11-435-pr
Carncross v. Poole
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 30th day of November, two thousand eleven.
5
6 PRESENT: DENNIS JACOBS,
7 Chief Judge,
8 JOSÉ A. CABRANES,
9 DEBRA ANN LIVINGSTON,
10 Circuit Judges.
11
12 - - - - - - - - - - - - - - - - - - - -X
13 James J. Carncross,
14 Petitioner-Appellant,
15
16 -v.- 11-435-pr
17
18 Thomas Poole, Superintendent, Five
19 Points Correctional Facility
20 Respondent-Appellee.*
21 - - - - - - - - - - - - - - - - - - - -X
22
23 FOR PETITIONER-APPELLANT: Stewart F. Hancock, Jr., Esq.,
24 Mitchell Goris & Stokes, LLC,
*
The Clerk of Court is directed to amend the official
caption as shown above.
1
1 Cazenovia, NY (Randi Juda
2 Bianco, Esq., Bianco Law
3 Offices, Syracuse, NY; Gregory
4 W. Dewan, Esq., Cazenovia, NY on
5 the brief)
6
7 FOR RESPONDENT-APPELLEE: Ashlyn Dannelly Beck, Assistant
8 Attorney General, New York, NY
9 (Eric T. Schneiderman, Attorney
10 General of the State of New
11 York; Barbara D. Underwood,
12 Solicitor General; Roseann B.
13 MacKechnie, Deputy Solicitor
14 General for Criminal Matters, on
15 the brief)
16
17 Appeal from the judgment of the District Court for the
18 Northern District of New York (Kahn, J.) denying petitioner
19 Carncross’s petition for habeas corpus.
20
21 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
22 AND DECREED that the judgment of the District Court is
23 AFFIRMED.
24
25 Petitioner James J. Carncross appeals from the denial
26 of a writ of habeas corpus. He argued below that he was
27 deprived of his right to his choice of counsel when his
28 initial defense counsel was disqualified due to a conflict
29 of interest and, separately, that his replacement counsel
30 afforded ineffective assistance. The District Court granted
31 a Certificate of Appealability as to his choice-of-counsel
2
1 claim. We assume the parties’ familiarity with the
2 underlying facts and the procedural history of the case.
3
4 We review de novo the denial of a habeas petition.
5 Hawkins v. Costello, 460 F.3d 238, 242 (2d Cir. 2006). A
6 district court reviews a habeas petition seeking vacatur of
7 a state conviction under the rules set out in the
8 Antiterrorism and Effective Death Penalty Act of 1996, which
9 provides that a federal court may grant such a habeas
10 petition only if the petitioner demonstrates that the state
11 court’s decision was (1) “contrary to, or involved an
12 unreasonable application of, clearly established Federal
13 law, as determined by the Supreme Court of the United
14 States” or (2) “was based on an unreasonable determination
15 of the facts in light of the evidence presented in the State
16 court proceeding,” 28 U.S.C. § 2254(d). See Cullen v.
17 Pinholster, -- U.S. --, 131 S. Ct. 1388, 1398 (2011).
18 As the District Court concluded, Carncross failed to
19 establish that the trial court’s disqualification of his
20 initial defense counsel was unreasonable under clearly
21 established Supreme Court authority or in light of the
22 evidence presented. Initial defense counsel represented two
23 grand jury witnesses who provided testimony inculpating
24 Carncross. There was a substantial risk that those
3
1 witnesses would be called at trial, given that at the time
2 the trial court disqualified counsel, the defense was
3 unwilling to disavow strategies that would have been
4 impaired by the testimony of these witnesses.
5 A defendant’s “right to counsel of [his] choice ‘is
6 circumscribed in several important respects.’” United
7 States v. Gonzalez-Lopez, 548 U.S. 140, 144 (2006) (quoting
8 Wheat v. United States, 486 U.S. 153, 159 (1988)). Although
9 a trial court “must recognize a presumption in favor of [a
10 defendant’s] counsel of choice, . . . that presumption may
11 be overcome not only by a demonstration of actual conflict
12 but by a showing of a serious potential for conflict.”
13 Wheat, 486 U.S. at 164. In such a case, “evaluation of the
14 facts and circumstances . . . must be left primarily to the
15 informed judgment of the trial court,” id., which is
16 afforded “substantial latitude” in rejecting waivers of
17 conflicts of interest and disqualifying counsel, id. at 163.
18 Carncross has not shown that the trial court’s decision
19 was contrary to, or involved an unreasonable application of,
20 clearly established Supreme Court authority in light of the
21 circumstances of the case. Nor has Carncross established
22 the same as to the New York Court of Appeals’s decision,
23 affirming the disqualification of Carncross’s initial
24 defense counsel.
4
1 Finding no merit in Carncross’s remaining arguments, we
2 hereby AFFIRM the judgment of the District Court.
3
4
5 FOR THE COURT:
6 CATHERINE O’HAGAN WOLFE, CLERK
7
8
5