Spicola v. Unger et al
Filing
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DECISION AND ORDER GRANTING Respondent's 13 Objections as stated; DENYING Petitioner's 15 Objections; REJECTING in part Judge Scott's July 18, 2014 12 Report and Recommendation; REFERRING this matter back to the Magistrate Judge for further consideration of Petitioner's ineffective assistance claims. Signed by William M. Skretny, United States District Judge on 8/11/2015. (MEAL)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MICHAEL SPICOLA,
Petitioner,
v.
DECISION AND ORDER
13-CV-020S
DAVID UNGER,
Respondent.
1.
On January 9, 2013, Petitioner commenced this action seeking federal
habeas relief under 28 U.S.C. § 2254.
2.
On July 21, 2013, this Court referred this matter to the Honorable Hugh B.
Scott, United States Magistrate Judge, for all proceedings necessary for a determination
of the factual and legal issues presented, and to prepare and submit a Report and
Recommendation containing findings of fact, conclusions of law, and a recommended
disposition of the case pursuant to 28 U.S.C. § 636(b)(1)(B).
3.
In a Report and Recommendation filed on July 18, 2014, Judge Scott
recommended that Petitioner’s Petition for a Writ of Habeas Corpus be granted in part.
Specifically, Judge Scott recommended that Petitioner be granted habeas relief on the
grounds of ineffective assistance of counsel because, in light of the Second Circuit’s
decision in Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005), cert denied 547 U.S. 1191
(2006), counsel’s failure to call an expert rebuttal witness to challenge the testimony of the
prosecution’s expert on Child Sexual Abuse Accommodation Syndrome (“CSAAS”) was
both deficient and prejudicial. The Magistrate Judge therefore further recommended that
a Sparman hearing be held at which trial counsel could respond to the alleged deficiencies
in his performance. See Sparman v. Edwards, 154 F.3d 51 (2d Cir. 1998) (except in
“highly unusual circumstances,” a district court should afford an allegedly ineffective
attorney an opportunity to be heard and present evidence with respect to the allegations).
Respondent and Petitioner filed Objections to Judge Scott’s Report and Recommendation
on July 29 and August 1, 2014, respectively.
4.
This Court has thoroughly
reviewed Judge Scott’s Report and
Recommendation, as well as the parties’ objections. Upon due consideration, this Court
agrees with Respondent that Gersten does not dictate a finding of ineffective assistance
in the instant case. Initially, the failure to call a rebuttal witness is not, in and of itself,
sufficient to establish that counsel’s performance was deficient. See Wallace v. Poole, No.
10-CV-0722(MAT), 2011 WL 6370596, *8-9 (W.D.N.Y. Dec. 20, 2011); see also
Beauharnois v. Chappius, No. 9:12-CV-1283 (FJS/ATB), 2015 WL 893091, *25 (N.D.N.Y.
Mar. 2, 2015). Here, trial counsel did challenge the scientific validity of CSAAS testimony
itself, citing evidence in his motion in limine that there was “no convincing evidence that
CSAAS testimony on denial or recantation provides relevant or reliable assistance to the
fact finder to assess allegations.” People v. Spicola, 16 N.Y.3d 441, 455, 947 N.E.2d 620
(2011). Further, the only aspect of CSAAS testimony which would meet the testimonial
standard established by Daubert v. Merrell Dow Pharmaceurticals, Inc., 509 U.S. 579
(1993), was the generic assertion that delay of abuse disclosure was very common, a
theory within the ken of the average juror. Spicola, 16 N.Y.3d at 454-55.
Trial counsel further argued that the inherent danger of the CSAAS testimony
warranted its preclusion: specifically that the prosecution expert, by being limited to
hypothetical situations only, would be allowed to testify “[u]nder the guise of objective
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assistance . . . by binding him or herself in ignorance of the facts.” Spicola, 16 N.Y.2d at
454. Counsel argued that there was “no way for the defense to refute such testimony
since it cannot cross-examine that testimony with the expert having the ability to speak to
the facts of the case the testimony relates to.” (Id.) Accordingly, following the denial of the
motion in limine, the record reflects that trial counsel took steps to counteract any
assumption by the jury that the expert’s general testimony was either conclusive or
constituted a finding that the victim in the Petitioner’s case suffered from the syndrome.
To that end, trial counsel elicited testimony from the expert on cross-examination that the
expert knew nothing regarding the facts of the case against Petitioner; that every case was
different; that the expert was relying in part on a more than twenty-year old research paper
which referred to only a “broad range of behaviors;” and that it was possible the allegations
in the present case were fabricated by the victim. (T. 391-98.) Counsel also elicited
admissions that the expert was not a psychiatrist, psychologist, or physician, and that he
did not hold a PhD. (T. 389-90); see Spicola, 16 N.Y.3d at 459. Further, trial counsel
requested, and obtained, a detailed jury instruction that the jurors should consider the
victim’s failure to promptly complain, including any circumstances that might have
motivated the victim’s allegations, in resolving a credibility determination that was “entirely
in your hands.” Spicola, 16 N.Y.3d at 464 n. 8. Accordingly, this Court agrees with
Respondent that Gersten is distinguishable from the present case, and therefor rejects the
Magistrate Judge’s recommended partial grant of habeas relief and ordering of a Sparman
hearing. However, Judge Scott expressly stated that he did not reach certain allegations
of ineffective assistance in light of his conclusion. Referral back to the Magistrate Judge
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for consideration of those assertions, rather than modification of the recommendation, is
therefore warranted.
5.
Finally, this Court has reviewed Petitioner’s additional objections (Pet’s Mem
of Law at 1-3), and finds no legal or factual error in Judge Scott’s Report and
Recommendation on these points.
IT HEREBY IS ORDERED, that Respondent’s Objections (Docket Nos. 13) are
granted as stated above;
FURTHER, that Petitioner’s objections (Docket No. 15) are denied;
FURTHER, that Judge Scott’s July 18, 2014 Report and Recommendation (Docket
No. 12) is rejected in part and this matter is referred back to the Magistrate Judge for
further consideration of Petitioner’s ineffective assistance claims.
SO ORDERED.
Dated: August 11, 2015
Buffalo, New York
/s/William M. Skretny
WILLIAM M. SKRETNY
United States District Judge
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