Irvin v. Attica Correctional Facility

Filing 23

DECISION AND ORDER: For the reasons set forth, Petitioner Wayne Irvin's pro se Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 1 is denied. The Clerk of Court shall take all steps necessary to close this case. A copy of the Decision and Order along with a copy of this entry have been mailed to Wayne Irvin, 12-B-2727, ATTICA CORRECTIONAL FACILITY, Box 149, Attica, NY 14011. SO ORDERED. Signed by Hon. Richard J. Arcara on 3/27/2024. (LAS)This was mailed to: Wayne Irvin.Clerk to Follow up

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
WAYNE IRVIN,
Petitioner,

v.

DECISION AND ORDER
15-CV-291-A

ATTICA C.F.,
Respondent.

Petitioner Wayne Irvin, a prisoner in state custody, has filed a pro se Petition
for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Dkt. No. 1), challenging
the constitutionality of the judgment entered against him on September 4, 2012, in
New York State, Cattaraugus County Court. For the reasons set forth below, the
Petition (Dkt. No. 1), is DISMISSED.
BACKGROUND
I.

State Court Proceedings
A. Indictment and Suppression Hearing
Petitioner was indicted on Rape in the First Degree (New York Penal Law §

130.35(3)); Criminal Sexual Act in the First Degree (id. § 130.50 (3); Sexual Abuse in
the First Degree (id. § 130.65(3)); and Endangering the Welfare of a Child (id. Penal
Law § 260.10). The charges stemmed from Petitioner’s alleged rape and sexual abuse
of his four-year-old niece, W.H., at his home on August 15, 2011.

1

Prior to trial, Petitioner moved to suppress the written statement he gave on
October 13, 2011, to Captain Michael Marsfelder and Sergeant Ronald Richardson of
the Olean Police Department. At the Huntley hearing held on April 16, 2012, the
People called Marsfelder; the defense presented no witnesses. Crediting Marsfelder’s
testimony (H: 3-15),1 Cattaraugus County Court Judge Himelein (“trial court”) found
that under the circumstances described by Marsfelder, someone innocent of a crime
would not have believed he was in custody, “especially after being allowed to leave
after giving an incriminating statement.” Further, the trial court found, “even if he was,
there was a valid Miranda warning and waiver, and [he] willingly agreed to speak with
Officer Marsfelder.” Therefore, the trial court held the written statement to be
admissible. (H: 15-16).
B. Trial
1. The People’s Case
W.H.’s mother, A.V., testified that Petitioner was her biological brother. A.V.
had four children under nine, including four-year-old W.H. A.V. and Petitioner lived
together until she was placed in foster care at age eight. As an adult, A.V. reconnected with members of her birth family, including Petitioner. In the summer of
2011, A.V. and her husband were in the process of moving back to the Olean area.
Petitioner and his live-in girlfriend, Bonnie Bremiller, volunteered to babysit for four-

References preceded by “H” are to pages in the consecutively paginated transcript of
the April 16, 2021, suppression/Huntley hearing held in Cattaraugus County Court
(Himelein, J), and available at Dkt. No. 17-3, pp. 2-17.
1

2

year-old W.H. and her brother while A.V. completed the move on August 15, 2011. (T:
47-50).2
Petitioner and Bremiller were supposed to watch W.H. for a few days, but they
brought her home after the first night because W.H. would not stop crying. W.H. had
never been left in a man’s care prior that time. After she came home from Petitioner’s
home, W.H. would not sleep alone and did not want the lights off. (T: 50-52).
About two months later, A.V. had a conversation with W.H. about “good
touching” and “bad touching.” W.H. started to disclose something, at which point A.V.
called Child Protective Services. A.V. brought W.H. to the Children’s Advocacy Center
on October 13, 2011. (T: 50-52).
Dr. Salzmann, a pediatrician with advanced training in child sexual abuse
cases, performed a pelvic examination of W.H. on October 13, 2011, at the Children’s
Advocacy Center. (T: 28-34). Using a colposcope to magnify and photograph W.H.’s
vaginal area, Dr. Salzmann observed two healed, “notched out” out areas on W.H.’s
hymenal ring. (T: 34-35). The notches indicated “some sort of blunt force trauma to
the area” (T: 36), caused by some type of object or body part. (T: 38). Because the
notches were “deep,” they did not represent a normal variation of the hymen. (T: 46).
Dr. Salzmann opined it was “[h]ighly unlikely” that W.H. could have caused the injury
herself; it would have been too painful, so W.H. would have stopped. (T: 38). Although

References preceded by “T” are to pages in the consecutively paginated trial transcript
held on June 12-13, 2012, in Cattaraugus County Court (Himelein, J.), and available at
Dkt. No. 17-3, pp. 18-282.
2

3

Dr. Salzmann could not tell exactly when the injuries occurred, the state of healing
was consistent with force inflicted two months prior to the examination. (T: 37-38).
Also on October 13, 2011, W.H. was interviewed by a social worker at the
Children’s Advocacy Center. Marsfelder observed the interview through closed-circuit
television and testified that W.H. described “sexual incidences having occurred to
her”. (T: 74). Marsfelder testified that since “[t]here was a disclosure that the suspect
was Wayne Irvin” during the interview, he and Richardson went to Petitioner’s
apartment later that evening. (T: 58-59, 74-75). At the officers’ request, Petitioner
agreed to come to the station for an interview. He was driven there by Bremiller who
waited for him while he talked to the officers.
Once Petitioner arrived, Marsfelder and Richardson brought him to an office;
Petitioner was not handcuffed or restrained in any way. Marsfelder recited the Miranda
warnings to Petitioner. Petitioner waived his rights and agreed to speak to the officers.
(T: 60-61, 77-79). Marsfelder told Petitioner that there was an “allegation that he had
sexually abused [W.H.].” (T: 76-77). Petitioner claimed that W.H. had never spent the
night at his apartment or spent any time there without her mother being present. (T:
62, 77). Richardson left the room and talked to Bremiller about half an hour. He then
brought Bremiller into the interview room with Petitioner and asked her, in his
presence, if W.H. had ever spent the night. After Bremiller answered, she was
excused. The officers continued to talk with Petitioner, urging him to tell them the truth.
(T: 62-64, 76-77).

4

Later during the interview, Petitioner provided a different version of events,
which Marsfelder typed out. Once it was completed, the officers had Petitioner review
it and make sure it was correct; he then signed it. (T: 64-65, 79-81). His statement
was admitted as People’s Exhibit 1, and Marsfelder read it to the jury. (T: 82-85). In it,
Petitioner stated that he became sexually aroused by seeing W.H. naked after she
got out of the shower. He brought W.H. into his bedroom and began touching her
vagina with his fingers. (T: 83-84). After licking her vagina for a while, he began
rubbing his erect penis on her vagina. (T: 84). Petitioner said his penis “may have
went into” W.H.’s vagina “a little” but he was “not sure.” (T: 84). W.H. was “crying”
which made Petitioner realize what he was doing “wasn’t right”. (T: 84). He then lost
his erection and stopped what he was doing. Petitioner stated that he was sexually
abused as a child, and that may be why he “did what [he] did.” (T: 84). He expressed
regret for his actions and said he “really need[ed] help.” (T: 84). Petitioner said
Bremiller was not home at the time of the incident. (T: 84).
2. The Defense Case
Bremiller testified that, according to her diary, she and Petitioner did not see
W.H. on August 15, 2011, but she did see W.H. on August 5, 2011. On August 15th,
they visited Russell Irvin, Petitioner’s brother, and Petitioner’s grandmother during the
day and spent the early part of the evening playing bingo. After bingo ended at 9:30
pm., they went home and watched a movie. (T: 103-06).
Bremiller admitted she recently pled guilty to petit larceny for stealing from a
tool company; she received no jail time or probation. She admitted getting in “some
5

