Fay v. Annucci et al

Filing 64

OPINION & ORDER for 51 Report and Recommendations, For the reasons stated above, the Court adopts Judge Cave's two Reports; dismisses Fay's § 2254 Petition; and denies Fay's motions to amend the Petition and to stay consider ation of the Petition pending disposition of his recently filed § 440.10 motion in New York State Court. The Clerk of the Court is respectfully directed to terminate the motions pending at Dockets 38 and 48 and to close this case. SO ORDERED. (Signed by Judge Paul A. Engelmayer on 2/5/2024) (ks)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
GEORGE FAY,
Petitioner,
-v-

20 Civ. 187 (PAE) (SLC)
OPINION & ORDER

ANTHONY F. ANNUCCI, Commissioner,
New York State Department of Corrections
and Community Supervision, and EARL BELL,
Superintendent, Clinton Correctional Facility,
Respondents.
PAUL A. ENGELMAYER, District Judge:
This decision resolves a counseled habeas corpus petition filed by New York State
prisoner George Fay (the "Petition") pursuant to 28 U.S.C. § 2254. It also resolves motions to
stay the case and amend the Petition that Fay made after a Report from the Magistrate Judge had
issued that recommended denial of the Petition.
Fay was convicted in New York State court of first-degree rape and other offenses arising
out of a July 2016 incident. On January 9, 2020, Fay filed the Petition, challenging these
convictions. See Dkt. 1 ("Pet."). The Petition was opposed by respondent Anthony Annucci,
Commissioner of the New York State Department of Corrections and Community Supervision.
On February 14, 2023, the Honorable Sarah L. Cave, United States Magistrate Judge, to whom
the Court had referred the Petition, issued a Report and Recommendation recommending denial
of the Petition. See Dkt. 31 ("Report"). Fay did not object to the Report. However, on May 22,
2023, while the Report was pending with this Court, Fay moved to amend the Petition and stay
this case while he initiated and pursued a state claim of ineffective assistance of trial counsel.

See Dkt. 48. On June 16, 2023, Judge Cave issued a Report and Recommendation,

recommending denial of both motions. See Dkt. 51 ("Second Report"). On July 7, 2023, Fay
objected to the Second Report. Dkt. 54 ("Obj."). On August 9, 2023, Annucci responded. Dkt.
60 ("Resp.").
Following review of the Reports, the objections, and response, the Court adopts Judge
Cave's recommendations. The Court denies the Petition and the motions to amend and stay it.

I.

Factual Background
The Court adopts the Reports' detailed accounts of the factual background and procedural

history of this case, to which no party objects. The following summary, drawn from the Report
and Second Report, and from the state-court record, see Dkt. 21 & Exs. 1-3; Dkt. 22 & Exs. 1-2,
presents the limited facts necessary to assess the issues presented. 1

A. Fay's Rape of S.D. in July 2016
The evidence at trial established the following.
In June 2016, Fay began a summer internship in New York City. 01/19/2018 Tr. at 792.
He lived in an Upper East Side apartment owned by a family friend. Id. The night of July 8,
2016, Fay met up with Jack Slye, Don Sobell, and Sam Reardon at a bar. Id. at 796. Slye,
Sobell, and Reardon were visiting from out-of-town and had made plans with Fay to stay in his
apartment. Id. at 25.
That night, Slye also invited S.D. to the bar. Id. at 35. Slye and S.D. knew each other
from college and had a sexual history together. Id. at 21. S.D. met Slye around midnight at the
bar where he, Fay, Sobell, and other friends were drinking. Id. at 39. Almost immediately after
S.D. met up with Slye, they left together, and took a taxi to Fay's apartment. Id. at 39--40.
There, Slye and S.D. had sex in Fay's bed and fell asleep. Id. at 42--43.

1

In citing here to the Report and Second Report, the Court omits embedded record citations.
2

Around 3 a.m., Fay and Sobell took an Uber back to the apartment. 01/29/2018 at 801.
After watching television and smoking marijuana, Fay went to his bedroom where Slye and S.D.
were sleeping. Id at 804-06. Fay crawled into bed with them and had sex with S.D. while she
was asleep. Id at 806; 01/22/2018 Tr. at 188-90. S.D. testified that her eyes were closed when
she felt something in her mouth, and that what woke her up was when she felt someone "having
sex with [her]." 01/22/2018 Tr. at 188. At that point, she immediately 'Jumped out" of bed
when she "realized it wasn't a dream" and realized that someone she did not recognize-not
Slye-was "[o]n top of [her]." Id. at 190. S.D. went into a "full hysterical panic, grabbing [her]
clothes," and awakened Slye. Id. Slye remembered waking up and that S.D. was screaming in
the hallway, "very shaky and jittery and upset," 01/19/2018 Tr. at 46, yelling that "there was
someone else in the room," and "physically shaking, convulsing," id. at 47; S.D. told Slye "what
[had] just happened" and stated that they "had to leave," 01/22/2018 Tr. at 191. Seeing Fay,
whom she recognized as her assailant, standing in the kitchen, S.D. asked who he was, and told
Slye she wanted to call the police. Id at 192-93. Fay told Slye, "it's not what it seems."
01/19/2018 Tr. at 47. Slye told S.D. that they "need[ed] to get out of the apartment," and they
"grabbed [their] stuff and then left the apartment." Id at 49. Before S.D. leftthe apartment, Fay
shook Sobell, who had been asleep on the living room couch, awake, and said"[ s]he kissed my
neck, so I started going with it and then one thing led to another and she was giving me a blow
job." 01/24/2018 Tr. at 465. Fay looked anxious and upset, id at 509; Sobel! heard S.D. call
Fay "scum," and heard Fay say, "[t]his is not good," id at 466.
Shortly thereafter, Slye and S.D. left the apartment. The doorman, seeing how upset S.D.
was, asked her what happened. See 01/22/2018 at 194; 01/26/2018 at 731. S.D. responded that
she had been raped. 01/26/2018 at 731. The doorman, shortly before 6 a.m., called the police,

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while S.D., shaking and crying hysterically, waited. 01/26/2018 Tr. at 642, 731-32. Police
arrived around 6 a.m. Id at 668. S.D. was taken by ambulance to the hospital where she
reported to the emergency room nurse having awakened to find "someone having vaginal
intercourse with her and also oral intercourse." 01/23/2018 Tr. at 279. She presented as "visibly
upset, anxious, but completely alert, oriented, [and] aware of her surroundings." Id at 331. A
nurse administered a rape kit. Id. at 362. Forensic data revealed that Slye's and Fay's DNA
matched the DNA of the swabs collected from the rape kit. 01/26/2019 Tr. at 620,624.
Fay was arrested in the apartment. 01/23/2019 Tr. at 377. That day, a private
investigator hired by Fay's defense counsel questioned Slye, Sobell, and Reardon, and searched
the apartment and found pieces ofa surgical lubricant package. 01/24/2019 Tr. at 441,469.

B. State Court Proceedings
1. Pre-Trial, Trial, and Sentencing

The Indictment, filed on August 26, 2016, charged Fay with: first-degree (1) rape in
violation of New York Penal Law§ 130.35(2); (2) criminal sexual act in violation of New York
Penal Law§ 130.50(2); and (3) abuse in violation of New York Penal Law§ 130.65(2). Dkt 1.,
Ex. 1. As to each offense, the indictment charged that Fay had had sex with a person who "was
incapable of consent by reason of being physically helpless." Id.
Trial began on January 19, 2018. 01/19/2018 Tr. The prosecution's witnesses at trial
included S.D., Slye, Sobell, the doorman, the emergency room nurse, police officers who
responded to the call the morning of July 9, an expert on sexual assault forensic examinations, an
expert in DNA analysis, and phone company representatives who authenticated phone records.
Report at 10-11.

