Duhs v. Capra

Filing 61

MEMORANDUM, ORDER, AND JUDGMENT dismissing the petition on the merits. Ordered by Judge Jack B. Weinstein on 4/18/2016. (Barrett, C)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

MICHAEL DUHS,
MEMORANDUM, ORDER,
AND JUDGMENT

Petitioner,
– against –

13-CV-1056 (JBW)

MICHAEL CAPRA,
Respondent.

Appearances
For Petitioner:
Norman Trabulus
Law Office of Norman Trabulus
345 Seventh Avenue, 21st Floor
New York, NY 10001
212-221-7811
[e-mail]
For Respondent:
Anne Elizabeth Grady
Richmond County District Attorney’s Office
Appeals Bureau
130 Stuyvesant Place
Staten Island, NY 10301
718-556-7120
[e-mail]
New York State Attorney General’s Office
[e-mail]
Richmond County District Attorney’s Office
[e-mail]

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JACK B. WEINSTEIN, Senior United States District Judge:
Table of Contents
I.

Introduction ........................................................................................................................... 3

II.

Background ........................................................................................................................ 7

a.

Fact Summary ...................................................................................................................... 7

b.

Procedural History ............................................................................................................... 9
i.

Conviction ........................................................................................................................ 9

ii.

Direct Appeal ................................................................................................................... 9
1.

Appellate Division ........................................................................................................ 9

2.

New York Court of Appeals ....................................................................................... 13

3.

United States Supreme Court ..................................................................................... 18

iii.

Collateral Proceedings ................................................................................................ 18

1.

Coram Nobis ............................................................................................................... 18

2.

Section 440 Motion .................................................................................................... 19

iv.

Federal Habeas ........................................................................................................... 19

1.

District Court .............................................................................................................. 19

2.

Court of Appeals for the Second Circuit .................................................................... 21

3.

United States Supreme Court ..................................................................................... 22

III.

Second Petition ................................................................................................................. 22

a.

Procedural Barriers ............................................................................................................ 22
i.

Statute of Limitations ..................................................................................................... 23
1.

Tolling the Statute Under AEDPA ............................................................................. 24

2.

Equitable Tolling ........................................................................................................ 24

ii.

AEDPA Standard for Second Petition ........................................................................... 25

iii. Exhaustion ...................................................................................................................... 27
iv. Preservation .................................................................................................................... 27
v.

Other Procedural Considerations ................................................................................... 28
1.
2.

Rule 60(b) Motion ...................................................................................................... 29

3.
b.

Section 440 Motion .................................................................................................... 28
Petition Directly to the U.S. Supreme Court .............................................................. 29

Substantive Arguments ..................................................................................................... 30
i.

Weight of the Evidence .................................................................................................. 30
2

ii.

Putting the Child on the Stand ....................................................................................... 30

iii. Admission of Declaration “Babe put me in hot water” .................................................. 31
iv. Ineffective Assistance of Trial and Appellate Counsel .................................................. 31
IV.

Conclusion ........................................................................................................................ 32

I.

Introduction

This is a habeas corpus case. Petitioner was convicted in New York State court of
deliberately scalding a young child in a bathtub. He was sentenced to twenty years in prison.
The key evidence came from a medical resident who interviewed the child after the
event. In response to the doctor’s questions, the three-year-old boy stated “[The defendant]
wouldn’t let me out” of the bathtub (which had been partially filled with scalding hot water).
Trial Tr. of Feb. 6, 2007, ECF No. 8-2, at 162:2-9. The child’s declaration was admitted through
the doctor’s testimony at trial over his attorney’s objection. Id. 162:2-15. The only other
significant evidence presented to prove that defendant intended to harm the child was the boy’s
declaration several hours after the incident that “Babe [defendant] put me in hot water.” Trial Tr.
of Feb. 8, 2007, ECF No. 8-4, 341:2-3. This declaration was admitted without objection through
the child’s 10-year-old cousin’s testimony. See id. 335:25-336:3; id. 336:20-337:3.
The child’s hearsay statements were admitted even though he had been qualified by the
trial court to testify without taking an oath. Pretrial Hr’g Tr. of Feb. 2, 2007, ECF No. 8-1, at
366:15-367:2. Neither the prosecutor nor the defendant called him.
This court concludes that a miscarriage of justice may well have occurred because of lack
of sufficiently reliable evidence to convict. Yet, the court has no jurisdiction to address the
issue. It was not raised in the petition and a second petition requires permission from the Court
of Appeals for the Second Circuit and satisfaction of federal and State prerequisites.

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Nonetheless, a “court faced with a record that raises serious issues as to the guilt of the
defendant and the means by which his conviction was procured, yet unable to grant relief, is not
obligated to become a silent accomplice to what may be an injustice.” Friedman v. Rehal, 618
F.3d 142, 161 (2d Cir. 2010) (Korman, J.). See also Essay, Every Day Is a Good Day for a
Judge to Lay Down His Professional Life for Justice, 32 FORDHAM URB. L. J. 131, 163 (2004)
(“Duty of a Judge to Speak Out Against Unjust Laws”); Frank J. Battisti, Remarks to the Akron
Bar Association, 18 AKRON L. REV. 353, 362 (1985) (“Courage in public life means not only the
fortitude to withstand criticism and even outrage, but the strength as well to examine one’s
conscience and soul and to speak from the truth and conviction that we know lies deep within
our hearts.”); Charles E. Wyzanski, Jr., A Trial Judge’s Freedom and Responsibility, 65 HARV.
L. REV. 1281, 1299 (1952) (“[R]eservation in the opinion promotes the growth of the law in the
court where it most counts. For if the criticism of the precedent be just, the appellate court will
set matters straight, and any trial judge worthy of his salt will feel complimented in being
reversed on a ground he himself suggested.”).
The sole ground the petition pressed was a violation of the Confrontation Clause. The
conviction was set aside because it violated that Clause. Duhs v. Capra, 83 F. Supp. 3d 435, 439
(E.D.N.Y. 2015).
The Court of Appeals for the Second Circuit reversed. Duhs v. Capra, No. 15-647, 2016
WL 482174, at *1 (2d Cir. Feb. 8, 2016). No direction was given on what action should be taken
by this trial court to enforce the appellate court’s mandate. See Mandate of Mar. 8, 2016, ECF
No. 56. And the parties were mute on the form of judgment. See Order of Mar. 11, 2016, ECF
No. 58; Letter of Mar. 15, 2016, ECF No. 59; Hr’g of Mar. 23, 2016, ECF No. 60.

