruction was

harmless error. The district court nonetheless granted a certificate of

appealability as to the jury instruction claim, among others, viewing the claims

as “debatable.” See Sp. App’x 67.

On appeal, represented by counsel, Stevenson argues that the Appellate

Division’s holding that the intoxication instruction was harmless error was

contrary to, or involved an unreasonable application of, clearly established

federal law. He argues that the Supreme Court has recognized the Sixth

6 Amendment protects a criminal defendant’s right to make fundamental choices

about their own defense, and the Fourteenth Amendment protects the right to a

fair trial. Stevenson argues that the intoxication instruction rendered his trial

fundamentally unfair and was therefore structural error. Alternatively, he

contends that even under the harmless error framework, the Appellate Division’s

assessment was objectively unreasonable because the instruction denied

Stevenson a protected autonomy right to make fundamental choices about his

own defense. For the reasons stated below, we disagree.

We review a district court’s denial of a petition for habeas corpus without

deference. Cornell v. Kirkpatrick, 665 F.3d 369, 374 (2d Cir. 2011). 3

The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) requires a prisoner who challenges (in a federal habeas court) a matter “adjudicated on the merits in State court” to show that the relevant state-court ”decision” (1) “was contrary to, or involved an unreasonable application of, clearly established Federal law,“ or (2) “was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.”

Wilson v. Sellers, 138 S. Ct. 1188, 1191 (2018) (quoting 28 U.S.C. § 2254(d)). This

analysis “requires the federal habeas court to train its attention on the particular

reasons—both legal and factual—why state courts rejected a state prisoner’s

3 In quotations from caselaw, this summary order omits all internal quotation marks, alterations, footnotes, and citations, unless otherwise noted.

7 federal claims, and to give appropriate deference to that decision.” Id. at 1191-

92. 4

For law to be “clearly established” for purposes of habeas relief under

AEDPA, it must have been “determined by the Supreme Court of the United

States,” 28 U.S.C. § 2254(d)(1), rather than by the lower federal courts, Williams v.

Taylor, 529 U.S. 362, 381 (2000). If a rule is “dictated by precedent existing at the

time the defendant’s conviction became final,” it may provide a basis for habeas

relief; however, if it “breaks new ground or imposes a new obligation on the

States or the Federal Government,” it falls outside the universe of clearly

established federal law. Id.

Additionally, in evaluating whether a decision is contrary to or an

unreasonable application of federal law, a state court must be granted “deference

and latitude” inapplicable when a case is before a federal court on direct review.

Harrington v. Richter, 562 U.S. 86, 101 (2011). Accordingly, “even a strong case for

relief does not mean the state court’s contrary conclusion was unreasonable.” Id.

at 102. As long as “fairminded jurists could disagree” with the conclusion that

4Wilson further provides that where, as here, the final State court decision on a defendant’s case consists of a one-word order, we “look through” this unexplained decision “to the last related state-court decision that does provide a relevant rationale”—here, the New York Appellate Division decision. See 138 S. Ct. at 1192.

8 the State court’s decision conflicts with Supreme Court precedent, habeas relief is

unavailable. Id.

Stevenson relies on the Supreme Court’s recent decision in McCoy v.

Louisiana to argue that the trial court’s decision to give the intoxication

instruction over his objection violated his Sixth Amendment right to autonomy.

138 S. Ct. 1500 (2018). In McCoy, the defendant was charged with three counts of

first-degree murder. Id. at 1506. McCoy’s lawyer, against McCoy’s wishes,

admitted to the jury that McCoy had committed the crimes, hoping this

admission would allow McCoy to avoid a death sentence. Id. at 1506-07. The

Court held this violated McCoy’s Sixth Amendment autonomy right to decide

the objective of his own defense, explaining:

Trial management is the lawyer’s province: Counsel provides his or her assistance by making decisions such as what arguments to pursue, what evidentiary objections to raise, and what agreements to conclude regarding the admission of evidence. Some decisions, however, are reserved for the client—notably, whether to plead guilty, waive the right to a jury trial, testify in one’s own behalf, and forgo an appeal. Autonomy to decide that the objective of the defense is to assert innocence belongs in this latter category.

Id. at 1508.

Assuming without deciding that McCoy, which post-dated the Appellate

Division’s decision on review, did not break new ground in holding the Sixth

Amendment reserves to a criminal defendant an autonomy right to decide the

9 objective of the defense, 5 we cannot conclude that the trial court’s decision to

give the challenged jury instruction violates the clearly established federal law

McCoy embodies. Stevenson does not argue that he was not able to make his

chosen argument to the jury, or that he and his lawyer parted ways on a key

objective of the defense. Indeed, Stevenson’s attorney repeatedly emphasized in

his closing argument Stevenson’s complete innocence defense.