4

On the defense case, Fay testified, stating that S.D. had instigated the sexual intercourse,
had said "yes" twice during the act, and had appeared to him to be awake and conscious.
01/29/2018 Tr. at 807-10. On cross-examination, Fay admitted that outgoing calls to Backpage,
a website that advertises commercial sex to potential customers, had been made from his phone
at about 4 a.m. on July 9, but denied making such calls himself. Id. at 868-72. The defense also
called two character witnesses, and its investigator who had found the lubricant package.
01/30/2018 Tr. at 912,941,963. In opening statements, Fay's counsel stated that S.D. had given
"several versions" of what happened that evening. 01/19/2018 at 11. In closing argument, Fay's
counsel highlighted S.D. 's statement to a nurse that she "saw it happening to me from far away,"
her statement to Slye that she had originally "thought it was" him, and her statements to the
NYPD that she "was half-awake" and "groggy." 02/01/2018 at 1045-46.
Salient to Fay's present motion, an issue litigated at trial involved his counsel's bid to call
Dr. Michael Thorpe as a defense witness. Fay was represented at trial by Daniel Bibb, Stephen
Saracco, and Noreen Travers. At a pretrial hearing on January 8, 2018, Bibb told the presiding
Justice, Hon. Melissa Jackson, that he intended to call "[flour, potentially five" witnesses, but he
did not identify them. 01/08/2018 Tr. at 24. On January 10, 2018, when jury selection began,
Bibb gave the court a list of defense witnesses that included Thorpe. 01/10/2018 Tr. at 7. On
January 17, 2018, with jury selection ongoing, the Assistant District Attorney ("ADA") asked
Bibb for "any reports" Thorpe had "generated as well as [a] C.V." 01/17/2018 at 2. The ADA
noted that based on her "brief interview" of Thorpe, he appeared to be "a sleep disorder doctor"
and asked whether "the defense is going to go into a sleepwalking defense." Id. Bibb responded
that the defense would not assert such a defense, and that Thorpe's "area of expertise is not just
sleep disorder, it is pharmacological [e]ffects on sleep [ofl alcohol, drugs, things like that," and

5

stated that there had "been no reports" on the topic. Id Bibb promised, however, to provide
Thorpe's CV the following day. Id The court noted that the ADA was entitled to the CV. On
January 24, 2018, at the conclusion of a hearing on other evidentiary issues, the ADA noted that
Bibb had not yet provided her with Thorpe's CV and that she might object to his testimony; Bibb
promised to send it that evening. 01/24/2018 Tr. at 568.
On January 30, 2018, at the close of the defense case, Bibb stated that he intended to call
Thorpe as a final defense witness, as "an expert in sleep disorders and pharmacological effects
that alcohol intake consumption can have on a person [a]sleep." 01/30/2018 Tr. at 983. Bibb
stated that he had given Thorpe's CV to the ADA. Id Bibb stated that he anticipated that
Thorpe would testify that "there are situations where alcohol intake consumption and
intoxication have such an effect on a person that they can actually be [sic) sleeping but
participating in physical activities that make[] them appear to be awake and conscious." Id
Bibb stated that he "would probably pose hypothetical questions of [Thorpe) based on some of
the evidence that's been brought out at trial." Id. at 984.
Asked by Justice Jackson "[h]ow much notice" she had been given of Thorpe's proposed
testimony, the ADA responded that "[t]his is the first I've heard" of it. Id Bibb (although later
recanting on this point) claimed to have given the ADA the CV "months ago." Id Bibb stated
that he had explained to the ADA that Thorpe would testify about the "pharmacological effects
that alcohol can have on sleep and behavior." Id The ADA disputed those claims. She stated
that she had first received the CV "last Wednesday" and only after she pressed Bibb in court;
that Bibb had not responded to her query about the opinions as to which he proposed to call
Thorpe to testify; and that in their one conversation "months ago" on the subject, Bibb had
described Thorpe as a "sleep expert." Id at 985. The ADA noted that Bibb's CV indicated that

6

his expertise was on "sleep disorders, namely, narcolepsy, insomnia, and sleep apnea"; that the
CV did not disclose where Thorpe had worked; that the CV did not say anything about Thorpe's
"knowledge of the pharmacological effects of alcohol"; and that she had not found any studies or
publications by Thorpe to the effect that alcohol could cause a person to appear to be awake and
conscious while in fact sleeping. Id at 985-86. The ADA moved to preclude Thorpe's
testimony on the grounds of inadequate notice and that the defense had not established a
sufficient basis for his claimed expertise. Id Bibb, in response, did not identify any studies or
writings by Bibb on this point, or any written notice or application previewing such testimony,
and admitted giving the CV to the ADA "last week." Id. at 986.
Justice Jackson excluded the proposed testimony. She stated: "At the very minimum, Mr.
Bibb[], as you're well aware, this kind of evidence or testimony has to be done in a written form
with plenty of notice and a ruling by the court before I would permit it. So to just proffer this
now when you've already had several witnesses testify, I'm at a loss to understand such a late
notice." Id at 986-87. She noted the unclear "credentials of this witness." Id at 987. And she
noted that the lack of notice to the prosecution and the Court had prevented the Court from
making a ruling whether there is "indeed expert testimony" recognized in the scientific
community along the lines" that "someone can actually be intoxicated and not be aware they're
participating." Id. at 987.
After deliberating during the afternoon of February 1 and the morning of February 2,
2018, the jury returned a verdict finding Fay guilty on all three counts. 02/02/2018 Tr. at 6-10.
On April 17, 2018, Justice Jackson sentenced Fay to 10 years' imprisonment and five years of
post-release supervision on the rape count and the criminal sexual act count, and seven years'
imprisonment and five years of post-release supervision on the sexual abuse count, the terms to

7

run concurrently. 04/17/2018 Tr. at 21-22. She also found Fay a sexual offender and imposed
an order of protection requiring him to stay away from S.D. for 10 years. Id. at 22.