trouble” for dating a minor but claimed the case had been dismissed. Even when
shown the criminal history, she claimed not to remember pleading guilty to sexual
misconduct in satisfaction of third-degree rape based on that incident. Bremiller also
claimed not to remember being arrested for, or pleading guilty to, third-degree
attempted false report of an incident in July of 2001. (T: 106-10).
Russell and his girlfriend, Nicole Reynolds, testified that in June of 2011, A.V.,
her husband, and their four children, including W.H., appeared at their trailer looking
for a place to stay. They all stayed with Russell and Reynolds for about three weeks,
but then W.H. and one of her siblings went to stay with Russell’s other brother, Richard
Irvin, for about two weeks in mid-July. Richard lived with his three kids in a camper up
the hill. Russell and Petitioner went apartment-hunting with A.V. and found her a place
within about three or four days. (T: 94-98, 113-14).
Reynolds testified that sometime towards the end of June, she helped bathe
W.H. and noticed her vaginal area was “really red”. (T: 95-96). On cross-examination,
Reynolds said it “looked like [the area] was blistering” but did not look like an infection
or irritation; instead, it looked as if W.H. had been “spread open”. (T: 99-100).
Reynolds later testified that it looked “[l]ike a medical condition” rather than “abuse”.
(T: 100). Reynolds told A.V. what she had observed and asked if W.H. was getting
medical care; Reynolds was not satisfied with A.V.’s response but did not call Child
Protective Services.
Russell testified that on August 15, 2011, Petitioner, Bremiller, and a person
named Waldemar Way stopped by to pick up some scrap metal. They left after about
6

twenty minutes, saying they were going to bingo. (T: 115). Russell admitted that he
recently completed parole for a 2002 stolen property conviction; that in 1998, he
pleaded guilty to sexual misconduct in a case in which he had also been charged with
endangering the welfare of a child; and that he pleaded guilty to promoting prison
contraband in 2005 for having a tattoo gun. He could not recall pleading guilty in 2001
to child endangerment and receiving three years of probation. Russell denied sexually
abusing W.H. (T: 111, 115-18).
C. Conviction and Sentence
The jury returned a verdict convicting Petitioner on all counts. (T: 164-65). At
sentencing on September 4, 2012, Petitioner was found to be a predicate felony
offender. (S: 2). 3 The trial court imposed an aggregate term of 57 years in prison (i.e.,
consecutive prison terms of 25 years on both the rape and criminal sexual act
convictions and seven years on the sexual abuse conviction, each to be followed by
ten years’ post-release supervision, along with a concurrent one-year prison term on
the child endangerment conviction). (S: 5-6).
D. Direct Appeal
Represented by new counsel, Petitioner pursued a direct appeal. The Appellate
Division, Fourth Department, of New York State Supreme Court unanimously affirmed
the conviction on November 8, 2013. People v. Irvin, 111 A.D.3d 1294, 974 N.Y.S.2d

References preceded by “S” are to pages in the consecutively paginated sentencing
transcript, held on September 4, 2012, in Cattaraugus County Court (Himelein, J.), and
available at Dkt. No. 17-3, pp. 283-288.
3

7

214 (4th Dept. 2013). The New York Court of Appeals denied leave to appeal. People
v. Irvin, 24 N.Y.3d 1044 (2014), recons. denied, 26 N.Y.3d 930 (2015).
II.

Federal Habeas Proceeding
The timely4 Petition (Dkt. No. 1) raises the following grounds for relief: (1) trial

counsel was ineffective for numerous reasons (Ground One – Ineffective Assistance),
see Dkt. No. 1, ¶¶ 22(A), 23; (2) the Sixth Amendment’s Confrontation Clause was
violated by W.H.’s failure to testify and Marsfelder’s testimony about his observations
of W.H.’s interview with the social worker (Ground Two – Confrontation Clause), see
Dkt. No. 1, ¶ 22(B); (3) the trial court erroneously denied the suppression motion
(Ground Three – Suppression), see Dkt. No. 1, ¶ 22(C); and (4) the jury was not
impartial due to the presence of the two jurors trial counsel should have excused for
cause (Ground Four – Juror Issue), see Dkt. No. 1, ¶ 22(D).
Respondent filed a Redacted Response (Dkt. No. 15), Redacted Memorandum
of Law (Dkt. No. 15-1), Table of Contents for the State Court Record (Dkt. No. 15-2),

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No.
104-132, 110 Stat. 1214, applicable to this petition, provides a one-year limitations period
which begins to run on the latest of four dates. 28 U.S.C. § 2244(d)(1)(A)-(D). Here, the
limitations period began to run on “the date on which the judgment became final by the
conclusion of direct review or expiration of the time for seeking such review.” 28 U.S.C. §
2244(d)(1)(A). For purposes of § 2244(d)(1)(A), a state conviction becomes “final” when
the United States Supreme Court denies an application for a writ of certiorari or when the
time to seek certiorari has expired, which is 90 days following the date on which direct
review by the state’s highest court is complete. See Gonzalez v. Thaler, 565 U.S. 134,
150 (2012); U.S. Sup. Ct. R. 13(1). The New York Court of Appeals denied Petitioner’s
request for leave to appeal on November 13, 2014, and upon reconsideration, denied
leave to appeal again on October 10, 2015. Using the latter of these two dates to calculate
the time in which Petitioner could seek certiorari, his conviction became final on January
11, 2016. See Mateos v. West, 357 F. Supp. 2d 572, 575 (E.D.N.Y. 2005).
4

8

Redacted State Court Record (Dkt. No. 15-3), and Redacted Transcripts (Dkt. No. 154). The Court granted the Motion to Seal (Dkt. No. 13), and Respondent filed, under
seal, unredacted versions of the documents docketed at Dkt. Nos. 15-1 to 15-4. See
Dkt. No. 17 to 17-3. For his Reply, Petitioner filed a one-page letter (Dkt. No. 19).
Respondent asserts that that Ground One (Ineffective Assistance) is exhausted
and meritless. As for Grounds Two (Confrontation Clause), Three (Suppression), and
Four (Juror Issue), Respondent asserts that they are unexhausted but must be
deemed exhausted and procedurally barred. Respondent also contends that Grounds
Two (Confrontation Clause) and Four (Juror Issue) are procedurally defaulted
because the Appellate Division relied on an adequate and independent state ground
to dismiss them. Alternatively, Respondent argues, these three grounds lack merit.
As discussed further below, the Court agrees that Grounds Two (Confrontation
Clause) and Three (Suppression) are unexhausted but must be deemed exhausted
and subject to an unexcused procedural default. As for Ground Four (Juror Issue), it
appears to be unexhausted but should not be deemed exhausted and procedurally
defaulted. Nonetheless, Respondent is correct that Ground Four (Juror Issue) also
may be dismissed as procedurally defaulted under the adequate and independent
state ground doctrine. As for Ground One (Ineffective Assistance), the Court finds that
it is unexhausted but that can be dismissed under the authority of 28 U.S.C. §
2254(b)(2).

9

DISCUSSION
I.

Federal Review of State Convictions
A federal court may not grant a habeas petition on a claim that was adjudicated

on the merits in state court unless that adjudication: “(1) resulted in a decision that
was contrary to, or involved an unreasonable application of, clearly established
Federal law, as determined by the Supreme Court of the United States; or (2) resulted
in a decision that was based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d); see
Harrington v. Richter, 562 U.S. 86, 97-98 (2011); Waiters v. Lee, 857 F.3d 466, 477
(2d Cir. 2017). Hence, when a claim is adjudicated on the merits, the state court's
decision must be accorded “substantial deference.” Fischer v. Smith, 780 F.3d 556,
560 (2d Cir. 2015). “A federal court may reverse a state court ruling only where it was
‘so lacking in justification that there was ... [no] possibility for fairminded
disagreement.’” Vega v. Walsh, 669 F.3d 123, 126 (2d Cir. 2012) (per curiam) (quoting
Harrington, 562 U.S. at 103); see also Wetzel v. Lambert, 565 U.S. 520, 524 (2012)
(per curiam).
Moreover, “federal courts will not review questions of federal law presented in
a habeas petition when the state court's decision rests upon a state-law ground that
is independent of the federal question and adequate to support the judgment.” Cone
v. Bell, 556 U.S. 449, 465 (2009) (quoting Coleman v. Thompson, 501 U.S. 722, 729
(1991)). A state law error is therefore insufficient for habeas corpus relief unless it
rises to a level that implicates a federal constitutional right. Wainwright v. Goode, 464
10

U.S. 78, 86 (1983) (per curiam). To meet that standard, Petitioner must demonstrate
that the error had a “substantial and injurious effect or influence” on the jury's verdict.
Headley v. Tilghman, 53 F.3d 472, 474 (2d Cir. 1995) (citing Brecht v. Abrahamson,
507 U.S. 619, 637 (1993)).
Finally, a federal court may not grant the habeas petition of a state prisoner
“unless it appears that the applicant has exhausted the remedies available in the
courts of the State; or that there is either an absence of available State corrective
process; or the existence of circumstances rendering such process ineffective to
protect the rights of the prisoner.” 28 U.S.C. § 2254(b)(1).

