Hernandez v. Uhler
Filing
11
MEMORANDUM AND OPINIONFor the reasons set forth herein, the petition for a writ of habeas corpus is denied in its entirety. SO ORDERED. Ordered by Judge Joseph F. Bianco on 8/25/2017. (Copy of opinion mailed to pro se petitioner via FCM by Chambers) (Hammond, Daniel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 2:15-CV-6684 (JFB)
_____________________
JAVIER HERNANDEZ,
Petitioner,
VERSUS
DONALD UHLER, SUPERINTENDENT,
Respondent.
___________________
MEMORANDUM AND ORDER
August 25, 2017
___________________
JOSEPH F. BIANCO, District Judge:
§ 130.35); one count of Sexual Abuse in the
First Degree (NYPL § 130.65); and one
count of Endangering the Welfare of a Child
in the First Degree (NYPL § 260.10). (T. 1
4/8/08 at 24-25.) Petitioner was sentenced in
the aggregate to a determinate period of incarceration of twenty-two years followed by
five years of post-release supervision. (S. 2
18.)
On November 8, 2015, Javier Hernandez
(hereinafter “petitioner” or “Hernandez”) petitioned this Court for a writ of habeas corpus,
pursuant to 28 U.S.C. § 2254, challenging his
conviction in New York State Court. On
May 12, 2008, following a jury trial, petitioner was convicted of two counts of Criminal Sexual Act in the First Degree (N.Y. Penal Law (“NYPL” § 130.50); one count of
Attempted Rape in the First Degree (NYPL
1
2
“T.” refers to the trial transcript. (See ECF No. 10.)
1
“S.” refers to the sentencing transcript.
pregnant mother, Ana. (Id. at 54-55.) The
following day, Hernandez gave EO $80 and
told her not to discuss what happened. (Id. at
58.)
Petitioner argues that he received ineffective assistance of trial counsel because his attorney failed to: (1) call petitioner’s roommate as an alibi witness; (2) make a pretrial
motion to dismiss the indictment or to suppress petitioner’s incriminating statements;
(3) hire an expert to refute the prosecutor’s
witness on Child Sexual Abuse Syndrome;
(4) attack the credibility of prosecution witnesses; (5) object to alleged bolstering and
hearsay testimony; and (6) object to prosecutorial misconduct. As set forth below, the
Court denies the petition in its entirety.
On October 23, 2006, after Ana had given
birth, EO informed her mother about the incident. (Id. at 61, 193-94.) After that conversation, Ana confronted petitioner, who denied any wrongdoing. (Id. at 196.) She then
took EO to Dr. Sara Schwartz, a gynecologist, for an examination, but EO did not describe the incident in detail to Dr. Schwartz.
(Id. at 61-62, 203.) During the physical examination of EO, Dr. Schwartz found no indication of trauma or sexual assault. (Id. at
203.)
I. BACKGROUND
A. Facts
The following facts are adduced from the
petition, respondent’s answer, and the underlying record.
Two weeks later, EO described the incident to her mother in more detail. (Id. at 64,
204.) Afterward, Ana informed EO’s father
in Florida. (Id. at 205.) He then contacted a
relative in New York who requested to speak
to EO at her school. (T. 3/28/08 at 113-14.)
The school denied him access to EO, but a
counselor spoke with her after hearing from
the relative. (Id. at 113-17; T. 3/31/08 at 6567.) Shortly thereafter, the counselor contacted Ana, who came to the school, and the
two of them accompanied EO to the police
station. (T. 3/28/08 at 114-17; 3/31/08 at 6567, 206-07.) EO gave a statement to a detective about the sexual assault. (T. 3/31/08 at
67; 3/27/08 at 106-07.) EO initially stated
that the assault occurred in July or August before narrowing the date down to a few days
before EO went to Florida, which put the assault around August 15, 2006. (T. 3/27/08 at
113-14.) Later, Ana returned to the police
station with David, who gave a statement to
the same detective. (T. 3/28/08 at 19.) Fred
Ortiz, EO’s grandfather and the homeowner,
called petitioner and told him not to return to
the house. (T. 3/31/08 at 210-112; T. 4/1/08
at 135.) Petitioner later agreed to meet the
During the summer of 2006, EO, the victim, lived with her grandparents, Fred and
Olga Ortiz, in their house along with her
mother, Ana, and two brothers, David and
Daniel. (T. 3/31/08 at 16-17.) Petitioner also
lived in the house, sharing the basement with
Cecil Ortiz (“Cecil”), EO’s uncle. (Id. at 1718, 44.) The three children slept in a bedroom on the second floor. (Id. at 27.)
Around 11:00 p.m. on August 15, 2006,
petitioner entered the children’s upstairs bedroom, calling EO by name. (Id. at 36-37.) At
that time, EO was sleeping next to her brother
David on the top level of her bunk bed. (Id. at
37.) Hernandez grabbed EO by the arm, took
her down to the basement, and sexually assaulted her, though no vaginal penetration occurred. (Id. at 39-40, 47-52.) EO managed to
kick Hernandez and run upstairs. (Id. at 5152.) EO encountered David on the stairs, but
told him not to say anything about the incident because she feared for the health of her
2
B. Procedural History
detective at the police station, but the police
were unable to locate him and believed that
he left the state. (T. 3/27/08 at 117-19;
3/28/08 at 13-15; 3/31/08 at 216.)
1. State Court Proceedings
Petitioner appealed his conviction to the
Supreme Court, Appellate Division, Second
Department, arguing that: (1) there was insufficient evidence to support his conviction;
(2) the verdict was against the weight of the
evidence; and (3) his sentence was vindictive
and excessive. (Pet., ECF No. 1, at 1.) On
October 18, 2011, the Appellate Division affirmed the conviction. People v. Hernandez,
88 A.D.3d 907 (N.Y. App. Div. 2011) (“Hernandez I”). It first held that petitioner’s argument about the sufficiency of the evidence
was unpreserved, but, in any event, the evidence was legally sufficient to establish guilt
beyond a reasonable doubt. Id. at 907. The
court further concluded that the verdict was
not against the weight of the evidence and
that the sentence was neither vindictive nor
excessive. Id. Petitioner applied for leave to
appeal to the New York State Court of Appeals, which was denied on December 16,
2011. See People v. Hernandez, 18 N.Y.3d
959 (2011).
A second examination of EO occurred at
the Children’s Advocacy Center in Central
Islip, New York. (T. 3/28/08 at 16; 3/31/08
at 68-69, 213.) The examination was conducted by Marie Marino, a pediatric nurse
practitioner and forensic medical examiner.
