Dwayne BROWN, Petitioner-Appellant, v. Jerry GREENE, Superintendent, Great Meadow Correctional Facility, Andrew M. Cuomo, Attorney General of New York State, Respondent, 577 F.3d 107

FEINBERG, Circuit Judge: Petitioner-Appellant Dwayne Brown was convicted of second-degree robbery after a jury trial in 2002 in the New York State Supreme Court. On appeal thereafter to the First Department of the Appellate Division of the New York Supreme Court, Brown argued that his trial counsel was constitutionally ineffective. The jury charge, Brown contended, may have led the jury to convict him under a preponderance of the evidence standard and not, as is constitutionally required, under the beyond a reasonable doubt standard.

According to Brown, trial counsel’s failure to object to the charge constituted ineffective assistance of counsel. The Appellate Division rejected this argument. People v. Brown, 14 A.D.3d 356, 789 N.Y.S.2d 106, 108 (1st Dep’t 2005). Thereafter, the New York Court of Appeals denied leave to appeal. People v. Burwell, 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325 (2005). Then, in June 2006, Brown brought a habeas petition pursuant to 28 U.S.C § 2254 in the United States District Court for the Southern District of New York (Kimba M. Wood, Chief Judge).

The district court denied the petition, finding that the Appellate Division’s opinion was not contrary to, or an unreasonable application of, federal law. Brown v. Green, No. 06 Civ. 4824, 2007 U.S. Dist. LEXIS 82152 (S.D.N.Y. Nov. 6, 2007). We agree. I. BACKGROUND In January 2002, two men stopped Claudio Degli-Adalberti in a subway station on the Upper West Side of Manhattan and, after a brief scuffle, stole his wallet. A few minutes later, Degli-Adalberti contacted the police. He described the physical appearance of the two thieves, which the officers quickly broadcast over the police radio.

A nearby squad car stopped two men thought to match the description: Brown and Eric Burwell. The police took Degli-Adalberti to view Brown and Bur-well; he indicated that they were the men who had robbed him. Brown and Burwell were charged with second degree robbery and tried jointly before New York State Supreme Court Justice Edward J. McLaughlin (hereafter “the trial judge”). The key issue at trial was whether Brown and Burwell were the two individuals who had robbed Degli-Adalberti.

The opening and closing statements of both the defense and the prosecution focused on this aspect of the case and also included numerous statements to the effect that the jury must employ the reasonable doubt standard. The jury charge also included the following language: A jury makes factual findings. 50.1 to 49.9, factual findings can be made, although they are not established beyond a reasonable doubt. The elements must be established beyond a reasonable doubt if they’re going to be established at all.

The charge contained many other references (seven, by our count) to the beyond a reasonable doubt standard; most either told the jury to apply that standard or described how it functioned. For example, the trial judge told the jury: “The focus of a trial is to determine whether or not the prosecution can prove the elements of a crime beyond a reasonable doubt.” J.A. 98. Later, the trial judge said, “[i]f the people prove the three elements ... beyond a reasonable doubt ... you must convict the person.

If [they cannot prove] one or more or all of the elements, miss proving that beyond a reasonable doubt, you have no choice, you have to acquit the person.” J.A. 104-05. Finally, the charge also included the following statement, which we will call the “election example”: [F]or centuries elections have been closely decided. 50.1 beats 49.9 every time.... And yet, for 230 years now, juries, the same pool of people who can’t agree on a candidate, have been unanimously deciding cases. So, how does that happen? It happens, obviously, because within the jury deliberation context, people sometimes change their minds.

You can change your mind if somebody by reason, logic and reliance on the record of this case can cause you to change a position that you may have originally held. No party objected to the charge. The jury convicted Brown and Burwell after two and one-half hours of deliberation, and Brown received a sentence of 11 years to life in prison. As already indicated, on appeal to the Appellate Division, Brown argued that the jury charge was constitutionally deficient because it may have confused the jury, causing it to convict Brown based on a preponderance of the evidence standard.

Brown also argued that trial counsel’s failure to object to the jury charge constituted ineffective assistance of counsel. The Appellate Division found that “defendants received effective assistance of counsel” and that the direct challenge to the jury charge was unpreserved. Brown, 789 N.Y.S.2d at 108. The New York Court of Appeals denied leave to appeal. Burwell, 4 N.Y.3d 852, 797 N.Y.S.2d 426, 830 N.E.2d 325. In June 2006, Brown brought this habeas petition in the Southern District, arguing only that trial counsel’s failure to object to the jury charge constituted ineffective assistance of counsel.