To satisfy § 2254’s

exhaustion requirement, a petitioner must present the substance of “the same federal
constitutional claim[s] that he now urges upon the federal courts to the highest court
in the pertinent state.” Aparicio v. Artuz, 269 F.3d 78, 89–90 (2d Cir. 2001) (internal
citations and quotation marks omitted).
“In New York, to invoke ‘one complete round of the State’s established
appellate review process,’” Galdamez v. Keane, 394 F.3d 68, 74 (2d Cir. 2005)
(quoting O’Sullivan v. Boerckel, 526 U.S. 838, 845 (1999)), “a criminal defendant must
first appeal his or her conviction to the Appellate Division, and then must seek further
review of that conviction by applying to the Court of Appeals for a certificate granting
leave to appeal.” Id. (citations omitted). “The application for leave to the Court of
Appeals may be in letter form.” Id. (citing N.Y. Ct. R. § 500.10(a) 5 (McKinney 1999)).

Effective December 29, 2020, the substance of N.Y. Ct. R. 500.10(a) is now codified at
N.Y. Ct. R. 500.20.

5

11

“New York Court rules require that leave applicants submit to the Court of Appeals
briefs and other documents from the lower courts to ‘identify the issues on which the
application is based’ and to pay ‘[p]articular written attention . . . to identifying problems
of reviewability and preservation of error.’” Id. (quoting N.Y. Ct. R. § 500.10(a)
(McKinney 1999); ellipsis and alteration in original).
II.

Grounds Two and Three Must Be Deemed Exhausted and Procedurally
Defaulted
Respondent argues that Grounds Two (Confrontation Clause), Three

(Suppression), and Four (Juror Issue) are unexhausted because they were not
presented to the New York state courts for one complete round of appellate review.
Respondent notes that while they were raised in the opening brief to the Appellate
Division as Points I, II, and III (see SR: 002-003, 009, 016-029) 6, they were not
included in the leave application (SR: 228-232) to the New York Court of Appeals.
Petitioner has not responded to this argument.
Here, appellate counsel focused solely on the ineffective assistance of counsel
claim in the leave letter. (SR: 228-232). She did not mention the suppression claim,
even in passing. She did not mention the Confrontation Clause or juror-partiality
claims except as examples of objections trial counsel should have raised but did not.
(SR: 228-229). She specifically requested further appellate review only as to the

References preceded by “SR” are to pages in the consecutively, paginated, Batesstamped exhibit containing state court records filed by Respondent, and available at
Dkt. No. 15-3.
6

12

ineffectiveness issue, stating that “[i]neffective assistance of counsel is an issue of
ongoing statewide importance, deserving of Court of Appeals consideration.” (SR:
232). Finally, although she did state she was enclosing the appellate briefs, that was
a requirement under the Court of Appeals’ rules, see Galdamez, 394 F.3d at 74, and
does not amount to a request for review of any issues raised in the briefs. Grey v.
Hoke, 933 F.2d 117, 120 (2d Cir. 1991); see Jordan v Lefevre, 206 F.3d 196 (2d Cir.
2000). Based on Grey and Jordan, the Court finds that the leave application in
Petitioner’s case did not fairly apprise the New York Court of Appeals that leave was
being sought as to the Confrontation Clause claim (Ground Two), the suppression
claim (Ground Three), or the juror-partiality claim (Ground Four).
“For exhaustion purposes, a federal habeas court need not require that a
federal claim be presented to a state court if it is clear that the state court would hold
the claim procedurally barred.” Reyes v. Keane, 118 F.3d 136, 139 (2d Cir. 1997)
(quotations omitted). Where the petitioner has no available means of exhausting a
claim in state court, it will be “deemed exhausted” by the federal court. Grey, 933 F.2d
at 120 (citing Castille v. Peoples, 489 U.S. 346, 351 (1989)); see 28 U.S.C. § 2254(c).
“New York’s procedural rules prevent [Petitioner] from attempting to raise
[Grounds Two, Three, and Four] for a second time before the New York Court of
Appeals since he already has used the one direct appeal to which he is entitled.”
Blocker v. Graham, No. 6:17-CV-06648-CJS, 2022 WL 309952, at *17 (W.D.N.Y. Feb.
2, 2022) (citing Zacher v. Graham, No. 6:14-CV-06027(MAT), 2016 WL 368086, at *7

13

(W.D.N.Y. Feb. 1, 2016) (citing Cunningham v. Conway, 717 F. Supp. 2d 339, 365
(W.D.N.Y. 2010)) (citing N.Y. R. Ct. § 500.20(a)(2), (d); other citations omitted)).
Collateral review by means of a motion to vacate pursuant to New York Criminal
Procedure Law § 440.10(1) is foreclosed at least as to Grounds Two (Confrontation
Clause) and Three (Suppression) under C.P.L. § 440.10(2)(a), which provides that:
the court must deny a motion to vacate a judgment when . . . [t]he ground
or issue raised upon the motion was previously determined on the merits
upon an appeal from the judgment, unless since the time of such
appellate determination there has been a retroactively effective change
in the law controlling such issue. . ..
N.Y. Crim. Proc. Law § 440.10(2)(a) (emphasis supplied).

Here, the Appellate

Division denied Ground Three on the merits, holding that the trial court “properly
refused to suppress the written statement that [Petitioner] made to a police witness.”
Irvin, 111 A.D.3d at 1295. Petitioner does not and cannot argue that there has been
a retroactively effective change in the law since the time of his direct appeal.
Regarding Ground Two (Confrontation Clause), the Appellate Division held that
both subclaims within it were “unpreserved for [appellate] review” but went on to reject
them on the merits. Irvin, 111 A.D.3d at 1295. “[T]here is no requirement in CPL §
440.10(2)(a) that the “on the merits” determination on direct appeal be in a decision
in

which

no

alternative

holding

is

provided.”

Jones

v.

Miller,

No.

03CIV.6993SHSGWG, 2004 WL 1416589, at *9 (S.D.N.Y. June 25, 2004). As with
Ground Three (Suppression), which was rejected solely on the merits, Petitioner does
not and cannot argue that there has been a retroactively effective change in the law
since the time of his direct appeal. Therefore, the Court concludes that Grounds Two
(Confrontation) and Three (Suppression) would be procedurally barred if he returned
14

to state court and attempted to raise them in a C.P.L. § 440.10 motion. 7 See Grey,
933 F.2d at 120 (“Collateral review of these claims is also barred because the issues
were previously determined on the merits on direct appeal. See N.Y. Crim. Proc. Law
§ 440.10(2)(a)”). Because Petitioner has not fulfilled the cause-and-prejudice test,
see, Stepney v. Lopes, 760 F.2d 40, 45 (2d Cir. 1985), or the fundamental miscarriage
of justice exception, see, Murray v. Carrier, 477 U.S. 478, 496 (1986), Grounds Two
(Confrontation Clause) and Three (Suppression) are subject to an unexcused
procedural default.
However, it does not appear that Ground Four (Juror) would be barred by C.P.L.
§ 440.10(2)(a) because the Appellate Division did not reach its merits, instead relying
on two state procedural rules to find it unpreserved and unripe. See Irvin, 111 A.D.3d
at 1295 (citations omitted).
III.