(T. 4/2/08 at 47-48.) Based upon a review of
police documents, Marino ascertained that
EO did not have prior trauma or infection to
the anal or genital area and had not suffered
from chronic constipation. (Id. at 72, 77.)
Since EO did not have a history of chronic
constipation, Marino opined that the anal
scarring she observed during the examination
was the result of penetrating blunt force
trauma. (Id. at 155-57.) This injury was consistent with the position EO claimed she was
in when the sexual assault occurred. (Id. at
158-59.)
On April 19, 2007, petitioner was located
in New Orleans and returned to New York.
(T. 3/28/08 at 26-28.) He was arrested and
brought to the Riverhead Jail in New York,
where he twice called Fred Ortiz and asked
for forgiveness. (T. 4/1/08 at 135-36.)
Petitioner then brought a motion to vacate
his conviction pursuant to CPL § 440.10.
(Pet. 1.) He argued that defense counsel was
ineffective because he failed to (1) call his
roommate as an alibi witness, (2) move to
suppress appellant’s statements to Fred Ortiz,
(3) properly attack the credibility of prosecution witnesses or object to alleged prosecutorial misconduct and certain testimony, and
(4) hire an expert witness to rebut the People’s expert on Child Sexual Abuse Syndrome. (Id. at 1-2.)
On May 12, 2008, the jury found petitioner guilty of two counts of Criminal Sexual Act in the First Degree (NYPL § 130.50),
one count of Attempted Rape in the First Degree (NYPL § 130.35), one count of Sexual
Abuse in First Degree (NYPL § 130.65), and
one count of Endangering the Welfare of a
Child in the First Degree (NYPL § 260.10).
(T. 4/8/08 at 24-25.) He was sentenced in the
aggregate to twenty-two years’ imprisonment
followed by five years of post-release supervision. (S. 18.)
The County Court denied the motion. (Id.
at 2.) The court determined that there was
sufficient evidence presented that petitioner’s
roommate was out of town on the night of the
3
Hernandez, __Misc. 3d__, Ind. No. 940/2007
(County Ct. Suffolk County September 15,
2015) (Kahn, J.) (Hernandez III).) The court
noted that the prosecution’s expert offered
only “a general explanation of the possible
behaviors exhibited by the child victim and
did not offer an impermissible opinion on the
issue of whether [petitioner] committed the
sex crimes charged in the indictment.” Id.
The court also noted that “[d]efense counsel
cross examined the witness, called into question her testimony, and called his own medical expert to rebut the allegations of the child
victim and the People’s expert.” Id. Petitioner did not seek leave to appeal that decision to the Appellate Division.
assault so that counsel’s failure to call him as
an exculpatory witness could not amount to
ineffective assistance of counsel. (Resp.’s
Ans., ECF No. 9, at 3.) The court further
found that it was procedurally barred from reviewing the remaining claims because the issues were record-based and inappropriate for
collateral review. (Id.)
On appeal, the Appellate Division remanded to the County Court the petitioner’s
ineffective assistance of counsel argument
based on counsel’s failure to consult or hire
an expert witness on Child Sexual Abuse
Syndrome. See People v. Hernandez, 125
A.D. 3d 885, 887 (N.Y. App. Div. 2015)
(Hernandez II). Specifically, the court held
that
2. The Instant Petition
On November 8, 2015, pursuant to 28
U.S.C. § 2254, petitioner filed a pro se Petition for a Writ of Habeas Corpus with this
Court, arguing that he received ineffective assistance of counsel at the trial level. (ECF No.
1.) Respondent filed an answer and memorandum of law in opposition to the petition on
March 1, 2016. (ECF No. 9.) The Court has
fully considered the submissions and arguments of the parties.
the defendant’s contention that his
trial counsel was ineffective in failing
to consult or hire an expert witness on
the issue of child sexual abuse syndrome, so as to refute the testimony of
the People at trial, was of the type that
properly may be raised in the context
of a motion pursuant to CPL 440.10.
Accordingly, that part of the defendant’s motion was not procedurally
barred by CPL 440.10(2)(c).
II. STANDARD OF REVIEW
Id. The Appellate Division affirmed the remainder of the County Court’s decision. Id.
The Court of Appeals denied leave to appeal.
People v. Hernandez, 26 N.Y.3d 968 (2015).
To determine whether a petitioner is entitled to a writ of habeas corpus, a federal court
must apply the standard of review set forth in
28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act
(“AEDPA”), which provides, in relevant
part:
Reviewing the claim based on defense
counsel’s failure to consult with an expert,
the County Court determined that counsel
was not ineffective. In particular, it found
that petitioner failed to “demonstrate his initial burden” because he did not demonstrate
that an expert could rebut the assertions of the
prosecution expert or that he was prejudiced
by the absence of such testimony. (People v.
(d) An application for a writ of habeas
corpus on behalf of a person in custody pursuant to the judgment of a
State court shall not be granted with
4
AEDPA establishes a deferential standard
of review: “a federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the
relevant state-court decisions applied clearly
established federal law erroneously or incorrectly. Rather, that application must be unreasonable.” Gilchrist v. O’Keefe, 260 F.3d
87, 93 (2d Cir. 2001) (quoting Williams, 529
U.S. at 411). The Second Circuit added that,
while “[s]ome increment of incorrectness beyond error is required . . . the increment need
not be great; otherwise, habeas relief would
be limited to state court decisions so far off
the mark as to suggest judicial incompetence.” Id. (quoting Francis S. v. Stone, 221
F.3d 100, 111 (2d Cir. 2000)). Finally, “if the
federal claim was not adjudicated on the merits, ‘AEDPA deference is not required, and
conclusions of law and mixed feelings of fact
and conclusions of law are reviewed de
novo.’” Dolphy v. Mantello, 552 F.3d 236,
238 (2d Cir. 2009) (quoting Spears v.
Greiner, 459 F. 3d 200, 203 (2d Cir. 2006)).
respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of
the claim –
(1) 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; or
(2) resulted in a decision that
was contrary to, or involved
an unreasonable determination of the facts in light of the
evidence presented in the
State court proceedings.