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For the reasons set forth below, the Clerk of the Court is directed to enter a judgment of
dismissal of the petition. Though it would if it could, this court can grant petitioner no relief.
The court previously indicated its conclusion that the conviction was dubious because of
Constitutional defects. See Duhs, 83 F. Supp. 3d at 472; Order of Mar. 11, 2016 at 1-2.
It is unlikely that defendant can prosecute a second petition in a federal court based on
the lingering question of due process. See Stephen I. Vladeck, Using the Supreme Court’s
Original Habeas Jurisdiction to “Ma[k]e” New Rules Retroactive, 28 FED. SENT. R. 225, 225
(2016) (“[R]oadblocks make it exceedingly difficult even for a prisoner with a patently
meritorious claim for post-conviction relief based upon a new rule of constitutional law . . . to
obtain such relief through a second-or-successive petition.”).
Restrictions by statute and the case law have substantially reduced the jurisdiction of a
federal district court to grant a writ of habeas corpus when the court concludes that a miscarriage
of justice has occurred as a result of a federal Constitutional violation. Compare Jed S. Rakoff,
The Magna Carta Betrayed?, N.Y. REVIEW OF BOOKS, Feb. 11, 2016 (“Congress, with the
Supreme Court’s acquiescence, has arrogated to itself the power to greatly limit the scope of
habeas relief.”) with PETER CHARLES HOFFER, WILLIAMJAMES HULL HOFFER, & N.E.H. HULL,
THE FEDERAL COURTS 432 (2016) (“The 1996 Antiterrorism and Effective Death Penalty Act
narrowed the grounds and time limits for state prisoner habeas petitions, supporters arguing that
federal courts were unnecessarily injecting themselves into the business and infringing on the
integrity of state courts.”).
The current view of the Supreme Court is that only “testimonial evidence” implicates the
Confrontation Clause; testimonial evidence is essentially a declaration resulting from an
interrogation by the police to obtain evidence to be used in a possible subsequent prosecution.

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See Crawford v. Washington, 541 U.S. 36, 51-52 (2004) (“The text of the Confrontation Clause .
. . applies to ‘witnesses’ against the accused – in other words, those who ‘bear testimony’. . . .
Statements taken by police officers in the course of interrogations are also testimonial under even
a narrow standard.”); Ohio v. Clark, 135 S. Ct. 2173, 2180 (2015) (“[A] statement cannot fall
within the Confrontation Clause unless its primary purpose was testimonial.”).
In the instant case, the Court of Appeals for the Second Circuit determined that the
doctor’s interrogation was primarily for the purpose of medical treatment and was not
excludable. Duhs, 2016 WL 482174, at *3. It stated that the determination of the New York
Court of Appeals that the child’s statement was non-testimonial, and therefore did not implicate
the Confrontation Clause, “cannot be held an unreasonable application of Supreme Court law.”
Id.
Before the recent change in the law of confrontation by Crawford, there would have been
a substantial probability that the Confrontation Clause would have been relied upon to exclude
the child’s declaration for lack of reliability and on due process grounds. See Ohio v. Roberts,
448 U.S. 56, 66 (1980) (“In sum, when a hearsay declarant is not present for cross-examination
at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then,
his statement is admissible only if it bears adequate ‘indicia of reliability.’”); Idaho v. Wright,
497 U.S. 805, 827 (1990) (“Given the presumption of inadmissibility accorded accusatory
hearsay statements not admitted pursuant to a firmly rooted hearsay exception, we agree with the
court below that the State has failed to show that the younger daughter’s incriminating
statements to the pediatrician possessed sufficient ‘particularized guarantees of trustworthiness’
under the Confrontation Clause to overcome that presumption.” (internal citation omitted)). See
also, e.g., Margaret A. Berger, The Deconstitutionalization of the Confrontation Clause: A

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Proposal for a Prosecutorial Restraint Model, 76 MINN. L. REV. 557, 612-13 (1992) (“A child’s
statement to a prosecutor or prosecutorial agent should not be admitted regardless of whether it is
reliable or the child is produced, unless a contemporaneous recording is available. . . . In
deciding the admissibility of hearsay statements, courts should pay attention to the government’s
role in creating those statements. Curtailing confrontation upsets the grand scheme of the Sixth
Amendment because it prevents the prosecution’s effect on evidence from being fully explored
by a jury at a public trial.”).
Before – and perhaps even after – Crawford, it might have been held that the child’s
declaration was not sufficiently reliable to satisfy the Confrontation Clause. See Duhs, 83 F.
Supp. 3d at 465-69. But lack of probative force and due process was not raised in the current
petition in this court or in the collateral attack on the judgement of conviction in the State court.
See generally, Pet., ECF No. 1; Reply Br., ECF No. 34; Appl. for Writ of Error Coram Nobis,
ECF No. 8-17.
For the reasons that follow, this court cannot now revisit the petition on the ground of
lack of reliability or due process. It can only dismiss the case.
II.

Background
a. Fact Summary

It is undisputed that on the morning of September 16, 2005, Duhs was at his girlfriend’s
home taking care of her three-year-old son, “Sal” Pierro. Reply Br. at 7-8. At the time, Sal’s
mother, Stacey Andersen, was at school. Id. at 9. The child suffered second and third degree
burns on his legs from contact with hot water in the bathtub while he was under Duhs’s care. Id.
at 7. He was not treated for his injuries until Ms. Andersen came home at the end of the day and
she and Duhs took Sal to the hospital. Opp. Br., ECF No. 7-1, at 2. On the way, Sal said, “Babe

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put me in hot water.” Reply Br. at 10. The child required reconstructive surgery for his injuries.
Trial Tr. of Feb. 6, 2007 at 47:1-52:3.
According to Duhs’s varying accounts of the event, he left the child unattended in the
bathtub out of negligence, but with no intention of wrongdoing. Reply Br. at 10-11. The bathtub
had irregularities, including rapid hot water flow at an excessive temperature, as well as a
defective drain and overflow hole on the side of the tub opposite the faucet. Id. at 11-12; see
also Duhs, 83 F. Supp. 3d at 442-45 (showing photographs of the tub). It appears from one of
Duhs’s statements to law enforcement that he turned on the hot water, Reply Br. at 10, although
he also stated to a police officer that the child may have turned it on. Trial Tr. of Feb. 7, 2007,
ECF No. 8-3, at 234:8-9. Duhs’s story also shifted with regard to what he was doing when he
left the child unattended, from fetching Sal’s clothes, to answering the front door, to smoking a
cigarette outside. Reply Br. at 11. The petitioner said he heard Sal screaming and rushed to the
bathroom where he found the child’s hand stuck in the overflow hole above the drain. Id. at 1011. He said it was only when he was getting Sal out of the bathtub that he realized the water was
so hot. Id. at 11. Duhs called Ms. Andersen to tell her Sal had been scalded, but he said the
child was “fine” and “running around playing.” Opp. Br. at 2.
At trial, the State’s theory was that Duhs intentionally plunged Sal’s feet into the tub full
of hot water to harm him, ostensibly as a form of punishment. Id. at 1-2. The prosecution
focused on the testimony of the medical resident, Dr. Tricia Gold, who treated Sal. Dr. Gold
testified at trial that in answer to her questions, “Why did you get into the tub?” and “Why didn’t
you get out?” Sal replied, “He wouldn’t let me out.” Id. at 2. It was largely on the basis of this
statement that the State sought to prove the intent element of First Degree Assault. See New
York Penal Law (“N.Y.P.L.”) § 120.10(1) (“A person is guilty of assault in the first degree when