The petition was assigned to Chief Judge Wood, who referred it to Magistrate Judge Andrew J. Peck. The Magistrate Judge recommended that the petition be granted. Brown v. Greene, No. 06 Civ. 4824, 2007 WL 1379873, 2007 U.S. Dist. LEXIS 34460 (S.D.N.Y. May 11, 2007). Judge Wood disagreed and in a careful opinion denied the petition, but granted a certificate of appealability. Brown, 2007 U.S. Dist. LEXIS 82152. This appeal followed. II. ANALYSIS Brown’s sole claim before us is that his trial counsel’s failure to object to the jury charge constituted ineffective assistance of counsel. A.

Standard of Review Under the Antiterrorism and Effective Death Penalty Act of 1996 (AED-PA), “[wjhen the state court has adjudicated the merits of the petitioner’s claim ... we may grant a writ of habeas corpus only if the state court’s adjudication ‘was contrary to, or involved an unreasonable application of, clearly established federal law as determined by the Supreme Court of the United States.’ ” Dolphy v. Mantello, 552 F.3d 236, 238 (2d Cir.2009) (quoting 28 U.S.C. § 2254(d)(1)).

When a district court has denied a habeas petition, we review its legal conclusions de novo and its factual findings for clear error. Drake v. Portuondo, 553 F.3d 230, 239 (2d Cir.2009). B. Ineffective Assistance and the Jury Charge 1. The Strickland and Winship Standards Under Strickland v.

Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), to prevail on an ineffective assistance of counsel claim, petitioner “must (1) demonstrate that his counsel’s performance fell below an objective standard of reasonableness ... and (2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008) (internal quotation marks omitted).

In assessing whether counsel’s performance was objectively reasonable, “we must ‘indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance, and be watchful ‘to eliminate the distorting effects of hindsight.’ ” Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir.2001) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). Moreover, counsel “cannot be deemed incompetent for failing to predict” that a higher court would overrale its earlier precedent. Jameson v. Coughlin, 22 F.3d 427, 429-30 (2d Cir.1994).

It has long been the law that the “Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt....” In re Winship, 397 U.S. 358, 364, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970). If there is a “reasonable likelihood that the jury understood the instructions to allow conviction based on proof insufficient to meet the Winship standard,” then the charge is constitutionally deficient. Victor v. Nebraska, 511 U.S. 1, 6, 114 S.Ct. 1239, 127 L.Ed.2d 583 (1994); see also Estelle v. McGuire, 502 U.S. 62, 72 & n. 4, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991).

However, “[i]n making this assessment, the challenged instructions must be viewed in context, not only with respect to the overall charge, but also with respect to the entire trial record.” Gaines v. Kelly, 202 F.3d 598, 606 (2d Cir.2000) (citing Cupp v. Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 38 L.Ed.2d 368 (1973)). 2. The “50.1 to 49.9” Instruction: Brown’s Argument Brown’s principal contention is that the “50.1 to 49.9” instruction made it likely that the jury did not correctly apply the beyond a reasonable doubt standard.

According to Brown, the “50.1 to 49.9” instruction told the jurors to make factual findings under the “50.1 to 49.9” rubric. This, Brown contends, may have led the jury to apply the “50.1 to 49.9” standard when determining whether the elements of the crime had been met. Brown gives an example. One of the elements of second-degree robbery is that the prosecution must prove that the defendant took property “forcibly.” See N.Y.P.L. § 160.10 (2009).

According to Brown, the jury may have thought that the question of whether there was a physical struggle when Degli-Adalberti’s wallet was stolen was a factual question that, under the judge’s instructions, should be decided under the “5 0.1 to 49.9” standard. If the jury found, under that standard, that a struggle did occur, it might then automatically conclude that the force element had been satisfied. In the end, under Brown’s reasoning, this would mean that the jury would have found an element to have been satisfied under the “50.1 to 49.9” standard.

According to Brown, the trial judge should have told the jury-that it could only find certain facts under the “50.1 to 49.9” standard (or, alternatively, simply not said anything about making factual findings under a “50.1 to 49.9” standard). 3. Applicable Second Circuit Precedent Three of our earlier cases dealt with jury charges that included language very similar to the “50.1 to 49.9” instruction. In United States v. Viafara-Rodriguez, 729 F.2d 912, 913 (2d Cir.1984), the charge stated: “The requirement of proof beyond a reasonable doubt operates on the whole case, and not on the separate bits of evidence.