28 U.S.C. § 2554. “‘Clearly established Federal law’ means ‘the holdings, as opposed to
dicta, of [the Supreme] Court’s decisions as
of the time of the relevant state court decision.’” Green v. Travis, 414 F.3d 288, 296
(2d Cir. 2005) (quoting Williams v. Taylor,
529 U.S. 362, 412 (2000)).
III. DISCUSSION
Petitioner argues that he was denied effective assistance of counsel because his attorney failed to: (1) call petitioner’s roommate, Cecil, as an alibi witness; (2) make a
pretrial motion to suppress petitioner’s statements to Fred Ortiz; (3) hire an expert to refute the prosecutor’s witness on Child Sexual
Abuse Syndrome; (4) attack the credibility of
prosecution witnesses; (5) object to alleged
bolstering and hearsay testimony; and (6) object to prosecutorial misconduct. The Court
concludes that all but one of these claims are
procedurally barred and, in any event, they all
lack merit. Therefore, petitioner is not entitled to habeas relief.
A decision is “contrary to” clearly established federal law, as determined by the Supreme Court, “if the state court arrives at a
conclusion opposite to that reached by the
[Supreme Court] on a question of law or if the
state court decides a case differently than [the
Supreme Court] has on a set of materially indistinguishable facts.” Williams, 529 U.S. at
413. A decision is an “unreasonable application” of clearly established federal law if a
state court “identifies the correct governing
legal principles from [the Supreme Court’s]
decisions but unreasonably applies that the
principle to the facts of [a] prisoner’s case.”
Id.
5
federal court.’” Jones v. Keane, 329 F.3d
290, 294-95 (2d Cir. 2003) (quoting Dorsey
v. Kelly, 112 F.3d 50, 52 (2d Cir. 1997)).
“Specifically, [petitioner] must have set forth
in state court all of the essential factual allegations asserted in his federal petition.”
Daye, 696 F.2d at 191-92 (citing Picard, 404
U.S. at 276; United States ex rel. Cleveland
v. Casscles, 479 F.2d 15, 19-20 (2d Cir.
1973)). To that end, “[t]he chief purposes of
the exhaustion doctrine would be frustrated if
the federal habeas court were to rule on a
claim whose fundamental legal basis was
substantially different from that asserted in
state court.” Id. at 192 (footnote omitted).
A. Procedural Bar
1. Exhaustion
As a threshold matter, a district court
shall not review a habeas petition unless “the
applicant has exhausted the remedies available in the courts of the State.” 28 U.S.C.
§ 2254(b)(1)(A). Although a state prisoner
need not petition for certiorari to the United
States Supreme Court to exhaust his claims,
see Lawrence v. Florida, 549 U.S. 327, 333
(2007), he still must fairly present his federal
constitutional claims to the highest state court
having jurisdiction over them, see Daye v. Attorney Gen. of N.Y., 696 F.2d 186, 191 n.3
(2d Cir. 1982) (en banc). Exhaustion of state
remedies requires that a petitioner ‘“fairly
presen[t]’ federal claims to the state courts in
order to give the State the ‘opportunity to
pass upon and correct’ alleged violations of
its prisoners’ federal rights.” Duncan v.
Henry, 513 U.S. 364, 365 (1995) (quoting Picard v. Connor, 404 U.S. 270, 275 (1971))
(alteration in original).
2. Procedural Default
Like the failure to exhaust a claim, the
failure to satisfy the state’s procedural requirements deprives the state courts of an opportunity to address the federal constitutional
or statutory issues in a petitioner’s claim. See
Coleman v. Thompson, 501 U.S. 722, 731-32
(1991). “[A] claim is procedurally defaulted
for the purposes of federal habeas review
where ‘the petitioner failed to exhaust state
remedies and the court to which the petitioner
would be required to present his claims in order to meet the exhaustion requirement
would now find the claims procedurally
barred.’” Reyes v. Keane, 118 F.3d 136, 140
(2d Cir. 1997) (quoting Coleman, 501 U.S. at
735) (emphasis omitted). Where the petitioner “can no longer obtain state-court review of his present claims on account of his
procedural default, those claims are now to be
deemed exhausted.” DiGuglielmo v. Smith,
366 F.3d 130, 135 (2d Cir. 2004) (citing Harris v. Reed, 489 U.S. 255, 263 n.9 (1989);
Grey v. Hoke, 933 F.2d 117, 120 (2d Cir.
1991)). Therefore, “[f]or exhaustion purposes, ‘a federal habeas court need not require that a federal claim be presented to a
state court if it is clear that the state court
However, “it is not sufficient merely that
the federal habeas applicant has been through
the state courts.” Picard, 404 U.S. at 275-76.
To provide the State with the necessary “opportunity,” the prisoner must “fairly present”
his claims in each appropriate state court (including a state supreme court with powers of
discretionary review), alerting that court to
the federal nature of the claim and “giv[ing]
the state courts one full opportunity to resolve
any constitutional issues by invoking one
complete round of the State’s established appellate review process.”
O’Sullivan v.
Boerckel, 526 U.S. 838, 845 (1999); see also
Duncan, 513 U.S. at 365-66. “A petitioner
has ‘fairly presented’ his claim only if he has
‘informed the state court of both the factual
and legal premises of the claim he asserts in
6
was ineffective for failing to file a pretrial
motion to suppress his statements to Fred
Ortiz, challenge prosecution witnesses on
cross examination, or object to hearsay and
alleged prosecutorial misconduct. Moreover,
as the County Court here concluded (see
Resp.’s Ans. at 3), petitioner is procedurally
barred from raising them in state court in a
collateral proceeding, see CPL § 440.10(2)(c)
(“[T]he court must deny a motion to vacate a
judgment when . . . [a]lthough sufficient facts
appear on the record of the proceedings underlying the judgment to have permitted,
upon appeal from such judgment, adequate
review of the ground or issue raised upon the
motion, no such appellate review or determination occurred owing to the defendant’s . . .
unjustifiable failure to raise such ground or
issue upon an appeal actually perfected by
him.”). Therefore, he has procedurally defaulted on these claims. See Finley v. Graham, No. 12CV9055KMKPED, 2016 WL
47333, at *9 n.14 (S.D.N.Y. Jan. 4, 2016)
(“[T]he Second Circuit has routinely held
§ 440.10(2)(c) to be an adequate and independent state ground that precludes federal
habeas review.” (collecting cases)). Likewise, petitioner’s claim that his lawyer was
ineffective for failing to consult or hire an expert on Child Sexual Abuse Syndrome is procedurally barred because he never sought appellate review of Hernandez III, and the time
for him to seek leave to appeal has long since
expired. See Edsall v. Marshall, No. 08-CV0673 MAT, 2010 WL 4140715, at *5 & n.3
(W.D.N.Y. Oct. 21, 2010).
would hold the claim procedurally barred.’”
Keane, 118 F.3d at 139 (quoting Hoke, 933
F.2d at 120).