2. Direct Appeal
On direct appeal, Fay was represented by a new lawyer, Mark M. Baker. Second Report
at 6.
On March 5, 2019, the Appellate Division (First Department) affirmed. People v. Fay,
170 A.D.3d 404 (1st Dep't 2019). It held that the evidence was legally sufficient, and that the
verdict was not against the weight of the evidence. Id. at 404. It held that the record did not
support Fay's theory that S.D., while semiconscious as a result of intoxication and fatigue, had
mistaken Fay for Slye and had unwittingly engaged in consensual sex with Fay. Id. at 405. That
theory, it held, was both "implausible" and "contradicted by the victim's testimony, as well as by
defendant's own testimony." Id.
Salient here, the First Department rejected Fay's argument that the trial court violated his
Sixth Amendment right to present a defense when it precluded Thorpe's testimony. The court, it
held, had "providently exercised its discretion" in denying Fay's request "to call an expert on
sleep disorders, who would have testified about the effects of alcohol on sleep and behavior." Id.
The First Department explained that Fay had given the trial court inadequate notice, inhibiting it
from conducting a hearing under Frye v. United States, 293 F. 1013 (D.C. Cir. 1923), and
effectively precluding the prosecution from retaining a rebuttal expert. Further, the First
Department held, Fay had not proffered a scientific basis for the proposed testimony. Id.
Finally, because Fay had "never asserted that, as a matter of constitutional law, he was entitled to
introduce the expert testimony, his request to do so only raised questions of state evidentiary law
and trial management." Id. at 406. The First Department therefore declined to review Fay's

8

unpreserved constitutional claim, while stating, in the alternative, that it would reject any such
claim on the merits. Id.
On April 3, 2019, Fay filed a motion to reargue with the Appellate Division, citing a
"newly obtained transcript" that ostensibly contradicted the ADA's claim not to have heard
Fay's proffer of Thorpe's testimony before January 17, 2018. Dkt. 1, Ex. 4 at 7, 15. On July 16,
2019, the First Department denied the motion to reargue. Id., Ex. 5 at 12-15.
Fay also sought leave to appeal to the New York Court of Appeals, proposing to raise a
series of claims relating to the preclusion of Thorpe's testimony. On August 20, 2019, the Court
of Appeals denied Fay's application. People v. Fay, 34 N.YJd 930 (2019); see Report at 18.
Fay's conviction became final on November 18, 2019. 2

C. This Federal Habeas Corpus Proceeding
1. Fay's § 2254 Petition

On January 9, 2020, Fay, represented by appellate counsel Baker, timely brought the
Petition for a writ of habeas corpus under§ 2254, challenging his convictions on all counts.3 See
Pet. at 4-5. Fay argued that precluding Thorpe's testimony violated his Sixth Amendment right
to present a defense. See generally Dkt. 10 ("Pet. Mem."). The Court referred the Petition to
Judge Cave. Dkt. 6.

2. Judge Cave's Report
On February 14, 2023, Judge Cave issued the Report. It recommended that the Petition's
Sixth Amendment claim be denied as both procedurally barred and deficient on the merits.
A New York State conviction becomes final 90 days after the final order of the Court of
Appeals (i.e., when the time to seek U.S. Supreme Court review has expired.). Espiritu v.
Haponik, No. 05 Civ. 7057 (RJS), 2012 WL 161809, at *9 (S.D.N.Y. Jan. 19, 2012).

2

The one-year statute of limitations to file a petition under § 2254, imposed by the Antiterrorism
and Effective Death Penalty Act ("AEDPA"), 28 U.S.C. § 2244, expired on November 18, 2020.

3

9

As to the procedural bar, the Report explained, the First Department had rejected Fay's
Sixth Amendment claim because Fay had failed to contemporaneously object to the preclusion of
Thorpe's expert testimony based on the Sixth Amendment. This adequate and independent state
ground for affirmance barred that claim as a basis for relief under § 2254. Report at 26-36. And
Fay did not identify cause and prejudice for the procedural default. Id. at 36 (citing McCleskey v.

Zant, 499 U.S. 467, 493-94 (1991)). Bibb's ostensible belief that he had preserved the claim
was not "cause for a default." Id. at 36-37. And the Report did not find prejudice to Fay from
precluding Thorpe's testimony, or that making an exception to the cause and prejudice
requirement was necessary "to avoid a fundamental miscarriage of justice." Id. at 37-3 8
(citations omitted). The Petition, Judge Cave noted, did not claim actual innocence, let alone put
forward new evidence to that effect. Id. at 3 8.
The Report also found that the Sixth Amendment claim failed on the merits. Id. at 3 8.
Fay did not argue that the First Department's holding "was contrary to" Supreme Court
precedent. Id. at 39 n.16 (citing 28 U.S.C. § 2254(d)(l)). And, for five reasons, the Report
rejected Fay's argument that, in denying his Sixth Amendment claim, the First Department had
umeasonably applied Supreme Court precedent. Id. at 39--40.
First, the Repmi noted, a criminal defendant's right to present relevant testimony "is not
unlimited" and must accommodate evidentiary and procedural rules "designed to assure both
fairness and reliability in the ascertainment of guilt and innocence." Id. at 40 (citing, inter alia,

Rock v. Arkansas, 483 U.S. 44, 55 (1987); Scrimo v. Lee, 935 F.3d 103, 112 (2d Cir. 2019)); see
also Report at 41 (a defendant "does not have an unfettered right to offer testimony that is
incompetent, privileged, or otherwise inadmissible under standard rules of evidence" (quoting

Taylor v. Illinois, 484 U.S. 400,410 (1988)). The Report, like the Appellate Division, found the

10

trial court's preclusion of Fay's proffered expert, Thorpe, not erroneous as a matter of New York
evidentiary law. Report at 42 (citing, inter alia, People v. Singleton, 41 N.Y.2d 402,405
( 1977)). Fay had given inadequate notice of Thorpe's testimony; had never requested a hearing
or made an application to receive that testimony until the close of the defense case; and his
counsel had made ambiguous and shifting previews of Thorpe's testimony. Id. at 42-43.
Second, the Report found, independent of the defense's faulty notice and timing, Fay had
not shown that Thorpe's opinions were "generally accepted in the relevant scientific
community," as required for admission under state rules of evidence. Id. at 43 (cleaned up)
(citing People v. Bennett, 79 N.Y.2d 464,472 (1992)). Fay did not provide the trial court with
any studies or basis on which to conclude that Thorpe was qualified to provide the proposed
expert opinion for the jury to consider. Id. at 43-44.
Third, the Report found, the Sixth Amendment claim failed because, even if precluding
of Thorpe's testimony had been error, in the context of the case, admitting that testimony would
not have given rise to a reasonable doubt. Id. at 44. Fay had not challenged the sufficiency of
the evidence of his guilt. Had he made such a challenge, the court would be required to "view
the evidence in the light most favorable to the prosecution." Id. at 44 (citations omitted).
Viewing the evidence in the light most favorable to the State, such a claim would have failed, the
Report found, including in light of New York law that a sleeping person "is 'physically helpless'
for the purpose of consenting to sexual intercourse, particularly where the sleep was drug and
alcohol induced." Id. at 44 (citing People v. Dunham, 172 A.D.3d 1462, 1463 (3d Dep't 2019)).
Here, the Report noted, there had been ample and varied evidence at trial that S .D. had been
"physically helpless," and the defense opening had said as much. Id at 44-45. Therefore,
"admission of the proposed expert testimony would not have given rise to an otherwise non-

11

existent reasonable doubt about [Fay]'s guilt." Id. (citing Washington v. Schriver, 255 F.3d 45,
61 (2d Cir. 2001)).
Fourth, the Report found, to the extent that Fay contended that the Frye standard for
expert testimony was inapplicable because Thorpe would have offered only his "personal
opinions," the First Department had found that argument unpreserved. And to the extent New
York law permitted expert testimony based on the expert's personal experience to be received,
"at no point before or during the trial did Fay establish that Dr. Thorpe had any personal
experience with people drinking alcohol and then engaging in physical activities while asleep-or thinking they were asleep--let alone sufficient personal experience on which the trial court
could have concluded that Dr. Thorpe's testimony would aid the jury at all." Report at 46.
Fifth, the Report found easily distinguishable a Second Circuit precedent, Scrimo v. Lee,
935 F.3d 103 (2d Cir. 2019), that granted a habeas corpus petition. Report at 46. Among other
distinctions, the petitioner there had been convicted based chiefly on one eyewitness's testimony;
the State's case was thin; and the trial court had erroneously excluded three defense witnesses
who would have impeached that witness. Id. In contrast, the Report noted, the trial court here
had not erred in excluding Thorpe's testimony; there was varied evidence about S.D. 's
physically helpless state; and Fay had not shown a denial of his right to present a complete
defense. Id. at 46-4 7.
The Report accordingly recommended that Fay's § 2254 Petition be denied. Fay did not
object to the Report.