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. . . [w]ith intent to cause serious physical injury to another person, he causes such injury to such
person or to a third person by means of a deadly weapon or a dangerous instrument.”); compare
N.Y.P.L. § 260.10(1) (“A person is guilty of endangering the welfare of a child when: 1. He or
she knowingly acts in a manner likely to be injurious to the physical, mental or moral welfare of
a child less than seventeen years old or directs or authorizes such child to engage in an
occupation involving a substantial risk of danger to his or her life or health.”). Other key pieces
of evidence included: Sal’s hearsay statement on the way to the hospital, “Babe put me in hot
water,” which was admitted without objection, Trial Tr. of Feb. 8, 2007 at 341:2-3; pediatric
expert testimony that the child had immersion burns, not splash burns, Trial Tr. of Feb. 7, 2007
at 217:6-220:25; and bruising on Sal’s torso, Trial Tr. of Feb. 6, 2007 at 68:11-69:3.
b. Procedural History
i. Conviction
A jury convicted Duhs of First Degree Assault and Endangering the Welfare of a Child.
He was sentenced to twenty years in prison and five years of post-release supervision on the
assault count, and a concurrent term of one year of imprisonment on the endangering count. A
sentence for Assault in the First Degree “must be at least five years and must not exceed twentyfive years.” See N.Y.P.L. § 120.10; id. § 70.02(3)(a). Duhs was sentenced on the far end of this
range.
ii. Direct Appeal
1. Appellate Division
Duhs appealed his conviction in the Appellate Division of the New York Supreme Court,
Second Department, on December 4, 2008. See Appellant’s Br. to App. Div., ECF No. 8-6. He

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did not appeal from his sentence although the Appellate Division has the power to review his
sentence. See New York Criminal Procedure Law (“C.P.L.”) 450.10(2).
On the appeal, Duhs was represented by Katherine Schaefer, Esq. of Appellate
Advocates. Two arguments were raised: (1) the child’s statement, “He wouldn’t let me out,” was
inadmissible hearsay that violated Duhs’s rights under the Confrontation Clause; and (2) Duhs
was deprived of his due process right to a fair trial and effective assistance of counsel when the
court admitted prejudicial testimony from an expert, Dr. Stephen Ajl, that Sal’s burns were
intentionally inflicted, because that invaded the province of the jury, and his attorney did not
object. Appellant’s Br. to App. Div. at 35. While he did not explicitly raise an insufficient
evidence claim, Duhs did so implicitly when arguing that the two errors claimed could not be
deemed harmless:
The main issue at trial was whether appellant burned Salvatore
intentionally or whether the burns were accidental. As discussed
more fully above in Point I, other than the child’s statement that
appellant ‘wouldn’t let [him] out’ of the bathtub, Dr. Ajl’s testimony
was the only evidence directly supporting the People’s assertion that
appellant had intentionally injured him. In fact, much of the other
evidence at trial supported appellant’s explanation that the child had
gotten burned accidentally. Thus, it is apparent that the court’s error
cannot be deemed harmless.
Id. at 34-35.
Duhs moved to submit a supplemental brief with arguments that his appellate counsel had
declined to raise. See Suppl. Br., ECF No. 8-8. The State opposed the motion. Opp’n to Suppl.
Br., ECF No. 8-9. The Appellate Division denied it on February 18, 2009 without giving any
reason. See 2d Dep’t Order of Feb. 18, 2009, ECF No. 8-10.
Duhs filed a motion for reconsideration of the denial of leave to submit a supplemental
brief. See Mot. for Recons., ECF No. 8-11. In that motion, Duhs listed the grounds he wished to
include in his supplemental brief: (1) the trial court’s permitting the State to resubmit the top
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count of the indictment following dismissal violated C.P.L. 210.20(4) (limiting grounds upon
which a court may authorize resubmission of a charge to a grand jury); (2) the trial court’s denial
of his C.P.L. 30.30(1a)(2a) (speedy trial) motion without a hearing was improper; (3) the trial
court’s denial of his motion pursuant to C.P.L. 210.20(6) (concerning the reduction of charges)
was reversible error because the court relied on a lesser included count premised on the same
conduct; and (4) the prosecution’s submission of a higher charge not included in the original
felony complaint to the grand jury following dismissal of the original indictment denied Duhs his
due process rights. The State court record does not include a ruling, if there was one, but
ostensibly there was a denial.
In its response to Duhs’s original brief to the Court of Appeals, the State argued: (1) the
admission of Sal’s statement did not violate Duhs’s confrontation rights because it was made in
the furtherance of medical treatment and was not testimonial; and (2) Dr. Ajl’s testimony was not
objected to, and in any event, it was based on his expertise in child abuse beyond the awareness
of the average juror. See Resp’t’s Br. to App. Div., ECF No. 8-7. The State also addressed the
weight of the evidence – which it argued was overwhelming – in analyzing whether the two
alleged errors were harmless:
The court told the jury that they should evaluate the experts’
testimony as they would any other evidence, and that they were free
to accept or reject their testimony in whole or in part. Particularly,
the jury was told that they should consider the extent to which the
experts’ opinions were consistent or inconsistent with the other
evidence in the case.
The other evidence before the jury was overwhelming, primarily in
the form of the photographs of Sal’s injuries. As the prosecutor
argued on summation, the photographs of Sal’s feet told the jury
‘exactly what happened.’ The injuries they showed had informed
Andersen, the doctors, the nurses, Dr. Cooper, and Dr. Ajl exactly
what the defendant had done and the jury could draw the same
conclusions by looking at them. The photographs, the prosecutor
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argued, told the jury ‘how hot the water was . . . and tell you how
long he held that child in there.’ The jury appears to have agreed
with the prosecutor that the photographs were pivotal, for their first
note at the beginning of its deliberations was to see ‘all
photographs.’ Their next two notes, sent almost simultaneously,
were for Sal’s hospital records, and to hear again the court’s charge
as to assault in the first, second, and third degrees. They did not ask
to hear readbacks of any trial testimony.
Nor was there any question but that defendant caused those injuries.
Defendant was home alone with the child at the time the injuries
were caused and claimed that they occurred while he was filling the
tub to give Sal a bath, obvious fabrication. First, there was no reason
for the child to have ever been in the bathtub, because Andersen
gave Sal his baths at night. The only care required of defendant that
morning was to take Sal to school that morning. Second, the
accounts defendant gave varied from having left the bathroom to get
Sal’s clothes, to being distracted by a neighbor knocking on the
door, to having gone outside to smoke a cigarette. He said [he] was
called back to the bathroom by the child’s screams, and found Sal
with his hand stuck in the hole in the bathtub and his feet in the hot
water. That explanation – incredible on its face – was belied by
Sal’s words as testified to by his cousin, that defendant ‘put me in
the hot water.’
Equally damning was the consciousness of guilt defendant displayed
that day. Nothing but consciousness of guilt explains defendant’s
words to Andersen when he called her to inform her of the burn, but
made light of it, saying Sal was ‘fine’ and was ‘running around
playing.’ The falsity of that statement was confirmed by the fact
that Sal was unable to run around and play from the time of the
injury to the time of trial almost two years later. Moreover, by
defendant’s own account, the burn happened at 11:00 a.m. If true,
he delayed six hours in taking Sal to the hospital located virtually
across the street from his house, allowing an infection to set in. Sal’s
mother knew as soon as she arrived home that immediate medical
treatment was necessary from the appearance of the injury, the way
the skin had simply melted away. The consciousness of guilt
defendant showed by delaying to take such an obviously critically
injured child to the hospital was powerful evidence for the jury’s
consideration.
Finally, Sal’s statement to the emergency room doctor, properly
admitted as discussed in Point I, above, that he did not get out of the
bathtub because ‘he wouldn’t let me out,’ confirms that defendant
placed and held Sal in the scalding hot water until the second and
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third degree burns were inflicted. That statement was consistent
with the opinions of the People’s experts that the burns were caused
by immersion in hot water – opinions defendant does not now
contest.
In light of this overwhelming evidence, there is no significant
probability that the verdict would have been different had Dr. Ajl
been precluded from opining that the burns were caused
intentionally.
Id. at 40-43 (citations to trial appendix omitted).
The Appellate Division affirmed the conviction. People v. Duhs, 65 A.D.3d 699 (2d
Dep’t 2009). It determined that the child’s statement was properly admitted because it fell under
a hearsay exception and did not implicate the Confrontation Clause. Id. at 699-700. With regard
to due process and the expert’s testimony, the court declined to review the argument on the
ground that it was unpreserved. Id. at 700. The court did not directly address the harmlessness
(sufficiency of the evidence) issue, but stated that “[t]he defendant’s remaining contentions are
without merit.” Id.
2. New York Court of Appeals
The New York Court of Appeals granted Duhs leave to appeal. People v. Duhs, 14
N.Y.3d 887 (2010). He obtained new appellate counsel, Erin Collins, Esq. Ms. Collins
abandoned Duhs’s ineffective assistance of trial counsel claim and concentrated on two
arguments: (1) admission of Sal’s statement, “He wouldn’t let me out,” without calling the child
to the witness stand violated Duhs’s confrontation rights; and (2) the boy’s young age
disqualified him from making a medically significant statement, so his declaration to Dr. Gold
did not qualify for the hearsay exception for medical treatment. See Appellant’s Br. to Ct. of
App., ECF No. 8-13, at 2.