However, “exhaustion in this sense does
not automatically entitle the habeas petitioner
to litigate his or her claims in federal court.
Instead, if the petitioner procedurally defaulted [on] those claims, the prisoner generally is barred from asserting those claims in a
federal habeas proceedings.” Woodford v.
Ngo, 548 U.S. 81, 93 (2006) (citing Gray v.
Netherland, 518 U.S. 152, 162 (1996); Coleman, 501 U.S. at 744-51).
The procedural bar rule in the review of
applications for writs of habeas corpus is
based on the comity and respect that state
judgments must be accorded. See House v.
Bell, 547 U.S. 518, 536 (2006). Petitioner’s
federal claims also may be procedurally
barred from habeas corpus review if they
were decided at the state level on adequate
and independent grounds. See Coleman, 501
U.S. at 729-33.
Once it is determined that a claim is procedurally barred under state rules, a federal
court may still review such a claim on its
merits if the petitioner can demonstrate both
cause for the default and prejudice resulting
therefrom, or if he can demonstrate that the
failure to consider the claim will result in a
miscarriage of justice. Id. at 750 (citations
omitted). A miscarriage of justice is demonstrated in extraordinary cases, such as where
a constitutional violation results in the conviction of an individual who is actually innocent. Murray v. Carrier, 477 U.S. 478, 496
(1986).
Petitioner has offered no explanation for
why he failed to properly raise these claims
in state court, nor has he made a showing of
prejudice or manifest injustice. See Coleman, 501 U.S. at 750; Murray, 477 U.S. at
496. Therefore, all of his claims except his
3. Application
Here, on direct appeal, petitioner did not
raise his record-based claims that counsel
7
“‘[j]udicial scrutiny of a counsel’s performance must be highly deferential . . . [and]
every effort [must] be made to eliminate the
distorting effects of hindsight.’” Cox, 387
F.3d at 198 (quoting Strickland, 466 U.S. at
689); see also Eze, 321 F.3d at 125 (explaining scrutiny is deferential because “‘it is all
too tempting for a defendant to second-guess
counsel’s assistance after a conviction or adverse sentence, and it is all too easy for a
court, examining counsel's defense after it
has proved unsuccessful, to conclude that a
particular act or omission of counsel was unreasonable’” (quoting Strickland, 466 U.S. at
689)).
claim relating to the alibi witness are procedurally barred. 3
B. Merits
For the reasons that follow, the Court denies the entire petition on the merits.
1. Applicable Law
Under the standard promulgated by
Strickland v. Washington, 466 U.S. 668
(1984), a petitioner is required to demonstrate
two elements in order to state a successful
claim for ineffective assistance of counsel:
(1) “counsel’s representation fell below an
objective standard of reasonableness,” and
(2) “there is a reasonable probability that, but
for counsel’s unprofessional errors, the result
of the proceeding would have been different.” Id. at 688, 694.
In particular, “[a]ctions or omissions by
counsel that ‘might be considered sound trial
strategy’ do not constitute ineffective assistance.’” United States v. Best, 219 F.3d 192,
201 (2d Cir. 2000) (quoting Strickland, 466
U.S. at 689); see also Bell, at 156 (explaining
that in order to show ineffective assistance,
“defendant must overcome the presumption
that, under the circumstances, the challenged
action might be considered sound trial strategy”) (citation omitted); Lynn v. Bliden, 443
F.3d 238, 247 (2d Cir. 2006) (“As a general
rule, a habeas petitioner will be able to
demonstrate that a trial counsel’s decisions
were objectively unreasonable only if there
[was] no . . . tactical justification for the
course taken.”) (citation omitted). For that
reason, “[s]trategic choices made by counsel
after thorough investigation . . . are virtually
unchallengeable . . . and there is a strong presumption that counsel’s performance falls
‘within the wide range of reasonable professional assistance.’” Gersten, 426 F.3d at 607
(quoting Strickland, 466 U.S. at 689-90); see
also Pavel v. Hollins, 261 F.3d 210, 2l6 (2d
In order to meet the first prong of the
Strickland test, “a defendant must show that
counsel’s representation ‘fell below an objective standard of reasonableness’ determined
according to ‘prevailing professional norms’
. . . . Counsel’s performance is examined
from counsel’s perspective at the time of and
under the circumstances of trial.” Murden v.
Artuz, 497 F.3d 178, 198 (2d Cir. 2007)
(quoting Strickland, 466 U.S. at 688); see
also Davis, 428 F.3d at 88 (“When assessing
whether or not counsel’s performance ‘fell
below an objective standard of reasonableness’ . . . under prevailing professional
norms,’ Strickland directs us to consider the
circumstances counsel faced at the time of the
relevant conduct and to evaluate the conduct
from counsel’s point of view.”) (quoting
Strickland, 466 U.S. at 688-89). Therefore,
3
Even assuming petitioner had properly exhausted
these ineffective assistance of counsel claims, the
Court concludes that they all lack substantive merit for
the reasons set forth below.
8
2. Failure to Call Alibi Witness
Cir. 2001) (explaining that representation is
deficient only if, “in light of all the circumstances, the identified acts or omissions were
outside the wide range of professionally competent assistance”) (emphasis in original) (citation omitted).
“Courts applying Strickland are especially deferential to defense attorneys’ decisions concerning which witnesses to put before the jury . . . . ‘The decision not to call a
particular witness is typically a question of
trial strategy that [reviewing] courts are illsuited to second-guess.’” Greiner v. Wells,
417 F.3d 305, 323 (2d Cir. 2005) (quoting
United States v. Luciano, 158 F.3d 655, 660
(2d Cir. 1998)); see also Eze, 321 F.3d at 129
(“A defense counsel’s decision not to call a
particular witness usually falls under the
realm of trial strategy that we are reluctant to
disturb.”). In fact, depending on the circumstances, even an attorney’s decision not to
call witnesses “that might offer exculpatory
evidence . . . is ordinarily not viewed as a
lapse in professional representation.” Best,
219 F.3d at 201.
Finally, in determining whether one or
more errors by trial counsel renders the representation constitutionally deficient under
the first prong of Strickland, the Court “need
not decide whether one or another or less than
all of these . . . errors would suffice, because
Strickland directs us to look at the ‘totality of
the evidence before the judge or jury,’ keeping in mind that ‘some errors [ ] have . . . a
pervasive effect on the inferences to be drawn
from the evidence, altering the entire evidentiary picture. . . .’ ” Lindstadt v. Keane, 239
F.3d 191, 199 (2d Cir. 2001) (quoting Strickland, 466 U.S. at 695-96).
