Goupil v. Graham

Filing 26

DECISION AND ORDER that petitioner Mark Goupils request for a writ of habeas corpus is denied and the petition (Docket No. 1) is dismissed. Because there has not been a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate of appealability. The Clerk of Court is directed to close this case. Signed by Hon. Michael A. Telesca on 9/25/18. (Copy of this Decision and Order sent by first class mail to Petitioner.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK GOUPIL,
No. 1:14-cv-00709-MAT
DECISION AND ORDER

Petitioner,
-vsSUPERINTENDENT HAROLD GRAHAM,
Auburn Correctional,
Respondent.

INTRODUCTION
Represented

by

counsel,

Mark

Goupil

(“Petitioner”)

has

petitioned this Court for a writ of habeas corpus pursuant to
28

U.S.C.

§

2254.

Petitioner

is

currently

incarcerated

in

Respondent’s custody pursuant to a judgment entered on February 17,
2010, in

New

following

a

York
jury

State, Niagara
verdict

County

convicting

him

Court
of

(Murphy, J.),

three

counts

of

Predatory Sexual Assault Against a Child (N.Y. Penal Law (“P.L.”)
§ 130.96).
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Over the course of ten months, between May 2008 and February
2009, Petitioner compelled S.L., the nine-year-old daughter of his
girlfriend, to engage in sexual intercourse and other sexual acts
with him. At that time, Petitioner was living with S.L.’s mother.
In February 2009, Petitioner’s relationship with S.L.’s mother
ended, and he moved out of their residence. Two months later, S.L.
disclosed the abuse to her mother. She testified that she did so
then because, with Petitioner out of the home, she finally felt

safe to disclose the abuse without fear of reprisals to her or her
two siblings.
After learning of the abuse, S.L.’s mother called the police,
and S.L. was interviewed by a state trooper. The state trooper
brought S.L. and her mother to the hospital, where the victim was
physically examined by Sexual Assault Nurse Examiner Kelly Whitsell
(“Whitsell”). Subsequently, S.L. underwent a videotaped interview
by forensic interviewer Lynn Aladeen (“Aladeen”) at the Child
Advocacy Center. S.L. also testified before the grand jury.
At trial, the prosecution called S.L., S.L.’s mother, the
state

troopers

involved

in

the

investigation,

Aladeen,

and

Whitsell, and S.L.’s brother. The prosecution also called pediatric
nurse Jackie Collard (“Collard”), who testified as an expert
witness concerning the results of clinical examination of S.L.; and
Stefan Perkowski (“Perkowski”), who testified as an expert witness
on child sexual abuse accommodation syndrome (“CSAAS”).
On May 1, 2008, S.L. testified that she was outside playing
with her neighbor when Petitioner told S.L. that she needed to
sweep the floor inside the trailer. Petitioner then took S.L. into
his bedroom.

S.L. recalled that Petitioner removed her clothes,

removed his own, and rubbed lotion on his “private.” T.593, 596.1
Petitioner then picked her up, and placed her on top of him, and
proceeded to “move [her] around,” which caused her pain. T.593.

1

Citations to “T.” refer to pages from the trial transcript.

-2-

In addition, S.L. testified, Petitioner also inserted his
“private” into her mouth. T.598-99. Afterwards, Petitioner made her
S.L. sweep the trailer, and then allowed her to go back outside to
play with her friend. T.600. S.L. remembered the date of that
incident because it was the same day she went to the movies to see
“Horton Hears a Who” with her neighbor friend. T.592-93, 600.
S.L. described what Petitioner did to her, using a stuffed
bear to indicate what body parts were involved. T.638-45. Between
May of 2008 and February 2009, S.L. testified, Petitioner touched
her sexually “[m]aybe twice a week.” T.647-48. S.L. said that these
incidents

occurred when

her

mother

was

at work.

T.649.

S.L.

testified that her sister and brother also were home on these
occasions, in their bedrooms. S.L. testified that Petitioner “did
most [sic] the same things all the time,” which included putting
“his private inside [her] private” and inside her mouth. T.652.
S.L. also described Petitioner touching her “bottom” and touching
her with his hands on occasion. T.652-53. S.L. did not tell anyone
what happened because she was scared that Petitioner would hurt
her, and that he had hit her and her brother and sister on
occasion. T.655-57.
S.L. testified that the last time Petitioner touched her
sexually was at the end of February 2009. T.646-47. S.L. was at her
father’s house in March 2009, when she telephoned her mother to
tell her what had happened.