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Duhs did not specifically make a sufficiency of the evidence argument, but with regard to
harm, he stated that “[c]learly, the most compelling evidence that appellant intentionally harmed
Salvatore was Salvatore’s accusation, as relayed to the jury by Gold, that appellant ‘wouldn’t let
[him] out’ of the tub.” Id. at 47. Duhs also contended, “The evidence of appellant’s guilt was
far from overwhelming, and ‘there is a significant probability . . . that the jury would have
acquitted the defendant had it not been for the error’ in admitting this inadmissible hearsay.” Id.
at 57 (quoting People v. Crimmins, 36 N.Y.2d 230, 240-41 (1975)).
In response to Duhs’s first argument, that the child should have been put on the witness
stand, the State argued:
Although in making these arguments, defendant does not invoke the
Due Process Clause, defendant’s theme on appeal is that admission
of Sal’s statement deprived him of a fair trial. That due process
argument was never raised in the trial court below and is
unpreserved for appellate review. It is also wholly meritless.
Defendant asserts that Sal was competent to testify and the only
reason the prosecutor would have omitted to call him was for unfair
strategic reasons. On the contrary, at the age of four years old, Sal
was not competent to give sworn testimony, and although his
unsworn evidence was deemed admissible pursuant to C.P.L.
§ 60.20(2), it is unclear to what extent he would have been able to
explain what had happened to him. Moreover, although Sal’s
unsworn testimony may have been admitted, it would have been
legally insufficient, standing alone, to support defendant’s
conviction. C.P.L. § 60.20(3).
Nevertheless, the People apparently intended to call him to the
witness stand as late as February 7, 2007, the second-to-last day of
testimony, when the prosecutor said he would be the People’s final
witness. The People then called their expert Dr. Ajl, the ACS
supervisor Edgar Ramirez, Detective Hemmer, and nurse Rachel
Lucente. At the end of the day, the prosecutor [] said that she would
telephone defense counsel that night to inform him of whether or not
she would be putting Sal on the witness stand. By the next morning,
February 8, the People had made their decision, and intended to call
only one more witness, Sal’s ten-year-old cousin Elisa Barberia,
who would testify that Barberia was with Sal’s mother, Stacey
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Anderson [sic], when Anderson arrived home, and Barberia testified
to Sal’s condition when they found him, the measures Ms. Anderson
took to help, how Anderson ‘scooped’ Sal up to take him to the
hospital, and Sal’s statement in the car, that ‘Babe put me in the
water.’
At that point, if defendant felt entitled to a trial in which the victim
testified, his remedy was to ask the Court for the opportunity to call
Sal as a defense witness or to ask for a missing witness jury
instruction. People v. Gonzales, 68 N.Y.2d 424, 428 (1986); People
v. Almodovar, 62 N.Y.2d 126, 133 (1984); People v. Knowels, 187
A.D.2d 361 (1st Dept. 1992). Defendant demanded such a remedy
with regard to another person on the People’s witness list, Martin
Anderson, Stacey Anderson’s father. When defense counsel heard
that the People’s intended remaining witness did not include
Anderson, defense counsel argued that Martin Anderson had
relevant noncumulative evidence to give and demanded the
opportunity to call him as a defense witness. The People arranged
for him to be brought to the courthouse, and in fact, defendant called
Mr. Anderson the sole defense witness. No similar request was
made for Sal to be produced for possible testimony as a defense
witness or a for a missing witness charge to be given.
In the absence of such a request, defendant should not now be heard
to complaint that he was deprived of the opportunity to confront the
‘primary witness’ by admission of Sal’s out-of-court statement.
Obviously, defense counsel perceived either that such a missing
witness charge would be denied, since Sal was unlikely to have
material, noncumulative evidence to offer, or, more likely, that there
was no strategic advantage to the defense in forcing the child to take
the stand. But whatever the reason that defense counsel did not
request a missing witness jury instruction or the opportunity to call
Sal as a defense witness, defendant’s relinquishment of his trial
remedies should now be treated as a waiver of the issue.
Resp’t’s Br. to Ct. of App., ECF No. 8-14 at 62-64 (citations to trial appendix omitted)
(emphasis added).
Regarding the confrontation issue as a whole, the State argued that it is the testimonial
nature of the statement at the time it was made, not its accusatory nature at trial, that needs to be
examined to determine its admissibility over a Confrontation Clause objection. Id. at 56-61.