With respect to alibi witnesses, courts
have found that “even if . . . alibi evidence did
exist, the trial attorney’s decision not to call
the purported alibi witnesses [may be] a reasonable tactical decision” that does not constitute deficient performance. Dupont v.
United States, 224 F. App’x 80, 81 (2d Cir.
2007); see also Perkins v. Comm’r of Corr.
Servs., 218 F. App’x 24, 26 (2d Cir. 2007)
(finding valid “strategic reasons” for failure
to call alibi witnesses). “At the same time,
however, the decision not to call a witness
must be grounded in some strategy that advances the client’s interests.” Eze, 321 F.3d
at 129. The Second Circuit has noted several
legitimate, tactical reasons for failing to call
a defense witness. For example, an attorney
may choose not to call a witness where that
witness’ likely testimony is largely unknown
to the attorney before trial, or where the witness is “unfriendly” to the defendant. See
e.g., Greiner, 417 F.3d at 323 (finding that
The second prong focuses on prejudice to
the petitioner. The petitioner is required to
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. In this
context, “reasonable probability” means that
the errors were of a magnitude such that they
“undermine[ ] confidence in the [proceeding’s] outcome.” Pavel v. Hollins, 261 F.3d
210, 216 (2d Cir. 2001) (quoting Strickland,
466 U.S. at 694). “‘[T]he question to be asked
in assessing the prejudice from counsel’s errors . . . is whether there is a reasonable probability that, absent the errors, the factfinder
would have had a reasonable doubt respecting guilt.’” Henry v. Poole, 409 F.3d 48, 6364 (2d Cir. 2005) (quoting Strickland, 466
U.S. at 695). The party alleging ineffective
assistance of counsel bears the burden of establishing both deficient performance and
prejudice. United States v. Birkin, 366 F.3d
95, 100 (2d Cir. 2004).
9
not to call Cecil Ortiz was a “reasonable tactical decision” that does not constitute deficient performance. Id. at 81. In particular,
the Court agrees with the County Court that
the evidence at trial established that Cecil
was not present on the night in question, and,
therefore, that counsel had a valid strategic
reason for refusing to call him. EO, Ana
Ortiz, and Daniel Ortiz all testified that Cecil
was not home the night of the assault (T.
3/31/08 at 44 (EO); 4/1/08 at 28-29, 175 (Ana
and Daniel, respectively)), and Fred Ortiz
testified that Cecil would go away to gamble
(T. 4/1/08 at 123). Given this evidence, it
was strategically reasonable for defense
counsel not to call him to testify. See Dupont,
224 F. App’x. at 91 (“We find no clear error
in the district court’s factual finding that defendant failed credibly to establish the existence of alibi evidence at the time of trial. Absent such evidence, there is no basis for defendant’s ineffective assistance claim.”) Accordingly, the Court cannot conclude that defense counsel’s behavior fell below an objective standard of reasonableness. See id.;
Strickland, 466 U.S. at 694. 4 In any event,
petitioner has not shown prejudice as a result
of counsel’s failure to call his roommate because he has not provided a statement from
Cecil Ortiz that corroborates his alibi. Compare Rogers v. Chappius, No. 12-CV-00148
counsel was justified in deciding not to introduce evidence because it would have established a motive for the petitioner to have
committed the crime); see also, e.g., Seow v.
Artuz, 98-CV-72, 2007 WL 2890259, at *10,
2007 U.S. Dist. LEXIS 72208, at *26-27
(E.D.N.Y. Sept. 27, 2007) (finding decision
not to call witness “who was intoxicated and
unsure of what he had seen” to be “a tactical
choice”).
In Dupont, for example, the petitioner argued that he was denied effective assistance
of counsel because his attorney decided not
to present an alibi defense. 224 F. App’x at
81. The Second Circuit, however, held that
the defendant failed to establish the existence
of alibi evidence and “absent such evidence,
there [was] no basis for defendant’s ineffective assistance claim.” Id. at 82. Furthermore, the Court stated that even if alibi evidence did exist, the trial attorney’s decision
not to use the alibi witness does not constitute
ineffective assistance of counsel “if the lawyer has a reasonable justification for the decision.” Id. (quoting Greiner, 417 F.3d at
319).
Similarly, here, the underlying record
demonstrates that defense counsel’s decision
4
Petitioner further argues that the County Court erred
in deciding his § 440.10 motion without holding a
hearing. (Pet. 9.) Under § 440.30(4), however, a court
may deny a § 440.10 motion “without conducting a
hearing” if, inter alia, “[t]he motion is based upon the
existence . . . of facts and the moving papers do not
contain sworn allegations substantiating . . . all the essential facts.” Because petitioner did not provide any
such sworn allegations from Cecil Ortiz to support his
§ 440.10 motion, the County Court’s decision to proceed without a hearing complied with § 440.30(4). See
People v. Kirkland, 1 Misc. 3d 904(A), 781 N.Y.S.2d
627 (Sup. Ct. 2003); see also Parisi v. Artus, No. 08CV-1785 ENV, 2010 WL 4961746, at *9 (E.D.N.Y.
Dec. 1, 2010) (“[T]he Suffolk County Court acted well
within its authority in not holding an evidentiary hearing on [petitioner’s] § 440 motion.”). In any event,
this argument only alleges a violation of state procedural law, which does not provide grounds for federal
habeas relief. See Polanco v. Rock, No. 9:08-CV-1283
(GLS), 2010 WL 2483287, at *13 (N.D.N.Y. June 4,
2010) (“State prisoners have no federal constitutional
right to post-conviction proceedings in state court.
Therefore, to the extent that Petitioner is challenging
alleged procedural errors by the trial court in deciding
his section 440 motion, including his claim that the
court denied the motion without holding a hearing,
those claims are not cognizable on habeas review.” (citations omitted) (collecting cases)).
10
In addition, even had counsel failed to
move to dismiss the indictment, the Court
concludes that the motion would have lacked
merit because the government provided sufficient evidence of guilt to support the indictment. 5 Specifically, it is undisputed that EO
testified about the sexual assault petitioner
committed against her before the Grand Jury.