Ground Four Is Procedurally Barred Under the Adequate and
Independent State Ground Doctrine
The Supreme Court generally will not consider an issue of federal law on

habeas review of a state-court judgment “if that judgment rests on a state-law ground
that is both ‘independent’ of the merits of the federal claim and an ‘adequate’ basis for
the court’s decision.” Harris v. Reed, 489 U.S. 255, 260 (1989). “[A]n adequate and
independent finding of procedural default will bar federal habeas review of the federal
claim,” id. at 262, unless the petitioner establishes cause for the default and resulting

As discussed below in the following section, the Court finds that Ground Four is
procedurally defaulted under the adequate and independent state ground doctrine based
on the Appellate Division’s reliance on the state procedural rules to dismiss it.
7

15

prejudice or shows that the habeas court’s failure to consider the claim will result in a
fundamental miscarriage of justice. Id. (citations omitted).
Regarding the “independent” prong, “the state court must actually have relied
on the procedural bar as an independent basis for its disposition of the case.” Id. at
261-62 (quotation and alteration omitted). A rule is “adequate” when the state court’s
“application of the procedural rule is ‘firmly established and regularly followed’ in
consideration of the specific circumstances presented in a case.” Monroe v. Kuhlman,
433 F.3d 236, 241 (2d Cir. 2006). Federal courts “review de novo the issue of whether
the procedural ground is ‘adequate’ to support the judgment.” Id. at 240–41.
The Appellate Division here rejected Ground Four (Juror Issue) by relying on
two state procedural rules. See Irvin, 111 A.D.3d at 1295. First, the Appellate Division
found that by failing to raise the juror challenge in the trial court, Petitioner failed to
preserve it for appellate review. Id. The first rule on which the Appellate Division relied,
although not specifically cited, was New York’s contemporaneous objection rule.
Codified at C.P.L. § 470.05(2), this preservation rule “‘requires, at the very least, that
any matter which a party wishes the appellate court to decide have been brought to
the attention of the trial court at a time and in a way that gave the latter the opportunity
to remedy the problem and thereby avert reversible error.’” Garcia v. Lewis, 188 F.3d
71, 78 (2d Cir. 1999) (quoting People v. Luperon, 85 N.Y.2d 71, 78 (1995)).
In any event, the Appellate Division found, even if Petitioner had challenged the
two jurors and his challenges had merit, they “nevertheless would not be properly
16

before [the court] because he failed to exhaust his peremptory challenges prior to the
completion of jury selection.” Irvin, 111 A.D.3d at 1295. Although not cited, the rule on
which the Appellate Division relied here was C.P.L. § 270.20. That rule provides, “[a]n
erroneous ruling by the court denying a challenge for cause by the defendant does
not constitute reversible error unless the defendant has exhausted his peremptory
challenges at the time or, if he has not, he peremptorily challenges such prospective
juror and his peremptory challenges are exhausted before the selection of the jury is
complete.” N.Y. Crim. Proc. Law § 270.20(2) (McKinney); see also, People v. Lynch,
95 N.Y.2d 243, 248 (2000); People v Culhane, 33 NY2d 90, 97 (noting that CPL
270.20 codified the common-law rule that required exhaustion of peremptory
challenges to have aggrievement).
Here, the state procedural rules relied on by the Appellate Division were
“independent” of the judgment. The Appellate Division clearly invoked the state’s
preservation requirement and the requirement that peremptory strikes be exhausted
in order for the denial of a for-cause challenge to be cognizable on appeal. These
rules were the only bases for the Appellate Division’s decision; it did not rule in the
alternative on the merits of Ground Four. See Harris, 489 U.S. at 264 n.10 (“[A]s long
as the state court explicitly invokes a state procedural bar rule as a separate basis for
decision,”

the

adequate

and

independent

state

ground

doctrine

“curtails

reconsideration of the federal issue on federal habeas.”).
The Court finds that C.P.L. § 470.05(2) is adequate, since it is routinely relied
on by the Appellate Division in the same type of circumstances as presented in
17

Petitioner’s case. See, e.g., People v. Stepney, 93 A.D.3d 1297, 1297–98, 940
N.Y.S.2d 752 (4th Dept. 2012). Additionally, C.P.L. § 270.20 is perhaps even more
firmly established and regularly followed in this exact context, since it explicitly
precludes a defendant from obtaining reversal if he had peremptory strikes he could
have used to strike the prospective juror he claims should have been dismissed for
cause. District courts in this Circuit have held that C.P.L. § 270.20 is an adequate and
independent state ground that renders such claims procedurally defaulted and
forecloses habeas review. See Jones v. Poole, No. 05 Civ. 0886 (VEB), 2010 WL
1949599, at *6 (W.D.N.Y. May 13, 2010) (“This Court is barred from exercising federal
habeas review over [Petitioner’s] challenge for cause claim by operation of N.Y.
Criminal Procedure Law § 270.20(2), an independent and adequate state law[.]”).
The Court concludes that both C.P.L. § 270.20 and C.P.L. § 470.05(2) each
individually constituted an adequate and independent state ground for the Appellate
Division’s dismissal of Ground Four. Accordingly, the adequate and independent
state ground doctrine bars habeas review unless Petitioner shows cause and
prejudice or a fundamental miscarriage of justice.As discussed above in connection
with Grounds Two (Confrontation Clause) and Three (Suppression), Petitioner has
not demonstrated cause and prejudice or made the showing of factual innocence
required to fulfill the fundamental miscarriage of justice exception. Therefore, he
cannot overcome the procedural default as to Ground Four.

18

IV.

Ground One Is Unexhausted
Respondent asserts that Ground One is exhausted because Petitioner

asserted all the allegations in paragraph 22(A) of the petition in support of the
ineffective assistance trial counsel claim he raised on direct appeal. That is accurate;
the allegations listed in paragraph 22(A) mirror those raised on direct appeal in
Petitioner’s appellate brief (SR: 001-050) and leave letter (SR: 228-232). However,
Respondent overlooks the fact that Petitioner included an additional allegation of
ineffectiveness in paragraph 23—that trial counsel made Petitioner’s parents “bring
him $500 for a doctor,” but the doctor was “never at [his] trial.” (Dkt. No. 1, ¶ 23).
Because this claim was not mentioned at trial, Petitioner states, it was not able to be
brought up on direct appeal. (Id.). The ineffective assistance of trial counsel claim
being presented to this Court thus consists of the allegations in paragraphs 22(A) and
23.
For a habeas court to reach the merits of an ineffective assistance counsel
claim, all the supporting factual allegations must have been fairly presented to the
state courts, to allow them the “opportunity to consider all the circumstances and
cumulative effect of the claims as a whole.” Rodriguez v. Hoke, 928 F.2d 534, 538 (2d
Cir. 1991). Here, nearly all of Petitioner’s allegations of ineffectiveness involve matters
appearing on the record, but the allegation regarding “the doctor”—presumably a
medical expert witness—involves matters outside the record. Thus, Petitioner has
presented a “mixed claim” of ineffective assistance. Pierotti v. Walsh, 834 F.3d 171,
178 (2d Cir. 2016). “Where a defendant presents a mixed claim of ineffective
19

assistance, such a mixed claim, presented in a [C.P.L.] Section 440.10 motion, is not
procedurally barred, and the Section 440.10 proceeding is the appropriate forum for
reviewing the claim of ineffectiveness in its entirety.” Id. In addition, effective October
25, 2021, the New York Legislature amended C.P.L. § 440.10(2)(c) to remove the
mandatory bar for claims of ineffective assistance of counsel. See N.Y. Legis. 501
(2021), 2021 Sess. Law News of N.Y. Legis. Memo Ch. 501 (McKinney).
Because Petitioner still could bring a C.P.L. § 440.10 motion in the state trial
court raising his “mixed” claim of ineffective assistance of trial counsel, the claim
cannot be deemed exhausted. See 28 U.S.C. § 2254(b)(3) (A habeas petitioner “shall
not be deemed to have exhausted the remedies available in the courts of the State .
. . if he has the right under the law of the State to raise, by any available procedure,
the question presented”).
Since Ground One is unexhausted and the remaining claims in the Petition are
exhausted (albeit procedurally defaulted), the petition is a so-called “mixed petition.”
Zarvela v. Artuz, 254 F.3d 374, 382 (2d Cir. 2001). Courts in this Circuit have
identified four procedural options available when confronted with a mixed petition: “(1)
dismiss the petition in its entirety without prejudice; (2) deny the entire petition on the
merits [pursuant to 28 U.S.C. § 2254(b)(2)]; (3) allow the petitioner to delete the
unexhausted claims and proceed with his exhausted claims; or (4) in limited
circumstances, stay the petition to allow petitioner to exhaust his unexhausted claims.”
Wesley-Rosa v. Kaplan, 274 F. Supp. 3d 126, 128 (E.D.N.Y. 2017) (quotation
omitted); see generally Rhines, 544 U.S. at 277; Zarvela, 254 F.3d at 381-82.
20