3. Fay's Letter-Motions to Stay and to Amend
On April 24, 2023, with the Report under review by this Court, Fay, again through Baker,
filed a letter-motion to stay the case and hold the Petition in abeyance under Rhines v. Weber,

12

544 U.S. 269 (2005), so that he could raise, in state court, a claim of ineffective assistance of
trial counsel under New York Criminal Procedure Law ("CPL")§ 440.lO(l)(h). Dkt. 38. Baker
wrote: "Given the essence of the Magistrate's report and recommendation (R&R), which was
predicated in its entirety on the failures of trial counsel, [Fay and his father] have elected to now
proceed in Supreme Court, New York County, in order to litigate a [§ 440.1 OJ motion." Id. at 1.
On May 4, 2023, Baker submitted another letter. It stated that "there is a serious
question about whether [he] may have erred" by not first bringing a state-court CPL § 440.10
motion. Dkt. 44 at 1. It stated that Baker had asked attorney Joel Rudin to research the issue.
He added: "IfMr. Rudin concludes that I have acted unreasonably and hence, that he could
successfully seek an amendment and an abatement of the petition by raising an issue of
ineffective assistance of counsel, I have encouraged him to move to substitute [] me as habeas
counsel and to so move." Id. at 2. Baker sought time to file a motion to amend the Petition, to
enable Fay to consult with Rudin and determine to substitute Rudin for Baker as counsel. Id. at
1. The Court granted the extension request. Dkt. 45.
On May 22, 2023, Rudin, newly retained, filed a letter seeking: ( 1) leave to amend the
Petition to add an ineffective assistance of counsel ("IAC") claim with respect to Fay's trial
counsel, and (2) an order staying the Petition while Fay exhausted the IAC claim in state court.
Dkt. 48. On May 30, 2023, Annucci filed a letter in opposition. Dkt. 49. This Court referred
these motions to Judge Cave. Dkt. 50.

4. Judge Cave's Second Report
On June 16, 2023, Judge Cave issued the Second Report. She recommended denial of
both motions.

13

The motion to amend: Such motions, the Report noted, are governed by Federal Rule of

Civil Procedure 15(a), under which a court may deny leave to amend to thwart "tactics that are
dilatory, unfairly prejudicial or otherwise abusive," or on grounds of futility. Second Report at
15 (citing Littlejohn v. Artuz, 271 FJd 360,363 (2d Cir. 2001)). A habeas petition must be filed
within one year of the state court judgment becoming final, although this period is tolled while
state post-conviction proceedings are pending after final judgment, id. at 16 (citing 28 U.S.C.
§ 2244(d)(l)-(2)); after AEDPA's one-year limitations period has expired, a timely filed habeas
petition may be amended only where the new claim "relates back" to the original petition, id.
(citations omitted). The Report found Fay's IAC claim timely because, although filed well after
the one-year limitations period, it related back to the timely Petition because it shared common
operative facts with the right-to-defense claim in the Petition. Id. at 18-20. But, the Report
noted, Fay had not brought, and thus had not exhausted as § 2254 required, the IAC claim in
state court. Thus, unless the Court was prepared to stay and hold in abeyance the Petition while
Fay brought and exhausted an IAC claim in state court, the proposed amended Petition would be
futile. Id. at 20-21.
The motion to stay: Under Rhines, the Report noted, a court may stay a mixed habeas

corpus petition---containing exhausted and unexhausted claims-if the petitioner has shown:
(!) "good cause" for failing to exhaust his claims first in state court; (2) that his claims are not

"plainly meritless"; and (3) that he has not engaged in "intentionally dilatory litigation tactics."

Id. at 14 (citing Rhines, 544 U.S. at 277-78). As to good cause, Fay argued that his appellate
counsel had been ineffective in failing to bring a post-conviction claim on direct appeal or as a
CPL § 440. IO motion, in which he would have faulted trial counsel for failing to make an
adequate proffer as to Thorpe's testimony. Report at 21. The Report rejected that appellate

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counsel's asserted lapse, itself an unexhausted IAC claim, constituted "good cause." Id. at 22. It
rejected that Fay's appellate counsel Baker's performance was "so constitutionally deficient as to
demonstrate good cause for failing to exhaust the IAC [c]!aim" as to trial counsel. Id. at 22-23.

It noted that under Strickland v. Washington, 466 U.S. 668,689 (1984), a petitioner must first
show that counsel's performance "fell below an objective standard of reasonableness," that an
appellate counsel need not "raise every 'nonfrivolous' argument, 'if counsel, as a matter of
professional judgment, decides not to present these points,"' and that the assessment of counsel's
performance is not to be made with the benefit of hindsight. Id. at 23 (citations omitted). But
the Report, drawing upon Balcer' s submission in support of a stay, found that Baker had had a
"reasoned, strategic basis for not asserting the IAC claim" on direct appeal: that such "would
have been inconsistent with the [right-to-defense] claim on the merits." Id. at 24 (citing Dkt. 38
at 10) (case citations omitted).
In any event, the Report found, Fay did not satisfy Strickland's second prong, which
required him to show a "reasonable probability that [the IAC] claim would have succeeded." Id.
at 24 (citing Claudio v. Scully, 982 F.2d 798, 805 (2d Cir. 1992)). The First Department, it
noted, had found the verdict supported by the weight of the evidence, and had rejected as
implausible-and as contradicted by the testimony of both the victim and Fay-the theory
underlying Thorpe's proffered testimony that S.D., "while in a semiconscious state resulting
from intoxication and fatigue ... mistook [Fay] for the other man, who was her sex partner, and
unwittingly engaged in sex with him." Id. at 25-26 (citing Fay, 170 A.D.3d at 405). "Because
the First Department rejected the theory on which Dr. Thorpe's testimony would have been
based, Fay cannot show that an ineffective assistance claim based on trial counsel's allegedly
deficient proffer [of that testimony] would have succeeded on direct appeal." Id. at 26. And

15

therefore, appellate counsel's failure to raise the IAC claim "would similarly have failed on
direct appeal." Id. at 27. The same applied to an IAC claim brought under§ 440.10, and Fay's
"unexplained delay" to bring which "provides an additional reason to deny the Stay motion." Id.
at 28.
Concluding, the Report noted that where a defendant is represented by different counsel
on appeal than at trial, counsel's strategic choices as to what issues to raise on appeal "made after
thorough investigation of law and facts ... are virtually unchallengeable." Id. at 28 (quoting

Strickland, 466 U.S. at 690-91). The Report accordingly found that Fay had failed to show good
cause for his failure to raise an IAC claim in the New York state courts. Id. And, it found, even
if Fay had established good cause, the IAC claim was "plainly meritless," and thus did not satisfy
the second Rhines factor. Id. at 29 (citations omitted). The Report accordingly recommended
denying the motions to stay and amend. Id. at 30.