(See People’s Ex. 22 at 9-10 (transcript of
EO’s grand jury testimony).) Given that
“[t]he testimony of a single, uncorroborated
eyewitness is generally sufficient to support
conviction,” United States v. Danzey, 594
F.2d 905, 916 (2d Cir. 1979) (emphasis
added), EO’s testimony about the alleged assault was plainly sufficient to support the indictment. See also Bentley v. Scully, 41 F.3d
818, 825 (2d Cir. 1994) (stating that eyewitness testimony and identification constituted
a major portion of overwhelming evidence of
guilt); King v. Greiner, 210 F. Supp. 2d 177,
185 (E.D.N.Y. 2002) (holding that a petitioner’s claim of legally insufficient evidence
lacked merit in light of eyewitness identification); Huber v. Schriver, 140 F. Supp. 2d
265, 277 (E.D.N.Y. 2001) (holding that the
testimony of one eyewitness defeated a petitioner’s claim of legally insufficient evidence). Moreover, the government presumably introduced the same evidence before the
grand jury that they presented at trial to corroborate EO’s testimony, including, inter
alia, her brother’s statement that petitioner
took EO by the arm and offered to buy him a
bike if he kept quiet about what he had seen
(T. 4/1/08 at 199), nurse practitioner Marino’s testimony about anal scarring indicative of penetrating blunt force trauma (T.
MAT, 2013 WL 1825505, at *12 (W.D.N.Y.
Apr. 30, 2013) (holding that petitioner failed
to show prejudice from counsel’s failure to
investigate defense witnesses where he “did
not establish in state court, nor [did] he [in
federal court], the substance of the purported
alibi testimony by way of affidavits” (collecting cases)) with Schulz v. Marshall, 528 F.
Supp. 2d 77, 85, 101-02 (E.D.N.Y. 2007)
(finding prejudice from failure to call alibi
witness, among other deficiencies in counsel’s performance, where petitioner presented
a corroborative affidavit from that witness).
3. Failure to File Pretrial Motions
Petitioner also argues that counsel was ineffective because he failed to move to dismiss
the indictment based on insufficient evidence
and failed to move to suppress petitioner’s
statements to Fred Ortiz. The Court concludes that these contentions lack merit.
First, petitioner argues that his attorney
failed to file a motion dismiss the indictment
for insufficiency of the evidence. (Pet. 6.) As
a threshold matter, however, the record contradicts petitioner’s assertion because it includes a short order from County Court Judge
James Hudson dated June 19, 2007 in which
the court denied counsel’s motion “to dismiss
the indictment on the grounds that the evidence before the Grand Jury was not legally
sufficient to establish the offenses charged.”
(See Order dated June 19, 2007.) This order
plainly indicates that petitioner’s lawyer did
file a motion to dismiss the indictment.
5
It is “well-settled that claims based on the sufficiency
of the evidence presented to a state Grand Jury are not
cognizable under federal law and thus are not reviewable in a habeas corpus petition.” Walker v.
Brown, No. 08–CV1254, 2009 WL 2030618, at *7
(E.D.N.Y. July 10, 2009) (collecting cases). Nevertheless, a petitioner may allege ineffective assistance
of counsel based on a failure to move to dismiss the
indictment. See, e.g., Hernandez v. Kuhlmann, 14 F.
App’x 90, 92 (2d Cir. 2001).
11
the analogous federal constitutional protection—which bars only statements coerced by
state actors, [N.Y. Crim. Proc. L.] § 60.45
does not distinguish between statements
made to law enforcement and statements
made to private citizens.”). The Court can
discern no other basis for which the statements might have been suppressed, and petitioner offers none. As such, it cannot conclude that counsel was constitutionally ineffective for failing to file a motion to suppress
them. See Matos, 905 F.2d at 32 (“In order
to show ineffective assistance for the failure
to make a suppression motion, the underlying
motion must be shown to be meritorious. . . .”); Delgado v. Walker, 798 F. Supp.
107, 111 (E.D.N.Y. 1992) (holding that counsel was not ineffective for failing to file a suppression motion that was unlikely to succeed).
4/2/08 at 155-57), and petitioner’s pleas for
forgiveness from Fred Ortiz (id. at 135-36).
This evidence was plainly sufficient to sustain the indictment. See, e.g., Jones v. Poole,
No. 05-CV-6378, 2009 WL 3491298, at *5
(W.D.N.Y. Oct. 23, 2009); Munoz v. Burge,
No. 02-CV-6198 NGG LB, 2007 WL
7244783, at *17 (E.D.N.Y. Aug. 27, 2007),
report and recommendation adopted as modified, No. 02-CV-6198 NGG, 2010 WL
3394696 (E.D.N.Y. Aug. 20, 2010).
Additionally, the Court rejects petitioner’s second argument that counsel was ineffective for failing to move to suppress petitioner’s statements to Fred Ortiz over the
phone asking for forgiveness. As a general
matter, in order to show ineffective assistance
of counsel for failure to file a pre-trial motion
to suppress, the underlying motion must be
meritorious, and there must be a reasonable
probability that the court’s ruling on it would
have affected the outcome of the case. See
United States v. Matos, 905 F.2d 30, 32 (2d
Cir. 1990) (citing Kimmelman v. Morrison,
47 U.S. 365, 375-76 (1986)).
In short, petitioner has not shown that his
attorney’s failure to file a motion to dismiss
the indictment or to suppress the statements
made to Fred Ortiz fell below an objective
standard of reasonableness under the first
prong of Strickland. Therefore, he is not entitled to habeas relief on this claim.
In this case, however, the pre-trial motions petitioner claims his attorney did not
file would not have been meritorious. Even
assuming counsel did not move to suppress
the statements to Fred Ortiz, 6 the Court can
find no legal basis for suppressing them. Petitioner has provided nothing to suggest that
the statement was involuntary, as required to
render a statement inadmissible under New
York law. See N.Y. Crim. P. Law § 60.45(1);
People v. Grillo, 176 A.D.2d 346, 346 (N.Y.
App. Div. 1991); Malave v. Smith, 559 F.
Supp. 2d 264, 268 (E.D.N.Y. 2008) (“Unlike
4. Failure to Call an Expert in Child Sexual
Abuse Syndrome
Petitioner argues that trial counsel’s failure to retain or consult an expert witness on
Child Sexual Abuse Syndrome rendered him
ineffective. (Pet. 6.) As noted above, however, “the tactical decision of whether to call
specific witnesses—even ones that might offer exculpatory evidence—is ordinarily not
viewed as a lapse in professional representation.” United States v. Schmidt, 105 F.3d 82,
6
The record includes an omnibus motion where counsel, inter alia, moves to “preclude[e] any statements
alleged to have been made by the defendant and not
noticed, pursuant to Section 710.30 of the New York
Criminal Procedure Law,” but it does not specifically
mention the statements to Fred Ortiz.
