Jackson v. Conway

Filing

OPINION, the judgment of the district court is affirmed in part and reversed in part , by BDP, PWH, J.C. WALLACE, FILED.[1294906] [11-922, 11-972]

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Jackson v. Conway

UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2011
(Submitted: May 21, 2012

Decided: August 14, 2014)

Docket Nos. 11-922-pr(L), 11-972-pr(XAP)
________________________________________________________________________
SHAWN A. JACKSON,
Petitioner-Appellee-Cross-Appellant,
- v. JAMES T. CONWAY, Superintendent, Attica Correctional Facility,
Respondent-Appellant-Cross-Appellee.
________________________________________________________________________
Before:
PARKER, HALL, and WALLACE,* Circuit Judges.
Appeals from the February 28, 2011 amended judgment of the United States District
Court for the Western District of New York (Bianchini, M.J.) granting in part the petitioner’s
habeas corpus application. Respondent appeals from so much of the judgment as granted
petitioner’s application for a writ of habeas corpus and ordered his convictions conditionally
vacated. Petitioner cross-appeals that portion of the judgment as denied his other grounds
for habeas relief. We hold that although the district court correctly determined that the state
court’s rejection of Petitioner’s Miranda claim was an “unreasonable application” of clearly
established Supreme Court precedent, it failed to afford the state court’s rejection of
Petitioner’s prosecutorial misconduct and ineffective assistance of counsel claims the proper
deference it was entitled under the Antiterrorism and Effective Death Penalty Act.
AFFIRMED in part; REVERSED in part.

The Honorable J. Clifford Wallace, United States Circuit Judge for the United States Court
of Appeals for the Ninth Circuit, sitting by designation.

*

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BRIAN SHIFFRIN, Easton Thompson Kasperek Shiffrin,
LLP, Rochester, NY, for Petitioner-Appellee-Cross-Appellant
Shawn A. Jackson.
LESLIE SWIFT, Senior Assistant District Attorney, for
Michael C. Green, Monroe County District Attorney,
Rochester, NY, for Respondent-Appellant-Cross-Appellee
James T. Conway.
HALL, Circuit Judge:
BACKGROUND
In the pre-dawn hours of November 30, 2000, officers of the Town of Greece Police
Department responded to a 911 call placed from Shawn A. Jackson’s (“Jackson’s”)
residence. Jackson’s wife, Rebecca Jackson (“Rebecca”), met the officers on arrival and,
upon entering the house, the officers encountered Jackson’s ex-wife, Karen Jackson
(“Karen”), and his fourteen-year-old daughter, “CJ.” The three visibly upset women told the
officers that Jackson had raped them each multiple times over the course of the evening and
early morning. The officers woke Jackson, who was asleep on the living room couch, and
transported him to police headquarters. Karen and CJ went to Rochester General Hospital
for medical evaluations. From the house, the officers collected potential physical evidence,
including sheets from the living room floor and from Jackson’s bed.
At police headquarters, Sergeant Christopher Bittner interviewed Jackson at
approximately 6:45 that morning. The sergeant initially told Jackson he was not under arrest
but then formally arrested him when Jackson sought to leave the interview room. After
being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436 (1966), Jackson
invoked his right to remain silent and refused to speak with Sergeant Bittner or any other

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officer. The police placed him in a holding cell, where he remained until approximately 3:20
that afternoon.
At some point during the day, a member of the Town of Greece Police Department
informed the Monroe County Department of Social Services, Child Protective Services
(“CPS”) about the incident. Kathy Bonisteel, a CPS caseworker, contacted Sergeant Bittner
to request an interview with the victims as part of her parallel investigation into the sexual
abuse allegations. Later that afternoon, Bonisteel and Town of Greece police officers
interviewed Karen and CJ at police headquarters. When those interviews concluded,
Bonisteel asked to speak with Jackson. Sergeant Bittner agreed and escorted Jackson from
his holding cell to a table in the hallway at which Bonisteel sat. The sergeant retreated
around a corner where he was out of sight of the table but within earshot of the ensuing
conversation.
At the time she interviewed Jackson, Bonisteel knew that he was in custody and had
refused to speak with the police. Bonisteel introduced herself as a CPS caseworker,
explained her role, and asked Jackson if she could speak with him about the victims’
allegations. She did not, however, inform him of his right to an attorney or give him any
other warnings. Jackson agreed to speak with her.
During the interview, Jackson first detailed the nature of his relationship with
Rebecca and Karen, explaining that he lived with both of them to keep all of his children
together. Jackson described himself as the “alpha male” of the family. While he denied
hitting either woman, he stated that both Rebecca and Karen knew “what to do” and that he
was “in charge.” He stated that he regularly engaged in sexual intercourse with each woman

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separately and, occasionally, all three had sex together. Jackson asserted that both women
knew the “routine” on these latter occasions, which usually occurred in the early morning
hours: Jackson would send Rebecca upstairs to wake Karen and bring her to the living room
where, on a sheet spread on the floor, Jackson would engage in anal sex with Karen while
she performed oral sex on Rebecca.
Jackson told Bonisteel that he began to drink around 8:00 the night of the incident,
visiting several bars over the course of the evening. He also snorted several lines of cocaine.
Jackson did not recall the time he arrived home, but remembered pulling into the driveway
and “feeling happy that he . . . made it home safe.” Jackson entered in the house where he
found Rebecca sleeping on the couch. He woke her up “to get a little loving” and, the next
he knew, the police were in the house. In response to Bonisteel’s questions, Jackson
repeatedly denied hurting CJ, but acknowledged the “possibility” that he may have been “so
drunk that he wouldn’t have remembered if he raped [her].”
Eventually, a grand jury in Monroe County, New York, charged Jackson in a 48count indictment with numerous counts of first- and third-degree rape, first- and thirddegree sodomy, first-degree attempted sodomy, third-degree assault, first-degree sexual
abuse, incest, endangering the welfare of a child, and coercion. The indictment alleged that
on the night of November 29-30, 2000, Jackson committed multiple acts of oral and anal
sodomy against Rebecca and Karen, raped and sexually abused CJ a number of times, and
committed multiple acts of incest, oral sex, and anal sodomy against CJ. It also alleged that
Jackson (1) assaulted, sexually abused, and committed acts of anal sodomy against Karen in
June 1999 and November 2000; (2) coerced, raped, assaulted, and committed acts of oral

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and anal sodomy against Rebecca in June 1999, June 2000, and November 2000; and (3)
assaulted his son, “GJ,” in June 1999 and January 2000.
I.

Pretrial Proceedings
On March 23, 2001, County Court Judge Stephen R. Sirkin held a suppression

hearing to determine the admissibility of Jackson’s statements to CPS Caseworker Bonisteel.
Jackson, then represented by the Monroe County Public Defender’s Office, argued that
Bonisteel acted as an agent of the police when she interviewed him on the day of his arrest.
The trial court disagreed, concluding that Bonisteel interviewed Jackson “as part of a
completely separate civil proceeding” and “did not act as a law enforcement officer or an
agent of a law enforcement officer.” The court held that, as a “child protective worker,”
Bonisteel was not required to give Jackson Miranda warnings and, therefore, his statements
to her were admissible at trial.
One week before the scheduled trial date, the State notified Jackson of its intent to
call Tony Arnold—a jailhouse informant also represented by the Public Defender’s Office.
This resulted in a conflict that disqualified the Public Defender’s Office from the case and
necessitated the appointment of a new defense attorney, Joseph D’Amelio. Upon his
appointment, D’Amelio informed the court at an April 23, 2001 conference that he needed
one month to prepare for trial. After the court suggested a start date of June 18, D’Amelio
instead proposed May 29 and the court scheduled trial accordingly. At some point before
trial, the State furnished the defense with a letter stating that it would not call an expert
medical witness at trial.

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On the date of trial, County Court Judge Peter E. Corning—the third judge assigned
to the case—ruled on the State’s intended introduction of Jackson’s various prior acts and
threats of violence against his family members that occurred between 1983 and 2000. Over
defense counsel’s objection, the court held that such evidence could be admitted to prove
the element of forcible compulsion as to the charged rapes, but ruled that the State would be
limited to acts that occurred “subsequent to 1994,” because any acts before then were “too
remote.”
II.

Trial
A.

Opening Statements

Assistant District Attorney (“ADA”) Cara M. Briggs theorized in her opening
statement that Jackson used physical violence and threats of violence to exert control over
his family and to force Rebecca and Karen to satisfy his sexual proclivities. Briggs alluded to
the testimony the jury would hear from Karen, Rebecca, and CJ about the sexual and
physical abuse they suffered at the hands of Jackson on the night of November 29-30, 2000,
as well as on a number of previous occasions. The witnesses’ testimony, Briggs asserted,
would expose Jackson “as a twisted, sadistic man who delighted in controlling the members
of his very own family to the point that he abused them constantly.”
The defense theory of the case was straightforward: the State would not present any
physical evidence of the alleged sexual and physical abuse, and the witnesses fabricated their
testimony. Defense counsel highlighted that although the police collected several sheets and
the victims’ clothing for testing, the jury would not hear the results of those tests.
B.

State’s Trial Evidence
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The trial evidence is extensively described in the district court’s opinion, see Jackson v.
Conway, 765 F. Supp. 2d 192, 205-29 (W.D.N.Y. 2011), and we reproduce it here only as
necessary for our decision.
1.

Testimony of Karen, Rebecca, and CJ

Karen and Rebecca told the jury about the nature of their relationship with Jackson,
described previous instances of physical and sexual abuse, and gave their accounts of the
events of the night of November 29-30, 2000. Karen married Jackson in 1983 and divorced
him in 1990, although she continued a relationship with him thereafter. Jackson left Karen’s
house after the divorce but moved back several months later with Rebecca, whom he
married in 1991. From at least 1995 onwards, the three regularly participated in sexual
activity together. The State elicited from Rebecca that, shortly after the three began living
together, Jackson raped Karen, causing her to become pregnant with a daughter.1
Both women described Jackson as controlling and physically abusive. He routinely
threatened to kill Karen or injure members of her family if she left him and he hit Rebecca
when she disobeyed his orders. In June 1999, Jackson beat and strangled Karen until she
lost consciousness. When she woke, he proceeded to engage in oral and anal sex with her.2
That same month, Jackson became angry with Rebecca, cut her shorts, removed her
underwear, and forced her to walk down several city streets in that condition while calling

1 The trial court sustained defense

counsel’s objection to this testimony, but denied the

request for a mistrial.
These allegations were the subject of indictment counts one (first-degree sodomy) and two
(third-degree assault).

2

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her a “prostitute.”3 Approximately one year later, in June 2000, Jackson punched Rebecca in
the mouth, knocking out one of her teeth.4 Jackson hit Rebecca again several days later
when she complained about her tooth and then had oral, anal, and vaginal sex with her
multiple times.5 Two days before the events that led to his arrest, Jackson forced Rebecca
and Karen to perform numerous sexual acts.6 In the process, Jackson squeezed Rebecca’s
throat, nearly causing her to lose consciousness.7
The women testified that on the night of November 29-30, 2000, Jackson returned
home drunk and told Rebecca, who was on the couch, to retrieve Karen from the upstairs
bedroom she shared with CJ. When the women returned to the living room, Jackson had
them disrobe and spread a sheet on the floor. After directing each woman to perform oral
sex on him, Jackson had anal sex with Karen. Several minutes later, Jackson left the living
room and went upstairs. CJ testified that she had been sleeping in her upstairs bedroom
when Jackson woke her and took her to his bedroom. There, he placed her onto the bed,

3

These allegations were the subject of indictment count eight (first-degree coercion).

4

This allegation was the subject of indictment count nine (third-degree assault).

These allegations were the subject of indictment counts 10-12 (first-degree rape), 13-15
(first-degree (anal) sodomy), and 16-17 (first-degree (oral) sodomy).

5

These allegations were the subject of indictment count three (first-degree (anal) sodomy as
to Karen), count four (first-degree sexual abuse as to Karen), and counts 18-19 (first-degree
(oral) sodomy as to Rebecca).

6

7

This allegation was the subject of indictment count 20 (third-degree assault as to Rebecca).

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touched her breasts, and had both vaginal and anal sex with her.8 He then returned to the
living room, where he again made Rebecca perform oral sex on him before attempting to
have anal sex with Karen.
Jackson repeated this cycle of going upstairs to CJ and then returning to Karen and
Rebecca in the living room two additional times. The three women testified that, over the
course of the entire evening, Jackson made Rebecca perform oral sex on him three times,
had anal sex with Karen once and attempted to have anal sex with her twice, and had vaginal
sex with CJ “[a]t least twice” and anal sex with her two times.9 According to Karen, Jackson
had difficulty maintaining an erection—while he was “[s]omewhat” erect the first time he
had anal sex with her, he was not able to fully penetrate her on the latter two occasions. CJ
did not know whether Jackson ejaculated that night. The women complied with Jackson’s
demands because they were frightened he would become violent if they refused. When
Jackson finally fell asleep, Rebecca called the police.
Later, at Rochester General Hospital, medical personnel examined Karen and CJ,
taking samples of their pubic hair and swabs of their vaginal and anal areas that they placed
into sexual assault kits. Neither Karen nor CJ complained of any injuries to their vaginal or

Rebecca and Karen testified that they remained in the living room while Jackson was
upstairs but could hear him and CJ over the baby monitor stationed in Jackson’s bedroom,
where two younger children also slept.
8

These allegations were the subject of indictment count five (first-degree (anal) sodomy as
to Karen); counts 6-7 (first-degree attempted (anal) sodomy as to Karen); counts 21-23 (firstdegree (oral) sodomy as to Rebecca); counts 29-32 (first-degree sexual abuse as to CJ);
counts 33, 35, and 37 (first-degree rape as to CJ); counts 34, 36, and 38 (third-degree rape as
to CJ); 39 and 41 (first-degree sodomy as to CJ); 40 and 42 (third-degree sodomy as to CJ);
43-47 (incest as to CJ); and 48 (endangering the welfare of a child as to CJ).