And each individual item of evidence need not be proven beyond a reasonable doubt.” We concluded that this statement was technically accurate, since “the burden of proof beyond a reasonable doubt ... does not operate on the many subsidiary facts on which the prosecution [may prove] that a particular element has been established beyond a reasonable doubt.” Id. at 913. Nonetheless, we found that the statement might confuse jurors, and we advised trial judges to stick to the model jury instructions. See id. at 913-14.

But we concluded that “viewing the charge as a whole, we are persuaded that the jury in this case fully understood” the beyond a reasonable doubt standard, since the jury charge included at least three statements to the effect that the jury must use that standard. Id. at 914 (internal citation omitted). In United States v. Gatzonis, 805 F.2d 72 (2d Cir.1986) (per curiam), we upheld a nearly identical charge. As in ViafararRodriguez, we noted that the charge, while “technically accurate,” could be confusing and advised trial courts to use the model jury instructions. Id. at 74.

Again, we rested our conclusion in part on the repetition by the trial judge in that case “at least five times during the jury instructions that all elements of an offense must be proved beyond a reasonable doubt. Thus, ‘any ambiguity that might have arisen from the earlier reference that the burden operated on the “whole case” was sufficiently removed.’ ” Id. (quoting Viafara-Rodriguez, 729 F.2d at 914). Finally, in United States v. Delibac, 925 F.2d 610, 614 (2d Cir.1991) (per curiam), we rejected a challenge to a charge that stated that “[y]ou need not find every fact beyond a reasonable doubt.

You need only find that the government has established ... beyond a reasonable doubt each and every essential element of the crime charged.” Again, we cautioned trial courts against departing from the model jury instructions, found the language technically accurate but confusing and upheld the charge. See id. 4. Trial Counsel’s Failure to Object The basic question before us in this proceeding is whether trial counsel’s failure to object to the charge constituted ineffective assistance. We think that it did not.

A defense lawyer aware of Delibac, Viafara and Gatzonis might have reasonably believed that the charge in this case was not materially different from the charges that we had previously upheld. The actual language of the “50.1 to 49.9” instruction is not much different from the language in these earlier cases. And, as in those cases, the jury charge in this case contained several statements referring to the beyond a reasonable doubt standard.

It might be possible, if this ease were before us in a different procedural posture (i.e., if it did not involve the deferential standards of AEDPA and Strickland), to find a distinction between Brown’s case and the Viafarar-Rodriguez line of cases. But such a distinction would be a fine one, and we would not find counsel constitutionally inadequate for failing to detect it. Brown also criticizes the “election example.” Brown argues that this statement would “remind [the jury] that earlier, [the trial judge had] told them that the facts had to be proven ’50.1 to 49.9.’ ” However, we find this unlikely.

As Brown concedes, it is obvious that the trial judge’s use of the “election example” had nothing to do with the burden of proof; the trial judge was simply trying to explain to the members of the jury how they should deliberate (the message was that they should not be afraid to change their minds in response to other jurors’ arguments). The fact that the “election example” included the same numbers that were in the “50.1 to 49.9” instruction is not, by itself, a sufficient distinction between this case and our earlier cases for us to find that trial counsel’s failure to object was objectively unreasonable.

We must emphasize that this is not a case about the jury instruction alone. The sole question that we are faced with today is whether counsel’s performance was constitutionally deficient. We need not state whether Delibac, Gatzonis and Viafara-Rodriguez would compel us to uphold the charge if it came before us in a case that did not involve the deferential standards of AEDPA and Strickland. We need only hold that, given those cases, and the procedural posture of this one, failure to object to the jury charge did not constitute ineffective assistance of counsel.

Thus, the New York court’s rejection of Brown’s habeas petition was not contrary to, or an unreasonable application of, federal law. Although we do not grant Brown’s petition, we repeat our suggestion that trial judges should use the model jury instructions when applicable. Improvised

definitions of the beyond a reasonable doubt standard may be confusing or misleading. See, e.g., Viafara-Rodriguez, 729 F.2d at 913-14 (“[T]rial judges would be exceedingly well advised to use [the model instructions] rather than impose variations upon it.”) (internal quotation omitted). We urge trial courts, in the future, to stick to the model jury instructions regarding this issue. III.