“The first option, dismissal of the habeas application in its entirety without
prejudice, is only appropriate when doing so would not jeopardize the timeliness of a
subsequent collateral attack.” Brewer v. Eckert, No. 19-CV-6486-FPG, 2020 U.S. Dist.
LEXIS 256152, at *14 (W.D.N.Y. Sep. 9, 2020) (citing Zarvela, 254 F.3d at 382). Here,
as discussed above in this Decision and Order, the statute of limitations expired on
January 29, 2016. As such, this option is not appropriate.
The second option derives from 28 U.S.C. § 2254(b)(2) and allows the Court to
reach the merits of all the claims in the petition, unexhausted and exhausted. The only
outcome with this option is denial of the entire petition. “However, the only outcome
with this option is denial of the entire petition.” Bethany v. Noeth, No. 20-CV-6761FPG, 2022 WL 17812574, at *6 (W.D.N.Y. Dec. 19, 2022), on reconsideration in part,
No. 20-CV-6761-FPG, 2023 WL 3051248 (W.D.N.Y. Apr. 24, 2023. As the Second
Circuit has stated, in discussing the 1996 amendments to the habeas statute adding
28 U.S.C. § 2254(b)(2), “[a] district therefore now has the option of denying mixed
petitions on the merits.” Turner v. Artuz, 262 F.3d 118, 122 (2d Cir. 2001).
“Under the third option, [Petitioner] would agree to dismiss, without prejudice,
the unexhausted claim from the Petition, removing it from this Court’s consideration.”
Bethany v. Noeth, 2022 WL 17812574, at *6. To avoid dismissing entire petition
pursuant to 28 U.S.C. § 2254(b)(2), “a district court may exercise its discretion to
presume—unless the petitioner expressly indicates otherwise—that he would rather
delete his unexhausted claims than see his entire petition dismissed without regard to
the merits of the exhausted claims.” Young v. Great Meadow Corr. Facility
21

Superintendent, No. 16CV1420PAEBCM, 2017 WL 480608, at *5 (S.D.N.Y. Jan. 10,
2017).
The fourth option, granting a stay and holding the petition in abeyance, is not
appropriate here. In Rhines, the Supreme Court held that a district court may stay a
mixed petition “only in limited circumstances,” i.e., “if the petitioner had good cause
for his failure to exhaust, his unexhausted claims are potentially meritorious, and there
is no indication that the petitioner engaged in intentionally dilatory litigation tactics.”
544 U.S. at 277-78. On the other hand, it would be an abuse of discretion to grant a
stay when the claims are “plainly meritless.” Id. at 277.
Petitioner has not asked for a stay and, even if he had, granting one would be
an abuse of this Court’s discretion because “good cause” is patently absent from this
record. By Petitioner’s own admission, he was aware of the factual predicate for the
unexhausted allegation at the time of trial, yet he has never taken any steps to exhaust
it. “The absence of ‘good cause’ for the failure to exhaust is fatal to Petitioner’s ability
to fulfill the Rhines standard.” Carr v. Graham, 27 F. Supp. 3d 363, 365 (W.D.N.Y.
2014) (citing Rhines, 544 U.S. at 277 (“Because granting a stay effectively excuses a
petitioner’s failure to present his claims first to the state courts, stay and abeyance is
only appropriate when the district court determines there was good cause for the
petitioner’s failure to exhaust his claims first in state court.”)).
To summarize, the first and fourth options are not appropriate under the
circumstances of this case, leaving the Court to select between the second and third
22

alternatives—denying the entire petition under the authority of § 2254(b)(2), or
presuming that Petitioner would rather delete the unexhausted allegation of ineffective
assistance and proceed on the exhausted allegations of ineffective assistance, which
comprise the bulk of Ground One. Petitioner deliberately included an unexhausted
claim in the petition, knowing that it was unexhausted, which does not weigh in favor
of presuming that Petitioner would remove this claim if he knew it was unexhausted.
Moreover, deleting the allegation in paragraph 23 of the petition that has never been
presented to the state courts would not change the outcome of the proceeding—
Ground One is unquestionably meritless, with or without the allegation that trial
counsel retained a doctor but did not call that individual as a trial witness. Therefore,
the Court will proceed according to option two and deny the mixed petition containing
deemed exhausted claims (Grounds Two, Three and Four) and an unexhausted claim
(Ground One) pursuant to § 28 U.S.C. § 2254(b)(2). Because the only nonprocedurally defaulted claim is Ground One, the Court’s discussion of the merits of
the petition is confined to Ground One.
V.

Standard of Review Under Section 2254(b)(2)
“The habeas statute does not articulate a standard for denying a petition

pursuant to Section 2254(b)(2), and neither the Supreme Court nor the Second Circuit
has established one.” Nickels v. Conway, No. 1:10-cv-0413(MAT), 2015 WL 4478970,
at *18 (W.D.N.Y. July 22, 2015). “The rationale behind 28 U.S.C. § 2254(b)(2) has
been described as ‘spar[ing] state courts from needlessly wasting their judicial
resources on addressing meritless claims solely for the sake of exhaustion.’” Id.
23

(quoting Keating v. New York, 708 F. Supp. 2d 292, 299 n.11 (E.D.N.Y. 2010). “On
the other hand, comity demands that state courts be afforded the opportunity to pass
upon any constitutional claim that is at least potentially meritorious before a federal
habeas court decides it.” Brewer v. Eckert, No. 19-CV-6486-FPG, 2020 WL
10061923, at *5 (W.D.N.Y. Sept. 10, 2020)(quoting Keating v. New York, 708 F. Supp.
2d 292, 299 n. 11 (E.D.N.Y. 2010)).
“In this Circuit, the various formulations for the proper standard to be used share
‘the common thread of disposing of unexhausted claims that are unquestionably
meritless.’” Id. (quoting Keating, 708 F. Supp. 2d at 299 n.11 (citing Williams v. Artus,
691 F. Supp. 2d 515, 526–27 (S.D.N.Y. 2010) (“plainly meritless”); Robinson v.
Phillips, No. 04–CV–3446 (FB), 2009 WL 3459479, at *1 (E.D.N.Y. Oct. 23, 2009)
(“patently frivolous”)). Here, for the reasons which follow, the Court finds that it is
appropriate to rely on 28 U.S.C. § 2254(b)(2) to deny the petition because the lack of
merit to Ground One “is not subject to debate by reasonable jurists.” Brewer v. Eckert,
2020 WL 10061923, at *6.
VI.

Merits of Ground One
A. Relevant Legal Standards
To succeed on a claim of ineffective assistance under Strickland v. Washington,

466 U.S. 668 (1984), the petitioner must establish that counsel’s performance “fell
below an objective standard of reasonableness[,]” id. at 688, and that the petitioner
suffered prejudice as a result, see id. at 694. Prejudice, for Strickland purposes, is “a
reasonable probability that, but for counsel’s unprofessional errors, the result of the
24

proceeding would have been different.” Id. at 694. “The habeas petitioner bears the
burden of establishing both deficient performance and prejudice.” Greiner v. Wells,
417 F.3d 305, 319 (2d Cir. 2005) (citation omitted).
B. Counsel’s Alleged Errors
1. Failure to Challenge Prospective Jurors for Cause
Petitioner first argues that counsel should have challenged two jurors, Mary
Burger and William Miller, for cause. On direct appeal, the Appellate Division held that
this contention “lacks merit inasmuch as defendant failed to show the absence of a
strategic explanation for defense counsel’s failure to challenge” those jurors. Irvin, 974
N.Y.S.2d at 216 (quotation and internal quotation marks omitted). Respondent argues
that because neither juror showed bias, there is no likelihood that a challenge-forcause would have been successful and thus trial counsel cannot be found ineffective.
During voir dire, Burger, a retired employee of the jail division of the
Cattaraugus County Sheriff’s Department, stated that she knew “pretty much”
everyone involved in the case, such as the lawyers and the defendant, and “the officer
from Olean.” However, she confirmed that this familiarity would not affect her ability
to serve as a juror. (T: 26-27). In response to a question about whether Burger
believed that an innocent person would sign a confession, the following colloquy
ensued:
MS. BURGER: As you’ve been talking here, I’m really trying to think this
through to make sure I am answering it honestly. You know, I have a
tendency to believe that when someone is arrested and they sign a
confession, that they are guilty.
25