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anal areas, although Karen “always felt like there were cuts” around her anus. At the time of
the incident, CJ was menstruating—she put on a sanitary napkin before she went to bed and
wore the same one to the hospital. The State introduced two of CJ’s medical reports
prepared at Rochester General Hospital on November 30, 2000. The first, prepared by Dr.
Everett, indicated that a gynecological examination “reportedly” showed the presence of an
“irritation at the introitus,” or vaginal opening. The second, a sexual assault form prepared
by Dr. Thompson, indicated that CJ had no bruises on her body or lacerations in her vaginal
area. Dr. Thompson noted, however, the existence of an “abrasion” on CJ’s “introitus” and
the presence of “old blood in vault.”
2.

Dr. Ann Lenane

Dr. Ann Lenane was an emergency physician at the University of Rochester who
worked in the Child Abuse Program. Defense counsel objected as she took the stand,
explaining that he believed the State was about to breach its pretrial written representation
that it would not elicit expert testimony. ADA Briggs conceded that she had made such a
representation, but argued that the defense had subpoenaed the relevant medical records
and, as a result, should have been on notice that the State would likely introduce the
testimony of a “doctor or a sexual assault nurse examiner.” The court stated that Dr.
Lenane was entitled to testify about her findings and conclusions made “as a treating
physician,” but that, due to the lack of notice, the State could not allow her testimony to
“escalate” into expert opinion. After ADA Briggs assured the court that she would not elicit
from Dr. Lenane any “hypothetical[s]” or “theories,” the court permitted the doctor to
testify “[a]s a treating physician.”

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Upon retaking the stand, Dr. Lenane described the findings contained in CJ’s
medical report:
The relevant physical findings that [CJ] had when she was
examined were mainly an abrasion, on the written notes they
said [it] was at the introitus, and when they circled on the
diagram where that was, it is in the area of the genitalia that is
just below the hymen and above the rectal area . . . . The other
finding that they noted was old blood in the vulva, which means
that he was inside the vagina[.]
App’x at 210. The State then inquired whether the “abrasion[]” indicated on CJ’s medical
records was “consistent with penetration.” Dr. Lenane responded that the abrasion was
“consistent with some type of trauma” that “could include penetration, but . . . wouldn’t
necessarily have to.” When asked again whether the abrasion was “consistent with
penetration,” Dr. Lenane answered, “Yes.”
Defense counsel objected as the State attempted to move on to Karen’s medical
records, arguing that it had not established that the doctor treated Karen. In response to the
court’s questioning, Dr. Lenane stated that she had not personally examined the women, and
that the State had asked her “to review the medical records and express an opinion about the
consistency of the history and the physical findings.” Upon hearing this, the court sustained
defense counsel’s objection and excused the jury, explaining that because Dr. Lenane had
not personally examined the women, her testimony was that of an expert, not a treating
physician. ADA Briggs argued that her questions were not taking Dr. Lenane’s testimony
beyond “the realm of what the treating physician would be able to say,” and repeatedly
reiterated her position that the defense should have known that the State would call a doctor
to testify about the physical findings contained in the medical reports. At one point, she

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acknowledged that Dr. Lenane was an expert, but argued that the defense “had notice.” The
court rejected these arguments, declaring that defense counsel was entitled to rely on the
State’s pretrial written representation that it would not call an expert.
Defense counsel moved for a mistrial, arguing that he relied on the State’s pretrial
representation when highlighting in his opening statement the lack of physical evidence.
The court, apologizing for its “unfamiliarity with the case,” stated that it had “presumed that
[Dr. Lenane] was the treating physician.” Although it initially considered a mistrial, the court
took that option off the table after reviewing the doctor’s testimony, explaining that the only
expert opinion given was that CJ’s “abrasion [wa]s consistent with penetration.” Instead, the
court gave defense counsel two options: either the court could direct the jury to disregard
Dr. Lenane’s testimony in its entirety, or defense counsel could have the weekend to obtain
his own expert. When defense counsel declared it impossible to hire an expert on such short
notice, the court expressed confusion as it had previously authorized the defense to consult
with a medical expert. Defense counsel explained that although he had “review[ed] the
records” with a nurse, he did not intend to “bring a nurse in here to try and combat what a
doctor had to say on the issue of abrasion versus irritation.” Accordingly, defense counsel
opted for the curative instruction.
After recalling the jury, the court stated that initially it had been “a little bit unclear”
about whether the State brought Dr. Lenane “in as a treating physician or . . . as an expert”
but, as she testified, it had become evident she was an expert. The court explained:
[B]efore bringing in an expert, the [State] must give notice to
the defendant . . . which they failed to do. . . . Accordingly, I am
directing you to disregard the testimony of Dr. Lenane on the
grounds that she was called as an expert and no notice was

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given . . . . Any statements of fact or any conclusions that she
would render to you I direct that you disregard in their entirety.
App’x at 228-29. Later in the proceeding, defense counsel objected to the nature of the
curative instruction, asserting that the court had given “the impression that but for that
improper notice,” the testimony would have been acceptable, “rather than advising the jury
that the evidence was improper[ly] before them and should not be considered.” The court
overruled this objection.
3.

Jailhouse Informant Tony Arnold

Tony Arnold, who shared a cell with Jackson, testified that Jackson told him about
the November 29-30, 2000 incident. According to Arnold, Jackson stated that he was
intoxicated and had sex with “both of his wives,” who waited until he fell asleep and then
called the police with allegations that he had raped his daughter. Jackson offered Arnold
$100,000 to kill his “wife and ex-wife,” which Arnold declined.
4.

Kathy Bonisteel

CPS Caseworker Kathy Bonisteel related Jackson’s statements made to her during
their post-arrest conversation at police headquarters. This testimony included Jackson’s
assertion that he was sexually active with both Karen and Rebecca, his claim that both
women knew the sexual “routine” they were to perform, and his boast that he was the
“alpha male” who was “in charge” of the family. Bonisteel also recounted Jackson’s version
of the events on the night of November 29-30, 2000—that he had returned home after
consuming a large amount of alcohol and some cocaine, woke Rebecca for “a little lovin’”
and then remembered nothing more until he was awoken by the police. With respect to
Jackson’s statements about CJ, Bonisteel testified:

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I asked [Jackson] if he remember[ed] [molesting his daughter],
or if he did that. He said he would never hurt [CJ]. And I
asked him again if anything happened the night before when he
got home. He repeated again that he would never hurt [CJ]. . . .
I said, was it possible that he was so drunk that he couldn’t
remember raping [CJ]? And he said it was a possibility.
Trial Tr. at 503-04.
C.

Closing Arguments

The defense did not introduce any evidence at trial. In closing, defense counsel
pointed out that despite their allegations of rape and assault, Rebecca and Karen had both
lived with Jackson for many years without complaint. Counsel also emphasized that
although police had collected the sheets, victims’ clothing, and sexual assault kits, the State
had been unable to present at trial any physical evidence of the numerous alleged acts of
rape and sodomy that occurred on the evening of November 29-30, 2000.
ADA Briggs began her closing argument by telling the jurors that the case required
their “courage” to recognize that the allegations “really happened” and that the “person
[who] committed these heinous, horrific acts has been sitting in the same room with [the
jurors] for almost a week now.” Pointing Jackson out, ADA Briggs stated, “that man sitting
there, looking like he is pondering every word that is being said, is guilty.”10 ADA Briggs
argued that “no one can feign the terror” that the victims had displayed and that “[e]ven the
best actor or actress could probably not tremble with fear as continuously as some of these
witnesses did.” She also questioned why Jackson’s family members would testify against

10

The trial court overruled defense counsel’s objection to this statement.

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him, positing that “[t]he only possible explanation for what they told [the jury] is because it is
true and he is guilty.”11 The witnesses’ testimony, ADA Briggs contended, left the jury with
“a picture of a man that has consistently abused his family for years, basically beaten them
into submission and he committed all of the counts of the indictment here against his family.
. . . He is guilty of everything.”
With respect to the lack of physical evidence, ADA Briggs argued that the absence of
semen did not contradict the witnesses’ testimony, as both Rebecca and Karen testified that
Jackson had been unable to “get an erection” the evening of November 29-30, 2000. ADA
Briggs also argued that CJ’s medical records corroborated her version of the events because
the “abrasion” on her introitus was “right where [Jackson’s] penis would have been
rubbing.”
Addressing Bonisteel’s testimony, ADA Briggs stated:
Kathy Bonisteel asked [Jackson], Is it possible that you were so
drunk that you don’t remember raping [CJ]? And he says, Yeah,
that’s possible. Now, I ask you, ladies and gentlemen, if you
were a person who stood accused of having sex with your own
child, and you hadn’t done it, if somebody asked you if that was
possible, would you say ‘maybe,’ or would your answer be, no, I
would never, ever, ever do something like that? There would be
adamant denial, there would be something of a much stronger
reaction than, “Yeah, maybe, I could have.” And the reason he
says, “Yeah, maybe, I could have” is because he did. It’s that
simple. Innocent people don’t admit that there is a possibility
that they did something wrong, particularly when what we are
talking about is sex with his own daughter.
App’x at 271.

11

The trial court overruled defense counsel’s objection to this statement.
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Following closing arguments, defense counsel unsuccessfully moved for a mistrial on
the ground that the summation was “replete with comments arousing sympathy for the
victims.” Defense counsel also took issue with the State’s proposed jury charge on the firstdegree sodomy counts because, in defense counsel’s view, first degree sodomy “require[d]
some penetration.” The court disagreed, declaring that “[j]ust touching” was sufficient. In
its subsequent jury charge, the trial court reminded the jury that statements made by the
attorneys in summation were not evidence and that the jurors were to draw their own
conclusions from the facts, rather than rely on those supplied by counsel. It also reminded
the jury that it was not to consider any testimony the court had ordered stricken from the
record.
Ultimately, the jury convicted Jackson on all 47 submitted counts.12 On June 21,
2001, the trial court sentenced Jackson to an aggregate total of 64 years’ incarceration.
III.

State Postconviction Proceedings & Direct Appeal
Through counsel, Jackson appealed his judgment of conviction to the New York

State Supreme Court, Appellate Division, Fourth Department. Proceeding pro se, he
simultaneously moved in the trial court to vacate the judgment pursuant to New York
Criminal Procedure Law § 440.10.
A.

Section 440.10 Motion

Jackson argued in his § 440.10 motion that defense counsel’s performance was
deficient in several respects. He indicated that he had brought the motion before filing his

At the close of the State’s evidence, the trial court dismissed one endangering the welfare
of a child count involving Jackson’s youngest son.
12

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appellate brief because the trial record was insufficient to permit direct appellate review of
his ineffective assistance claims. As exhibits to his motion, Jackson included reports of tests
performed by the Monroe County Public Safety Laboratory. The first report found no
spermatozoa or “seminal material” on any of the victims’ clothing or on the vaginal and anal
swabs taken of Karen and CJ as part of the sexual assault kits. The second, dated March 27,
2001, excluded CJ as the source of DNA obtained from bloodstains found on the fitted
sheet recovered from Jackson’s bed.
In its response, the State principally argued that the motion should be summarily
denied pursuant to New York Criminal Procedure Law § 440.10(2)(b) because Jackson’s
direct appeal remained pending and the record contained facts sufficient to permit adequate
appellate review of his ineffective assistance claims. By order dated November 17, 2003, the
trial court agreed with the State and denied Jackson’s motion on the ground that the record
contained sufficient facts to permit review of his claims on direct appeal.13 Jackson sought
from the Appellate Division leave to appeal this decision but it denied his application on
February 3, 2004.
B.

Direct Appeal

While his § 440.10 motion remained pending in the trial court, Jackson filed a
counseled appellate brief in the Fourth Department. In that brief he argued that his postarrest statements made to CPS Caseworker Bonisteel were improperly admitted in violation

The trial court also held, in the alternative, that Jackson’s ineffective assistance claims
lacked merit because they constituted nothing more than his disagreement with defense
counsel over trial strategy and tactics.