5. Fay's Objections
On July 7, 2023, Fay filed objections to the Second Report. Dkt. 54 ("Obj"). On August
9, 2023, Annucci filed a memorandum in opposition to the objections. Dkt. 59. On November
16, 2023, Rudin filed a letter reporting that Fay had filed a CPL§ 440.10 motion in state court,
and attached the motion and its supporting papers. Dkt. 62 & Ex. 1.

II.

Discussion
A. Report Recommending Denial of§ 2254 Petition
The Court first considers Judge Cave's initial Report, issued February 14, 2023. In

reviewing such a Report, a district court "may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(l)(C). When
specific objections are made, "[t]he district judge must determine de nova any part of the

16

magistrate judge's disposition that has been properly objected to." Fed. R. Civ. P. 72(b )(3). To
accept those portions of the report to which no timely objection has been made, "a district court
need only satisfy itself that there is no clear error on the face of the record." King v. Greiner,
No. 02 Civ. 5810 (DLC), 2009 WL 2001439, at *4 (S.D.N.Y. July 8, 2009) (citing Wilds v.
United Parcel Serv., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003)).
Here, Judge Cave's Report recommended denial of Fay's§ 2254 Petition, which alleged
that precluding Thorpe's testimony had violated his Sixth Amendment right to present a defense.
The Report found the Sixth Amendment claim procedurally and substantively deficient. Fay had
procedurally defaulted this claim. See Report, at 26-38. And the claim also failed on the merits,
the Report found, because precluding Thorpe's testimony was not an unreasonable application of
clearly established federal law, and because any error in precluding it was harmless. See id. at
38--48. Fay did not object and has not objected to this first Report. As such, review for clear
error is appropriate.
The Court's careful review of Judge Cave's thorough and well-reasoned Report reveals
no facial error in its conclusions. Quite to the contrary, the Report is a model of conscientious
and perceptive analysis, reflecting close attention to the trial record and the governing law, state
and federal. The Court accordingly adopts the unobjected-to Report without modification and
adopts its full analysis recommending rejection of Fay's Sixth Amendment claim and dismissal
of the Petition. Because the Report states that the parties' failure to file objections within 14
days from service of the First Report "will result in a waiver of objections and will preclude
appellate review," id at 49, Fay's failure to object operates as a waiver of appellate review, see
Caidor v. Onondaga Cnty., 517 F.3d 601,604 (2d Cir. 2008) (citing Small v. Sec'y ofHealth &
Hum. Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)).

17

B. Report Recommending Denial of Fay's Motions to Amend and Stay
The Court next considers Judge Cave's Second Report, issued June 16, 2023, which
recommends denying Fay's April 24 and May 22, 2023 motions (1) to amend the Petition to add
an IAC claim; and (2) to stay the case while Fay exhausts the IAC claim in state court. These
motions were made possible only because this Court did not adopt Judge Cave's initial Report
and dismiss the Petition promptly after the deadline to object passed on February 28, 2023. Had
the Court done so, consistent with its usual practice of promptly adopting well-reasoned Reports
to which there has been no objection, there would not have been an opportunity for Fay's two
motions, which together effectively seek leave for a do-over § 2254 petition.
In all events, the Court adopts Judge Cave's recommendation to deny both motions,
substantially for the reasons set out in her equally thoughtful Second Report. The parties dispute
whether these recommendations are subject to de nova review, as befitting a dispositive motion,
see Fed. R. Civ. P. 72(b)(3), or clear error review, as befitting a non-dispositive motion, see Fed.
R. Civ. P. 72(a). As the parties recognize, courts in this Circuit have applied varied standards of
review to Reports addressing such motions. Compare Mitchell v. Superintendent, No. 20 Civ.
1189 (JLS), 2022 WL 856752, at *1 (W.D.N.Y. Aug. 9., 2021) (treating petitioner's motion to
stay and hold the petition in abeyance as non-dispositive), with Wright v. Poole, No. 02 Civ.
8669 (KMK), 2012 WL 4478393, at *1-2 (S.D.N.Y. Sept. 28, 2012) (treating such motions as
dispositive). The Court need not resolve this dispute, however, because it finds Judge Cave's
recommendation to deny the motions correct under even the more rigorous standard of de nova
review.
Fay's objections only concern Judge Cave's recommendation to deny the motion to stay.
As to the motion to amend, Judge Cave's account of the governing legal standards undisputedly

18

was correct. So, too, was her conclusion that Fay's IAC claim was timely insofar as that claim
shared common elements with, and hence related back to, the Petition's failed Sixth Amendment
claim. Judge Cave recommended denying the motion to amend. She found that amending the
Petition to add an IAC claim would be futile because Fay had not exhausted-or even broughtsuch a claim in state court. That futility could be cured only if this Court were to grant Fay a
stay-so as, effectively, to defer dismissal of the Petition notwithstanding its present
deficiency-until Fay had brought and exhausted a state IAC claim. Fay does not dispute this
analysis, or that his motion to amend the § 2254 Petition thus necessarily fails unless the motion
to stay is granted.
As to the motion to stay, the standard is not in dispute. A petitioner must show that: (1)
he had "good cause" for his failure to exhaust; (2) his unexhausted claims are not "plainly
meritless"; and (3) he did not engage in "intentionally dilatory litigation tactics." See Rhines,
544 U.S. at 277-78. As noted, Judge Cave found that Fay did not satisfy the first two Rhines
factors. Fay's objections are to these findings.

1. Lack of Good Cause for a Stay
Fay argued that his appellate counsel had been ineffective in failing to bring an IAC
motion under§ 440.10 and that such constituted "good cause" for a stay. Judge Cave rejected
that argument. She noted that Fay's appellate counsel, Baker, had explained his decision to
forgo such a motion as tactical, to avoid undercutting the right-to-defense claim on which Fay's
direct appeal centered, and while that tactic might not be compelling, it was defensible. Second
Repo1t at 24 (citing Dkt. 38 at 10). She further noted that Fay was making a two-layer IAC
claim, faulting trial and appellate counsel for ineffectiveness, without having exhausted either
claim. Second Report at 22-23. In all events, applying the Strickland test to Fay's claim that

19

appellate counsel lapsed in failing to bring a § 440.10 motion with an IAC claim, she found, did
not rise to the level of constitutionally deficient representation, and such a claim would not have
succeeded. Id. at 24-27.
There is a division of authority as to what constitutes "good cause" under Rhines. See
Ramirez v. Superintendent of Shawangunk Corr. Facility, No. 17 Civ. 7185 (PAE) (HBP), 2019

WL 3714992, at *2 (S.D.N.Y. Aug. 6, 2019). Some courts require "an objective factor external
to the petitioner which cannot fairly be attributed to him." Ramdeo v. Phillips, No. 04 Civ. 1157
(SLT), 2006 WL 297462, at *5-7 (E.D.N.Y. Feb. 8, 2006) (petitioner's ignorance of the law,
although inadvertent and in good faith, insufficient to show good cause because he failed to
"allege, or even suggest, that there exist[ed] an external cause for his delay"); Corbin v. Perez,
No. 14 Civ. 3200 (ER) (MHD), 2015 WL 3972252, at *3 (S.D.N.Y. June 26, 2015) ("[C]ourts
that have considered the issue generally require that some factor external to the petitioner gave
rise to his failure to assert the claims in court." (internal quotation marks and citations omitted));
Garcia v. Laclair, No. 06 Civ. 10106 (SES) (DF), 2008 WL 801278, at *4 (S.D.N.Y. Mar. 24,