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With respect to the second argument that the child was not of an age to make a statement
subject to the medical treatment exception, the State contended the argument was unpreserved
for appellate review. Id. at 26.
In addressing the sufficiency of the evidence issue, i.e., that Duhs would not have been
convicted but for the admission of the child’s hearsay statement, the State noted:
[J]ust as the prosecutor said, the absence of Sal’s testimony did not
defeat a verdict of guilty because of the other evidence in the case,
including Sal’s statements the day of the crime. Those statements
included the one made to his mother, in the car on the way to the
hospital, that ‘Babe put me in the water,’ as well as his statement to
Dr. Gold, that ‘he wouldn’t let me out.’ But the prosecutor
emphasized, even more than Sal’s statements, that the injuries
themselves ‘screamed’ to the jury what had happened. Their
severity and shape, two identical ‘stocking’ burns to both feet,
ankles, and calves, demonstrated a deliberate dunking of a child into
steaming hot water. The burns told the jury ‘all they needed to
know.’ Those arguments, which asked the jury to draw reasonable
inferences from the evidence at trial, were above reproach. People
v. Halm, 81 N.Y.2d 819, 821 (1993); People v. Bailey, 58 N.Y.2d
272, 277 (1983); People v. Ashwal, 39 N.Y.2d 105 (1976).
Finally, any error in admitting Sal’s statement is harmless beyond a
reasonable doubt in light of the overwhelming evidence which
showed that defendant caused the burns intentionally. People v.
Crimmins, 36 N.Y.2d 230 (1975); see also People v. Eastman, 85
N.Y.2d 265, 276 (1995). Apart from the emergency room
statement, the evidence showed that defendant lived in the home and
would therefore have been familiar with the fact that the hot water
in the house was extremely hot, and that steam rose from the water
within seconds of turning on the hot water tap. In addition, the tub
was incorrectly installed, and the drain did not have a normal
stopping mechanism. For that reason, to fill the tub, one had to stuff
a rag into the drain hole. Those two circumstances, in combination
with the extent of the burns all the way up Sal’s calves, the
symmetry between his two feet, and the bruises Sal had sustained to
his torso, showed that defendant must have stuffed a rag into the
drain hole, filled the tub with steaming hot water, seized Sal, and
plunged him feet first into the water.
Medical testimony to the extreme pain Sal would have felt,
combined with the severity of the burns, necessarily means
16

defendant held him in the water for five to ten seconds heedless of
Sal’s screams. Although defense counsel at trial elicited testimony
from the expert that higher water temperatures of 150 to 160 degrees
would have caused the burn in two seconds or less, defendant’s
action of plunging the child into such outrageously hot water is
surely no less indicative of an intentional crime.
So testified the People’s expert, Dr. Ajl, who had examined
thousands of burns to children, and had concluded that the stockingshaped burns on Sal’s feet and lower legs, with their clear line of
demarcation, was virtually impossible to have occurred in any way
other than an intentional dunking into hot water.
In light of this overwhelming evidence of guilt, any error in
admitting Sal’s statement to Dr. Gold was harmless beyond a
reasonable doubt. Crimmins, 36 N.Y.2d 230.
Id. at 66-68 (emphasis added).
The Court of Appeals affirmed the decision of the Appellate Division. People v. Duhs,
16 N.Y.3d 405 (2011). It stated that “[t]he only issues before us are whether the trial court erred
in allowing the pediatrician’s testimony concerning the child’s statement in evidence as germane
to the child’s medical diagnosis and treatment, and whether its admission violated the
defendant’s constitutional right to confront the witnesses against him.” Id. at 407-08. It decided
that the “Supreme Court properly concluded that the child’s statement was germane to his
medical diagnosis and treatment and therefore was properly admitted under that exception to the
hearsay rule.” Id. The Court of Appeals explained that it accepted Dr. Gold’s testimony that she
asked the child the questions at issue to determine the proper treatment. Id. According to the
“primary purpose test” articulated in Davis v. Washington, 547 U.S. 813, 822 (2006), the Court
of Appeals reasoned that “it is evident that the statement ‘he wouldn’t let me out’ was not of
testimonial character” that would have implicated Duhs’s confrontation rights. Duhs, 16 N.Y.3d
at 409. In denying Duhs’s Confrontation Clause argument, the Court of Appeals did not rule on
whether the child should have been put on the stand.
17

3. United States Supreme Court
Duhs did not file a petition for a writ of certiorari from the Supreme Court following the
decision of the Court of Appeals.
iii. Collateral Proceedings
1. Coram Nobis
Duhs moved in the State sentencing court pro se for a writ of error coram nobis. He
contended that: (1) his due process rights were violated when the trial court dismissed the
Assault in the Second Degree count against him but did not dismiss the Endangering the Welfare
of a Child count, which was predicated on the same conduct; (2) his speedy trial rights were
violated when the prosecution did not submit a superseding indictment to the grand jury within
30 days and used excludable time on the original indictment towards the superseding indictment;
(3) the court subjected him to double jeopardy when it dismissed the Assault in the Second
Degree count then granted leave to the State to present the Assault in the First Degree count; and
(4) his trial counsel was ineffective for not objecting to a facially insufficient indictment, and his
Appellate Division counsel was ineffective for declining to raise any of these four arguments.
See Appl. for Writ of Error Coram Nobis, ECF No. 8-17.
The State responded that Duhs’s ineffective assistance of counsel claims were meritless
because he “received meaningful representation” under New York law. See Opp. to Appl., ECF
No. 8-18 at 9-10. It contended that his counsel reasonably selected the strongest claims and
presented them to the Court of Appeals. Id. at 10. The State argued that the excluded claims
were meritless because: (1) his due process claim was unpreserved for appellate review and that,
even if the entire first indictment had been dismissed, C.P.L. 210.20(4) provides that a court may
authorize representation of a case to a second grand jury; (2) the speedy trial claim was properly

18

denied by the trial court because the adjournments were excludable time under C.P.L. 30.30; (3)
he was not subjected to double jeopardy because C.P.L. 40.30 defines a “previous prosecution”
as one that terminated in a guilty plea or the trial stage of impaneling a jury, and the first
indictment did not reach either point; and (4) trial counsel was not ineffective for declining to
make motions or arguments that had little or no chance of success (citing People v. Caban, 5
N.Y.3d 143, 152 (2005)). Id. at 11-13.
The Appellate Division denied Duhs’s coram nobis motion. People v. Duhs, 95 A.D.3d
1232 (2d Dep’t 2012). It decided that Duhs “failed to establish that he was denied the effective
assistance of appellate counsel.” See id. at 1232 (citing Jones v. Barnes, 463 U.S. 745 (1983)
and People v. Stultz, 2 N.Y.3d 277 (2004)).
The Court of Appeals denied Duhs’s application to appeal the denial of coram nobis
relief. People v. Duhs, 19 N.Y.3d 996 (2012).
2. Section 440 Motion
Duhs did not filed a motion pursuant to C.P.L. 440.10 for vacatur of the judgment against
him based on evidence that was not in the trial record.
iv. Federal Habeas
1. District Court
On February 25, 2013, Duhs filed in this court a pro se habeas corpus petition pursuant to
section 2254 of Title 18. See Pet., ECF No. 1. He raised three claims: (1) ineffective assistance
of appellate counsel; (2) ineffective assistance of trial counsel; and (3) improper admission of
hearsay that was in violation of his right to confront witnesses. Id. at 6-7. The court appointed
Norman Trabulus to represent petitioner. See ECF No. 5.