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of his Miranda rights, that prosecutorial misconduct denied him a fair trial, and that he
received ineffective assistance of counsel.14 In his Miranda claim, Jackson argued that
Bonisteel acted either as a law enforcement officer or as the “functional equivalent” of a
police officer when she interviewed him without first providing the required Miranda
warnings, and that his statements to her were thus inadmissible. In his prosecutorial
misconduct claim, Jackson maintained that ADA Briggs’s improper conduct “pervaded the
proceedings” and deprived him of a fair trial. He identified four instances of such
misconduct: (1) the delayed disclosure that Tony Arnold would be a witness, which
prompted a last minute change in defense counsel; (2) the opening statement comments
about Jackson’s “twisted” and “sadistic” nature; (3) the improper attempt to elicit expert
testimony from Dr. Lenane; and (4) the summation, in which ADA Briggs repeatedly
expressed her personal opinion of Jackson’s guilt and the truth of the witnesses’ testimony,
and argued facts not in evidence.
Jackson’s ineffective assistance arguments were essentially the same as those raised in
his § 440.10 motion.15 With respect to defense counsel’s pretrial conduct, Jackson
contended that his attorney: (1) did not adequately investigate the forensic and medical
evidence or consult with an expert concerning that evidence; and (2) failed to prepare

Jackson also argued that the trial court erred when, in contravention of its pretrial ruling, it
permitted the State to elicit testimony concerning Jackson’s prior bad acts that occurred
before 1995.

14

Jackson included his § 440.10 motion and attached exhibits in the record submitted to the
Fourth Department.

15

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adequately for trial, as shown by his unfamiliarity with the elements of first-degree sodomy.
As for counsel’s trial conduct, Jackson maintained that counsel: (1) presented no evidence
and called no witnesses in defense, thus failing “to utilize the plethora of indisputable
scientific evidence” not introduced by the State; (2) failed to utilize the medical and forensic
evidence to conduct effective cross-examinations of the victims by exposing inconsistencies
between their accounts of the sexual abuse and the medical findings; and (3) failed to offer
expert medical testimony to explain the medical and forensic evidence.16
The Fourth Department affirmed Jackson’s conviction on February 11, 2004, but
reduced his overall sentence to 50 years’ imprisonment on New York statutory grounds not
relevant here. See People v. Jackson, 772 N.Y.S.2d 149, 150 (App. Div. 4th Dep’t 2004). The
Fourth Department held that Jackson’s Miranda claim was meritless because the “record
establishe[d] that [Bonisteel] was not engaged in law enforcement activity.” Id. (citation
omitted).17 Addressing the prosecutorial misconduct claim, the Fourth Department held
that “the comments of the prosecutor in her opening and closing statements were not so
egregious as to deprive defendant of his right to a fair trial.” Id. (brackets, quotation marks,
and citation omitted). Finally, it rejected Jackson’s “contention . . . that he received

In response to Jackson’s ineffective assistance arguments, the State contended on direct
appeal that the claim was “based on factual assertions outside the appropriate record” and
therefore could be remedied only via a § 440.10 motion, notwithstanding its position in the
§ 440.10 proceeding that the claims were only properly raised on direct appeal.

16

The Fourth Department also rejected this claim on the ground that “[t]he filing of a child
abuse petition does not trigger the right to counsel” and, therefore, Bonisteel “was not
required to advise defendant of his Miranda rights before speaking with him.” Id. (citation
omitted).

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ineffective assistance of counsel,” holding that he was “not entitled to error-free
representation” and had “failed to demonstrate the absence of strategic or other legitimate
explanations for counsel’s alleged failures.” Id. (citations and quotation marks omitted).
Jackson sought leave to appeal all of his claims to the New York Court of Appeals.
Then-Chief Judge Kaye denied his application on May 20, 2004, see People v. Jackson, 2 N.Y.3d
801 (2004) (table), and Jackson timely filed a habeas application in the United States District
Court for the Western District of New York pursuant to 28 U.S.C. § 2254.
IV.

Federal Habeas Proceedings
In his § 2254 petition and addendum to that petition, Jackson raised his Miranda,

prosecutorial misconduct, and ineffective assistance claims, with some slight modifications
to the latter two. First, Jackson added to his allegations of prosecutorial misconduct the
prosecutor’s “improper tactics of introducing prior uncharged crimes and bad acts” and her
“abuse of the charging function.” Second, Jackson divided his ineffective assistance claim
into four “points.” In “Point One,” Jackson argued that defense counsel’s lack of
preparation was “painfully exposed” by counsel’s “decision to NOT put on a defense . . .
due to the fact that he was under the incorrect assumption that the prosecution was required
to prove the element of penetration in order to sustain a conviction of Sodomy in the 1st.”
App’x at 15 (emphasis in original) (additional capitalization removed). Jackson maintained in
“Point Two” that counsel “failed to correctly marshal an investigation into the plethora of
exculpatory evidence (physical, medical, forensic, visual, tactile, [etc.])” and then failed to
introduce this evidence at trial. Id. at 16 (capitalization removed). In “Point Three” he
contended that defense counsel failed to consult with a medical expert “to help him interpret

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and then apply through [t]estimony the results of the entire battery” of medical and forensic
tests. Id. at 16-17. Finally, in “Point Four,” Jackson asserted that the above deficiencies,
coupled with defense counsel’s failure to cross-examine the victims using the medical
evidence, constituted ineffective assistance. Id. at 17.
After reviewing the petition, the magistrate judge appointed counsel and ordered an
evidentiary hearing pursuant to our decision in Sparman v. Edwards, in which we expressed
our belief that “a district court facing the question of constitutional ineffectiveness of
counsel should . . . offer the assertedly ineffective attorney an opportunity to be heard and to
present evidence.” 154 F.3d 51, 52 (2d Cir. 1998) (per curiam). At the resulting hearing, the
magistrate judge heard testimony from a medical expert and from defense counsel, who
explained his trial preparation and strategy.
By amended order entered in February 2011, the magistrate judge granted Jackson’s
application for habeas relief in part. See Jackson v. Conway, 765 F. Supp. 2d 192 (W.D.N.Y.
2011). The magistrate judge held that the Fourth Department’s rejection of Jackson’s
Miranda claim was both contrary to and an unreasonable application of clearly established
Supreme Court precedent, and that the admission of his post-arrest statement to Bonisteel
was sufficiently injurious as to warrant habeas relief on the convictions involving CJ. See id.
at 270-84. The magistrate judge also held that the prosecutor’s pretrial and trial conduct
cumulatively deprived Jackson of his right to due process, and that the Fourth Department’s
decision to the contrary was an unreasonable application of Supreme Court precedent. See
id. at 251-60. Finding that the prosecutor’s misconduct “permeated the entire trial

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proceeding,” the magistrate judge vacated all of Jackson’s convictions on this ground. Id. at
253, 260.
Next, the magistrate judge found that Jackson had failed to exhaust in the state courts
Points One and Two of his ineffective assistance claim, and that those Points were barred by
the operation of a state procedural rule because they could have been, but were not, raised
on direct appeal. See id. at 260-61. The magistrate judge grouped Jackson’s remaining
ineffective assistance arguments into two sections—counsel’s failure to consult with and call
a medical expert to explain State’s medical evidence, and counsel’s failure to investigate
adequately the medical and forensic reports not introduced by the State at trial. See id. at
262-70. The magistrate judge found habeas relief was warranted only as to the first group,
and then only as to the convictions involving CJ, because it was as to those allegations that
the State’s medical evidence and the defense’s lack of a medical expert were most damaging.
See id. at 262-68.
For these reasons, the magistrate judge directed the State to vacate Jackson’s
convictions on all counts unless it commenced re-prosecution of Jackson within ninety days.
Id. at 287. The magistrate judge stayed the judgment pending the completion of any
appellate proceedings. Id. The State appealed insofar as the magistrate judge granted habeas
relief and Jackson cross-appealed those portions of the decision adverse to him.
DISCUSSION
We review a district court’s grant of habeas relief de novo, and its underlying findings
of fact for clear error. See Cardoza v. Rock, 731 F.3d 169, 177 (2d Cir. 2013).

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I.

Rules Governing Federal Habeas Corpus Review under the Antiterrorism and
Effective Death Penalty Act of 1996
As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the statutory
provision authorizing federal courts to provide habeas corpus relief to prisoners in state
custody—is “part of the basic structure of federal habeas jurisdiction, designed to confirm
that state courts are the principal forum for asserting constitutional challenges to state
convictions.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 787 (2011). A number of
requirements and doctrines, four of which are relevant to this appeal, ensure the centrality of
the state courts in this arena. First, the exhaustion requirement ensures that state prisoners
present their constitutional claims to the state courts in the first instance. See id. (citing 28
U.S.C. § 2254(b)). Should the state court reject a federal claim on procedural grounds, the
procedural default doctrine bars further federal review of the claim, subject to certain wellestablished exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82-84 (1977). 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 either: (1) “contrary to,
or involved an unreasonable application of, clearly established Federal law,” or (2) “based on
an unreasonable determination of the facts in light of the evidence presented in the State
court.” 28 U.S.C. § 2254(d)(1)-(2). Finally, when conducting its review under § 2254(d), the
federal court is generally confined to the record before the state court that adjudicated the
claim. See Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398-99 (2011).

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Because the issues presented in this appeal implicate all of the above facets of federal
habeas jurisdiction, we provide a general overview of the standards governing each before
applying those standards to Jackson’s case.
A.

Exhaustion and Procedural Default

To provide the state with the first opportunity to consider and correct alleged
violations of its prisoners’ constitutional rights, a state prisoner is required to exhaust all of
his available state remedies before a federal court can consider his habeas application. See 28
U.S.C. § 2254(b)(1)(A); Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). This requires that
the prisoner “fairly present” his constitutional claim to the state courts, which he
accomplishes “by presenting the essential factual and legal premises of his federal
constitutional claim to the highest state court capable of reviewing it.” Rosa v. McCray, 396
F.3d 210, 217 (2d Cir. 2005) (citing Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003)). While
“a state prisoner is not required to cite chapter and verse of the Constitution in order to
satisfy this requirement,” he must tender his claim “in terms that are likely to alert the state
courts to the claim’s federal nature.” Carvajal, 633 F.3d at 104 (internal citations, quotation
marks, and brackets omitted).
A state prisoner’s procedural default in the state courts will also bar federal review
except in narrow circumstances not relevant here. A procedural default occurs in one of two
ways. First, if the state prisoner fails to exhaust his state remedies in a manner in which,
were he to return to the state courts with his unexhausted claim, those courts would find the
claim barred by the application of a state procedural rule, “we ‘must deem the claim
procedurally defaulted.’” Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001))

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(brackets omitted). Alternatively, a procedural default occurs if the state court’s rejection of
a federal claim rests on a state law ground—such as the operation of a state procedural
rule—that is both “‘independent of the federal question and adequate to support the
judgment.’” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson,
501 U.S. 722, 729 (1991)). In this latter case, “[t]he preclusion of federal review applies only
when the last state court rendering a judgment in the case clearly and expressly states that its
judgment rests on a state procedural bar.” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir.
2006) (internal quotation marks omitted); see also Harris v. Reed, 489 U.S. 255, 262 (1989)
(“[A] federal claimant’s procedural default precludes federal habeas review . . . only if the last
state court rendering a judgment in the case rests its judgment on the procedural default.”).
B.

28 U.S.C. § 2254(d) –Review of State Court Decisions on the Merits

As noted above, § 2254(d) is implicated when the habeas petitioner seeks federal
review of a constitutional claim that was adjudicated by the state courts on the merits. As
relevant here, AEDPA provides that habeas relief “shall not be granted” on such claims
“unless the adjudication of the claim . . . resulted in a decision that was contrary to, or
involved an unreasonable application of clearly established Federal law, as determined by the
Supreme Court of the United States.” 28 U.S.C. § 2254(d)(1).18 The analysis under
§ 2254(d)(1) proceeds in two steps. The first is to identify the governing “clearly established
Federal law.” See Marshall v. Rodgers, __ U.S. __, 133 S. Ct. 1446, 1449 (2013) (per curiam)

Section 2254(d)(2), which permits federal relief if the state court decision “was based on
an unreasonable determination of the facts in light of the evidence presented in the State
court,” is not implicated in this case.

18

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(“The starting point for cases subject to §2254(d)(1) is to identify the ‘clearly established
Federal law, as determined by the Supreme Court of the United States’ that governs the
habeas petitioner’s claims.”); Yarborough v. Alvarado, 541 U.S. 652, 660 (2004) (“We begin by
determining the relevant clearly established law.”). The second asks whether, in the context
of the petitioner’s case, the state court’s decision was contrary to or an unreasonable
application of that clearly established precedent. See Alvarado, 541 U.S. at 663; Williams v.
Taylor, 529 U.S. 362, 412 (2000). Separate considerations govern each step, and it is to those
that we now turn.
1.