T.657-59. S.L. waited to tell her

-3-

mother about the abuse after Petitioner left, because he was then
out of the house and would not hurt her. T.657.
Whitsell testified about her observations from her clinical
examination of S.L.

According to Whitsell, S.L.’s hymenal notch

was consistent with a history of sexual abuse, but was not a
specific sign of either sexual abuse or penetration of the vagina
because “in and of itself[, a hymenal notch] can be a normal
finding.” T.788-90. Whitsell testified that many things could cause
such a notch, such as “tampon insertion,” or a “fall, a blunt-force
trauma, a finger, a penis, objects, or nothing at all.” T.790.
There are females who have never been sexually abused but still
have hymenal notches. T.791.
Perkowski testified that CSAAS is generally accepted within
the mental health and scientific communities as valid, insofar as
it relates to the behaviors exhibited by child victims of sexual
abuse. T.802, 811. Perkowski testified about the five components of
CSAAS

and

instance,

how

they

children

typically
often

are

provided

manifested.
delayed,

T.814-20.

conflicting,

For
or

unconvincing accounts of the abuse. T.814, 818. CSAAS is not a
diagnostic tool, but it is used to understand a child’s behavior
after experiencing sexual abuse. T.832-33.
Over defense objection, the prosecution called Collard, who
testified that it was possible for a child to have normal hymenal
findings even though she has been sexually abused as often as twice
a week for nine months. T.798-803, 813-17, 831-36.

-4-

The

defense

Petitioner’s

presented

mother.

Dr.

two

witnesses:

Demerath

was

an

Dr.

Demerath

and

expert

witness

who

provided rebuttal testimony regarding CSAAS.
After a four-day trial, the jury returned a verdict of guilty
on all charges in the indictment.
Through counsel, Petitioner filed a direct appeal of his
conviction,

which

was

unanimously

affirmed

by

the

Appellate

Division, Fourth Department, New York State Supreme Court, on
March 15, 2013. People v. Goupil, 104 A.D.3d 1215 (4th Dep’t 2013).
Leave to appeal to the New York Court of Appeals was denied on
May 31, 2013. People v. Goupil, 21 N.Y.3d 943 (2013).
Through

retained

counsel,

Petitioner

filed

the

instant

petition (Docket No. 1), asserting the following grounds for
relief: (1) he was denied his right to a fair trial due to the
improper introduction of CSAAS testimony; and (2) he was denied the
effective assistance of trial counsel because his attorney failed
to investigate or present evidence to refute the prosecution’s
expert medical testimony, failed to present expert testimony to
rebut the prosecution’s CSAAS testimony, and failed to conduct
effective

cross-examination.

Respondent

filed

an

answer

and

memorandum of law in opposition to the petition, and Petitioner
filed a reply.
On March 16, 2018, the Court issued an order finding that
Petitioner had presented this Court with a “mixed petition.” In
particular,

Petitioner’s

claim

that

-5-

trial

counsel

failed

to

adequately prepare by consulting with and retaining an expert
witness on behalf of the defense was unexhausted because Petitioner
still had available state court remedies. Petitioner was given the
opportunity to amend his petition to withdraw the unexhausted
claim; withdraw his petition in its entirety, without prejudice and
with leave to refile; or seek a stay-and-abeyance order to preserve
the timeliness of his original petition while he returns to state
court for the purpose of presenting his unexhausted claim to the
state courts.
Petitioner subsequently filed a motion to amend his petition
to withdraw the unexhausted claim and to proceed only the exhausted
claims. Respondent took no position on the motion to amend, which
the Court granted.
For the reasons discussed below, Petitioner’s petition, as
amended, is dismissed.
DISCUSSION
I.