2008) ("Petitioner has not credibly demonstrated that there were any external factors preventing
him from either appealing the decision denying his state habeas petition or promptly filing a
Section 440.10 motion."). Others, relying on dicta in Pace v. DiGuglielmo, 544 U.S. 408 (2005),
have construed "good cause" more liberally, holding, for example, that a petitioner's "reasonable
confusion" whether a state filing would be timely may constitute good cause. See Rivera v.
Kaplan, No. 17 Civ. 2257 (RA), 2017 WL 3017713, at *3-4 (S.D.N.Y. July 13, 2017) (granting

stay of habeas petition in light of later filed § 440 .10 motion where petitioner asserted confusion
as to timeliness of state-law claim); Henry v. Lee, No. 12 Civ. 5483 (JG), 2013 WL 1909415, at
*7 (E.D.N.Y. May 8, 2013) (granting stay where there had been "reasonable confusion" about

20

petitioner's state claims and their viability). In objecting to the Second Report's finding of a lack
of good cause, Fay urges this broader reading, contending that his appellate counsel blundered in
not earlier pursuing an IAC claim by bringing a § 440.10 motion, and that this supplies "good
cause" for his failure to exhaust state remedies before bringing his § 2254 claim.
Under either a broad or narrow reading of "good cause," Fay has not shown good cause
for his failure to pursue an IAC claim in state court, whether on direct appeal or via a § 440.10
motion.
To the extent that a cause extrinsic to the petitioner must be shown, Fay does not point to
one. And the record would not support any such claim. Assuming arguendo that Thorpe's
testimony had the capacity to be admitted and impactful, the existence of a possible challenge to
trial counsel's representation for failing to secure admission of such testimony was apparent to
Fay even before trial was complete, let alone to the new counsel who represented him on appeal.
The trial court had precluded Thorpe's testimony in part because trial counsel Bibb had failed to
give the required notice of such testimony. By appellate counsel's admission, however, Fay
deliberately elected on direct appeal to forego such a claim, viewing as the more promising
appellate course to cast the error leading to exclusion of the testimony as a violation by the trial
court of his right to present a defense. Appellate counsel pursued the same strategy in the § 2254
Petition, recasting the ostensible "right to defend" violation now in Sixth Amendment terms. It
was not until Judge Cave's Report rejected that theory, signaling the inuninent dismissal of his
§ 2254 Petition, that Fay proposed to pursue an ineffective assistance claim in an amended

21

§ 2254 Petition, while moving to stay that Petition in deference to a § 440 .10 motion he proposed
to file in state court that would make substantively the same claim. 4
Under these circumstances, Judge Cave's Report, although surely the proximate cause of
Fay's belated decision to bring an ineffective assistance claim, does not qualify as an extrinsic
factor supplying "good cause" for Fay's failure earlier to pursue such a claim. The Report did
not reveal any new facts or legal analysis. It merely underscored that casting the evidentiary
exclusion as a federal constitutional violation would fail under § 2254, much as it had been
rejected by the Appellate Division.
In his objections, Fay alternatively argues that his appellate counsel's failure to exhaust
the IAC claim in state court constitutes good cause. Obj. at 31-34. Even assuming that such a
lapse by appellate counsel could alone supply good cause, the facts here do not support such a
finding. Several factors undermine that theory, as Judge Cave recognized. Fay's appellate
counsel was different from his trial counsel. He thus was not blinded, or conflicted in his ability,
to claim IAC on the part of trial counsel. See, e.g., Ortiz v. Heath, No. 10 Civ. 1492 (KAM),
2011 WL 1331509, at *15 (E.D.N.Y. Apr. 6, 2011) ("[W]hile some courts have found good
cause to exist where a petitioner received ineffective assistance of appellate counsel, those cases
have generally involved situations where the same counsel represented petitioner during trial and
on appeal because it is reasonable to conclude that an appellate attorney will not claim his own
ineffective assistance of counsel." (citations and internal quotation marks omitted)); Martinez v.

Artus, No. 06 Civ. 5401 (ERK), 2010 WL 1692454, at *4 (E.D.N.Y. Apr. 26, 2010)("[T]he

Fay admits that Judge Cave's Report catalyzed the motions to amend and stay and the§ 440.10
motion. In his April 24, 2023 letter, Baker wrote: "Given the essence of the Magistrate's report
and recommendation (R&R), which was predicated in its entirety on the failures of trial counsel,
[Fay and his father] have elected to now proceed in Supreme Court, New York County, in order
to litigate a[§ 440.10] motion." Dkt. 38.

4

22

lower federal courts have primarily applied the term [good cause] in the context of ineffective
assistance of counsel claims where it is reasonable to conclude that an appellate attorney will not
claim his own ineffective assistance on appeal." (citations omitted)); Pena v. Bell, No. 18 Civ.
4849 (ALC), 2021 WL 517778, at *5 (S.D.N.Y. Feb. 11, 2021) (court noting, but ultimately
rejecting, petitioner's explanation for the cause of default: "that appellate counsel could not have
argued trial counsel was ineffective because they are the same person"). In addition, appellate
counsel has admitted that his was a deliberate choice to bring the right-to-defend claim on direct
appeal over an IAC claim, and to proceed with that claim on§ 2254 without bringing (and
awaiting resolution of) an IAC claim on§ 440.10. See Dkt. 38 at 10 (Baker letter of April 24,
2023) ("An earlier motion, based on allegations of ineffective assistance of counsel, would have
been inconsistent with this claim on the merits."). Appellate counsel thus was not ignorant of a
potential IAC claim so much as that he made a conscious decision to pursue a different path.

See, e.g., United States v. Chaudhry, 330 F. Supp. 3d 815,858 (E.D.N.Y. 2018), ajf'd, 813 F.
App'x 4 (2d Cir. 2020) (petitioner's ineffective assistance of appellate counsel claim failed
where appellate counsel "reasonably chose to focus on other issues she believed were more
important," instead of challenging district court's admission of expert testimony proffered by the
govermnent); Redd v. Woughter, No. 09 Civ. 9819 (JGK), 2010 WL 4983169, at *2 (S.D.N.Y.
Dec. 3, 20 I 0) ("[T]he fact that appellate counsel knew of trial counsel's mistake but chose to
raise. the issue as part of an argument that the petitioner should have been allowed to withdraw
his guilty plea indicates that appellate counsel made a strategic choice that that claim was more
advantageous than an independent claim for ineffective assistance of counsel."); Giraldi v.

