Enoksen v. Superintendent Squires

21-1182
Enoksen v. Superintendent Squires

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
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
25th day of July, two thousand twenty-two.

Present:
DEBRA ANN LIVINGSTON,
Chief Judge,
JOSÉ A. CABRANES,
MICHAEL H. PARK,
Circuit Judges.
_____________________________________

NANCY ENOKSEN,

Petitioner-Appellant,

v. 21-1182

SUPERINTENDENT SQUIRES, ALBION CORRECTIONAL
FACILITY,

Respondent-Appellee.
_____________________________________

For Petitioner-Appellant: RICHARD E. MISCHEL, Mischel & Horn, P.C., New
York, New York.

For Respondent-Appellee: HILDA MORTENSEN, Assistant District Attorney
(Tammy J. Smiley, Daniel Bresnahan, Assistant District
Attorneys, on the brief), for Anne T. Donnelly, District
Attorney, Nassau County, Mineola, New York.

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 Appeal from an order of the United States District Court for the Eastern District of New

York (Brown, J.).

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

DECREED that the order of the district court is AFFIRMED.

Petitioner-Appellant Nancy Enoksen appeals from the April 2, 2021 order of the United

States District Court for the Eastern District of New York (Brown, J.), denying her petition for a

writ of habeas corpus, denying a certificate of appealability as to all grounds except her challenge

to a jury instruction regarding her right not to testify at trial, and granting in forma pauperis status

solely for appealing the jury instruction. Enoksen v. Superintendent Squires, 532 F. Supp. 3d 75,

94–95 (E.D.N.Y. 2021). On appeal, Enoksen challenges only the district court’s ruling regarding

the jury instruction, arguing that the instruction violated her constitutional rights and that the New

York State Appellate Division erroneously and unreasonably applied federal law in reviewing the

instruction. For the following reasons, we AFFIRM the judgment below. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal, which we reference here only as necessary to explain our decision.

* * *

In 2018, a New York state court jury convicted Enoksen, a former matrimonial attorney,

of grand larceny based on unauthorized withdrawals that she made from a client’s escrow account.

Enoksen did not testify at trial, and the trial court provided the following jury instruction:

“Although the defendant had a right to testify on her own behalf, she did not do so. The fact that

a defendant did not testify is not a factor from which any inference unfavorable to the defendant

may be drawn.” Joint App’x at 704. Enoksen challenged her conviction and prison sentence

on various grounds, including the constitutionality of the jury instruction regarding her decision

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not to testify. On direct appeal, the Appellate Division, Second Department, affirmed her

conviction and concluded that the jury instruction, “viewed in its entirety, adequately explained

the concepts of reasonable doubt and the People’s burden of proof, and made it clear that the

defendant bore no burden of proof.” People v. Enoksen, 175 A.D.3d 624, 626 (N.Y. App. Div.

2d Dep’t 2019). The New York Court of Appeals denied Enoksen’s request for leave to appeal.

See People v. Enoksen, 138 N.E.3d 500, 500 (N.Y. 2019).

Enoksen then filed the present petition pursuant to 28 U.S.C. § 2254, arguing, inter alia,

that the jury instruction violated her right to due process under the Sixth Amendment and the

Fourteenth Amendment of the United States Constitution. Enoksen, 532 F. Supp. 3d at 84. The

district court determined that all of Enoksen’s arguments except her challenge to the jury

instruction were procedurally barred and without merit. Id. at 93–94 & nn.11–16. With respect

to the jury instruction, the district court held that while Enoksen had “raised a substantial showing

of the denial of a constitutional right,” the Appellate Division did not act contrary to or

unreasonably apply clearly established federal law in concluding that the jury instruction, viewed

in the context of the charge as a whole, adequately explained Enoksen’s burden of proof and thus

did not violate her rights. Id. at 94; see id. at 91–92.

“We review the denial of a Section 2254 habeas petition de novo.” Scrimo v. Lee, 935

F.3d 103, 111 (2d Cir. 2019). “If the state court denies a federal claim on the merits, then the

provisions of § 2254(d) come into play and prohibit federal habeas relief unless the state court’s

decision was,” as relevant to this appeal, “‘contrary to, or involved an unreasonable application of,

clearly established Federal law.’” Jackson v. Conway, 763 F.3d 115, 132 (2d Cir. 2014) (quoting

28 U.S.C. § 2254(d)(1)). “A state court acts ‘contrary to’ clearly established federal law if it

(1) ‘arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law,’

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or (2) ‘decides a case differently than [the Supreme Court] has on a set of materially

indistinguishable facts.’” Scrimo, 935 F.3d at 112 (alterations in original) (quoting Williams v.

Taylor, 529 U.S. 362, 413 (2000)). “An unreasonable application of federal law occurs if the

state court’s application of clearly established federal law was objectively unreasonable, or if it

fails to extend a principle of clearly established law to situations which that principle should have,

in reason, governed.” Id. (internal quotation marks and citations omitted). “Clearly established

Federal law for purposes of § 2254(d)(1) includes only the holdings, as opposed to the dicta, of

th[e Supreme] Court’s decisions.” White v. Woodall, 572 U.S. 415, 419 (2014) (internal

quotation marks, alterations, and citations omitted).