19

The State’s primary argument against the ineffective assistance of appellate counsel
claim was that the Appellate Division reasonably applied the Strickland standard in deciding
counsel was not ineffective. Opp. Br., ECF No. 7-1, at 14-15 (citing Strickland v. Washington,
466 U.S. 668, 694 (1984)). Regarding ineffective assistance of trial counsel, the State contended
the issue was unexhausted because it was not raised in the direct appeal. Id. at 12-13. And with
respect to the confrontation issue, the State argued that Duhs failed to establish that the decision
of the Court of Appeals was “contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court,” or was “based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding.” Id. at 7 (citing 28 U.S.C. §§ 2254(d)(1), (2)). The State also contended that the
child’s statement, “He wouldn’t let me out,” “was made in the context of emergency medical
treatment, and not in anticipation of litigation, and thus, its admission . . . against petitioner did
not reflect the core evil the Confrontation Clause was designed to prevent.” Id. at 7-8.
Duhs replied that the decision of the Court of Appeals was contrary to the United States
Supreme Court’s holdings in Davis v. Washington, 547 U.S. 813 (2006) and Michigan v. Bryant,
562 U.S. 344 (2011), which required it to conduct a “combined inquiry” encompassing the
child’s motive in responding to Dr. Gold’s question. See Reply Br., ECF No. 34. He did not
mention either of his ineffective counsel claims. Duhs dropped his ineffective assistance of trial
counsel claim at the hearing on his petition. Hr’g Tr. of Dec. 24, 2014, ECF No. 48, at 60:1561:21.
This court granted a writ of habeas corpus. Duhs, 83 F. Supp. 3d at 439. It rejected
Duhs’s ineffective assistance of appellate counsel claim as “frivolous,” id. at 458, but found a
violation of the Confrontation Clause. Id. at 465.

20

2. Court of Appeals for the Second Circuit
The Court of Appeals for the Second Circuit reversed. Duhs, 2016 WL 482174, at *1.
Its stated reasons were that the Confrontation Clause did not apply:
The district court erred in its analysis by misapprehending the
degree of deference accorded to state courts under federal habeas
review. A petitioner requesting a writ of habeas corpus under
§ 2254 must show that the challenged state decision 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). Under that standard, a writ of
habeas corpus will issue only if ‘a state court’s application of federal
law . . . is so erroneous that there is no possibility fair-minded jurists
could disagree that the state court’s decision conflicts with [the
Supreme] Court’s precedents.’ Nevada v. Jackson, 133 S. Ct. 1990,
1992 (2013) (per curiam) (internal quotation marks and citations
omitted). Thus, even a showing of “clear error” will not suffice.
White v. Woodall, 134 S. Ct. 1697, 1702 (2014).
At the time the state courts addressed this case, it presented a close
issue with no controlling Supreme Court precedent. Since the
Supreme Court had never applied the ‘combined inquiry’ or
objective understanding standards outside the law enforcement
context, and indeed had suggested, albeit in passing dictum, that the
Confrontation Clause might not apply at all to ‘statements to
physicians in the course of receiving treatment,’ Giles, 554 U.S. at
376, any arguable deviation from the methodology used by the
Supreme Court in the police context in assessing the ‘primary
purpose’ of statements made in the course of medical treatment
cannot be held an unreasonable application of Supreme Court law.
Moreover, since the decisions of the New York Court of Appeals
and the district court, the Supreme Court has decided a case close
on its facts to this one. That decision makes it even clearer that the
state courts’ actions do not contravene clearly established Supreme
Court precedent. Ohio v. Clark is the Supreme Court’s first postCrawford decision regarding questioning by anyone other than a law
enforcement officer. In Clark, the Court applied the ‘primary
purpose’ test to the questioning of a young child by a person not
involved in law enforcement, but who, like the physician in this
case, had a duty under state law to report suspected child abuse. The
Court held, as the state courts did here, that the statements were
nontestimonial. 135 S. Ct. at 2180-81. The Court ruled that
statements to individuals who are not law-enforcement officers “are
21

much less likely to be testimonial than statements to law
enforcement officers” and that “[s]tatements by very young children
will rarely, if ever, implicate the Confrontation Clause.” Id. at 218182. Even assuming for the sake of argument that Clark is
distinguishable from the case before us, the Supreme Court’s
decision makes it apparent that the decision of the state courts in this
case was not contrary to, or an unreasonable interpretation of,
established Supreme Court law.
Id. at *2-3.
Duhs submitted a motion for a panel rehearing on the merits of his case. See Pet. for
Panel Reh’g, Duhs, 2016 WL 482174 (No. 15-647). The Court of Appeals for the Second
Circuit summarily denied the motion. See Order of Feb. 29, 2016, Duhs, 2016 WL 482174 (No.
15-647).
3. United States Supreme Court
At the non-evidentiary hearing on March 23, 2016, Duhs’s attorney stated that he was
drafting a petition in the Supreme Court for a writ of certiorari. See Hr’g of Mar. 23, 2016, ECF
No. 60.
III.

Second Petition

Because the Court of Appeals for the Second Circuit rejected Duhs’s Confrontation
Clause argument, which was his strongest appealable issue, his remaining options for contending
lack of due process are extremely limited. The limitations summarily are due to the sharp
restrictions in the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”).
a. Procedural Barriers
Duhs faces serious procedural barriers to filing a second habeas petition.
First, he has exceeded the one-year statute of limitations for habeas petitions, and he does
not appear to qualify for equitable tolling. Second, to file a second habeas petition, Duhs would
have to obtain permission from the Second Circuit Court of Appeals. It is unlikely that the court

22

would grant his request because he cannot satisfy the requirements of the governing federal
statute.
i. Statute of Limitations
Duhs’s first hurdle would be the one-year statute of limitations imposed by AEDPA. All
of the dates from which the one year is measured have long passed. The statute reads as follows:
(1) A 1-year period of limitations shall apply to an application
for a writ of habeas corpus by a person in custody pursuant to
the judgment of a State court. The limitation period shall run
from the latest of-(A) the date on which the judgment became final by the
conclusion of direct review or the expiration of time for
seeking such review;
(B) the date on which the impediment to filing an
application created by State action in violation of the
Constitution on laws of the United States is removed, if
the application was prevented from filing by such State
action;
(C) the date on which the constitutional right asserted was
initially recognized by the Supreme Court, if the right
has been newly recognized by the Supreme Court and
made retroactively applicable to cases on collateral
review; or
(D) the date on which the factual predicate of the claim or
claims presented could have been discovered through
the exercise of due diligence.
28 U.S.C. § 2244(d)(1). Subsection (B) presents a clear barrier since there is no indication that
Duhs has faced an impediment to filing a petition; he could not assert a newly recognized
constitutional right under (C); and there is no newly discovered evidence pursuant to (D).
Subsection (A) governs. Duhs’s conviction became final on June 27, 2011, the last day that he
could have appealed the decision of the Court of Appeals at the U.S. Supreme Court. One year
from that date was June 27, 2012.
23