“Clearly Established” Federal Law

In the AEDPA context, “‘[c]learly established federal law’ refers only to the holdings
of the Supreme Court” extant at the time of the relevant state court decision. Rodriguez v.
Miller, 537 F.3d 102, 106 (2d Cir. 2008); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)
(“‘[C]learly established law’ under § 2254(d)(1) is the governing legal principle or principles
set forth by the Supreme Court at the time the state court renders its decision.”). Thus,
“[n]o principle of constitutional law grounded solely in the holdings of the various courts of
appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.”
Rodriguez, 537 F.3d at 106-07 (citing Carey v. Musladin, 549 U.S. 70, 74, 76-77 (2006)); see also
Marshall, 133 S. Ct. at 1451 (A federal habeas court “may not canvass circuit decisions to
determine whether a particular rule of law is so widely accepted among the Federal Circuits
that it would, if presented to th[e] [Supreme] Court, be accepted as correct.”). While we may
rely on our prior decisions to the limited extent that we have “already held that the particular
point in issue is clearly established by Supreme Court precedent,” Marshall, 133 S. Ct. at 1450

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(citation omitted), we must scrupulously avoid using our decisions (or those of other
circuits) “to refine or sharpen a general principle of Supreme Court jurisprudence into a
specific legal rule that th[e] Court has not announced,” id. (citing Parker v. Matthews, 567 U.S.
---, 132 S. Ct. 2148, 2155 (2012) (per curiam)); see also Rodriguez, 537 F.3d at 109 (observing
that we may no longer rely “on our own precedents to interpret and flesh out Supreme
Court decisions”).
2.

The “Contrary to” and “Unreasonable Application” Prongs

Once the clearly established Supreme Court principle has been distilled, the petitioner
may pursue relief under § 2254(d)(1) via two paths. First, he may show that the state court’s
decision was “contrary to” that clearly established principle by demonstrating either (1) “that
the state court reached a conclusion of law that directly contradicts” a Supreme Court
holding, or (2) that the state court arrived at a result opposite to that reached by the Supreme
Court when presented with “‘facts that are materially indistinguishable from [the] relevant
Supreme Court precedent.’” Evans v. Fischer, 712 F.3d 125, 132 (2d Cir. 2013) (quoting
Williams, 529 U.S. at 405).
More commonly, a petitioner may seek relief by demonstrating that the state court’s
decision involved an “unreasonable application” of the clearly established principle. A state
court unreasonably applies clearly established law if it “‘identifies the correct governing legal
principle but unreasonably applies that principle to the facts’ of the case before it.” Id.
(quoting Williams, 529 U.S. at 413) (ellipsis omitted). In this analysis, a state court’s
“unreasonable” application of law is not synonymous with an “incorrect” or “erroneous”
decision. See Andrade, 538 U.S. at 75. Thus, “a federal habeas court may not issue the writ

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simply because that court concludes in its independent judgment that the relevant state-court
decision applied clearly established law erroneously or incorrectly.” Renico v. Lett, 559 U.S.
766, 773 (2010) (internal quotation marks omitted). Instead, the state court’s application
must be “objectively unreasonable,” id. (quotation marks omitted), which, we have
recognized, requires “some increment of incorrectness beyond error,” Evans, 712 F.3d at 133
(quotation marks omitted).19 Whether the state court’s application is “objectively
unreasonable” depends, in part, on the specificity of the clearly established rule of law. See
Alvarado, 541 U.S. at 664. If a legal rule is very specific, then the range of reasonable
applications of that rule is correspondingly narrow.20 See id. By contrast, “[t]he more general
the rule, the more leeway [state] courts have in reaching outcomes in case-by-case
determinations.” Id. In short, the standard under the unreasonable application prong of
§ 2254(d)(1) “is difficult to meet,” Richter, 131 S. Ct. at 786, and “[a] state court’s
determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded
jurists could disagree’ on the correctness of the state court’s decision,” id. (quoting Alvarado,
541 U.S. at 664).

We have also recognized, however, that “‘the increment of incorrectness beyond error
need not be great; otherwise, habeas relief would be limited to state court decisions so far off
the mark as to suggest judicial incompetence.’” Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d
Cir. 2011) (quoting Georgison v. Donelli, 588 F.3d 145, 154 (2d Cir. 2009)).
19

A necessary corollary to this point is that “it is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (internal quotation marks omitted).

20

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Finally, federal review under either prong of § 2254(d)(1) “is limited to the record that
was before the state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at
1398-99. Thus, “evidence introduced in federal court has no bearing on § 2254(d)(1)
review.” Id. at 1399. Put another way, the rule expressed in Pinholster generally “prohibits us
from relying on evidence beyond the state court record to reach our result.” Young v. Conway,
715 F.3d 79, 82 (2d Cir. 2013) (Parker, J., concurring in the denial of rehearing en banc).
With these principles in mind, we turn to the merits of Jackson’s claims.
II.

Miranda Claim
As part of his Miranda claim pressed in the Fourth Department, Jackson argued that

CPS Caseworker Bonisteel acted as the “functional equivalent” of a police officer because
she was a government employee who interrogated him about the events leading to his arrest.
See App’x at 100-01. As relevant here, the Fourth Department rejected the Miranda claim on
the ground that Bonisteel “was not engaged in law enforcement activity.” See Jackson, 772
N.Y.S. 2d at 150.21 Jackson argues, and the magistrate judge held, that this conclusion was

We agree with the magistrate judge that the Fourth Department’s alternate holding—that
“[t]he filing of a child abuse petition does not trigger the right to counsel” and therefore
Bonisteel “was not required to advise defendant of his Miranda rights before speaking with
him”—is not relevant to this inquiry. See Jackson, 772 N.Y.S. 2d at 150 (citing People v. Brooks,
585 N.Y.S.2d 30, 31 (App. Div. 1st Dep’t 1992)). As the district court explained, see Jackson,
765 F. Supp. 2d at 275, the case cited by the Fourth Department in support of this
proposition, People v. Brooks, in turn relied on the New York Court of Appeals decision in
People v. Smith. See Brooks, 585 N.Y.S.2d at 31 (citing People v. Smith, 62 N.Y.2d 306 (1984)).
That Court of Appeals case dealt with the issue of whether the initiation of civil child neglect
proceedings triggered the father’s right to counsel under the Sixth Amendment. See Smith, 62
N.Y.2d at 312-13. Here, the issue before us is not whether Bonisteel’s initiation of civil child
abuse proceedings implicated Jackson’s right to counsel, but whether the admission at

21

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both contrary to, and an unreasonable application of, the clearly established federal law set
forth in the holdings of Miranda, 384 U.S. at 436, Mathis v. United States, 391 U.S. 1 (1968),
and Estelle v. Smith, 451 U.S. 454 (1981). See Jackson, 765 F. Supp. 2d at 275-82. While we do
not find relief warranted under the “contrary to” prong of § 2254(d)(1), we agree with the
magistrate judge that the Fourth Department’s rejection of Jackson’s Miranda claim
constituted an objectively unreasonable application of this Supreme Court precedent. We
further hold that the admission of Jackson’s statements had a substantial and injurious effect
or influence on the jury’s verdict as to the count’s involving CJ. We therefore affirm the
magistrate judge’s judgment insofar as it granted habeas relief on those counts.
A.

Clearly Established Law

The Fifth Amendment of the United States Constitution provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (extending the protection
from compulsory self-incrimination to the states through the Fourteenth Amendment). In
Miranda v. Arizona, the Supreme Court held that “the prosecution may not use statements,
whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant
unless it demonstrates the use of procedural safeguards effective to secure the privilege
against self-incrimination.” 384 U.S. at 444; see also Georgison, 588 F.3d at 155 (“It is well
settled that Miranda requires all individuals who are under arrest, or otherwise in police
custody, to be informed prior to interrogation, inter alia, of their right to remain silent and to

Jackson’s criminal trial of his statements to Bonisteel violated his Fifth Amendment right to
be free from compulsory self-incrimination.

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have an attorney present during questioning.”). Should a person subject to custodial
interrogation invoke his right to remain silent, “the interrogation must cease.” Miranda, 384
U.S. at 473-74. In this case, the admissibility of later statements made by the suspect will
turn on “whether his right to cut off the questioning was scrupulously honored.” Michigan v.
Mosely, 423 U.S. 96, 104 (1975) (internal quotation marks omitted); see id. at 106 (holding a
statement made after the suspect’s invocation of his Miranda rights admissible when
questioning resumed “only after the passage of a significant period of time and the provision
of a fresh set of warnings,” and the second interrogation was restricted “to a crime that had
not been a subject of the earlier interrogation”).
The Miranda safeguards apply only to “custodial interrogations.” That phrase has two
components: the “in custody” requirement, see, e.g., Stansbury v. California, 511 U.S. 318, 322
(1994), and the “interrogation” requirement, see, e.g., Rhode Island v. Innis, 446 U.S. 291, 300-01
(1980). Only the interrogation requirement is at issue here—the State has never argued that
Jackson was not “in custody” at the time Bonisteel interviewed him.22 In the context of
Miranda, “the term ‘interrogation’ . . . refers not only to express questioning, but also to any
words or actions on the part of the police (other than those normally attendant to arrest and
custody) that the police should know are reasonably likely to elicit an incriminating response
from the suspect.” Innis, 446 U.S. at 301. Absent an interrogation, there can be no
infringement of the Fifth Amendment rights Miranda was designed to protect. See Edwards v.

In its brief submitted to the Fourth Department, the State apparently conceded that
Jackson was in custody at the time he spoke to Bonisteel. See App’x at 120 (“[W]hile in
custody at the Greece police station, the defendant agreed to speak to Kathy Bonisteel.”). In
the district court, the State did not contest that Jackson was in custody.

22

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Arizona, 451 U.S. 477, 485 (1981) (defendant’s “voluntary, volunteered statements” not
protected). While the Innis definition of “interrogation” speaks only in terms of questioning
or other actions on the part of the “police,” the Supreme Court has not strictly limited its
holdings in this regard to law enforcement personnel conducting criminal investigations.
In Mathis, the defendant was incarcerated on a state sentence when an agent of the
Internal Revenue Service (“IRS”) questioned him about discrepancies on his federal tax
returns. See 391 U.S. at 3 & n.2. Over the defendant’s objection that he was not provided
the requisite Miranda warnings, the government was permitted to introduce the defendant’s
incriminating statements to the IRS agent at the defendant’s criminal trial for tax fraud. See
id. at 3. Before the Supreme Court, the government sought to “escape application of . . .
Miranda” by arguing that the IRS agent’s “questions were asked as a part of a routine tax
investigation where no criminal proceedings might even be brought.” Id. at 4. The Court
rejected this argument, observing that although tax investigations may be initiated “for the
purpose of a civil action,” they “frequently lead to criminal prosecutions.” Id. The Court
also noted that the IRS agent who interviewed the defendant admitted that “there was always
the possibility during his investigation that his work would end up in a criminal
prosecution.” Id. For these reasons, the Court “reject[ed] the contention that tax
investigations are immune from the Miranda requirements for warnings to be given a person
in custody.” Id.23

The second part of the Mathis opinion rejected the government’s argument that Miranda
was applicable only to questioning of those “in custody in connection with the very case
under investigation.” See id. at 4-5 (internal quotation marks omitted). As to this argument,
23

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In Smith, 451 U.S. at 454, the Court again analyzed the Miranda requirements in the
context of questioning by someone other than a law enforcement official. In that case, the
trial judge ordered the prosecutor to arrange a psychiatric evaluation of the criminal
defendant to determine his competency to stand trial. See id. at 456-57. Without
administering Miranda warnings, a doctor examined the defendant for approximately 90
minutes while he was in custody, ultimately concluding that the defendant was competent.
Id. at 457. After a jury convicted the defendant, the examining doctor was the state’s sole
witness at the capital sentencing stage of the trial, where, in order to obtain a sentence of
death, the state had to prove the defendant’s future dangerousness beyond a reasonable
doubt. Id. at 457-58. Based on his 90-minute examination of the defendant before trial, the
doctor offered a number of “devastating” opinions as to the defendant’s future
dangerousness. Id. at 459-60. The jury’s subsequent verdict made the death penalty
mandatory. Id. at 460.
On federal habeas review, the lower courts vacated the death sentence based on the
admission of the doctor’s statements. Smith, 451 U.S. at 460. The Supreme Court affirmed,
holding that the defendant’s Fifth Amendment privilege was “directly” implicated because
the state used against him “the substance of his disclosures during the pretrial psychiatric
examination,” id. at 464-65, and the defendant was not warned that this “compulsory
examination would be used to gather evidence necessary to decide whether, if convicted, he
should be sentenced to death,” id. at 467. Because the defendant “did not voluntarily

the Court held that nothing in Miranda suggested that its warning requirement was
dependent “on the reason why the person is in custody.” Id. at 5.

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consent to the pretrial psychiatric examination after being informed of his right to remain
silent and the possible use of his statements,” the Court held that the defendant’s Fifth
Amendment right against self-incrimination was violated. Id. at 468. In reaching this
conclusion, the Court found it “immaterial” that the defendant “was questioned by a
psychiatrist designated by the trial court to conduct a neutral competency examination,
rather than by a police officer, governmental informant, or prosecuting attorney.” Id. at 467.
The Court explained that, when the doctor “went beyond simply reporting to the court on
the issue of competence and testified for the prosecution at the penalty phase on the crucial
issue of [the defendant’s] future dangerousness, his role changed and became essentially like
that of an agent of the State recounting unwarned statements made in a postarrest custodial
setting.” Id.
B.