12
5. Failure to Attack Credibility of
Witnesses
90 (2d Cir. 1997); see also Haynes v. Ercole,
No. 08-CV-3643 (JFB), 2011 WL 2341277,
at *23 (E.D.N.Y. June 8, 2011) (“[F]ailing to
call a witness, even one that could potentially
provide exculpatory testimony, does not ordinarily lead to the conclusion that counsel
was ineffective.”); Bloomfield v. Senkowski,
No. 02 CV 6738 (RJD) (LB), 2008 WL
2097423, at *1 (E.D.N.Y. May 15, 2008)
(“[A]n attorney’s failure to consult with or
call [an] expert, standing alone, does not necessarily meet the first prong of Strickland.”).
Petitioner claims that he received ineffective assistance of counsel because his defense
attorney failed to attack the credibility of witnesses. This Court disagrees.
As with other aspects of trial planning,
“[d]ecisions about ‘whether to engage in
cross-examination, and if so to what extent
and in what manner, are . . . strategic in nature’ and generally will not support an ineffective assistance claim.” Dunham v. Travis,
313 F.3d 724, 732 (2d Cir. 2002). “Counsel’s
conduct is only considered unreasonable
where there is no plausible trial strategy justifying counsel’s behavior.” Lewis v. United
States, No. 10-CV-00718 (ENV), 2012 WL
2394810, at *4 (E.D.N.Y. June 25, 2012) (citing Jackson v. Leonardo, 162 F.3d 81, 85 (2d
Cir. 1998)).
Here, petitioner’s claim fails to meet the
first prong of Strickland. Petitioner has provided no basis to conclude that his lawyer’s
actions were not a result of trial strategy. On
the contrary, as the County Court found, a
Child Sexual Abuse Syndrome expert retained by the defense would not have been
able to effectively rebut the People’s expert
because the expert only gave a “general explanation of the possible behaviors exhibited
by the child victim.” (See Hernandez III at
2.) More significantly, defense counsel vigorously cross-examined the People’s expert
at trial and called his own medical expert to
refute EO’s allegations. Therefore, petitioner
has not demonstrated that counsel’s representation fell below an objective standard of reasonableness as required for his ineffective assistance of counsel claim. Strickland, 466
U.S. at 694. 7
Here, petitioner asserts that his lawyer
“made no attempt to impeach [EO] at trial
with her inconsistent statements regarding
whether penile penetration occurred.” (Pet.
7.) He has not, however, provided any basis
from which this Court could conclude that
EO made such statements. On the contrary,
all of EO’s statements admitted into evidence
were consistent with her trial testimony that
no vaginal penetration took place. (Compare, e.g., T. 3/31/08 at 47-52 with People’s
Ex. 7 at 1-2 (EO’s statement to police), People Ex. 22 at 9-10 (transcript of EO’s grand
jury testimony) with T. 3/31/08 at 47-52 (trial
testimony).). Defense counsel did, however,
7
Petitioner again argues that the County Court erred
in denying his § 440.10 motion on this ground without
a hearing, but, as with his claim regarding the alibi witness, he did not provide an affidavit from a counterexpert that would entitle him to such a hearing under
§ 430.30(4). See Kirkland, 1 Misc. 3d 904(A), 781
N.Y.S.2d 627. Furthermore, as noted above, this state
procedural law claim is not cognizable on federal habeas review. See Polanco, 2010 WL 2483287, at *13.
13
States, No. 10-CV-5694 FB, 2014 WL
4924436, at *3 (E.D.N.Y. Oct. 2, 2014)
(holdings counsel’s performance was not deficient where he “vigorously cross-examined” the government’s witnesses). Therefore, this ineffective assistance of counsel
claim lacks merit.
question EO about other issues with her testimony, such as her initial statement to her
mother that the assault occurred in July rather
than August (T. 3/31/08 at 89-90), her early
failure to provide the details of the assault to
her mother or the gynecologist (id. at 88, 9697, 105-12), her refusal to go into detail about
the incident for some time (id. at 97, 104,
119-20), and various inconsistencies between
her trial and Grand Jury testimony about the
details of that night (id. at 130-41).
6. Failure to Object to Marino’s Testimony
Petitioner contends that trial counsel was
ineffective for failing to object when Marino
testified about particular statements EO made
to her because those statements amounted to
hearsay and impermissibly bolstered EO’s
testimony. (Pet. 8.) The Court disagrees.
First, although it is true that Marino recounted some of the statements EO made
about the incident (see, e.g., T. 4/2/08 at 7980), those statements were made for the purpose of medical diagnosis, which renders
them admissible under New York law, see
People v. Thomas, 282 A.D.2d 827, 828
(N.Y. App. Div. 2001) (“[A] treating physician may testify to the history obtained from
the patient if it is germane to diagnosis and
treatment.” (quoting Scott v. Mason, 155
A.D.2d 655, 657, (App. Div. 1989))). Thus,
a hearsay objection would not have succeeded, and counsel’s failure to make one
does not constitute deficient performance.
See Vargo v. United States, No. 06-CV4846(NGG), 2008 WL 2437861, at *8
(E.D.N.Y. June 13, 2008) (“Trial counsel
cannot be faulted for failing to make an objection that would be unlikely to succeed.”).
To the extent petitioner challenges his attorney’s cross-examinations of the People’s
other witnesses, the Court concludes he has
not shown deficient performance in that respect because counsel vigorously cross-examined each of the People’s witnesses. For
instance, he questioned Ana about her failure
to report the assault to the police until after
EO spoke with the counselor (T. 4/1/08 at
59), highlighted inconsistencies between her
brother’s testimony and the statement he
made to the police (id. at 215-16), elicited testimony from Marino that EO’s injuries were
consistent with chronic constipation and that
the injuries may have been absent during
EO’s first physical examination (T. 4/2/08 at
189), and challenged the accuracy of Marino’s report (id. at 198). In the absence of a
more specific explanation as to why counsel’s performance was defective with respect
to the other witnesses (see Pet. 7-8 (concentrating on inconsistencies in EO’s testimony
and stating only generally that petitioner’s
“attorney failed to properly cross-examine
the People’s witnesses”)), the Court concludes that counsel’s cross-examinations
were not constitutionally defective, see Dunham, 313 F.3d at 732.