1. Tolling the Statute Under AEDPA
Pursuant to AEDPA, the one-year time limit for Duhs to file a habeas petition was tolled
during the pendency of his coram nobis motion, but not long enough to allow him time to file a
second petition. AEDPA provides that “[t]he time during which a properly filed application for
State post-conviction or other collateral review with respect to the pertinent judgment or claim is
pending shall not be counted toward any period of limitation under this subsection.” Id.
§ 2244(d)(2). In 2001, the Supreme Court held that the phrase “State post-conviction or other
collateral review” does not include federal habeas petitions. See Duncan v. Walker, 533 U.S.
167, 172-73 (2001). Therefore, “the one-year limitations period is not tolled during the
pendency of a federal habeas petition.” De Jesus v. Miller, 215 F. Supp. 2d 410, 412 (S.D.N.Y.
2002).
Accordingly, the statute of limitations was tolled during the 254-day period that his
coram nobis motion was pending – from November 28, 2011 to August 8, 2012. That extended
his deadline to file a second habeas petition from June 27, 2012 to March 8, 2013. He timely
filed his first habeas petition on February 25, 2013. If he were to file a second petition today, it
would be more than three years too late.
2. Equitable Tolling
The Court of Appeals for the Second Circuit has recognized that the one-year limitations
period may be equitably tolled “when extraordinary circumstances prevent a prisoner from filing
a timely habeas petition.” Warren v. Garvin, 219 F.3d 111, 113 (2d Cir. 2000) (internal
quotation marks and citation omitted). The petitioner “must have acted with reasonable
diligence throughout the period he seeks to toll.” Id. It is unlikely that Duhs would qualify for
equitable tolling of the statute because his reasons for raising any remaining claims in a second

24

petition are not “extraordinary.” Id. And even if they were, he probably would not be able to
show that was diligent in seeking to raise his claims.
Courts have permitted equitable tolling of the statute in exceptional circumstances where
it would be unfair to bar a prisoner’s habeas petition. See Smith v. McGinnis, 208 F.3d 13, 17
(2d Cir. 2000) (“[T]he one-year period is a statute of limitations rather than a jurisdictional bar
so that courts may equitably toll the period.”) (citing cases). For example, a court equitably
tolled the statute for a petitioner who detrimentally relied on the court’s miscalculation of the
period that remained for him to file a second petition. De Jesus, 215 F. Supp. 2d at 412-13. In
another case, the Second Circuit decided that a corrections officer’s confiscation of a prisoner’s
legal papers shortly before the filing deadline justified equitable tolling. Valverde v. Stinson, 224
F.3d 129, 133-34 (2d Cir. 2000). In a case where the petitioner filed his habeas petition just 87
days after the state denied him collateral relief, however, the court decided that his delay did not
show reasonable diligence; as a result, his “case [did] not present extraordinary or exceptional
circumstances warranting equitable tolling.” McGinnis, 208 F.3d at 17. Considering that Duhs
is now three years past the deadline, it is doubtful that his case merits tolling of the statute to
present a second petition.
ii. AEDPA Standard for Second Petition
Even if Duhs were able to overcome the time bar, he would face AEDPA’s strict
standards for a second habeas petition. The statute provides:
(1) A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior
application shall be dismissed.
(2) A claim presented in a second or successive habeas corpus
application under section 2254 that was not presented in a prior
application shall be dismissed unless--

25

(A) the applicant shows that the claim relies on a new rule
of constitutional law, made retroactive to cases on
collateral review by the Supreme Court, that was
previously unavailable; or
(B) (i) the factual predicate for the claim could not have
been discovered previously through the exercise of
due diligence; and
(ii) the facts underlying the claim, if proven and
viewed in the light of the evidence as a whole,
would be sufficient to establish by clear and
convincing evidence that, but for constitutional
error, no reasonable factfinder would have found
the applicant guilty of the underlying offense.
28 U.S.C. § 2244(b)(1)-(2) (emphasis added).
In order to raise a claim in a second petition that was not previously raised, the petitioner
must first “move in the appropriate court of appeals for an order authorizing the district court to
consider the application.” Id. § 2244(b)(3)(A). A three-judge panel at the court of appeals “may
authorize the filing of a second or successive application only if it determines that the application
makes a prima facie showing that the application satisfies the requirements of this subsection.”
Id. § 2244(3)(B)-(C). The decision to grant or deny authorization for a second petition is not
appealable and cannot be a claim in a petition for rehearing or a writ of certiorari. Id.
§ 2244(3)(E). Unless a court of appeals grants permission to file a second petition, the district
court has no jurisdiction to entertain it. See Burton v. Stewart, 549 U.S. 147, 149 (2007)
(vacating judgment of court of appeals to remand with instructions to the district court to dismiss
the petitioner’s second habeas application for lack of jurisdiction).
Duhs does not appear to satisfy AEDPA’s requirements for a second petition. Any
remaining due process claims he may have do not arise from a new rule of constitutional law
under subsection (2)(A). And there does not appear to be any new evidence, pursuant to
26

subsection (2)(B)(ii), that could establish that no reasonable juror would convict him. Moreover,
if new evidence is discovered, Duhs would need to show he could not previously have
discovered it through due diligence. It is unclear how he could satisfy that requirement. A panel
at the Court of Appeals for the Second Circuit almost certainly would not give him permission to
file a second petition. And unless it did so, a district court would have no jurisdiction to rule on
the petition.
iii. Exhaustion
While Duhs faces many procedural obstacles to filing a second petition, exhaustion might
not be one of them. AEDPA states that a habeas petition may not be granted unless “the
applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). Duhs did not raise the following claims in his direct appeal, but these issues
were discussed in the briefs, so he has an argument that they are exhausted: (1) insufficient
evidence to convict; (2) violation of due process because the child did not testify; and (3)
ineffective assistance of trial and appellate counsel for failing to object or raise potential claims.
Duhs did not, however, raise the following argument, which remains unexhausted: (4) improper
admission of the child’s statement, “Babe put me in hot water.”
iv. Preservation
A review of the trial transcripts does not indicate that Duhs’s trial attorney objected to
any of the above errors. His counsel did not object to the sufficiency of the evidence against
Duhs or move to dismiss any charges at the end of the State’s case. The attorney did not object
to the State’s decision not to put the child on the stand or request a jury instruction on a missing
witness. Trial counsel also did not object to the admission of the child’s statement, “Babe put
me in hot water,” through his 10-year-old cousin’s testimony. See generally, Trial Tr. of Feb. 8,

