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 2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on 3 the 18th day of November, two thousand ten.
PRESENT: ROGER J. MINER, CHESTER J. STRAUB, DEBRA ANN LIVINGSTON, Circuit Judges.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court be AFFIRMED.
Petitioner-Appellant Gary Grigg ("Grigg"), who was convicted in a state court jury trial of 1 Robbery in the First Degree, appeals from a September 11, 2009, Memorandum and Order of the 2 United States District Court for the Eastern District of New York (Seybert, J.), denying his petition 3 for a writ of habeas corpus. We assume the parties' familiarity with the underlying facts and 4 procedural history of the case.
5 In Doyle v. Ohio, 426 U.S. 610 (1976), the Supreme Court held that "the use for 6 impeachment purposes of [a defendant's] silence, at the time of arrest and after receiving Miranda 7 warnings, violated the Due Process Clause of the Fourteenth Amendment." Id. at 619. The Court 8 reasoned that "while it is true that the Miranda warnings contain no express assurance that silence 9 will carry no penalty, such assurance is implicit to any person who receives the warnings. In such 10 circumstances, it would be fundamentally unfair and a deprivation of due process to allow the 11 arrested person's silence to be used to impeach an explanation subsequently offered at trial." See 12 id. at 618. In this case, Grigg's silence at the time of arrest and after his Miranda warnings was 13 briefly referenced both in witness testimony and in the prosecutor's summation, in the context of 14 an overall argument that Grigg's failure to give fingerprints or participate in a lineup evidenced his 15 "consciousness of guilt." Grigg asserts that the district court correctly concluded that these 16 references violated Doyle, but he argues that the district court wrongly found the error harmless in 17 denying his habeas petition.
18 This Court reviews de novo the denial or grant of a petition for a writ of habeas corpus by 19 the district court, reviewing any factual findings for clear error. Garraway v. Phillips, 591 F.3d 72, 20 75 (2d Cir. 2010). This Court has held, and the Respondent does not contest, that there need not be 21 a contemporaneous objection to preserve a Doyle violation for appellate review, although a strategic 1 decision by defense counsel to embrace the use of the evidence in question may bar objection to it 2 on appeal. Hawkins v. LeFevre, 758 F.2d 866, 873 (2d Cir. 1985). While Respondent argues such 3 a strategic decision was made in this case, we note that Respondent failed to raise this argument in 4 the district court, and, as a result, we do not consider it here. See In re Nortel Networks Corp. Sec. 5 Litig., 539 F.3d 129, 132 (2d Cir. 2008).
6 In reviewing Grigg's claim for habeas relief, we must under 28 U.S.C. § 2254(d) grant 7 deference to the state court adjudication in this case, reversing it only if it "(1) resulted in a decision 8 that was contrary to, or involved an unreasonable application of, clearly established Federal law, as 9 determined by the Supreme Court of the United States; or (2) resulted in a decision that was based 10 on an unreasonable determination of the facts in light of the evidence presented in the State court 11 proceeding." Id. Grigg contends that here, the New York Appellate Division failed to adjudicate 12 his Doyle violation claim on the merits, rejecting his appeal on this claim along with several others 13 by saying that "[t]he defendant's remaining contentions are either unpreserved for appellate review 14 or without merit." People v. Grigg, 749 N.Y.S.2d 159, 160 (2d Dep't 2002). However, this Court 15 has expressly held that "when a state court uses language such as '[t]he defendant's remaining 16 contentions are either unpreserved for appellate review or without merit,' the validity of the claim 17 is preserved and is subject to federal review." Fama v. Comm'r of Corr. Servs., 235 F.3d 804, 810 18 (2d Cir. 2000) (alteration in original). We have extended that analysis to hold that when under Fama 19 we construe such an "either/or" decision not to impose a procedural bar, we also construe it as "on 20 the merits for purposes of § 2254(d)." Jimenez v. Walker, 458 F.3d 130, 146 (2d Cir. 2006). 21 As a result, we must grant deference to the Appellate Division decision denying Grigg's 1 Doyle claim. "When applying § 2254(d)'s 'unreasonable application' clause to silent state-court 2 opinions, we review outcomes, not reasoning." Jimenez, 458 F.3d at 147 (citing Sellan v. Kuhlman, 3 261 F.3d 303, 311-12 (2d Cir. 2001)). To find a state court decision to be an "unreasonable 4 application" of federal law, we ask "whether the state court's application of clearly established 5 federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. 362, 409 (2000).
We have 6 said that the standard that must be shown "falls somewhere between merely erroneous and 7 unreasonable to all reasonable jurists." Brown v. Alexander, 543 F.3d 94, 100 (2d Cir. 2008) 8 (quoting Overton v. Newton, 295 F.3d 270, 277 (2d Cir.2002)).
In this case, however, we need not consider whether the state court decision that no Doyle 10 violation occurred in this case was objectively unreasonable, because any such violation that did 11 occur was clearly harmless. Grigg objects to the government's elicitation of testimony at trial from 12 the detective who arrested him that Grigg did not cooperate with the detective's requests: "I just 13 requested that I wanted to talk to him. He didn't want to talk to me. He didn't want to sign anything. 14 I read him his rights. He didn't want to sign that I read him his rights. He wouldn't let us print him 15 or photograph him." Transcript, People v. Grigg, No. 1663-00, at 116 (N.Y. County Ct. April 23 16 & 26, 2001). He also objects to the prosecutor's reference to his post-arrest silence in the 17 prosecutor's summation:
18 Det. Beretta testified that he read Mr. Grigg his rights. Mr. Grigg then 19 exercised his right to no longer speak to the police department which is respected by 20 the police department. They no longer asked him questions after that. He refused 21 to even sign, acknowledge his rights were even read to him. And then he refused to 22 be printed.
23 And as the Judge will instruct you, as I'm telling you now, that's conscious- 24 ness of guilt. Ask yourself why. Why doesn't he want to give his prints? I submit 25 he doesn't know ...