Application

Under the circumstances of Jackson’s case, the state court’s rejection of his Miranda
claim on the ground that Bonisteel “was not engaged in law enforcement activity,” see
Jackson, 772 N.Y.S.2d at 150, was an objectively unreasonable application of the above
holdings. Echoing the Fourth Department, the State argues that Jackson’s Miranda claim
must be denied because Bonisteel interviewed Jackson in connection with “an independent
civil investigation for possible family court action.” State Br. at 35. As the above Supreme
Court holdings make clear, where, as here, custody (as that term is used in Miranda and its
progeny) is not at issue, whether the questioning official was engaged in “law enforcement
activity” at the time incriminating statements are made is not the touchstone for applying the
Miranda warning requirements. Mathis’s rejection of the argument that Miranda did not apply

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to “routine tax investigation[s]” in which “no criminal proceedings might even be brought,”
requires as much. Mathis, 391 U.S. at 4.
The State argues that Mathis is inapplicable to Jackson’s case because it dealt with a
civil investigation by the IRS, which has “unique dual roles, focusing on both civil and
criminal enforcement of the federal tax laws.” State Br. at 36. Nothing in Mathis suggests,
however, that the Court based its holding on the dual nature of IRS agents’ roles. Instead,
the Court focused on the “possibility” that the IRS agent’s tax investigation would lead to a
criminal prosecution, and the agent’s awareness of that possibility during his investigation.
See Mathis, 391 U.S. at 4. Here, Bonisteel was certainly aware of a similar possibility at the
time she conducted her investigation into the allegations that Jackson had sexually abused CJ
on the evening of November 29-30, 2000. While her investigation was civil in nature, if she
discovered during the course of that investigation that Jackson sexually abused CJ, Bonisteel
was required by New York law to report that finding to the “appropriate local law
enforcement” authorities. N.Y. Soc. Serv. Law § 424(5-a). She in fact made such a
determination at the conclusion of her interview with Jackson. See App’x at 171. Jackson’s
case therefore falls within the ambit of Mathis.24

The State also apparently urges us to disregard Mathis because the eight Justices who
decided it were “conflicted.” See State Br. at 35-36 (“With [three] Justices dissenting (and
one not participating in the case); however, even the Supreme Court was conflicted on the
holding.”). While there are times when lower courts may have wished they were permitted
to so cavalierly disregard the holding of five Supreme Court Justices as advocated by the
State, only the Supreme Court is vested with “the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).
24

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Our conclusion that the nature of the investigation is not the benchmark for
determining the applicability of Miranda does not end the matter. Instead, we must focus on
whether Bonisteel’s interview of Jackson constituted an “interrogation” within the meaning
of Innis, i.e., whether Bonisteel objectively “should have known” that her questions were
“reasonably likely to evoke an incriminating response.” Innis, 446 U.S. at 301-02 (emphasis
removed); accord Mathis, 391 U.S. at 4 (observing that the IRS agent who interviewed the
defendant acknowledged that the “there was always the possibility during his investigation
that his work would end up in a criminal prosecution”). As she testified during the
suppression hearing, Bonisteel knew at the time of the interview that Jackson had been
arrested and was in police custody as a result of the same sexual abuse allegations she was
investigating. See App’x 153-55, 168, 171. It is therefore clear from the record that Bonisteel
should have known that her express questioning about CJ’s rape allegations and about
whether Jackson “did anything to [CJ]” could elicit an incriminating response. Contra Innis,
446 U.S. at 302-03 (no interrogation when two officers held a conversation between
themselves concerning the defendant’s missing firearm and the defendant merely
commented on that conversation).25 Because Jackson was not informed prior to Bonisteel’s

The State faults the district court for “latch[ing] on to dicta” contained in the Third
Circuit’s decision in Saranchak v. Beard, 616 F.3d 292 (3d Cir. 2010), and argues that our
analysis should be guided by the Third Circuit’s ultimate holding. State Br. at 33-34. In that
case, the Third Circuit found no Miranda violation when the state introduced at the
defendant’s murder trial certain incriminating statements the defendant made to a child
services caseworker while in custody. See Saranchak, 616 F.3d at 298-99, 303-04. The facts
of Jackson’s case, however, are distinguishable from those addressed in Saranchak. Unlike
here, the caseworker in Saranchack was a “stranger to any aspect” of the defendant’s pending
murder charges and interviewed the defendant only in connection with his visitation rights

25

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interrogation that his statements to her could be introduced at his criminal trial, the State
should not have been permitted to rely on those statements to secure Jackson’s conviction.
See Miranda, 384 U.S. at 444; see also Smith, 451 U.S. at 468-69. Accordingly, the admission of
Bonisteel’s testimony at trial violated Jackson’s right to be free from compelled selfincrimination under the Fifth and Fourteenth Amendments.26
C.

Harmlessness

The erroneous admission of a defendant’s statements in violation of Miranda is
subject to harmless-error review. See Perkins v. Herbert, 596 F.3d 161, 174 (2d Cir. 2010).

with his minor children. See id. at 303-04. The Third Circuit determined that no
“interrogation” had occurred because, under those circumstances, the caseworker’s interview
“was not of the kind, like a tax investigation, that has a high probability of leading to
informant testimony at a criminal trial.” Id. at 304. In reaching this conclusion, the Third
Circuit expressly distinguished circumstances where a child services caseworker interviews a
defendant “charged with offenses involving children.” Id. (emphasis removed). We do not
rely on Saranchak to reach our conclusion.
The State contends that applying Miranda to Bonisteel’s interrogation would have
“disastrous implications for social work,” but does not identify any such implications. State
Br. at 35. Nor do we discern any such disastrous results. Miranda prevents only the
prosecution’s use of unwarned statements against a criminal defendant in his criminal trial. Its
prophylactic requirements, therefore, pose no impediment to social workers conducting
custodial interrogations in order to substantiate allegations of sexual abuse. Cf. Smith, 451
U.S. at 468-69 (noting that if the defendant had invoked his Miranda rights prior to the
court-ordered psychiatric examination, the examination could have proceeded with the
understanding that his statements would be used only to assess his competency, rather that
establish his future dangerousness at trial). Nor does it prevent social workers from sharing
the results of their investigations with law enforcement agents to help build a criminal case.
Cf. id. at 467 (finding that the doctor’s “role changed” only when he “testified for the
prosecution” at trial). It does not even prevent the introduction of statements made during
such custodial interrogations in a civil proceeding such as one brought to terminate parental
rights. See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (“[A] violation of the constitutional
right against self-incrimination occurs only if one has been compelled to be a witness against
himself in a criminal case.” (emphasis removed in part, added in part)).

26

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“‘[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in
a state-court criminal trial under the substantial and injurious effect standard set forth in
[Brecht v. Abrahamson].’” Wood v. Ercole, 644 F.3d 83, 93-94 (2d Cir. 2011) (quoting Fry v.
Pliler, 551 U.S. 112, 121-22 (2007)) (additional internal quotation marks removed); see also
Brecht v. Abrahamson, 507 U.S. 619, 635-37 (1993). Under Brecht, a federal court may overturn
a state conviction “only when the constitutional violation ‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” Wood, 644 F.3d at 93 (quoting Brecht,
507 U.S. at 637). To make this determination, “‘we consider the importance of the wrongly
admitted evidence, and the overall strength of the prosecution’s case.’” Id. at 94 (quoting
Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)) (brackets and ellipsis omitted). The
strength of the prosecution’s case without the erroneously admitted evidence “‘is probably
the single most critical factor in determining whether the error was harmless.’” Id. (quoting
Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994)). We assess the importance of the
wrongly admitted evidence by considering (1) the “prosecutor’s conduct with respect to the
evidence,” (2) whether the evidence “bore on an issue plainly critical to the jury’s decision,”
and (3) whether the evidence “was material to the establishment of the critical fact, or
whether it was instead corroborated and cumulative.” Id. (internal citations, quotation
marks, and ellipses omitted).
The magistrate judge held that the admission of Jackson’s statement to Bonisteel
acknowledging the “possibility” that he might have been “so drunk that he couldn’t
remember raping [CJ],” Trial Tr. at 503-04, was not harmless with respect to the jury verdicts
involving CJ. See Jackson, 765 F. Supp. 2d at 282-83. Absent Jackson’s statements to

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Bonisteel, the State’s case consisted of CJ’s testimony, the medical reports prepared at
Rochester General Hospital the night of the incident, and the testimony of Karen and
Rebecca. Of this evidence, only CJ’s testimony directly implicated Jackson. Karen and
Rebecca did not witness the sexual assault – they merely heard the voices of CJ and Jackson
over the baby monitor. And while the two medical reports revealed that there was an
“abrasion” or “irritation” on CJ’s vaginal opening, the reports gave no indication of its cause.
We therefore agree with the magistrate judge that the State’s case on these counts was not
“overwhelming.”
Nonetheless, given this evidence, we would likely find the admission of Jackson’s
statements harmless were it not for two additional considerations – the lack of any physical
evidence of CJ’s sexual abuse and the damaging mischaracterization of Jackson’s statements
by the prosecutor in her summation. We have previously commented on the “particular
importance of physical evidence in child sexual abuse cases,” which often can turn into
credibility contests. See, e.g., Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003). Here, despite
the tests performed on CJ’s sexual assault kit and the sheets recovered from Jackson’s bed,
on which CJ testified the sexual assault occurred, the State was unable to present any
physical evidence at trial. Defense counsel used this lack of evidence in his summation,
arguing that although CJ had testified that Jackson sexually abused her on three separate
occasions, the State had not been able to present any DNA, blood, semen, or pubic hair
corroborating her account. The lack of physical evidence and defense counsel’s exploitation
of the absence of such evidence provided the jury with a legitimate reason to question CJ’s
account of the sexual abuse. Thus, Jackson’s inculpatory acknowledgement of the

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“possibility” that he might have been so drunk that he could not remember raping CJ may
well have had a “substantial and injurious effect or influence in determining the jury’s
verdict.” Brecht, 507 U.S. at 637.
Beyond the absence of physical evidence, however, we are convinced that Jackson’s
statement influenced the jury because of the way the prosecutor mischaracterized that
statement in her closing argument. The prosecutor asserted that, after Bonisteel “accused
[Jackson] of having sex with [his] own child,” he responded, “Yeah, maybe, I could have.”
App’x at 271. This inaccurate portrayal of Bonisteel’s testimony completely reframed
Jackson’s statement in a way that made it appear much more damning. As noted above,
Bonisteel’s actual testimony was that, after Jackson denied hurting CJ, Bonisteel asked him
whether “it was possible that he was so drunk that he couldn’t remember raping [CJ],” to
which Jackson responded that “it was a possibility.” Trial Tr. at 503-04. The State argues
that the first part of Jackson’s statement to Bonisteel—his adamant denial that he had hurt
CJ—was beneficial to the defense. Although defense counsel did rely upon Jackson’s denials
in his closing argument, the State fails to acknowledge the effect of the prosecutor’s
inflammatory mischaracterization of the latter portion of Jackson’s statement into what
became, in essence, an admission of the crime. The degree to which the prosecutor found it
necessary to mischaracterize the latter portion of Jackson’s statement is indicative of its
centrality to the State’s case. Cf. Wood, 644 F.3d at 98 (prosecutor’s focus in summation on
an erroneously admitted statement indicates that the statement was “central to the
prosecution’s case”).

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The State argues that Jackson’s statement to Bonisteel contained “somewhat
redundant information,” comparable to that contained in his statement to Tony Arnold. See
State Br. at 42-43. We are not persuaded as to the counts involving CJ because, unlike his
statement to Bonisteel, Jackson never acknowledged to Arnold even the possibility that he
had been so drunk he would not have remembered raping CJ. Instead, Jackson told Arnold
that on the evening of November 29-30, 2000 he had sex with “both of his wives,” who
waited until he fell asleep and then called the police in an attempt to “charge him with raping
his daughter.” Tr. 549. Jackson’s admission to Arnold that he had sex with “both of his
wives” undoubtedly lessens the injurious impact that his statement to Bonisteel had on the
charges involving Rebecca and Karen. It cannot be said, however, that Jackson’s attempt to
explain the charges involving CJ as stemming from his “wives’” false police report was
cumulative of the most damaging portion of his inculpatory statement to Bonisteel.
“When a reviewing court has ‘grave doubt about whether a trial error . . . had
substantial and injurious effect or influence in determining the jury’s verdict,’ that error is
not harmless.” Wood, 644 F.3d at 99 (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995))
(additional quotation marks omitted). Here, where the State’s case involving CJ was not
overwhelming, defense counsel exploited the lack of physical evidence, and the prosecutor
mischaracterized Jackson’s wrongly admitted inclupatory statement to make it more
damaging, we conclude that the error was not harmless as to the counts involving CJ. We
therefore affirm the magistrate judge’s judgment granting habeas relief as to those counts.
Jackson argues that the erroneous admission of his statement caused a prejudicial
spillover having an impact on the entire case and necessitating the vacatur of all the

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convictions, not just those involving CJ. We consider three factors in evaluating the
“spillover” effect of constitutional trial error that primarily effects only certain counts: “(1)
whether the evidence on the vacated counts was inflammatory and likely to inflame the jury;
(2) whether the evidence on the vacated counts was similar to that required to prove the
remaining counts; and (3) the strength of the prosecution’s case on the remaining counts.”
Gersten v. Senkowski, 426 F.3d 588, 614 (2d Cir. 2005) (citing Lindstadt v. Keane, 239 F.3d 191,
205 (2d Cir. 2001)). While the evidence against Jackson on the charges involving CJ was
undeniably inflammatory because it related to allegations that he had raped and sodomized
his fourteen-year-old daughter, we hold, based on the other two factors, that the effect of
that evidence did not spill over to prejudice him on the remaining counts.
The strength of the prosecution’s case on the counts involving Karen and Rebecca
arising from the November 29-30, 2000 incident was stronger than its case for the counts
involving CJ. Karen and Rebecca each witnessed Jackson sexually abusing the other and
they both testified consistently about his actions that night. Moreover, as noted, Jackson
admitted to Arnold that he had sex with “both of his wives” that evening, which provides
additional corroboration.
All of the remaining counts involving Karen, Rebecca, and Jackson’s son, GJ, relate
to events occurring before the November 29-30, 2000 incident. Accordingly, the evidence
of the statement the State used to prove Jackson sexually assaulted CJ that night was
completely dissimilar to that needed to prove he committed these remaining counts. Under
the circumstances presented here, Jackson’s improperly admitted statements did not spill
over and prejudice him as to the counts that did not involve CJ.