Section 2254(d)(1) sets forth a “difficult to meet[] and highly deferential standard for

evaluating state-court rulings, which demands that state-court decisions be given the benefit of the

doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (internal quotation marks and citations

omitted). “[A] state prisoner must show that the state court’s ruling on the claim being presented

in federal court was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.” White, 572

U.S. at 419–20 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)). For challenges to jury

instructions, “[b]ecause it is not enough that there is some slight possibility that the jury misapplied

the instruction, the pertinent question is whether the ailing instruction by itself so infected the

entire trial that the resulting conviction violates due process.” Waddington v. Sarausad, 555 U.S.

179, 191 (2009) (internal quotation marks and citations omitted) (applying rule to review a jury

instruction that quoted a state statute); see also Middleton v. McNeil, 541 U.S. 433, 437 (2004)

(per curiam) (applying same rule to review a jury instruction that included four words that were

not part of the state’s form instructions). “[A] single instruction to a jury may not be judged in

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artificial isolation, but must be viewed in the context of the overall charge.” Middleton, 541 U.S.

at 437 (alteration in original) (quoting Boyde v. California, 494 U.S. 370, 378 (1990)). “Where

a trial court repeatedly emphasizes the state’s burden of proof, a single instruction taken in isolation

that at worst suggests a lessening of that burden does not constitute grounds for habeas relief.”

DelValle v. Armstrong, 306 F.3d 1197, 1201 (2d Cir. 2002).

Under these principles, the district court properly denied Enoksen’s petition. As an initial

matter, we recognize that “a state trial judge has the constitutional obligation, upon proper request,

to minimize the danger that the jury will give evidentiary weight to a defendant’s failure to testify.”

Carter v. Kentucky, 450 U.S. 288, 305 (1981); see also Griffin v. California, 380 U.S. 609, 615

(1965) (holding that “the Fifth Amendment . . . forbids either comment by the prosecution on the

accused’s silence or instructions by the court that such silence is evidence of guilt”). We also

acknowledge that the trial court in this case, contrary to its promise to the parties, did not fully

adhere to New York’s Criminal Jury Instructions (“CJI”), 1 and we agree with the district court

that — at least with respect to the first sentence of the contested instruction — replication of the

language in future trials would be “inadvisable.” Enoksen, 532 F. Supp. 3d at 91 n.9.

Nonetheless, “in the context of the overall charge,” Middleton, 541 U.S. at 437 (internal

quotation marks and citation omitted), the challenged jury instruction did not deprive Enoksen of

her constitutional rights. Enoksen argues that the jury instruction conveyed the trial court’s

1
In conference with the parties, the trial court expressed its intent “to go standard CJI” as to the
jury instructions regarding “[b]urden of proof, reasonable degree, all the standard sections, [and]
credibility.” Joint App’x at 618. However, the two-sentence instruction delivered differed from
the New York state model instruction, which states: “The fact that the defendant did not testify is
not a factor from which any inference unfavorable to the defendant may be drawn.” Instructions
of General Applicability – Defendant’s Conduct: Defendant Who Does Not Testify, N.Y. STATE
UNIFIED CT. SYS., https://www.nycourts.gov/judges/cji/1-General/cjigc.shtml (last updated May
2, 2022).

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purported “belief in the Petitioner’s guilt” and included non-specific wording that failed to

sufficiently mitigate adverse inferences from her decision not to testify. Appellant’s Br. at 59;

see id. at 61–62. However, the challenged jury instruction was preceded by instructions

regarding the presumption of Enoksen’s innocence and the nature of the state’s burden of proof,

and the second sentence of the challenged instruction expressly prohibited unfavorable inferences

from the fact that she did not testify. Moreover, the jury heard about the presumption of

Enoksen’s innocence and the state’s burden of proof throughout the trial, including in the

preliminary instructions, the defense’s summation, and the state’s summation. In light of this

surrounding language, we cannot conclude that “the ailing instruction by itself so infected the

entire trial,” Waddington, 555 U.S. at 191 (internal quotation marks and citation omitted), as to

violate Enoksen’s constitutional rights. Cf. DelValle, 306 F.3d at 1199, 1201 (denying habeas

relief with respect to jury instructions stating that reasonable doubt is a “rule of law . . . made to

protect the innocent” and is not “a doubt suggested by the ingenuity of counsel” where the trial

court “repeatedly emphasized” the presumption of the petitioner’s innocence and the state’s burden

of proof (internal quotation marks omitted)). We therefore hold that the Appellate Division’s

determination regarding the contested jury instruction was neither “contrary to” nor “an

unreasonable application of” clearly established federal law. 2

* * *

2
Enoksen contends that the district court and Appellate Division erred in failing to consider the
trial record — rather than only the jury charge — in reviewing her challenge. We need not reach
this argument because, regardless of the scope of review, we discern no basis for habeas relief
under the “highly deferential standard for evaluating state-court rulings.” Pinholster, 563 U.S.
at 181 (internal quotation marks and citation omitted).

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 We have considered Enoksen’s remaining arguments and find them to be without merit.

Accordingly, we AFFIRM the order of the district court.

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

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