Ground One: Erroneous
Regarding CSAAS

Introduction

of

Expert

Testimony

Petitioner asserted on direct appeal he was denied a fair
trial because the judge erroneously allowed Perkowski to testify
regarding CSAAS as an expert witness for the prosecution. The
Appellate Division held that the claim was unpreserved for review
and, in any event, without merit. Respondent argues that the
Appellate Division’s reliance on an adequate and independent state
ground forecloses federal habeas review of this claim. In the
-6-

alternative, Respondent asserts that the claim fails on the merits.
As discussed below, the Court agrees that the claim is procedurally
barred.
Federal habeas review is generally prohibited if a state court
rests its judgment on a state law ground that is “‘independent of
the federal question and adequate to support the judgment.’” Cotto
v. Herbert, 331 F.3d 217, 238 (2d Cir. 2003) (quoting Coleman v.
Thompson, 501 U.S. 722, 729 (1991)). Even where “the state court
has also ruled in the alternative on the merits of the federal
claim[,]” Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990),
“federal habeas review is foreclosed” provided that the “state
court

has

expressly

relied

on

a

procedural

default

as

an

independent and adequate ground. . . .” Id. A state procedural bar
will generally be deemed “adequate” to preclude habeas review if it
is “firmly established and regularly followed.” Lee v. Kemna, 534
U.S. 362, 376 (2002) (quotation omitted)). In determining adequacy
of a state procedural bar, the Second Circuit has looked at
(1) whether the alleged procedural violation was actually relied on
in the state court, and whether perfect compliance with the state
rule would have changed the state court’s decision; (2) whether
state caselaw indicated that compliance with the rule was demanded
in the specific circumstances presented; and (3) whether petitioner
“substantially complied” with the rule and, therefore, whether
demanding perfect compliance with the rule would serve a legitimate

-7-

governmental interest. Cotto, 331 F.3d at 240 (citing Lee, 534 U.S.
at 386-87).
Here, the Appellate Division relied upon the “contemporaneous
objection rule” to dismiss Petitioner’s claim. Codified at Section
470.05(2) of the New York Criminal Procedure Law (“C.P.L.”), the
contemporaneous objection rule requires that a criminal defendant
make a timely and specific objection to the alleged error in order
to

preserve

the

error

for

appellate

review.

E.g.,

People

v.

Hawkins, 11 N.Y.3d 484, 492 (2008). The New York courts have
consistently

applied

C.P.L.

§

470.05(2)

to

require

criminal

defendants who challenge the constitutionality of penal statutes
with which they are charged to raise such a challenge before the
trial court in order to preserve the issue for appellate review.
E.g., People v. Baumann & Sons Buses, Inc., 6 N.Y.3d 404, 408
(2006); People v Davidson, 98 N.Y.2d 738, 739-40 (2002)The Court’s
review of the pertinent caselaw confirms that it is a “firmly
established

and

regularly

followed

state

practice”

to

hold

constitutional challenges to statutes unpreserved based upon the
failure to present the constitutional issue to the trial court.
After

reviewing

the

Appellate

Division’s

reliance

on

the

contemporaneous objection rule in this case against the Cotto
factors, the Court finds that it was an “adequate” state ground
precluding habeas review.
Petitioner can overcome this procedural bar if he can show
both “‘cause’ for noncompliance with the state rule and ‘actual

-8-

prejudice resulting from the alleged constitutional violation.’”
Smith v. Murray, 477 U.S. 527, 533 (1986) (quoting Wainwright v.
Sykes, 433 U.S. 72,

84 (1977); Murray v. Carrier, 477 U.S. 478,

485 (1986)). An alternative manner of overcoming a procedural
default is for the petitioner to show that the “failure to consider
[the claim] . . . will result in a fundamental miscarriage of
justice.” Coleman v. Thompson, 501 U.S. at 750.
Here, Petitioner argues that “cause” exists because his trial
counsel

was

ineffective

for,

among

other

things,

failing

to

preserve the CSAAS claim for appeal by objecting to the expert
testimony. Even assuming for the sake of argument that this claim
of ineffective assistance of counsel could serve as cause to excuse
the procedural default, Petitioner cannot demonstrate prejudice
resulting
considered

from

any

error

Petitioner’s

by

counsel.

evidentiary

The
claim

Appellate
on

the

Division
merits,2

notwithstanding the lack of preservation, and determined that it
was without merit.
364

(W.D.N.Y.