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III.

Prosecutorial Misconduct Claim
Jackson argued in his Fourth Department brief that three instances of prosecutorial

misconduct deprived him of his constitutional right to a fair trial: the prosecutor’s delayed
disclosure of Tony Arnold as a State witness; her improper attempt to elicit expert testimony
from Dr. Lenane; and her comments made during voir dire, her opening statement, and in
summation. The magistrate judge held that the Fourth Department’s rejection of this claim
on the ground that the prosecutor’s comments “in her opening and closing statements were
not so egregious as to deprive defendant of his right to a fair trial,” Jackson, 772 N.Y.S.2d at
150 (citation, quotation marks, and brackets omitted), was an objectively unreasonable
application of clearly established law, see Jackson, 765 F. Supp. 2d at 260. On appeal, the
State contends that the magistrate judge improperly considered an argument that Jackson
failed to exhaust in the state courts and failed to afford the Fourth Department’s decision
the proper deference under AEDPA.
A.

Exhaustion

The magistrate judge found that Jackson’s prosecutorial misconduct claim warranted
habeas relief based, in part, on the prosecutor’s violation of the trial court’s prior bad act
evidentiary ruling. See Jackson, 765 F. Supp. 2d at 257-58. We agree with the State that the
magistrate judges should not have considered this aspect of Jackson’s claim because he did
not present this issue to the Fourth Department as part of his prosecutorial misconduct
claim. Although Jackson raised in the Fourth Department a separate claim based on the trial
court’s failure to adhere to its prior bad act ruling, he did not include the prosecutor’s
elicitation of the prior bad acts as an example of her prosecutorial misconduct. This portion

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of the prosecutorial misconduct claim is therefore unexhausted. See Rosa, 396 F.3d at 217.
Jackson has no further state avenues in which to press this issue because he has completed
his direct appeal and the nature of the claim is apparent from the face of the record, meaning
that he would be barred from raising it in a motion to vacate the judgment. See N.Y. Crim.
Proc. Law § 440.10(2)(c) (stating that the court “must deny” a § 440.10 motion when
sufficient facts appear on the record to permit appellate review of the claim and the
defendant unjustifiably failed to raise that issue on direct appeal); see also Sweet v. Bennett, 353
F.3d 135, 140 (2d Cir. 2003) (applying section 440.10(2)(c) to claims raised for the first time
in federal habeas petition). For these reasons, we deem this issue exhausted but procedurally
defaulted, see Sweet, 353 F.3d at 140, and do not consider it when assessing the prosecutorial
misconduct claim.27
B.

Clearly Established Law

As noted, the Fourth Department adjudicated Jackson’s prosecutorial misconduct
claim on the merits. See Jackson, 772 N.Y.S.2d at 150. As such, we must first identify the
clearly established Supreme Court principles governing his claim. The district court
identified four relevant Supreme Court decisions: Berger v. United States, 295 U.S. 78 (1935),
Donnelly v. DeChristoforo, 416 U.S. 637 (1974), United States v. Young, 470 U.S. 1 (1985), and

Jackson has not argued on appeal that his procedural default should be excused pursuant
to one of the exceptions to that doctrine and we therefore do not consider this issue. See,
e.g., Clark, 510 F.3d at 382 (“‘Where a defendant has procedurally defaulted a claim by failing
to raise it on direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either cause and actual prejudice, or that he is actually innocent.’” (quoting
Bousley v. United States, 523 U.S. 614, 622 (1998))).

27

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Darden v. Wainwright, 477 U.S 168 (1986). The parties do not dispute this list. We consider
each potential authority in turn.
1.

DeChristoforo and Darden

DeChristoforo and Darden involved habeas petitions brought by state prisoners who
argued that statements made by prosecutors in closing argument deprived them of their
Fourteenth Amendment right to a fair trial.28 See Darden, 477 U.S. at 170; DeChristoforo, 416
U.S. at 638. These cases state the rule—first laid by DeChristoforo and then cemented by
Darden—that the relevant question when addressing such claims is “whether the prosecutors’
comments ‘so infected the trial with unfairness as to make the resulting conviction a denial
of due process.’” Darden, 477 U.S. at 180 (quoting DeChristoforo, 416 U.S. at 643). The
Supreme Court has recognized this rule as “clearly established” law for purposes of AEDPA.
See Matthews, 132 S. Ct. at 2153.
2.

Berger and Young

In Berger, the Supreme Court ordered a new trial when the evidence supporting the
defendant’s conspiracy conviction was “weak” and the record clearly demonstrated the
prosecutor’s “pronounced and persistent” misconduct throughout trial and during

In DeChristoforo, the prosecutor commented on the defendant’s motive for standing trial,
stating that the defendant had done so in the hope that the jury would find the defendant
guilty of a lesser charge, rather than acquit him. 416 U.S. at 640. In Darden, the prosecutor
referred to the defendant as an “animal,” implied that the death penalty was the only
guarantee against future harm to the public, and remarked, inter alia, that he wished the
defendant had killed himself and that he would like to see the defendant’s face “blown away
by a shotgun.” 477 U.S. at 180 & n.12.
28

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summation.29 295 U.S. at 88-89. In ordering a new trial, the Court held that the
prosecution’s interest in a criminal case “is not that it shall win [the] case, but that justice
should be done” and, therefore, “[i]t is as much [a prosecutor’s] duty to refrain from
improper methods calculated to produce a wrongful conviction as it is to use every
legitimate means to bring about a just one.” Id. at 88.
Young involved a prosecutor’s improper comments during summation made in
response to defense counsel’s equally improper remarks. 470 U.S. at 4-6. Specifically, the
prosecutor expressed his personal view of the defendant’s guilt and his belief that the
defendant had not acted with “honor and integrity.” See id. The Court held that the decision
on whether the prosecutor’s comments seriously affected the fairness or integrity of the trial
was to be made by assessing those comments within the context of the record as a whole,
including the improper statements made by defense counsel that had invited the prosecutor’s
response.30 See id. at 11, 16-17. Applying this standard, the Court held that while the
prosecutor’s statements were “inappropriate and amounting to error,” they “were not such
as to undermine the fundamental fairness of the trial” given the nature of defense counsel’s

Among other improprieties during trial, the Berger prosecutor was “guilty of misstating the
facts in his cross-examination of witnesses; . . . of pretending to understand that a witness
had said something he had not said and persistently cross-examining the witness on that
basis; of assuming prejudicial facts not in evidence; [and] of bullying and arguing with
witnesses.” Berger, 295 U.S. at 84. In addition, the prosecutor’s summation “was undignified
and intemperate, containing improper insinuations and assertions calculated to mislead the
jury.” Id. at 85.

29

Because the defense did not object to the prosecutor’s comments, the issue in Young was
not whether the prosecutor’s comments were erroneous, but rather whether they constituted
“plain error” in that they seriously affected the fairness or integrity of the entire trial. See id.
at 6-7, 14-16.
30

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comments, the fact that the prosecutor had not implied that he had evidence of the
defendant’s guilt unknown to the jury, and the overall strength of the prosecution’s case. Id.
at 16-20.
It is important to note that neither Berger nor Young expressed its holding in
constitutional terms. We are convinced, however, that we may consider these holdings in
this case because later Supreme Court cases incorporated them into the Court’s Fourteenth
Amendment prosecutorial misconduct jurisprudence. See United States v. Agurs, 427 U.S. 97,
107, 110-11 (1976) (explaining that Berger’s description of the prosecutor’s duty “illuminates”
the standard governing “his obligation to disclose exculpatory evidence” under the Due
Process Clauses of the Fifth and Fourteenth Amendments); Darden, 477 U.S. at 182
(invoking Young’s holding to conclude that the prosecutor’s statements in response to
defense counsel’s arguments did not deprive the habeas petitioner of a fair trial); see also
Banks v. Dretke, 540 U.S. 668, 694 (2004) (citing Berger for the proposition that it was
“appropriate for [the habeas petitioner] to assume that his prosecutors would not stoop to
improper litigation conduct to advance prospects for gaining a conviction”); Kyles v. Whitley,
514 U.S. 419, 439-40 (1995) (citing Berger when discussing the prosecutor’s obligation to
disclose exculpatory evidence).31

In Cone v. Bell, the Court, quoting Agurs and Berger, expressly stated that “[t]he right to a
fair trial, guaranteed to state criminal defendants by the Due Process Clause of the
Fourteenth Amendment, imposes on the States certain duties consistent with their sovereign
obligation to ensure ‘that justice shall be done’ in all criminal prosecutions.” 556 U.S. 449
(2009) (quoting Agurs, 427 U.S. at 111 (quoting, in turn, Berger, 295 U.S. at 88)). Cone,
however, was not decided until 2009, some five years after the Fourth Department
considered Jackson’s case and therefore it cannot be considered as a source of “clearly

31

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Consideration of the four above holdings leaves us with the following principles,
which we now hold to be “clearly established” law governing prosecutorial misconduct
claims such as Jackson’s.32 First, on federal habeas review, the relevant standard is “‘the
narrow one of due process, and not the broad exercise of supervisory power.’” Darden, 477
U.S. at 180 (quoting DeChristoforo, 416 U.S. at 642). Thus, while the State has a “duty to
refrain from improper methods calculated to produce a wrongful conviction,” Berger, 295
U.S. at 88, such methods will warrant habeas relief only if they “‘so infected the trial with
unfairness as to make the resulting conviction a denial of due process,’” Darden, 477 U.S. at
180 (quoting DeChristoforo, 416 U.S. at 643). The habeas court must consider the record as a
whole when making this determination, because even a prosecutor’s inappropriate or
erroneous comments or conduct may not be sufficient to undermine the fairness of the
proceedings when viewed in context. See Young, 470 U.S. at 16-17; Darden, 477 U.S at 182
(applying Young); see also DeChristoforo, 416 F.3d at 647-48 (distinguishing between “ordinary
trial error of a prosecutor” and the type of “egregious misconduct . . . [that] amount[s] to the
denial of constitutional due process”). When reviewing such claims under the “unreasonable
application prong” of § 2254(d)(1), the habeas court must keep in mind that this standard is

established” law. See Andrade, 538 U.S. at 71-72. Nonetheless, the statement in Cone bolsters
our conclusion that Agurs incorporated Berger’s holding into the Court’s Fourteenth
Amendment jurisprudence.
We note that separate principles, not implicated here, govern a prosecutor’s duty to
disclose exculpatory evidence, see generally Brady v. Maryland, 373 U.S. 83 (1963), and claims of
prosecutorial misconduct implicating a defendant’s specific rights, such as the right to be
free from compelled self-incrimination, see DeChristoforo, 416 U.S. at 643 (citing Griffin v.
California, 380 U.S. 609 (1965)).
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a “very general one” that affords courts “leeway in reaching outcomes in case-by-case
determinations.” Matthews, 132 S. Ct. at 2155 (quotation marks and ellipses omitted).33
C.