CONCLUSION We hold that the Appellate Division’s rejection of Brown’s ineffective assistance of counsel argument was not contrary to, or an unreasonable application of, federal law, given that the charge at issue in this case was very similar to the charges upheld in Gatzonis, Delibac, and ViafaraRodriguez. Accordingly, we AFFIRM the judgment of the district court entered pursuant to Chief Judge Wood’s opinion. . There are too many such references to repeat them in detail.

To give one example, the prosecution said, in summation: "The question is if the evidence you've heard proves the defendants' guilt beyond a reasonable doubt." Trial Tr. 661. .

See also J.A. 95-96 ("[T]he presumption of innocence ... remains ... until you're convinced. beyond a reasonable doubt....”); J.A. 96-97 (describing reasonable doubt standard); J.A. 98 ("[I]t’s the people’s obligation to prove a defendant’s guilt beyond a reasonable doubt.”); J.A. 99-100 ("What is your concern is: Did the People prove beyond a reasonable doubt the elements of a robbery and ... the accuracy of the identification ... ?"); J.A. 103 ("So, there are three elements, each of which must be proved beyond a reasonable doubt.”). . See also Mullings v.

Meachum, 864 F.2d 13, 15-16 (2d Cir.1988) (upholding charge that stated "[a]n inference in circumstantial evidence may be made providing that ... the inference asked to be drawn is ... strong enough so that you could find that it is more probable than not that the fact to be inferred is true.”). . Indeed, immediately after the "50.1 to 49.9” statement, the trial judge in this case said that the "elements must be established beyond a reasonable doubt if they're going to be established at all.” The charge then referred to the beyond a reasonable doubt standard seven additional times.

Moreover, as noted above, both the prosecution and the defense referred to the beyond a reasonable doubt standard numerous times during opening and closing arguments. . In the past, we have encouraged trial judges to give both parties a written copy of the proposed jury charge before instructing the jury. See United States v. Birbal, 62 F.3d 456, 459 n. 1 (2d Cir.1995). It appears that the trial judge here did not do so. Providing a copy of the written instructions in advance makes it easier for the lawyers to ensure that the charge is free of erroneous or confusing language.

This goal is presumably shared by both the defense and the prosecution; after all, the prosecution would like to protect from successful appeal the convictions that it secures. . As we have already indicated, the "election example” is the

section of the charge where the trial judge said: "[Fjor centuries elections have been closely decided. 50.1 beats 49.9 every time.... And yet, for 230 years now, juries, the same pool of people who can’t agree on a candidate, have been unanimously deciding cases. So, how does that happen? It happens, obviously, because within the jury deliberation context, people sometimes change their minds.... You can change your mind if somebody by reason, logic and reliance on the record of this case can cause you to change a position that you may have originally held.” .

The dissent focuses on another argument: that the jury may have believed that it could find identity under a "50.1 to 49.9” standard. See post, at 125-26. But the charge appears to state in at least two places that identity must be found beyond a reasonable doubt. First, the charge states "What is your concern is: Did the People prove beyond a reasonable doubt the elements of a robbery; and, equally if not more importantly, the accuracy of the identification of Mr. Burwell and Mr. Brown as the person or persons involved in the crime.” J.A. 99-100.

Second, the charge states that, under New York’s one witness identification rule, the "testimony of one person is sufficient for there to be a conviction, provided that the [testimony is sufficiently persuasive and credible that it] permits the jury to be satisfied beyond a reasonable doubt....” J.A. 100. Counsel for both sides also made numerous statements to the same effect. See, e.g., Trial Tr. 605 (“You have to decide whether or not Mr. Hammer proved beyond a reasonable doubt not only was a crime committed, but did Mr. Brown and, for that matter, Mr. Burwell commit the crime.”). .

Brown devotes part of his brief to People v. Johnson, 11 A.D.3d 224, 783 N.Y.S.2d 5 (1st Dep't 2004), a case in which the Appellate Division reversed a conviction because of a charge that contained a statement similar to the "50.1 to 49.9” instruction, the "election example” and another problematic instruction, the “two-inference” charge. The majority opinion criticized all three parts of the charge, although it’s not entirely clear whether the majority would have reversed if the charge did not contain the "two-inference" instruction, which is not present in this case. See id. at 8-9.

In any event Johnson should not be used as a basis to fault Brown’s trial counsel, since it was decided two years after Brown’s trial.