Stevenson argues instead that his defense’s objective was undermined

when the trial judge, over his objection, approved the intoxication instruction and

read it to the jury four times in the course of reading (and later repeating) the

complete jury instructions. We need not decide whether, in a context in which

the AEDPA limitations did not apply, we would conclude that the Sixth

Amendment right that was decisive in McCoy extends to a case like this. For

purposes of this appeal, what matters is that we cannot conclude that the Sixth

Amendment right, understood as clearly established, applies here.

The state court decisions Stevenson relies on in arguing otherwise hinge on

violations of state law; they do not support his argument that the court’s

5 “Prior to McCoy, the Supreme Court had never explicitly used the term ‘right to autonomy’ in the criminal context. The Supreme Court has long recognized, however, that an accused has the right to make certain decisions, particularly with respect to self-representation.” United States v. Rosemond, 958 F.3d 111, 120 n.3 (2d Cir. 2020).

10 instruction in this case violates a clearly established federal, Sixth Amendment

autonomy right. See People v. DeGina, 72 N.Y.2d 768, 776-78 (1988) (New York

law); State v. R.T., 205 N.J. 493, 511-12 (2011) (Long, J., concurring) (New Jersey

law). Accordingly, the Sixth Amendment autonomy right which Stevenson

articulates is not a basis for habeas relief.

As to Stevenson’s Fourteenth Amendment due process argument, we

assume without deciding that the challenged jury instruction violated

Stevenson’s clearly established federal due process right at the time his state

court conviction became final. We reject Stevenson’s argument that the

Appellate Division unreasonably applied clearly established law in concluding

that the trial court’s error was harmless. In particular, we conclude that the

Appellate Division did not unreasonably apply clearly established law by

applying a “harmless error” rather than a “structural error” analysis, and did not

unreasonably determine the facts in light of the evidence presented in the State

court proceeding in concluding the error was harmless.

The “defining feature of a structural error is that it affects the framework

within which the trial proceeds, rather than being simply an error in the trial

process itself.” Weaver v. Massachusetts, 582 U.S. 286, 295 (2017). The Supreme

Court has recognized structural error where a defendant is denied the right to

11 conduct his own defense without an attorney, the right to select his or her own

attorney, or a judge fails to give a reasonable doubt instruction. Id. at 295-96.

These errors are considered structural because their effect on the trial’s fairness is

hard to measure; they result in fundamental unfairness; or their violation

endangers a right beyond simple error. Id.

While McCoy establishes that the violation of a defendant’s Sixth

Amendment autonomy right constitutes structural error, Stevenson identifies no

caselaw supporting the proposition that in the Fourteenth Amendment context,

giving an instruction that is accurate as to the law but unwarranted by the

evidence can constitute structural error. Cf. DeGina, 72 N.Y.2d at 778 (applying

harmless error analysis in holding trial court erred in giving jury instruction).

Accordingly, the Appellate Division’s use of the harmless error framework is not

a basis for habeas relief.

And the Appellate Division’s conclusion that the intoxication instruction

was harmless error was not unreasonable. Given the testimony from the

complainant, corroborating testimony from her mother and teacher, and

Stevenson’s own statements suggesting consciousness of guilt, we cannot

conclude that no “fairminded jurist[],” Harrington, 562 U.S. at 101, could agree

with the Appellate Division’s determination that the evidence against Stevenson

12 was “overwhelming,” Stevenson, 11 N.Y.S.3d at 647. Moreover, we agree with

the district court that Stevenson’s possible intoxication at the time he committed

the crimes was not a significant element of the State’s case. See Sp. App’x 51.

The evidence of Stevenson’s potentially inculpatory statement that he “was

smoking some shit” that “made [him] do some stuff . . . that wasn’t right” would

have been before the jury with or without the instruction to which Stevenson

objected. See App’x 68 (tape admitted over Stevenson’s objection). In the face of

this evidence, the marginal impact of the unwarranted instruction is minimal.

For these reasons, and with deference to the Appellate Division’s similar

conclusion, see Stevenson, 11 N.Y.S.3d at 647, we conclude that any error was

“harmless beyond a reasonable doubt,” Chapman v. California, 386 U.S. 18, 24

(1967). Therefore, the Fourteenth Amendment also provides no basis to grant

Stevenson’s habeas petition.

* * *

Accordingly, the district court’s judgment dismissing Stevenson’s petition

is AFFIRMED.

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