Application

While we echo the magistrate judge’s opprobrium for several of the methods used by
the prosecutor in Jackson’s case and may well have reached a different outcome were this
case before us on direct appeal, we must reverse for the reasons set forth below.
The Fourth Department’s decision referenced only the prosecutor’s comments made
in her opening and closing statements and did not specifically address her delayed disclosure

Jackson urges us to employ the test set forth in Tankleff v. Senkowski, on which the district
court relied to grant relief on the prosecutorial misconduct claim. See Jackson, 765 F. Supp.
2d at 254. In that pre-AEDPA case, we set forth the Darden rule and then explained, citing
to a case discussing the harmless error standard applicable to certain claims on habeas
review, that the successful habeas petitioner must demonstrate he suffered “‘actual
prejudice’” because the prosecutor’s improper comments “‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” See Tankleff v. Senkowski, 135 F.3d 235,
252 (2d Cir. 1998) (quoting Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (discussing the
harmless error standard set forth in Brecht, 507 U.S. at 619)). We then set forth a three-part
test for determining whether the petitioner suffered actual prejudice: “the severity of the
misconduct; the measures adopted to cure the misconduct; and the certainty of conviction
absent the” misconduct. Id. at 252 (quotation omitted). While the Tankleff test ostensibly
addresses the harmless error issue in the context of a prosecutorial misconduct claim
brought under § 2254, we have used an identical test in connection with prosecutorial
misconduct claims brought on direct appeal. See, e.g., United States v. Elias, 285 F.3d 183, 190
(2d Cir. 2002). Indeed, the Tankleff test appears to have its roots in United States v. Modica,
our decision on a direct appeal that pre-dated Darden and cited a law review article for the
proposition. See 633 F.2d 1173, 1181 (2d Cir. 1981); see also Tankleff, 135 F.3d at 252 (citing
Modica).
Given its history, we cannot say that the Tankleff test simply reflects what the
Supreme Court has “clearly established” in its prior cases, and we decline to rely on it here
given the Court’s recent reversal of the Sixth Circuit for employing its somewhat similar test
to determine whether a prosecutorial misconduct claim warranted relief under § 2254(d)(1).
See Matthews, 132 S. Ct. at 2155 (explaining that the Sixth Circuit’s “elaborate, multistep test”
bore “scant resemblance” to Darden’s “highly generalized standard”).
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of Arnold as a witness or her attempt to elicit expert testimony from Dr. Lenane. See Jackson,
772 N.Y.S.2d at 150. Because the Fourth Department did not supply its reasoning as to
these issues, our task is to identify the “‘arguments or theories [that] could have supported’”
its decision, and then inquire “‘whether it is possible fair-minded jurists could disagree that
those arguments or theories are inconsistent with the holding in a prior decision of the
Supreme Court.’” Hawthorne v. Schneiderman, 695 F.3d 192, 196 (2d Cir. 2012) (brackets
omitted) (quoting Richter, 131 S. Ct. at 786). Here, the magistrate judge properly identified
arguments that could have supported the Fourth Department’s rejection of these issues. He
failed, however, to afford those arguments the proper AEDPA deference.
As the magistrate judge observed, the prosecutor notified the defense that Arnold
would be a witness approximately one week after the Monroe Public Safety Laboratory
issued its March 27, 2001 report in which it excluded CJ as the source of the DNA found on
the fitted sheet recovered from Jackson’s bed. Jackson made this same observation in his
brief submitted to the Fourth Department. Faced with this chronology, the magistrate judge
found it “conceivable that the prosecutor might not have been intending to call Arnold up
until she received the results of the bloodstain testing.” Jackson, 765 F. Supp. 2d at 255. The
Fourth Department also could have arrived at this innocuous theory for the delayed
disclosure, which eliminates any stigma of improper conduct, especially given that New
York’s Criminal Procedure law “does not compel the production of witness lists except
when a defendant asserts an alibi defense.” People v. Williams, 664 N.Y.S.2d 835, 837 (App.
Div. 1st Dep’t 1997) (citing N.Y. Crim. Proc. Law § 250.20).

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The magistrate judge went on to find, however, that the prosecutor unethically
withheld identifying Arnold to the defense in order to force a last-minute change in counsel
and thus gain a tactical advantage by affording new counsel only one month to prepare. See
Jackson, 765 F. Supp. 2d at 255-56. Even if we were to agree with the magistrate judge’s
characterization of the prosecutor’s motives (which is unsupported by the record), we would
not find that her actions alone ultimately undermined the fairness of the proceedings. It was
newly-appointed defense counsel, not the prosecutor, who informed the court that he
needed only one month to prepare for trial and who suggested the ultimate trial date. See
App’x at 188-90. There is no indication that the trial court would not have given defense
counsel more time if asked; to the contrary, the court initially suggested holding the trial
some three weeks after the date proffered by defense counsel. See id. at 189-90. Thus, any
unpreparedness by defense counsel, and any concomitant unfairness Jackson suffered as a
result, was as attributable to defense counsel as to the prosecutor, whatever her motivation.
For that reason, even assuming the prosecutor’s improper motivation, her conduct did not
deprive Jackson of due process.
If the record is ambiguous as to the prosecutor’s motive for delaying the disclosure of
Arnold as a witness, it is all too clear about her improper attempt to elicit expert testimony
from Dr. Lenane. Not only did the prosecutor breach her pretrial representation to defense
counsel that the State would not call an expert at trial, she also failed to correct the trial
court’s incorrect assumption that Dr. Lenane was a “treating physician,” a misapprehension
that was the basis for the court allowing the doctor to testify. See App’x at 205-08. We
discern from the record no possible explanation for this behavior other than an attempt to

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obtain an unfair advantage at trial and, like the magistrate judge, we find the prosecutor’s
“lack of professional candor . . . inexcusable.” Jackson, 765 F. Supp. 2d at 257.
Nevertheless, our task is not to determine whether this behavior was inappropriate,
unethical, or even erroneous. Instead, the sole issue before us is whether it was objectively
unreasonable for the Fourth Department to find that the behavior did not “so infect[] the
trial with unfairness” that it deprived Jackson of due process. Darden, 477 U.S. at 180
(quotation marks omitted). In light of the trial court’s curative instruction, we cannot so
conclude.
In his brief, Jackson identifies Dr. Lenane’s statement that the “abrasion” noted in
CJ’s medical reports was “consistent with penetration” as the most damaging part of her
testimony. Jackson Br. at 19-20. Immediately after it became apparent that Dr. Lenane was
not a treating physician, the trial court sustained defense counsel’s objection and, after some
discussion with counsel, directed the jury to disregard the “entirety” of her testimony
because the State had improperly called her as an expert witness without first providing
notice to the defense. See App’x at 228-29. We “presume that a jury will follow an
instruction to disregard inadmissible evidence . . . unless there is an overwhelming
probability that the jury will be unable to follow the court’s instructions, and a strong
likelihood that the effect of the evidence would be devastating to the defendant.” Greer v.
Miller, 483 U.S. 756, 766 n.8 (1987) (internal citations and quotation marks omitted); see also
United States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir. 2008) (same). For several reasons, we
believe that this standard has not been met in this case.

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While the magistrate judge characterized the trial court’s initial curative instruction as
“tepid,” Jackson, 765 F. Supp. 2d at 257, the court reminded the jurors in its jury charge that
they “certainly” should not consider any stricken testimony, see Tr. at 670. By reinforcing its
initial curative instruction immediately before the jury began its deliberations, the trial court
thus reduced the probability that the jury would improperly rely on Dr. Lenane’s stricken
testimony when reaching a verdict.
Even if there was an “overwhelming probability” that the jury was unable to follow
the trial court’s instructions, Jackson cannot demonstrate a “strong likelihood” that Dr.
Lenane’s testimony was “devastating” because the most damaging portion of that testimony
was equivocal. When first asked whether the abrasion noted on CJ’s medical record was
consistent with penetration, Dr. Lenane stated that the abrasion was “consistent with some
type of trauma” that “could include penetration, but . . . wouldn’t necessarily have to.” See
App’x at 212. It was only after the prosecutor asked the question a second time that Dr.
Lenane answered affirmatively. Id. In short, we find that the prosecutor’s improper
introduction of Dr. Lenane’s testimony did not violate Jackson’s right to a fair trial given the
trial court’s immediate curative instruction, its later reinforcement of that instruction, and the
equivocal nature of her most damaging statement. Cf. Miller, 483 U.S. at 766 (“The sequence
of events in this case – a single question, an immediate objection, and two curative
instructions – clearly indicates that the prosecutor’s improper question did not violate
Miller’s due process rights.” (footnote omitted)).
Turning to the prosecutor’s opening and closing statements, we first note that certain
comments flagged as inappropriate by the magistrate judge were supported by the trial

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evidence. Both Karen and Rebecca related to the jury numerous examples of Jackson’s
domineering personality and the extensive physical and sexual abuse they suffered at his
hands over the years. See, e.g., Tr. at 242, 247-52, 350-56. We thus find nothing improper
with the prosecutor’s remark in her opening statement that the victims’ testimony would
expose Jackson as a “controlling” man who “abused them constantly,” App’x at 194, and her
comment in summation that Jackson had “consistently abused his family for years,” id. at
281. In addition, the prosecutor’s characterization of Jackson in her opening statement as
“twisted” and “sadistic” was no more inflammatory than the statements made by the
prosecutor in Darden, which the Court found did not warrant habeas relief. See 477 U.S. at
180 & n.12 (prosecutor referred to the defendant as an “animal” and remarked, inter alia, that
he would like to see the defendant’s face “blown away by a shotgun”); see also Matthews, 132
S. Ct. at 2155.
The prosecutor’s other statements made in her summation are somewhat more
troubling. In addition to referring to Jackson’s guilt a number of times, the prosecutor
ostensibly vouched for the victims’ credibility when she stated that “[e]ven the best actor or
actress could probably not tremble with fear as continuously as some of these witnesses
did.” App’x at 259.34 Unlike a direct appeal from a conviction, we need not decide

The magistrate judge also apparently faulted the prosecutor for her assertion that all of the
victims testified consistently with the others, thus proving that their testimony was not part
of a plan to frame Jackson. See Jackson, 765 F. Supp. 2d at 258. We, however, can discern no
precedent of the Supreme Court that prohibits prosecutors from commenting on witnesses’
consistent testimony. Cf. Matthews, 132 S. Ct. at 2154 (noting that the Sixth Circuit “cited no
precedent of th[e Supreme] Court in support of its conclusion that due process prohibits a

34

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conclusively whether these statements were improper. In this challenge to the district
court’s determination of a § 2254 petition, it is sufficient that we hold fairminded jurists
could disagree as to the correctness of the Fourth Department’s conclusion that the
statements were not “so egregious” as to deprive Jackson of his right to a fair trial.35 See
Richter, 131 S. Ct. at 786.
We first observe that the prosecutor’s remarks were not explicitly couched in terms
of her personal opinion, which reduces the probability that the jury adopted the opinion of
the State (expressed through the prosecutor) in lieu of its own independent assessment of
the evidence. Compare App’x at 274 (“that man [(referring to Jackson)] sitting there . . . is
guilty), id. at 275 (positing that the only “possible explanation” for the victims’ testimony was
that “it is true and he is guilty”), and id. at 281 (stating that Jackson “is guilty of everything”),
with Young, 470 U.S. at 5 (“I think [the defendant intended to defraud the victim].” (emphasis
added)). Moreover, none of the prosecutor’s comments implied that she had evidence of
Jackson’s guilt beyond that presented to the jury. Contra Berger, 295 U.S. at 86-87 (after a
witness had difficulty identifying the defendant, the prosecutor stated in summation that
“you can bet your bottom dollar [the witness] knew Berger” but that he had been prevented

prosecutor from emphasizing a criminal defendant’s motive to exaggerate exculpatory
facts”).

Two dangers arise when a prosecutor vouches for the credibility of witnesses and
expresses her “personal opinion” as to the defendant’s guilt: (1) “such comments can convey
the impression that evidence not presented to the jury, but known to the prosecutor,
supports the charges”; and (2) given that “the prosecution’s opinion carries with it the
imprimatur of the [g]overnment,” the jury may be induced “to trust the [g]overnment’s
judgment rather than its own view of the evidence.” Young, 470 U.S. at 18-19 (citing Berger,
295 U.S. at 88-89).

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from eliciting that information at trial due to certain procedural rules (emphasis removed)).
Finally, in its jury charge, the trial court explicitly reminded the jury that statements made by
the attorneys in summation were not evidence and that the jurors were to draw their own
conclusions from the facts, rather than rely on those supplied by counsel, see App’x 285-86,
thus further reducing the potential for prejudice. Cf. DeChristoforo, 416 U.S. at 644 (noting
the trial court’s “special pains to correct any impression that the jury could consider the
prosecutor’s statements as evidence in the case”). Given all of the above, and recognizing
that the general Darden standard affords the state courts “leeway” in its application, see
Matthews, 132 S. Ct. at 2155, we reverse the district court’s grant of habeas relief on Jackson’s
prosecutorial misconduct claim.36
IV.

Ineffective Assistance of Counsel Claim
A.

Procedural Considerations

Before reaching the merits of Jackson’s ineffective assistance claim, we address three
procedural considerations. First, the district court found certain aspects of this claim
unexhausted due to Jackson’s failure to present those issues to the state courts, a conclusion

The prosecutor’s blatant mischaracterization of Bonisteel’s testimony may have been the
proverbial straw that broke the camel’s back, at least with respect to the charges involving
CJ. As noted above, Bonisteel related to the jury Jackson’s acknowledgment that it was
“possible that [he] was so drunk that [he] couldn’t remember raping [CJ].” Trial Tr. at 50304. In summation, the prosecutor completely reframed this testimony, asserting that, when
Jackson was “accused of having sex with [his] own child,” he stated, “Yeah, maybe, I could
have.” App’x at 271. While we find this mischaracterization extremely inappropriate, we
need not assess its impact as part of the overall prosecutorial misconduct claim because
Bonisteel’s testimony on this point relates only to those charges involving CJ. As we held
above, those charges must be vacated due to the improper admission of Bonisteel’s
testimony in the first place.