DEFENSE ATTORNEY: Okay.
MS. BURGER: I think -DEFENSE ATTORNEY: So, would you have a hard time bringing back
a not guilty verdict if there wasn’t other proof, as the judge requires you
to find, knowing that there’s gonna be a confession.
THE COURT: Well, you know, in a way.
PROSECUTOR: I was just gonna object to that.
THE COURT: This is kind of a technical thing. There has to be some
proof that a crime occurred, as I’ll explain it to you at the end of the case.
I mean, if I walked into a police station and said I shot my court clerk this
morning, meanwhile she’s sitting right here, you know, you obviously
can't convict me of that. There’s got to be some proof that a crime
occurred to corroborate a confession. I’ll talk more about that at the end
of the case.
MS. BURGER: I certainly feel that I could sit here and listen to the
evidence as it’s presented and try to, you know, hear it and -DEFENSE ATTORNEY: Okay. I don't mean to cut you off. From your
experience in working at the jail, certainly people get arrested and people
spend time in jail for crimes in the end it’s determined they didn’t do,
right?
MS. BURGER: Yes.
(T: 56-57).
Miller, an unmarried, self-employed carpenter, engaged in the following
colloquy with trial counsel:
DEFENSE ATTORNEY: Okay. The other thing is you have to be able to
find him guilty beyond a reasonable doubt. This is not really the time to
talk about the law or talk about it a little bit. It’s at the end of the case
we’ll talk about what the law is. Suffice it to say, reasonable doubt has to
be more than I really think he did it. The evidence that you’re going to
hear, it may convince you that, geez, I really think he did it, but if you
have reasonable doubt, as the judge defines reasonable doubt to you,
are you going to be able to still bring back a verdict of not guilty? Mr.
Miller, can you promise me that?
MR. MILLER: I think I can probably do that.
26

DEFENSE ATTORNEY: Even if the evidence convinces you that maybe
he did it, but you have reasonable doubt as the judge describes it and
you’d still be able to bring back a not guilty verdict?
MR. MILLER: It might be tough.
DEFENSE ATTORNEY: Sometimes it is. Is it something you might have
a problem with?
MR. MILLER: I might.
DEFENSE ATTORNEY: Is it particularly true because of the nature of
these charges?
MR. MILLER: Yes.
(T: 53-54).
Trial counsel exercised for-cause challenges against Kim Spry, Ruth Kohn, and
Paula Hitchcock because each prospective juror stated that she would not be able to
acquit Petitioner if she believed he committed the crime—even if she had a
reasonable doubt about his guilt. The challenges to Spry and Hitchcock were
successful. However, because the prosecutor could not recall Kohn giving the
problematic answer cited by trial counsel, the trial court denied the defense challenge
as to Kohn. (T: 61-62). The prosecutor later exercised a peremptory challenge as to
Kohn, so Kohn did not sit on Petitioner’s jury. (T: 63).
Selecting a jury and strategy are “inseparable.” United States v. Lawes, 292
F.3d 123, 128 (2d Cir. 2002); see also Ciaprazi v. Senkowski, 151 F. App'x 62, 63-64
(2d Cir. 2005) (recognizing that whether to seat a particular juror is a “paradigmatically
strategic” decision). Counsel must evaluate not only the juror's words but must assess
the juror's credibility by considering her demeanor, her reactions to questions, and
other intangible factors that a cold record will not reflect. In addition, counsel must
27

make judicious use of peremptory challenges, as well as compare jurors with one
another to select the best jurors for his client. For these reasons, “courts are loathe to
second-guess the decisions of counsel during jury selection.” Ptak v. Superintendent,
No. 08-CV-409, 2009 WL 2496607, at *8 (W.D.N.Y. Aug. 13, 2009) (citing Doleo v.
Reynolds, No. 00-CV-7927, 2002 WL 922260, at *5 (S.D.N.Y. May 7, 2002)). “It is not
the role of the court to second-guess counsel's reasonable strategic decisions at jury
selection, especially considering that ‘counsel is strongly presumed to have rendered
adequate assistance and made all significant decisions in the exercise of reasonable
professional judgment.’” Doleo, 2002 WL 922260, at *5 (quoting Strickland, 466 U.S.
at 690, 104 S.Ct. 2052); see also Hughes v. United States, 258 F.3d 453, 457 (6th
Cir. 2001) (“Counsel is ... accorded particular deference when conducting voir dire.
An attorney's actions during voir dire are considered to be matters of trial strategy.”);
Bell v. United States, 351 F. App'x 357, 360 (11th Cir. 2009) (“Review of counsel's
performance is highly deferential in any case, but the case for deference is even
greater when counsel is evaluating credibility.”).
Furthermore, Burger’s and Miller’s responses during voir dire support the
conclusion that trial counsel’s decision not to challenge them was part of a reasoned
strategy. Burger, who formerly worked in law enforcement and corrections, admitted
that innocent people sometimes are arrested for crimes that they do not commit. Her
responses also suggested that she was personally acquainted with Petitioner, which
trial counsel might have believed was beneficial to Petitioner. Miller expressed a
willingness to acquit Petitioner if he had a reasonable doubt about Petitioner’s guilt,
28

even if he also believed that Petitioner had in fact committed the crime. Miller’s
willingness to acquit under these circumstances stands in contrast to Hitchcock and
Spry, who Petitioner successfully challenged for cause based on their unwillingness
to acquit, even in the presence of a reasonable doubt.
Miller’s acknowledgement that the decision to acquit “might be tough” under
those circumstances does not mean that he could not be impartial. The Supreme
Court has recognized that the “mere existence of any preconceived notion as to the
guilt or innocence of an accused, without more,” is not “sufficient to rebut the
presumption of a prospective juror’s impartiality . . ..” Irvin v. Dowd, 366 U.S. 717, 723
(1961); see also United States v. Ploof, 464 F.2d 116, 117-18 (2d Cir. 1972)
(upholding denial of challenge for cause where juror, who had expressed that his view
of the case might be affected by the nature of the crime involved, indicated he would
“do his best” to decide the case based on the evidence presented).
Similarly, the jurors’ use of phrases such as “try to” and “I think” did not rebut
the presumption of juror impartiality. The Supreme Court has stated that “[i]t is
sufficient if the juror can lay aside his impression or opinion and render a verdict based
on the evidence presented in court.” Irvin, 366 U.S. at 723. It was not unreasonable
for trial counsel to determine that Burger’s and Miller’s response conveyed their ability
to do that. See United States v. Towne, 870 F.2d 880, 885 (2d Cir. 1989) (where a
juror who has expressed his reservations about his ability to be fair later states that
he will “try to” decide the case based on the evidence presented, that assurance will
generally be sufficient for the attorney and the court); Miller v. Francis, 269 F.3d 609,
29

618 (6th Cir. 2001) (“[V]enire members commonly couch their responses to questions
concerning bias in terms of ‘I think.’ Therefore, the use of such language cannot
necessarily be construed as equivocation.”).
Neither Burger nor Miller “directly admit[ted] partiality,” United States v. Torres,
128 F.3d 38, 43 (2d Cir. 1997), and none of their responses reasonably implied that
they had “[a]ctual bias is ‘bias in fact’—the existence of a state of mind that leads to
an inference that the person will not act with entire impartiality” Id. Because he has
not established that they were partial, Petitioner has not demonstrated that he was
prejudiced by trial counsel’s decision not to challenge these two jurors.
2. Failure to Object to Prosecutorial Misconduct During Jury Selection
Petitioner claims that the prosecutor erroneously told prospective jurors during
jury selection that the “victim cannot testify here.” The full text of the prosecutor’s
question was, “With respect to the fact that the victim cannot testify here, is there
anybody here that would have a problem with that?” (T: 76-77). By “cannot testify,”
the prosecutor was referring to her earlier explanation to the prospective jurors as to
why W.H. would not be testifying:
A child under nine is not presumed competent, and you would have to
have a showing that this person is considered competent in order for
them to take an oath to tell the truth. You have to show they understand
what that means. In this case our victim is only five. She was four at the
time this happened, and she’s not a particularly well spoken, articulate
child. She’s somewhat bilingual. She speaks Spanish and English and
not real good to testify in court. So, she will not be testifying.
(T: 41).