Bartlett, 108 F. Supp. 2d 321,337 (S.D.N.Y. 2000), aff'd, 27 F. App'x 75 (2d Cir. 2001)
(appellate attorney's decision to pursue one Rosario claim over a related Rosario claim on appeal

23

"appears to be precisely the type of strategic decision which the Supreme Court cautioned should
not be second guessed."). An appellate "counsel has no duty to raise every non-frivolous issue
that could be raised." Lynch v. Dolce, 789 F.3d 303, 311 (2d Cir. 2015). To establish
constitutionally inadequate performance of an appellate counsel, a petitioner instead must show
"that counsel omitted significant and obvious issues while pursuing issues that were clearly and
significantly weaker." Id.
With the benefit of hindsight, it is easy to fault appellate counsel's decisions to elevate
other claims over the IAC claim. And appellate counsel Baker's decision not to preserve the
ability to claim IAC on federal habeas review by first bringing it in a § 440.10 motion, which left
Fay with a state but not a federal forum to claim IAC, is particularly apt for hindsight criticism,
in this Court's assessment. But when ineffective assistance is claimed, a counsel's decisions
"must be assessed in light of the information known at the time of the decisions, not in

hindsight." Strickland, 466 U.S. at 680 (emphasis added). "A fair assessment of attorney
performance requires that every effort be made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from
counsel's perspective at the time." Id. at 689 (emphasis added); see, e.g., Mayo v. Henderson, 13
F.3d 528,533 (2d Cir. 1994) (court reviewing an ineffective assistance of counsel claim "may
not use hindsight to second-guess [defense counsel's] strategy choices"); Baran v. United States,
160 F. Supp. 3d 591,598 (S.D.N.Y. 2016) (rejecting IAC claim because defense counsel "made
a strategic decision not to hire a medical expert" and "[t]his strategic decision, whether wise in
retrospect or not, is among professional judgment calls that fall squarely within the category of
those that are 'unchallengeable' under Strickland'); Gluzman v. United States, 124 F. Supp. 2d
171, 173 (S.D.N.Y. 2000) (denying IAC claim and rejecting the attempt of appellate counsel

24

"emboldened by the clarity of hindsight" to "second guess[] various difficult strategic and
tactical" decisions made by trial counsel). And the case law on claims of ineffective appellate
representation affords independent counsel wide berth to make strategic choices before such
conduct can be termed ineffective. See, e.g., United States v. Wilbert, 609 F. Supp. 3d 209,218
(W.D.N.Y. 2022) (finding appellate counsel engaged in "strategic, informed decisionmaking" in
forgoing petitioner's desired suppression argument on appeal after counsel explained to
petitioner: "We raised the issues that had the most merit. Your issues lacked merit."); Smalls v.

McGinnis, No. 04 Civ. 301 (AJP), 2004 WL 1774578, at *32 (S.D.N.Y. Aug. 10, 2004) (failure
to file reply brief not ineffective assistance of counsel where petitioner "has not demonstrated
that a reply brief or oral argument would have changed the outcome of his appeal"); Washington

v. Walsh, No. 10 Civ. 7288 (RJS) (JCF), 2015 WL 4154103, at *28 (S.D.N.Y. July 9, 2015)
(same).
With hindsight bias removed, the Court finds that Baker's decision to favor a right-todefense claim challenging the trial court's exclusion of Thorpe over an IAC claim was within the
scope of an appellate defense counsel's professional judgment. See, e.g., Richburg v. Hood, 794
F. Supp. 75, 78-79 (E.D.N.Y. 1992) ("the decision of appellate counsel to choose among
plausible options of appellate issues is preeminently a strategic choice and is 'virtually
unchallengeable"'); Tsirizotakis v. LeFevre, 736 F.2d 57, 65 (2d Cir. 1984) (appellate counsel's
decision to devote only one page of brief to argument that district court failed to properly instruct
on the burden of proof did not constitute ineffective assistance of counsel because court cannot
"second-guess reasonable professional judgments by appellate attorneys as to what are the most
promising issues for appellate review" (citation and internal quotation marks omitted)). Viewing
Baker's appellate representation as a whole, this Court cannot find his choices, and his

25

evaluation of his appellate options, so outside the realm of the defensible to constitute ineffective
assistance. Baker's appellate representation thus cannot serve as good cause to justify staying a
Petition that is otherwise ripe for dismissal.
And given the posture of this§ 2254 litigation, accepting Fay's claim, via yet a new
lawyer, of "good cause" would invite unacceptable gamesmanship: At the time Fay moved to
stay, the unobjected-to Report recommending dismissal of the Petition was pending this Court's
review. A likely imminent dismissal was apparent to all. Fay's bid to revive his Petition by
terming its author ineffective after a Magistrate Judge had found the Petition meritless would
invite similar bids. It presents an unusually egregious example of seeking "a second bite at the
apple"-something "a petition for habeas corpus may not provide." Gatti v. United States, 622
F. Supp. 2d 87, 92 (S.D.N.Y. 2009).
This case is thus very far afield from those finding "good cause" for a petitioner's failure
to exhaust a claim in state court, including those cited by Fay. Fay does not, for example, claim
to have been "reasonably confused" before Judge Cave's initial Report about whether "a state
filing would be timely" or about any other aspect of New York's post-conviction scheme. Pace,
544 U.S. at 416; see McCrae v. Artus, 10 Civ. 2988 (RRM), 2012 WL 3800840, at *10
(E.D.N.Y. Sept. 2, 2012) (not finding reasonable confusion where petitioner did not have
"reasonable uncertainty about whether a state proceeding is 'properly filed' for purposes of the
AEDP A limitations period"). Nor does Fay point to an external impediment that prevented him
from exhausting his state court remedies via a § 440.10 motion before the Report issued. See,
e.g., Schouenborg v. Superintendent, Auburn Corr. Facility, No. 08 Civ. 2865 (JS), 2013 WL
5502832, at *10 (E.D.N.Y. Sept. 30, 2013) (good cause found where trial counsel did not
provide petitioner with requested legal documents and transcripts necessary to bring unexhausted

26

claim); Nieves v. Conway, No. 09 Civ. 3710 (SLT) (LB), 2011 WL 2837428, at *2 (E.D.N.Y.
July 14, 2011) (good cause may be found when "state proceedings are delayed by the
prosecution and other circumstances beyond petitioner's control" or when "unexhausted claims
are based on documented evidence discovered after petitioner brought his habeas petition"
(cleaned up)).
The Court thus adopts the Report's finding on the first Rhines factor. Fay has not shown
good cause for his failure to exhaust state remedies with respect to an IAC claim. That finding
alone defeats his bid for a stay to permit him now to do so.

2. The Meritless Nature of Fay's Claim
Even where a petitioner has good cause for his failure to exhaust a claim in state court,
"the district court would abuse its discretion if it were to grant him a stay when his unexhausted
claims are plainly meritless." Rhines, 544 U.S. at 277. Under this second element of the Rhines
test, a claim is "plainly meritless" when "it is perfectly clear that the petitioner has no hope of
prevailing." Duwe v. Bell, No. 20 Civ. 05403 (EK), 2021 WL 4480555, at *2 (E.D.N.Y. Sept.
30, 2021) (quoting Linares v. New York, No. 04 Civ. 2973 (KMW), 2008 WL 2115231, at *2
(S.D.N.Y. May 14, 2008)).
On this point, Fay argues that if the trial counsel had made a timely and adequate proffer,
the trial court would have admitted Thorpe's proposed testimony. Obj. at 30-31. He argues that
sexsomnia-a condition in which people engage in sex while asleep--has been diagnostically
recognized as a real condition, and that Thorpe's testimony about such a phenomenon would
have accorded with generally accepted scientific principles. Id. at 8-9. He argues that Thorpe's
testimony had a reasonable probability of affecting the outcome, as such testimony would have