See, e.g., Swail v. Hunt, 742 F. Supp.2d 352,

2010)

(holding

that

the

petitioner

“cannot

demonstrate that he was prejudiced by trial counsel’s failure to
preserve the insufficiency claim by means of a renewed motion for
2

The fact that the Appellate Division also went on to hold that the evidence
was legally sufficient to support the verdict does not negate the finding of a
procedural bar based upon the adequate and independent state ground doctrine.
E.g., Glenn v. Bartlett, 98 F.3d 721, 724–25 (2d Cir. 1996) (when a state court
says that a claim is “not preserved for appellate review” and then rules “in any
event” on the merits, such a claim is not preserved) (citing Harris v. Reed, 489
U.S. 255, 264 n. 10 (1989) (explaining that “a state court need not fear reaching
the merits of a federal claim in an alternative holding” so long as it explicitly
invokes a state procedural rule as a separate basis for its decision)).

-9-

a trial order of dismissal after the defense case, because the
Appellate Division considered the merits of the insufficiency
claim, notwithstanding the lack of preservation”). Petitioner’s
failure to demonstrate prejudice obviates the need to consider
whether “cause” exists. See Stepney v. Lopes, 760 F.2d 40, 45
(2d Cir. 1985) (“Since a petitioner who has procedurally defaulted
in state court must show both cause and prejudice in order to
obtain

federal

habeas

review,

we

need

not,

in

light

of

our

conclusion that there was no showing of cause, reach the question
of whether or not [the petitioner] showed prejudice.”).
Finally, the miscarriage of justice exception is limited to the
extraordinary case where a constitutional violation has probably
resulted in the conviction of one who is actually innocent. Schlup
v. Delo, 513 U.S. 298, 327 (1995). Petitioner has not attempted to
make such a showing. Accordingly, Petitioner’s evidentiary claim is
dismissed as subject to an unexcused procedural default.
II.

Ground Two: Ineffective Assistance of Trial Counsel
Petitioner

contends

that

he

was

denied

the

effective

assistance of trial counsel because his attorney (a) failed to
present

expert

testimony

to

rebut

the

prosecution’s

CSAAS

testimony, and (b) deficiently cross-examined the prosecution’s
witnesses. Respondent argues that Petitioner’s first ineffective
assistance of trial counsel (“IATC”) claim is unexhausted but must
be deemed exhausted and procedurally defaulted. As to the second

-10-

claim of IATC, Respondent concedes that is exhausted, but argues
that it is without merit.
A.

The IATC Claim Regarding the Failure to Rebut the CSAAS
Testimony is Unexhausted But Must Be Deemed Exhausted and
Procedurally Defaulted

Exhaustion of available state court remedies is a prerequisite
for a habeas petitioner seeking to overturn his state conviction on
the ground that his federal constitutional rights were violated.
See 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27, 29 (2004).
“Each substantially independent factual claim made in support of an
allegation of ineffective assistance of counsel must be fairly
presented to a state court before a federal habeas court may rule
upon it.” Jelinek v. Costello, 247 F. Supp.2d 212, 267 (E.D.N.Y.
2003) (citing Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991));
see also Ramirez v. Att’y Gen. of N.Y., 280 F.3d 87, 96 (2d Cir.
2001) (“[T]he factual basis for an ineffective assistance claim
must, like

other

issues, be

presented to

all

relevant

state

courts.”).
On

direct

appeal,

appellate

counsel

presented

one

point

heading in his brief concerning trial counsel’s performance. The
point heading stated that “counsel rendered ineffective assistance
in cross[-]examining the complainant and failing to object to
improper closing argument by the prosecution[.]” SR.033 (capitals
omitted).3 Then, in the argument section under this point heading,

3

Citations to “SR.” refer pages in the state court record.

-11-

appellate counsel asserted that “counsel was ineffective in her
cross-examination of the Complainant and in failing to object to
several

improper

statements,

all

statements
of

which

in

the

seemed

to

prosecution’s
improperly

closing

bolster

the

Complainant’s credibility.” Id. Specifically, appellate counsel
criticized trial counsel for defense counsel conducting a lengthy
cross-examination in which she “elicit[ed] more incidents and
details than were elicited by the prosecution.” SR.034 (citing
T.677-751).