30

Petitioner fails to articulate any basis on which trial counsel should have
objected. “The failure of a lawyer to invoke meritless objections cannot constitute
constitutionally deficient performance.” Santana v. United States, No. 15-CR-0457
(JS), 2022 WL 1527269, at *9 (E.D.N.Y. May 13, 2022), reconsideration denied, No.
15-CR-0457 (JS), 2022 WL 17824063 (E.D.N.Y. Dec. 20, 2022)(citing Hicks v. Ercole,
No. 09-CV-2531, 2015 WL 1266800, at *23 (S.D.N.Y. Mar. 18, 2015); see also United
States v. Regalado, 518 F.3d 143, 150 n.3 (2d Cir. 2008); Johnson v. Rivera, No. 07CV-0334, 2010 WL 1257923, at *9 (N.D.N.Y. Mar. 25, 2010) (“[C]ounsel [does] not
render ineffective assistance by failing to make [an objection that would have been
overruled as baseless].”) (citing United States v. DiPaolo, 804 F.2d 225, 234 (2d Cir.
1986)). There was nothing inaccurate about the prosecutor’s explanation, and it was
not improper for the prosecutor to ask the jurors whether their decision-making would
be affected by the failure of the only eyewitness to the crime to testify. Without
showing that there was a potentially meritorious objection that trial counsel could have
made, Petitioner cannot demonstrate that trial counsel performed deficiently or that
he was prejudiced by the failure to object.
3. Failure to Object to Prosecutorial Misconduct During Opening
Statement
Petitioner next asserts that trial counsel should have objected when the
prosecutor made several allegedly objectionable comments during opening
statement. First, he claims the prosecutor became an unsworn witness by making the
following comment:

31

[The social worker and Marsfelder are] trained to perform what’s called
a forensic interview of a child. What this involves is a special technique
that has become very well established these days where a child is
interviewed with very open ended questions so as not to suggest
answers or in any way tamper with their ability to be a witness.
(T: 22). However, the prosecutor simply was describing to the jury what she
anticipated Marsfelder’s testimony would be. See United States v. Millan, 817 F. Supp.
1086, 1088 (S.D.N.Y. 1993)(“[T]he opening statement should be an objective
summary of the evidence reasonably expected to be produced”.) (citing United States
v. Brockington, 849 F.2d 872, 875 (4th Cir. 1988)).

Since the remark was not

improper, Petitioner cannot demonstrate that trial counsel’s failure to object was
professionally unreasonable or resulted in prejudice.
Next, Petitioner claims that the prosecutor erroneously invaded the jury’s
province by stating that he was not in custody when he gave his statement to the
police. (T: 25 (“He was not in custody. He was not restrained in any way. He was free
to leave. . ..”). Read in context, the prosecutor’s remark simply summarized the proof
she expected to introduce at trial, which is not improper. See Millan, 817 F. Supp. at
1088. To the extent that the remark was erroneous, the issue of Petitioner’s custodial
status was not highly contested. Indeed, neither of the attorneys discussed it in their
summation. Therefore, Petitioner has not demonstrated a reasonable probability that
the remark detrimentally affected the verdict.
Last, Petitioner faults trial counsel for failing to object when the prosecutor
commented that he “provided a full confession to what he had done to [the victim] that

32

was consistent with her injuries and what everybody else knew to be the facts of the
case.” (T: 24-25). According to Petitioner, this was an erroneous variance from the
proof since there were no eyewitnesses to the incident and the victim did not testify.
The Supreme Court, however, has stated that “not every variance between the
advance description and the actual presentation constitutes reversible error, when a
proper limiting instruction has been given.” Frazier v. Cupp, 394 U.S. 731, 735-36
(1969).
Assuming that the reference to “everybody else” could be interpreted to imply
the existence of eyewitnesses, Petitioner has not demonstrated that trial counsel’s
failure to object prejudiced his case. First, the remark itself was brief and was not
repeated or otherwise emphasized by the prosecutor. Second, the trial court
instructed the jury before opening statements that the attorneys’ remarks were “not
evidence.” (T: 5). Later, the trial court again instructed the jury to
remember that the lawyers are not witnesses. So, if a lawyer asserts
something that’s not based on the evidence, you must disregard it.
Remember that nothing the lawyers say at any time is evidence.
(T: 123). Courts generally presume that juries follow limiting instructions. See, e.g.,
Francis v. Franklin, 471 U.S. 307, 324 n.9 (1985) (“Absent . . . extraordinary situations
. . . we adhere to the crucial assumption underlying our constitutional system of trial
by jury that jurors carefully follow instructions.”). Petitioner has failed to articulate any
reason why the presumption should not hold in his case. Given the fleeting nature of
the comment and the court’s proper limiting instructions, Petitioner has not
demonstrated a reasonable probability that trial counsel’s failure to object affected the
33

verdict. See United States v. Rivera, 971 F.2d 876, 885 (2d Cir. 1992) (finding that the
trial court’s instructions cured any prejudice arising from prosecutorial error).
4. Failure to Object to Confrontation Clause Errors
Petitioner faults trial counsel for failing to object to W.H.’s failure to testify at
trial; and failing to object when Marsfelder testified that during the social worker’s
interview of W.H., “there was a disclosure that the suspect was Wayne Irvin”.
Petitioner asserts that trial counsel should have objected to Marsfelder’s testimony as
violative of the Confrontation Clause and C.P.L. § 60.25. On direct appeal, in addition
to arguing that trial counsel erroneously failed to object to these alleged Confrontation
Clause errors, Petitioner raised the Confrontation Clause claims as a stand-alone
claims for relief.
a. Failure to Object to W.H.’s Failure to Testify
Regarding W.H.’s failure to testify, the Appellate Division held that “[t]o the
extent that defendant contends that he was deprived of his right of confrontation by
the victim’s failure to testify, that contention is unpreserved for our review and, in any
event, is without merit”. Irvin, 111 A.D.3d at 1294. Because the Appellate Division
considered the merits of the Confrontation Clause claim based on W.H.’s failure to
testify, notwithstanding trial counsel’s failure to make a contemporaneous objection,
Petitioner cannot demonstrate that he was prejudiced by trial counsel’s omission.
Swail v. Hunt, 742 F. Supp. 2d 352, 364 (W.D.N.Y. 2010)(“[D]efendant cannot
demonstrate that he was prejudiced by trial counsel's failure to preserve the

34

insufficiency claim …, because the Appellate Division considered the merits of the
insufficiency claim, notwithstanding the lack of preservation.”). Furthermore, since the
Appellate Division rejected the claim on the merits, Petitioner has not shown that there
was a reasonable probability that an objection by trial counsel would have been
successful.
b. Marsfelder’s Testimony
According to Petitioner, because W.H. did not testify at trial, Marsfelder’s
testimony violated the Sixth Amendment’s Confrontation Clause’s general prohibition
on the introduction of “testimonial” statements from a witness who does not appear at
trial, unless the witness is unavailable to testify at trial, and the defendant has had a
prior opportunity for cross-examination. Crawford v. Washington, 541 U.S. 36, 54
(2004). Petitioner also reiterates his argument from direct appeal that Marsfelder’s
testimony amounted to “third-party identification” testimony, and that the prosecution
had not demonstrated the prerequisites for its admission under C.P.L. § 60.25. (SR:
230).
The latter contention is based on a misunderstanding of the applicable law. “By
its terms, CPL 60.25 does not allow third-party testimony confirming a pretrial
identification by a nontestifying witness. Instead, the statute expressly delineates
preconditions and the particular instances for the admission of previous identification
evidence, in the absence of trial-present identification.” People v. Patterson, 93 N.Y.2d
80, 82 (1999). “[T]he testimony of a third party non-identifying witness is allowed as
evidence-in-chief under the statute only when coupled with the real identifying
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witness’s testimony as to the prior identification”. Id. at 83. Because W.H. did not
testify, this procedural rule is irrelevant. Trial counsel was not ineffective for declining
to make a meritless objection.
The Court turns next to the alleged Confrontation Clause error in Marsfelder’s
testimony. The Appellate Division held that Petitioner “failed to preserve for . . . review
his contention that the testimony of a police witness regarding his observations of the
victim’s interview deprived him of his right of confrontation”. Irvin, 111 A.D.3d at 1295.
The Appellate Division went on to find that, “even assuming, arguendo, that the police
witness’s testimony equated to the introduction of the victim’s testimonial statements
in evidence,” “[t]he [Confrontation] Clause . . . does not bar the use of testimonial
statements for purposes other than establishing the truth of the matter asserted”. Id.
(quotations and quotation marks omitted; alterations and ellipsis in original). The
Appellate Division explained that the “testimony was properly admitted in evidence for
the purpose of explaining the police witness’s actions and the sequence of events
leading to defendant’s arrest”. Id. (citations omitted).
Because the Appellate Division considered the merits of this stand-alone
Confrontation Clause claim, notwithstanding trial counsel’s failure to make a
contemporaneous objection, Petitioner cannot demonstrate that he was prejudiced by
trial counsel’s failure to object. Furthermore, since the Appellate Division rejected the
claim on the merits, Petitioner has not shown that there was a reasonable probability
the trial court would have sustained an objection by trial counsel at the time. Thus, he
has not shown that trial counsel performed in a professionally unreasonable matter.
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5. Failure to Object to a Comment Implying Petitioner Had “Something to
Hide”
Petitioner asserts his lawyer did not object “when the prosecutor stated, in light
of the subsequent alleged confession, [sic] ‘made it appear that he had something to
hide.” Based on a review of Petitioner’s appellate brief, he is not challenging a
comment by the prosecutor. Instead, he is apparently referring to his argument that
“[d]efense counsel also failed to seek preclusion of appellant’s ‘incriminating
statement that had not been noticed pursuant to CPL 710.30’.” (SR: 231; see also SR:
34, 43). The unnoticed, allegedly “incriminating statement” is Petitioner’s initial denial
to Marsfelder and Richardson that W.H. had stayed overnight at his apartment. (SR:
231). Petitioner argued on direct appeal that “in light of the subsequent confession,
[his statement about W.H. not staying overnight] made it appear that he had
something to hide.” (SR: 231). Thus, Petitioner argues, the error was so prejudicial
that counsel’s failure to move for preclusion based on lack of notice cannot be deemed
strategic in nature.
C.P.L. § 710.30(1)(a) states that “[w]henever the people intend to offer at a trial
(a) evidence of a statement made by a defendant to a public servant, which statement
if involuntarily made would render the evidence thereof suppressible upon motion . . .
they must serve the defendant a notice of such intention, specifying the evidence
intended to be offered.” C.P.L. § 710.30(2) provides that such notice must be served
on the defendant within fifteen days after arraignment, but the trial court may allow the
People to serve late notice upon a showing of “good cause.”