36

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Jackson challenges on appeal. Second, the State argues that we are barred from considering
the entire claim because the trial court denied Jackson’s § 440.10 motion on the procedural
ground that he could have raised his ineffective assistance claim on direct appeal. Third, the
State argues that, in contravention of the Supreme Court’s Pinholster decision, the district
court improperly relied on evidence that was not before the state courts. We address each
argument in turn.
The magistrate judge’s determination that Jackson failed to exhaust Points One and
Two of his ineffective assistance claim need not delay us long. See Jackson, 765 F. Supp. 2d at
260-61. In these Points, Jackson argued that (1) defense counsel’s lack of preparation was
“painfully exposed” by his incorrect assumption that the State was required to prove
penetration in order to sustain the first-degree sodomy convictions, and (2) counsel “failed
to correctly marshal an investigation into the plethora of exculpatory evidence (physical,
medical, forensic, visual, tactile, [etc.])” and then failed to introduce this evidence at trial.
App’x at 15-16 (capitalization removed). As Jackson argues on appeal, he clearly presented
these same arguments in his brief submitted to the Fourth Department, see id. at 107 (defense
counsel failed to offer evidence “despite the existence of substantial medical evidence . . .
not used by the prosecution”), 108 (arguing that defense counsel “fail[ed] to utilize the
plethora of indisputable scientific evidence”), 109 (defense counsel “fail[ed] to investigate
medical claims”), 111 (defense counsel’s lack of preparedness shown by his failure “even to
investigate so basic an item as the elements of the crimes”), and raised the same arguments
in his application for leave to appeal to the New York Court of Appeals, see id. at 294-331.
Accordingly, Jackson fully exhausted these issues by presenting them to the “highest state

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court capable of reviewing” them, Rosa, 396 F.3d at 217, and the magistrate judge’s
conclusion to the contrary was erroneous.
Although the State does not dispute Jackson’s exhaustion argument, it maintains that
the entirety of Jackson’s ineffective assistance claim is barred by the trial court’s November
2003 rejection of Jackson’s § 440.10 motion on the procedural ground that his claim could
be raised in his then-pending direct appeal. See App’x at 29-30 (citing N.Y. Crim. Proc. Law
§ 440.10(2)(b)).37 We are puzzled by this argument, as it completely ignores the fact that
Jackson did, in fact, raise the same ineffective assistance arguments on direct appeal, going
so far as to include his § 440.10 motion in the record he submitted to the Fourth
Department. See id. at 107. Moreover, while the State argued before the Fourth Department
that Jackson’s ineffective assistance claim was barred because it was “based on factual
assertions outside the record” and therefore could only be raised in a § 440.10 motion, see id.
at 128, the Fourth Department did not reject Jackson’s claim on this ground. Instead, the
Fourth Department rejected the claim on the merits, holding that Jackson was “not entitled
to error-free representation” and had “failed to demonstrate the absence of strategic or other
legitimate explanations for counsel’s alleged failures.” Jackson, 772 N.Y.S.2d at 150 (citations
and quotation marks omitted). Thus, the State’s reliance on the procedural default doctrine
is misplaced because that doctrine bars federal review “only when the last state court
rendering a judgment in the case clearly and expressly states that its judgment rests on a state

N.Y. Crim. Proc. Law § 440.10(2)(b) provides that the trial court “must deny a motion to
vacate a judgment” when “[t]he judgment is, at the time of the motion, appealable or
pending on appeal, and sufficient facts appear on the record with respect to the ground or
issue raised upon the motion to permit adequate review thereof upon such appeal.”

37

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procedural bar.” Messiah, 435 F.3d at 195 (quotation marks omitted); see also Richter, 131 S.
Ct. at 784-85 (“When a federal claim has been presented to a state court and the state court
has denied relief, it may be presumed that the state court adjudicated the claim on the merits
in the absence of any indication or state-law procedural principles to the contrary.”).
As a final procedural point, the State argues that, when conducting our de novo review
of Jackson’s ineffectiveness claim, we should disregard the evidence presented to the district
court during its evidentiary hearing, and “limit [our] review to the records before the state
courts.” State Br. at 15-16 (citing Pinholster, 131 S. Ct. at 1392, 1401). Jackson argues that
the evidentiary hearing was proper because he demonstrated, on the basis of the state court
record alone, that the state courts’ rejection of his ineffective assistance claim was
unreasonable, and the evidentiary hearing “merely confirms what [he] alleged in the state
court pleadings – that there could be no strategic basis for counsel’s failings.” Jackson Br. at
49-52.
Because Jackson’s claim was adjudicated by the Fourth Department on the merits, we
agree with the State that Jackson “must overcome the limitation of § 2254(d)(1) on the
record that was before that state court.” Pinholster, 131 S. Ct. at 1400. In cases such as this,
where a district court relies on extra-state court record facts to grant habeas relief, see, e.g.,
Jackson, 765 F. Supp. 2d at 263-64, we “might ordinarily remand for a properly limited
review,” Pinholster, 131 S. Ct. at 1401.38 However, because Jackson argues on appeal that he

We note that, at the time the magistrate judge issued his decision in February 2011,
Pinholster had yet to be decided.

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was entitled to relief on the state court record alone, we opt not to remand in this case but
instead conduct our de novo review without “relying on evidence beyond the state court
record to reach our result.” Young, 715 F.3d at 82 (Parker, J., concurring in the denial of
rehearing en banc). Based on this more limited review, we conclude that Jackson is not
entitled to relief.39
B.

Clearly Established Law

The clearly established law applicable to Jackson’s ineffective assistance claim is the
standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard is
twofold. To succeed, Jackson “must (1) demonstrate that his counsel’s performance fell
below an objective standard of reasonableness in light of prevailing professional norms; and
(2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.”
Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011). When considering the first prong, we
“‘strongly presume[] [that counsel] rendered adequate assistance and made all significant
decisions in the exercise of reasonable professional judgment,’” Pinholster, 131 S. Ct. at 1403
(quoting Strickland, 466 U.S. at 690), a presumption that is overcome only through a showing
that “counsel failed to act ‘reasonably considering all of the circumstances,’” id. (quoting

Given this conclusion, we need not address whether a district court that determines, on
the state court record alone, that a state court’s denial of a claim was objectively
unreasonable, may then hold an evidentiary hearing to determine whether it may “grant the
relief [the petitioner] requests.” See Rossum v. Patrick, 659 F.3d 722, 736 (9th Cir. 2011)
(Gertner, J., sitting by designation, dissenting); see also Pinholster, 131 S. Ct. at 1412 (Breyer, J.,
concurring in part and dissenting in part) (suggesting that if the “the state-court rejection [of
a claim] assumed the habeas petitioner’s facts (deciding that, even if those facts were true,
federal law was not violated),” then, after finding the state court wrong on one of the
grounds in § 2254(d), “an [evidentiary hearing] might be needed to determine whether the
facts alleged were indeed true”(emphasis in original)).

39

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Strickland, 466 U.S. at 690) (brackets omitted). To establish prejudice under the second
prong, Jackson “must show that there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have been different.” Strickland,
466 U.S. at 694. A “reasonable probability” is one that is “sufficient to undermine
confidence in the outcome,” id., which “requires a ‘substantial,’ not just ‘conceivable,’
likelihood of a different result.” Pinholster, 131 S. Ct. at 1403 (quoting Richter, 131 S. Ct. at
791).
When evaluating an ineffective assistance claim under § 2254(d), our review is
“doubly deferential” in that “[w]e take a highly deferential look at counsel’s performance
through the deferential lens of § 2254(d).” Pinholster, 131 S. Ct. at 1403 (citations and
quotation marks omitted). Like the Darden standard discussed above, the Strickland standard
is general, meaning that the habeas court must afford the state courts “more latitude to
reasonably determine that a defendant has not satisfied th[e] standard.” Knowles v. Mirzayance,
556 U.S. 111, 123 (2009).
C.

Application

The Fourth Department denied Jackson’s ineffective assistance claim on the ground
that he “failed to demonstrate the absence of strategic or other legitimate explanations for
counsel’s alleged failures.” Jackson, 772 N.Y.S.2d at 150 (citations and quotation marks
omitted). Jackson argues that this conclusion was unreasonable and organizes his claim into
three subparts: (1) counsel’s failure to consult with or call an expert; (2) his failure to
introduce at trial the “exculpatory” laboratory and DNA test results; and (3) his failure to

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investigate adequately the exculpatory evidence and the elements of first-degree sodomy. See
Jackson Br. at 54-66. We analyze each contention in turn.
1.

Failure to Consult with an Expert

Jackson argues that defense counsel’s failure to consult with an expert prior to trial
left him unable to (1) “develop and implement an effective means for communicating to the
jury the lack of [medical] evidence of inflicted trauma,” or (2) “effectively counter the
impact” of Dr. Lenane’s testimony. See Jackson Br. at 54-55. When assessing counsel’s
performance under Strickland, we must endeavor to “‘eliminate the distorting effects of
hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate
the conduct from counsel’s perspective at the time.’” Bierenbaum v. Graham, 607 F.3d 36, 5051 (2d Cir. 2010) (quoting Strickland, 466 U.S. at 689). In this case, defense counsel’s
decision not to consult with or call an expert must be evaluated in light of one significant
fact: he was operating under the assumption, confirmed by the State’s written representation,
that the State would not call a medical expert at trial.
This crucial fact distinguishes this case from those cited by Jackson, in which we have
held that, “because of the centrality of medical testimony, the failure to consult with or call a
medical expert is often indicative of ineffective assistance of counsel” in sexual assault cases.
Gersten, 426 F.3d at 607 (citing Eze, 321 F.3d at 127-28); see also id. at 608 (“The prosecution’s
case rested centrally on the alleged victim’s testimony and its corroboration by the indirect
physical evidence as interpreted by the medical expert.” (emphasis added)); Lindstadt, 239 F.3d at
201-02 (defense counsel’s failure to consult with medical expert left him unprepared to
cross-examine the State’s medical expert). From defense counsel’s perspective in this case,

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he and the State would be on the same footing at trial—neither would have access to an
expert and both would have to rely only on the bare medical records. Given this
perspective, counsel could have refrained from calling a medical expert for a valid strategic
reason: fear of the concessions the State may have been able to extract from that expert on
cross-examination. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough
investigation of law and facts relevant to plausible options are virtually unchallengeable.”); see
also Bell v. Cone, 535 U.S. 685, 698 (2002) (“[W]hen a court is presented with an ineffectiveassistance claim not subject to § 2254(d)(1) deference, a defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound
trial strategy.” (citation and quotation marks omitted)).
Moreover, the State’s pretrial representation is not only relevant to counsel’s decision
not to call an expert at trial but also informs the reasonableness of his consultation with
medical personnel before trial. This is not a case where counsel completely failed to conduct
a pretrial consultation. Contra Pavel v. Hollins, 261 F.3d 210, 216-18, 224-25 (2d Cir. 2001)
(counsel opted not to prepare a defense, including consulting with medical personnel,
“solely” because he believed the trial court would grant his motion to dismiss). Instead, as
defense counsel informed the trial court, he reviewed the relevant medical records with a
registered nurse. See App’x at 226-27. While such a consultation may not have been
sufficient if the State had been preparing to call a medical expert at trial, cf. Gersten, 426 F.3d
at 604-05, 607-11 (defense counsel’s pretrial consultation with a nurse not sufficient where
state presented at trial extensive medical and psychological expert testimony), we cannot say,
in the circumstances of this case, that counsel’s decision was unreasonable. More important,

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even if we found counsel’s performance deficient on this point, the above considerations
illustrate that the Fourth Department’s decision was not objectively unreasonable.
2.

Failure to Introduce Laboratory Reports and DNA Tests

We agree with the magistrate judge that defense counsel’s decision not to introduce
the laboratory reports and DNA tests did not rise to the level of ineffective assistance. See
Jackson, 765 F. Supp. 2d at 269-70. Our independent review of those reports confirms the
magistrate judge’s conclusion that, while they may have been helpful to the defense, they
“did not have [any] exceptional value” in light of the victims’ testimony that Jackson was
unable to maintain an erection. See id. at 270. We also agree that, if these reports had
contained evidence beneficial to the State, it certainly would have introduced them at trial,
and its failure to do so allowed defense counsel to “take advantage of the negative reports
even though he did not introduce the reports themselves.” Id. Accordingly, Jackson is not
entitled to relief on this aspect of his ineffective assistance claim.
3.

Failure to Investigate the Evidence or the Elements of Sodomy Counts

Jackson argues that defense counsel’s failure to investigate adequately the
“exculpatory evidence” and the elements of the sodomy counts constituted ineffective
assistance. See Jackson Br. at 57-61. The only “exculpatory evidence” he identifies are the
laboratory and DNA reports which, as we set forth above, would not have had “exceptional
value” had they been presented at trial. Accordingly, even assuming that defense counsel
failed to mount an adequate investigation of the reports, Jackson cannot demonstrate that he
suffered prejudice as a result. Similarly, while defense counsel’s failure to research the
elements of first-degree sodomy under New York law undoubtedly constitutes deficient

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performance, the only prejudice Jackson identifies as flowing from this deficiency is
counsel’s decision not to introduce the laboratory reports, see Jackson Br. at 60-61, which is
insufficient to warrant relief for the reasons already stated.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court insofar as it:
(1) granted Jackson habeas relief on his Miranda claim as to the counts of conviction
involving CJ; and (2) denied Jackson’s ineffective assistance of counsel claims premised on
counsel’s failure to conduct an adequate pretrial investigation and introduce the laboratory
reports and DNA tests at trial. We reverse in all other respects.

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