The

cases

cited

by

appellate

counsel

dealt

with

situations in which trial attorneys failed to adequately impeach
complainants in sexual assault cases. The final page of appellate
counsel’s argument under the ineffective assistance point heading
concerned trial counsel’s failure to object to allegedly improper
prosecutorial remarks and preserve them for review. It is clear
that appellate counsel at no time discussed trial counsel’s crossexaminations of any other prosecution witnesses in his brief.
Petitioner contends in his Reply that he did exhaust this
claim because he raised his ineffective assistance of counsel
argument

as

to

defense

counsel’s

failure

to

effectively

cross-examine S.L., and therefore “[w]here an additional factual
claim in support of the ineffective assistance allegation merely
supplements the ineffectiveness claim and does not fundamentally
alter it, the court may consider it in a habeas petition.” (Docket
No. 15 at 2 (quoting Gersten v. Senkowski, 299 F. Supp.2d 84, 100
(E.D.N.Y. 2004) (citing Caballero v. Keane, 42 F.3d 738, 741

-12-

(2d Cir. 1994)). The cases relied on by Petitioner are inapposite.
The Court therefore agrees with Respondent that Petitioner did not
fairly present his claims that trial counsel failed to competently
cross-examine the expert witnesses, leaving the claims unexhausted.
These

claims

must

be

deemed

exhausted,

however,

because

Petitioner no longer has available remedies in state court. See,
e.g., Bossett v. Walker, 41 F.3d 825, 829 (2d Cir. 1994) (deeming
claims exhausted where it “would . . . be fruitless to require [the
petitioners] to pursue these claims in state court”). First,
Petitioner has already completed his direct appeal. By statute,
New York law used to specifically provide for only a single
application for direct review. Spence v. Sup’t, Great Meadow Corr.
Fac., 219 F.3d 162, 170 (2d Cir. 2000) (relying on former New York
Rules

for

the

Court

of

Appeals

(“N.Y.

R.

Ct.”)

§

500.10(a)

(discussing leave applications for criminal appeals)). N.Y. R. Ct.
§ 500.10 has since been amended, and criminal leave applications
are now addressed in N.Y. R. Ct. § 500.20. Although § 500.20 “does
not specifically state that there may be only one application for
appeal, see N.Y. R. Ct. § 500.20, such a restriction may be
inferred,” since “[b]oth Rule 500.20(d) and CPL § 460.10(5) provide
a 30–day window for any such application to be filed; this time
limit would be meaningless were multiple applications permitted.”
Colon v. Connell, No. 07 Civ. 7169(BSJ)(JCF), 2009 WL 2002036, at
*6

n.

4

(S.D.N.Y.

July

9,

2009).

In

addition,

N.Y.

R.

Ct.

§ 500.20(a)(2) provides that the leave letter must indicate that

-13-

“that no application for the same relief has been addressed to a
justice of the Appellate Division, as only one application is
available[.]” N.Y. R.CT. § 500.20(a)(2).
The only other way for Petitioner to exhaust this habeas claim
would be to file a motion to vacate the judgment pursuant to C.P.L.
§ 440.10. Because the claim is based on matters of record and could
have been raised on direct appeal, denial of such a motion is
statutorily mandated. See N.Y. Crim. Proc. Law § 440.10(2)(c).
The procedural rules that foreclose Petitioner’s return to
state court also render his suggestive identification procedure
claim procedurally defaulted. See Bossett, 41 F.3d at 829. “Federal
courts may address the merits of a claim that was procedurally
defaulted in state court only upon a showing of cause for the
default and prejudice to the petitioner.” Id. (citing Wainwright v.
Sykes, 433 U.S. 72, 87 (1977)). “Cause may be demonstrated with ‘a
showing that the factual or legal basis for a claim was not
reasonably available to counsel, . . . or that “some interference
by state officials” made compliance impracticable, . . . [or that]
the procedural default is the result of ineffective assistance of
counsel.’” Id. (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)
(citations omitted in original; ellipses and brackets in original).
Although Petitioner does have one fully exhausted ineffective
assistance of trial counsel claim, it is not meritorious, as
discussed infra. Therefore, it cannot serve as “cause.” See, e.g.,
Bloomer v. United States, 162 F.3d 187, 191 n. 1 (2d Cir. 1998)