27

2007 at 340-42. In addition, If Duhs is able to obtain permission to file a second petition, the
State will have a strong argument that the issues were not preserved (and that even if preserved,
they had no significant force).
v. Other Procedural Considerations
There are a few other procedural considerations.
1. Section 440 Motion
Duhs may consider filing a section 440 motion in the state trial court where he was
convicted to vacate the judgment of the court. There is no statute of limitations for such relief.
See C.P.L. 440.10(1) (“At any time after the entry of a judgment, the court in which it was
entered may, upon motion of the defendant, vacate such judgment . . . .”). Pursuant to subsection
(h) of the State statute, a defendant may bring a claim if “the judgment was obtained in violation
of a right of the defendant under the constitution of the state or of the United States.” Id. at
§ 440.10(1)(h). But “the court must deny a motion to vacate a judgment when . . . the ground or
issue raised upon the motion was previously determined on the merits upon appeal from the
judgment . . . .” Id. § 440.10(2)(a). Because Duhs based his direct appeal on due process claims
for insufficient evidence to convict, not putting Sal on the stand, and ineffectiveness assistance of
counsel, he would appear not now to be able to raise those issues in a section 440 motion.
His counsel may consider, however, filing a section 440 motion on the ground that
admission of the child’s declaration, “Babe put me in hot water,” was improper.
In any event, filing a section 440 motion does not revive the limitations period for a
habeas petition. See McGinnis, 208 F.3d at 17 (“[P]roper calculation of Section 2244(d)(2)’s
tolling provision excludes time during which properly filed state relief applications are pending
but does not reset the date from which the one-year statute of limitations begins to run.”);

28

Castillo v. Ercole, No. 07-CV-11256, 2009 WL 1492182, at *4 (S.D.N.Y. May 27, 2009) (“440
Motions do not restart the limitations period.”); Rashid v. Khulmann, 991 F.Supp. 254, 259
(S.D.N.Y. 1998) (“Once the limitations period is expired, collateral review can no longer serve
to avoid a statute of limitations.”). While a 440 motion could in theory provide Duhs with relief
from the judgment of conviction, it is doubtful that it would provide the basis for filing a second
habeas petition.
2. Rule 60(b) Motion
Another option might be for Duhs to seek to revisit his first habeas proceeding through a
Rule 60(b) motion, but filing such a motion would not be likely to advance his case. Rule 60(b)
provides relief from a prior judgment for reasons such as mistake or fraud. See Fed. R. Civ. P.
60(b). In Harris v. United States, 367 F.3d 74 (2d Cir. 2004), a petitioner file a second petition
for habeas relief that was dismissed by the Court of Appeals for the Second Circuit. Id. at 76.
He then filed a Rule 60(b) motion to reopen his first habeas proceeding and add new claims. Id.
The Court of Appeals for the Second Circuit denied his motion, stating, “[R]elief under Rule
60(b) is available for a previous habeas proceeding only when the Rule 60(b) motion attacks the
integrity of the previous habeas proceeding rather than the underlying criminal conviction.” Id.
at 77. Moreover, such relief is available only in “extraordinary circumstances.” Id. Because
Duhs apparently has no claim that his first habeas proceeding was flawed, a Rule 60(b) motion
would not help him.
3. Petition Directly to the U.S. Supreme Court
Duhs may still file a habeas petition directly in the Supreme Court pursuant to its original
jurisdiction to hear such cases. The Supreme Court is not bound by the gatekeeping mechanism
put in place by 28 U.S.C. § 2244(b)(3)(A) (requiring permission to file from the court of

29

appeals). See Felker v. Turpin, 518 U.S. 651, 662 (1996). That Court is, however, bound by the
restrictions of §§ 2244(b)(1) and (b)(2), which in essence state that claims raised in a previous
habeas petition must be dismissed, and any claims not previously raised must concern a new rule
of constitutional law or some previously undiscovered factual predicate for an insufficiency of
the evidence claim. Id. at 662-63. As discussed supra II.a.ii., Duhs probably cannot satisfy
these restrictions.
b.

Substantive Arguments

Assuming petitioner can leap the procedural barriers to present the merits of his case to
this court, he could face serious substantive problems. Potential substantive claims do not appear
to provide adequate grounds for relief under present case law. And there is a strong argument
that since Duhs did not raise these claims in his first habeas petition, he forfeited them.
i.

Weight of the Evidence

First, as the State argued in the direct appeal, even without the child’s statement, “He
wouldn’t let me out,” the prosecution arguably presented sufficient other persuasive evidence to
allow a reasonable jury to convict. The other evidence included: Sal’s hearsay statement on the
way to the hospital, “Babe put me in hot water,” which was admitted without objection; expert
testimony that Sal suffered immersion burns, not splash burns; and bruising on Sal’s torso. In
addition, there was the circumstantial evidence that Duhs did not reasonably treat the burns –
which probably became infected as a result – and that, instead, he called the mother and misled
her by saying the child was “fine” and “running around playing.” The pictures of the stockingshaped burn marks on Sal’s legs and Duhs’s inaction after the incident could reasonably have led
the jury to determine that Duhs was more than negligent on the day in question.
ii.

Putting the Child on the Stand

30

Second, the argument that the court should have required the child to testify instead of
admitting his hearsay statements is weak. Duhs could have exercised his right to use this witness
himself, which his counsel did not do. It is unlikely that Duhs could raise an ineffective
assistance of trial counsel claim over this issue because a reasonable defense attorney would
likely have made the same decision. Putting the injured child on the stand would probably have
garnered sympathy from the jury for the prosecution.
iii.

Admission of Declaration “Babe put me in hot water”

Third, that the trial court admitted the child’s hearsay declaration, “Babe put me in hot
water,” is likely an appealable error. The declaration does not fall into a New York or federal
hearsay exception. It was not an excited utterance because it was allegedly uttered about half a
day after the incident occurred. And the statement undoubtedly had a powerful effect on the
jury. It was one of the key pieces of evidence the prosecution used to prove that Duhs intended
to place the child in hot water. Because trial counsel did not object to the admission of the
statement, however, Duhs would have difficulty succeeding on a claim that the court committed
an error.
iv.

Ineffective Assistance of Trial and Appellate Counsel

Duhs already raised an ineffective assistance of trial counsel claim at the Appellate
Division, which that court rejected. His appellate counsel dropped the claim at the Court of
Appeals. It is doubtful that counsel’s failure to object to the above errors would meet the
standard for ineffectiveness articulated by the Supreme Court. See Strickland, 466 U.S. at 686
(“The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so
undermined the proper functioning of the adversarial process that the trial cannot be relied on as
having produced a just result.”).

31

In addition, any contention that Duhs's State appellate counsel was ineffective seems
meritless. Duhs appears to have had reasonably good counsel from trial through appeals. The
briefs submitted on his behalf are well-reasoned and thorough. Courts generally defer to an
attorney's decision against raising claims that are not likely to help the client.

IV.

Conclusion

The record and AEDPA appear to have foreclosed any reasonable possibility of
effectively further prosecuting this petition. Twenty years of imprisonment is arguably overly
punitive, particularly considering the residual question of guilt and due process, but that is not a
factor likely to be considered on Cruel and Unusual grounds by a federal court. The Appellate
Division had the power to reduce the sentence. See C.P .L. 450.10(2). But it left the term at
twenty years.
Appointed counsel for petitioner and counsel for respondent have tried the issues
effectively. There is nothing further this court can do at this time for petitioner, Michael Duhs.
The petition is dismissed on the merits.

OORDg~·~~
Jack B. Weinstein
Senior United States District Judge

Dated: April 18, 2016
Brooklyn, New York

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