Second, none of Marino’s statements impermissibly bolstered EO’s testimony. Under New York law, “[w]here . . . the sole reason for questioning [an] expert witness is to
bolster the testimony of another witness . . .
by explaining that his version of the events is
more believable than the defendant’s, the expert’s testimony is equivalent to an opinion
Under these circumstances, petitioner has
not shown that his lawyer’s questioning of
EO fell below an objective standard of reasonableness. See, e.g., Wright v. United
14
testify about his observations on physical examination of the child and, in response to a
hypothetical question, to state that, based on
his training and experience, in his opinion the
child had been subjected to sexual contact in
the vaginal and anal areas within the past few
days.”). Likewise, in Bloomfield, 2008 WL
2097423, at *34, the court held that it was not
improper to introduce expert testimony that
“refut[ed] innocent explanation for how [the
alleged victim] incurred various injuries” because those explanations were “a crucial
component of the prosecution’s circumstantial case.”
that the defendant is guilty, and the receipt of
such testimony may not be condoned.” People v. Ciaccio, 391 N.E.2d 1347, 1351 (N.Y.
1979). In Ciaccio, for example, the alleged
victim testified that two men had forced their
way into his truck and offered him $100 to lie
about who committed the hijacking. Id. The
victim later testified that one of the men also
offered to buy him a meal while the other
drove away with the truck. Id. The People
called a police detective as an expert who testified that, in his experience of investigating
similar robberies, “that it was not unusual for
hijackers to offer to give the driver of the
truck $100 for his co-operation in reporting
to the police that two Blacks had done the
robbery and that it is usual for hijackers to
take their victim, while in ‘custody’, out to
lunch.” Id. The New York Court of Appeals
held that the detective’s testimony was improper because it “was the precise equivalent
of affirming the credibility of the People’s
witness through the vehicle of an opinion that
many hijackings occur as the victim had related.” Id.
Here, like in Harris and Bloomfield, the
expert’s testimony was not offered solely to
explain that EO’s “version of the events is
more believable than the defendant’s,” Ciaccio, 391 N.E.2d at 1351, but instead to provide facts that would allow the jury to
properly evaluate EO’s testimony, see Harris, 249 A.D.2d at 776; Bloomfield, 2008 WL
2097423, at *34. To the extent she recounted
EO’s statements, she did so without any specificity and only in the context of explaining
physical evidence or the methods of her examination. (See, e.g., T. 4/2/08 at 122, 128.)
This does not constitute improper bolstering
under New York law, see Harris, 249 A.D.2d
at 776; Smith, 129 A.D. at 1005, and, therefore, does not provide a basis for an ineffective assistance of counsel claim, see Vargo,
2008 WL 2437861, at *8; Bloomfield, 2008
WL 2097423, at *34 (“A failure to raise an
evidentiary objection cannot be ineffective
assistance if the objection lacks merit.”). 8
In People v. Harris, 249 A.D.2d 775, 776
(N.Y. App. Div. 1998), by contrast, the Appellate Division held that it was not improper
bolstering for the People “to elicit an opinion
from their physician witness as to whether the
victim’s injuries were consistent with forcible sexual intercourse” even though that testimony “provide[d] independent corroboration of the victim’s claims.” See also People
v. Smith, 129 A.D. 1005, 1005 (App. Div.
1987) (“It was proper to allow the doctor to
8
In any event, the Court concludes that, assuming the
statements constituted impermissible bolstering, petitioner has not shown prejudice a result of them. Even
without Marino’s testimony recounting EO’s allegations, the evidence of guilt—which, as noted above,
included not just EO’s testimony but also, inter alia,
her brother’s testimony that was consistent with her
version, the physical evidence indicative of a sexual
assault, and petitioner’s pleas for forgiveness—was
overwhelming. See, e.g., People v. Hudgins, No. 07–
CV–01862–(JFB), 2009 WL 1703266, at *6
(E.D.N.Y. June 18, 2009).
15
[EO] based on her physical exam” (T. 4/3/08
at 111). She further testified that EO’s demeanor was “not reliable” as it was inconsistent with a typical sexual assault victim.
(Id. at 117.) Therefore, given that the prosecutor’s alleged effort to discourage Dr.
Schwartz from presenting this evidence did
not succeed, petitioner has failed to demonstrate prejudice from it as required for habeas
relief. See Darden, 477 U.S. at 181; Bentley, 41 F.3d at 824.
7. Prosecutorial Misconduct
Next, petitioner claims that he received ineffective assistance of counsel because his
lawyer failed to object to prosecutorial misconduct that allegedly occurred when the
prosecutor threatened defense witness Dr.
Schwartz over the telephone due to the doctor’s medical report. (Pet. 8.) Petitioner appears to be referring to a message the prosecutor left with Dr. Schwartz’s sister in which
the prosecutor insinuated that Schwartz
might “blow the case” if she testified. (See
T. 4/3/08 at 115-16 (Schwartz referring to the
messages as “nasty” and “threatening”).)
IV. CONCLUSION
For these reasons, this Court concludes
that petitioner has demonstrated no basis for
habeas relief under 28 U.S.C. § 2254. Accordingly, the petition for a writ of habeas
corpus is denied in its entirety. Because Petitioner has failed to make a substantial showing of a denial of a constitutional right, no
certificate of appealability shall issue. See 28
U.S.C. § 2253(c)(2). The Clerk of the Court
shall enter judgment accordingly and close
this case.
To resolve an ineffective assistance of
counsel claim based on a failure to object to
prosecutorial misconduct, courts “focus on
the merits of the underlying prosecutorialmisconduct claims.” Wynters v. Poole, 464
F. Supp. 2d 167, 177 (W.D.N.Y. 2006). To
obtain habeas relief on the basis of prosecutorial misconduct, that misconduct “must
have so infected the trial with unfairness as to
make the resulting conviction a denial of due
process.” Darden v. Wainwright, 477 U.S.
168, 181 (1986). A petitioner must show that
he “suffered actual prejudice because the
prosecutor’s comments . . . had a substantial
and injurious effect or influence in determining the jury’s verdict.” Bentley, 41 F.3d at
824.
SO ORDERED.
________________________
Judge Joseph F. Bianco
United States District Judge
Here, even assuming the prosecutor’s actions amounted to misconduct, petitioner has
not made a showing of prejudice as required
to prevail on a prosecutorial misconduct
claim. Indeed, Dr. Schwartz’s report, the
document petitioner claims the prosecutor
was attempting to repress, was admitted at
trial (see T. 4/4/08 at 13-16), and Dr.
Schwartz testified specifically that “there was
no evidence, whatsoever . . . that there was
any trauma, or sexual assault committed to
Date:
August 25, 2017
Central Islip, NY
* * *
Petitioner is proceeding pro se. Respondent
is represented by Thomas J. Spota, District
Attorney, Suffolk County District Attorney’s
Office, 200 Center Drive, Riverhead, NY
11901.
16
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