-14-

(“Ineffective assistance will constitute cause when it rises to a
constitutional violation of a petitioner’s Sixth Amendment right to
have the effective assistance of counsel for his defense.”) (citing
Coleman v. Thompson, 501 U.S. 722, 755 (1991)). Petitioner’s
inability to show “cause” is fatal to any attempt to overcome the
default

because

the

Supreme

Court’s

“cause”

and

“prejudice”

requirement is phrased in the conjunctive. Engle v. Isaac, 456 U.S.
107, 134 n.43 (1982) (citation omitted).
As alternative to showing cause and prejudice, “[a] habeas
petitioner may bypass the independent and adequate state ground bar
by demonstrating a constitutional violation that resulted in a
fundamental miscarriage of justice, i.e., that he is actually
innocent of the crime for which he has been convicted.” Dunham v.
Travis, 313 F.3d 724, 730 (2d Cir. 2002) (citing Schlup, 513 U.S.
at 321; other citation omitted). Petitioner has not attempted to
argue that he is actually innocent. Therefore, he cannot rely on
the fundamental miscarriage of justice exception. His first two
ineffective assistance of trial counsel claims accordingly are
dismissed as subject to an unexcused procedural default.
B.
The

The Claim Based on Counsel’s Ineffective CrossExamination of the Victim Is Exhausted But Meritless
Sixth

Amendment

provides

that

in

all

criminal

prosecutions, the accused shall enjoy the right to the assistance
of counsel. U.S. CONST., amend. VI. A lawyer’s representation is
constitutionally deficient where it (1) falls “below an objective
standard

of

reasonableness;”

and
-15-

(2)

there

is

a

“reasonable

probability that, but for counsel’s unprofessional errors, the
result of the proceeding would have been different.” Strickland v.
Washington,

466

U.S.

668,

688,

694

(1984).

Recognizing

the

“tempt[ation] for a defendant to second-guess counsel’s assistance
after conviction or adverse sentence,” id. at 689, “a court must
indulge a strong presumption that counsel’s conduct falls within
the wide range of reasonable professional assistance.” id. To
fulfill the prejudice prong, “[t]he defendant must show that there
is a reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694. “A reasonable probability is a probability sufficient
to undermine confidence in the outcome.” Id. “That requires a
‘substantial,’ not just ‘conceivable,’ likelihood of a different
result. Cullen v. Pinholster, 563 U.S. 170, 189 (2011) (quotation
omitted).
Petitioner claims that trial counsel’s cross-examination of
the victim was ineffective because, by asking her to explain her
allegations in greater detail than she had done during her direct
examination, counsel effectively bolstered her credibility and
unwittingly elicited additional instances of abuse. The Appellate
Division

adjudicated

Petitioner

was

simply

this

claim

on

the

“‘[s]peculati[ng]

merits,
that

a

finding
more

that

vigorous

cross-examination might have [undermined the credibility of a
witness] [which] does not establish ineffectiveness of counsel[.]’”
Goupil, 104 A.D.3d at 1217 (quoting People v. Bassett, 55 A.D.3d

-16-

1434, 1438 (4th Dep’t 2008)). To succeed on this claim, Petitioner
therefore must show that the Appellate Division’s holding was
contrary

to,

or

See Harrington

an

v.

unreasonable

Richter,

562

application

U.S.

86,

of,

101-02

Strickland.
(2011).