27

been consistent with S.D.'s testimony that she did not consent to sex and Fay's testimony that
S.D. appeared awake and to do so. Id. at 31.
The Court, joining Judge Cave, holds otherwise-that Fay's claim of ineffective
assistance cannot prevail because trial counsel's asserted lapse did not lead to the exclusion of
evidence that otherwise would have been admitted or impactful here. Notably, in recommending
denial of Fay's§ 2254 petition based on the Sixth Amendment claim in the initial Report, Judge
Cave explained at length why Thorpe's testimony was incapable of being received. Apart from
the lack of notice, Fay did not establish Thorpe's qualifications to provide an expert opinion
about the phenomenon of sexsomnia. Report at 42--44. At no point before or during the trial had
Fay established that Thorpe had had "any personal experience with people drinking alcohol and
then engaging in physical activities while asleep--or thinking they were asleep." Id. at 46.
Judge Cave there also canvassed the evidence at trial, and concluded that, even had such
testimony been received, in the context of the trial evidence, it could not have given rise to a
reasonable doubt. Under New York law, she noted, "a person who is sleeping is 'physically
helpless' for the purpose of consentit:g to sexual intercourse, particularly where the sleep was
drug and alcohol induced." Id. at 44 (citations omitted). ·And S.D.'s testimony was that she had
been asleep, and awakened to find someone having sex with her. Id. (citation omitted). This and
other evidence gave rise to the inference, within the ken of ordinary jurors to reach, that S.D. had
been physically helpless under the circumstances under which Fay had had oral and vaginal sex
with her while she slept. Id. at 45. The expert testimony about sexsomnia "would not have
created an otherwise non-existent reasonable doubt about [Fay]' s guilt." Id. at 44 (citation
omitted). Fay did not object to the Report, including Judge Cave's careful assessment of why, in

28

the context of the trial proof, expert evidence about sexsomnia would not have changed the
outcome. This Court here too has accepted those unchallenged conclusions.
In any event, considering the question afresh without deference to the unobjected-to
analysis in Judge Cave's first Report, Fay has not demonstrated either that the trial court would
have admitted Thorpe's testimony even upon a proper and timely proffer, or that, if admitted,
such testimony stood to change the outcome. As proffered by Fay now, Thorpe would have
given general testimony about sexsomnia and opined that because the victim, S.D, had been
drinking heavily, a sexsomnia disorder could explain why she purportedly presented to Fay as
awake during the sexual encounter. Obj. at 30. But Fay has not proffered any evidence that
would tie that disorder to S.D., including evidence indicating that S.D. actually suffered from
sexsomnia, had been diagnosed with sexsomnia, or had had sexsomnia episodes or exhibited
behavior consistent with sexsomnia in the past. As respondent notes, the authorities that Fay
cites establish that the disorder is rare and primarily affects males. See Resp. at 22 (citing Brian
J. Holoyda et al., Forensic Evaluation ofSexsomnia, J. AM. ACAD. PSYCHIATRY 1. (2021)).
In numerous cases, New York courts have excluded expert defense testimony about
rarely-occurring conditions or human mental operations where the evidence did not support that
these phenomena played a role in the case. See, e.g., People v. Anderson, 36 N.Y.3d 1109, 1110
(2021) (trial court properly excluded evidence regarding adolescent brain development offered in
support of justification defense by 14-year old who fired a gun at rival gang members on a public
bus, killing a bystander, and then continued to shoot at them as he pursued them on the street);

People v. Engel, 851 N.Y.S.2d 540, 541 (1st Dep't 2008) (expert testimony based on review of
medical records about how possible continuing effects of facial surgery might have given
defendant a motive to protect himself from being reinjured was properly excluded where the

29

defendant did not offered any evidence establishing a connection between the surgery and his
state of mind at the time of the incident). And courts elsewhere have excluded general testimony
about sexsomnia where only speculation tied that condition to the pending case. See, e.g., State

v. Stewart, 222 N.C. App. 319 (2012) (affirming exclusion of expert testimony regarding
sexsomnia disorder because, absent a diagnosis that defendant suffered from it, the probative
value was substantially outweighed by the dangers of unfair prejudice, confusion, or misleading
the jury); State v. Pratt, 11 Wash. App. 2d 450, 464 (2d Div. 2019), ajf'd, l 96 Wash. 2d 849
(2021) (affirming exclusion of expert testimony on sexsomnia and finding that "[t]he fact that
this disorder exists is irrelevant" when the expert "could not testify that [defendant] suffered
from sexsomnia either on the night of the sexual molestation or ever"). For these reasons, the
Court finds, as did Judge Cave in the Second Report, that the trial court would not have received
Thorpe's testimony.
Second, the Court finds, even if Thorpe's general testimony about sexsomniahad been
received, it would not have altered the jury's verdict. Thorpe had never examined S.D.; he did
not know anything about her medical history; and there was no evidence supporting that she had
the rare condition of sexsomnia. The implicit premise of Thorpe's testimony, that for the first
time in her life S.D. experienced sexsomnia on July 9, 2016, and as a result, while sleeping,
mistook Fay for her regular sexual partner, Slye, was far-fetched. It is not persuasive that a jury
would have credited it.
And the contrary narrative-that S.D. did not consent or manifest such consent-was
ovetwhelmingly established by the trial proof. It established that Fay crawled into a small bed
with S.D. and Slye without their permission, when the two were asleep, drunk, and mostly
naked. S.D. denied consenting or manifesting consent to sex with Fay, a virtual stranger to her,

30

and attested that she had been taken advantage of while asleep and drunk. Slye corroborated
S.D. 's account of an unconsented-to sexual encounter. And the prosecution's other trial
witnesses powerfully described statements and actions by S.D. in the aftermath of awakening
that corroborated her account of having been startled and horrified to awaken during the rape.
See, e.g., United States v. Mejia, 545 F.3d 179, 199 (2d Cir. 2008) (in assessing prejudice, "the
strength of the Government's case is probably the single most critical factor") (cleaned up);
Strouse v. Leonardo, 928 F.2d 548,556 (2d Cir. 1991) (finding no prejudice from defense
counsel's allegedly deficient performance "given the overwhelming evidence of guilt adduced at
trial"); Krasniqi v. United States, 195 F. Supp. 3d 621,638 (S.D.N.Y. 2016) (same).
On cross-examination, the prosecution also elicited from Fay the damaging admission
that outgoing calls from his phone to the commercial sex website Backpage had been made at
about 4 a.m. on July 9, shortly before the rape occurred. The prosecution also established prior
statements by Fay seeking to exculpate himself that were blatantly at odds with the trial
testimony, including his statement to Sobell shortly before S.D. left the apartment that S.D. had
initiated the encounter by "kiss[ing] my neck" and "giving me a blow job." Report at 5 (citing
01/24/2018 Tr. at 464-65, 509).
Fay thus has not shown that Thorpe's testimony would have been received or that, if
received, it would have altered the trial outcome. As a result, Fay has not established the second
element under Rhines.
The Court accordingly denies Fay's motion to stay the Petition. And, because there is no
basis for a stay, the Court denies Fay's motion to amend the Petition as futile.

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CONCLUSION
For the reasons stated above, the Court adopts Judge Cave's two Reports; dismisses
Fay's § 2254 Petition; and denies Fay's motions to amend the Petition and to stay consideration
of the Petition pending disposition of his recently filed § 440.10 motion in New York State
Court.
The Clerk of the Court is respectfully directed to terminate the motions pending at
Dockets 3 8 and 48 and to close this case.

Pv1MJ( /J. l(\r+y

SO ORDERED.

PAUL A. ENGELMA YER
United States District Judge

Dated: February 5, 2024
New York, New York

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