“The

Strickland standard is a general one, so the range of reasonable
applications is substantial.” Harrington, 562 U.S. at 105 (citation
omitted).
Whether and how to conduct cross-examination is a matter of
trial strategy, and “[t]he wisdom of counsel’s strategy must be
judged based on the circumstances as a whole as they stood at the
time counsel made his decisions.” Hodge v. Haeberlin, 579 F.3d 627,
642 (6th Cir. 2009) (citing Strickland, 466 U.S. at 689) (stating
that “[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”)). Given the he-said, she-said nature of the case against
Petitioner, trial counsel had no choice but to try to discredit his
accuser’s testimony as much as possible. Trial counsel reasonably
decided to do so, in part, by subjecting S.L. to cross-examination,
“the principal means by which the believability of a witness and
the truth of [her] testimony are tested.” Davis v. Alaska, 415 U.S.
308, 316 (1974). Trial counsel clearly had a strategic reason for
questioning S.L. about the acts of which she accused Petitioner;
during summation, trial counsel used these details to argue that

-17-

S.L.’s description of how the sexual acts were committed was
physically impossible. Trial counsel also argued that the small
size and configuration of the trailer where Petitioner allegedly
assaulted S.L. made it implausible that the abuse could have
occurred without any of the other residents knowing about it.
Petitioner, however, contends that trial counsel committed an
unreasonable error by not correcting S.L. when she insisted that
the first date of abuse was Saturday, May 1, 2008, when that date
actually fell on a Thursday. Petitioner also asserts that trial
counsel should have highlighted the “glaring” inconsistency in
S.L.’s testimony about her mother’s work schedule on May 1, 2008.
Petitioner notes that S.L. testified that, on the first day the
abuse

occurred

her,

her

mother

left

for

work

at

12:30

p.m.

Petitioner points out that S.L.’s mother testified that she did not
work any shifts in May that began around that time; rather, her
shifts went from 8:30 a.m. to 3:30 p.m. It is pure speculation on
Petitioner’s part to argue that these discrepancies would have
materially undermined the veracity of S.L.’s account, particularly
where S.L. testified to other details about the day that caused her
to remember it. For instance, she testified that it was the same
day she had a play date in the early afternoon with her neighbor,
which

supports

her

recollection

that

it

was

a

Saturday.

In

addition, S.L. testified that it was the day that she and her
neighbor went to an 8 o’clock showing of Horton Hears a Who.

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In any event, to prove the elements of the crime of predatory
sexual assault against a child (P.L. § 130.96), the prosecution was
required to prove that Petitioner, being over age 18, for a period
“not less than three months in duration,” engaged in “two or more
acts of sexual conduct, which include[d] at least one act of sexual
intercourse [or] oral sexual conduct” with a child under age 13
(P.L. § 130.75(1)(b)). Even if trial counsel had conducted the
cross-examination

as

Petitioner

wished,

and

sufficiently

discredited S.L.’s testimony about the May 1, 2008 incident, S.L.
testified about multiple other incidents that were sufficient to
satisfy the elements of the crime charged. The notion that trial
counsel may have been more effective in her impeachment had she
taken another course “is precisely the sort of tactical judgment
that Strickland counsels against second-guessing.”

Esparza v.

Sheldon, 765 F.3d 615, 624 (6th Cir. 2014) (citing Strickland, 466
U.S. at 689). The failure to probe into the inconsistencies noted
by Petitioner, in light of trial counsel’s otherwise extensive
cross-examination, does not undermine the presumption that her
“conduct falls within the wide range of reasonable professional
assistance.” Strickland, 466 U.S. at 689. Furthermore, Petitioner
has not demonstrated a reasonable probability of a different
result, but for trial counsel’s alleged errors in conducting the
cross-examination of S.L. See id. at 694. Thus, Petitioner has not
demonstrated the requisite prejudice under Strickland. “[B]ecause
his claim does not pass muster under a de novo application of

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Strickland,
court’s

he

necessarily

decision

cannot

constituted

demonstrate

an

that

objectively

the

state

unreasonable

application of Strickland.” Darden v. Conway, No. 10-CV-0570 MAT,
2011 WL 3739551, at *6 (W.D.N.Y. Aug. 24, 2011) (citation omitted).
CONCLUSION
For the reasons set forth above, petitioner Mark Goupil’s
request for a writ of habeas corpus is denied and the petition
(Docket

No.

1)

is

dismissed.

Because

there

has

not

been

a

substantial showing of the denial of a constitutional right, see
28 U.S.C. § 2253(c)(2), the Court declines to issue a certificate
of appealability. The Clerk of Court is directed to close this
case.
IT IS SO ORDERED.

S/Michael A. Telesca
_______________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

September 25, 2018
Rochester, New York

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