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Petitioner cannot demonstrate that he was prejudiced by trial counsel’s failure
to move for preclusion of his unnoticed oral statement, or that trial counsel was
objectively unreasonable in declining to move for preclusion.

Significantly, the

unnoticed comment was exculpatory—Petitioner was denying that he had the
opportunity to commit the acts that Marsfelder said he was accused of committing.
Thus, there is no reasonable possibility, let alone probability, that the unnoticed oral
comment affected the verdict, which was amply supported by his extremely detailed
and voluntarily given written statement. People v. Costello, 92 A.D.2d 947, 948, 460
N.Y.S.2d 636, 638 (3rd Dep’t. 1983)(“[F]ailure to furnish notice that a State Police
investigator would repeat a statement made by defendant, that he had not seen
[victim] on the day the latter was ambushed, was a shortcoming without consequence
because it could not possibly be construed as being incriminatory.”); cf. People v.
Reed, 546 N.Y.S.2d 640, 641 (N.Y. App. Div. 1989) (although admission of two
statements made by defendant was error because People failed to comply with 15–
day notice requirement and also failed to establish good cause for delay in notifying
defendant, such error was harmless insofar as statements were exculpatory in nature
and varied only slightly from other statement made by defendant which was properly
admitted, and there was overwhelming proof of defendant’s guilt).

Accordingly,

Petitioner has not established ineffective assistance on this basis.
6. Failure to Object to Prosecutorial Misconduct During Summation
Petitioner repeats his assertion from the leave letter that “[d]efense counsel
also failed to object to misconduct during the prosecutor's summation when she

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commented on appellant’s failure to testify, shifted the burden of proof, vouched for
the credibility of her witness, denigrated the defense, and told the jury that a defense
witness was not telling the truth.” (SR: 231). The leave letter then identifies four
objectionable remarks, which the Court considers in turn below.
First, according to Petitioner, the prosecutor improperly commented on his
failure to testify when she argued that if Petitioner were innocent, he would have
“vehement[ly]” denied abusing W.H., as his brother Russell did. The prosecutor
commented that innocent people “don’t make up details, put them in a written
statement and sign it with the police. They say no, I didn’t do that. And I would submit
to you if the defendant didn’t do this, he would have done the same thing.” (T: 13738). Petitioner contends that this amounted to a comment on his failure to testify. The
Court disagrees and finds that the prosecutor was simply arguing that the jury should
accept the extremely detailed confession provided by Petitioner as evidence of his
guilt.

In United States v. Rosario, 652 F. App'x 38, 40–41 (2d Cir. 2016), the

prosecutor, much like the prosecutor in this case, “commented in summation on
[defendant]’s post-arrest statement and whether his statement comported with what
an innocent person would have said.” As the Court noted in rejecting such argument,
“[defendant]'s challenge to this comment suffers from two fatal flaws. First, the
[prosecutor] did not comment on [defendant]'s silence, but rather, the responses he
gave. Second, this response was given after [defendant] was read his Miranda rights,
waived those rights, and chose to speak with investigators. The challenged comments

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by the AUSA therefore were not improper.” Id., at 41 (citation omitted). As the
comment was not improper, defense counsel did not err in failing to object.8
Second, Petitioner faults trial counsel for failing to object, based on improper
vouching, when the prosecutor stated that Dr. Salzmann had a “wealth of experience.”
Given Dr. Salzmann’s testimony concerning her background and extensive training
(T: 31-32), this was not outside the bounds of fair commentary on the evidence.
Third, Petitioner asserts that trial counsel erred in failing to object when the
prosecutor said that Bremiller was “not telling the truth”. (T: 136-37). For context, the
prosecutor asked the jury whether it was reasonable to believe that Bremiller could
have a detailed memory of August 15, 2011, a run-of-the-mill day when nothing
happened, but then be able to recall her own criminal convictions. The prosecutor
specifically pointed to various parts of Bremiller’s testimony and urged the jury to
conclude that, based on these incongruities, Bremiller was not telling the truth about
Petitioner’s activities on the date in question.
The Second Circuit has observed that “it is not ordinarily improper for the
prosecution to make temperate use of forms of the word ‘lie’ to highlight evidence
directly conflicting with the defense’s testimony, or ‘to characterize disputed testimony’
where credibility was clearly an issue. . ..” United States v. Shareef, 190 F.3d 71, 79
(2d Cir. 1999) (quotation omitted). That is an appropriate way to characterize the

The Court notes that when the prosecutor did make a remark that improperly alluded
to his failure to testify, trial counsel objected and requested a curative instruction. The
trial court sustained the objection, and the prosecutor withdrew the comment. (T: 132).
8

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prosecutor’s comment about Bremiller “not telling the truth” in this case. Since the
comment was not outside the bounds of acceptable commentary on Bremiller’s lack
of veracity, it is unlikely that an objection by trial counsel would have been sustained.
Thus, Petitioner has not established that trial counsel failure to object was
professionally unreasonable or that it resulted in prejudice to the defense.
Fourth and last, Petitioner contends that trial counsel should have objected
when the prosecutor, in her closing argument, allegedly denigrated a defense
argument based on a diagram shown by counsel to Dr. Salzmann as “just a trick”. (T:
132). Respondent argues that this was fair comment on the evidence and thus not
improper. The basis for this remark occurred during cross-examination of Dr.
Salzmann, when trial counsel showed her a diagram of a hymen from an article
published in an online medical resource. The diagram purported to show anatomic
variations of a normal hymen, including notches. Dr. Salzmann agreed that notches
in the posterior hymen can be a normal variation; however, “it depends on the depth
of the notch.” (T: 43-44).
Trial counsel sought to offer the article into evidence, and the prosecutor
requested opportunity to voir dire. Dr. Salzmann testified that the image shown by
defense counsel did not accurately depict what a normal hymen would look like in a
four-year-old child. The trial court reserved on trial counsel’s request. On redirect, Dr.
Salzmann explained that what she observed via colposcopy of W.H.’s hymen were
“deep” notches, “comparable to a scar”—not a normal anatomic variation. (T: 45-46).

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During his summation, trial counsel referred to this diagram as “Defense Exhibit
A-1” though it is not clear from the transcript when it was admitted. Counsel
acknowledged that Dr. Salzmann said the depiction was “not normal,” but noted her
agreement that the online resource from which it came was generally considered
reliable in the medical community. He asked the jury to compare the diagram with the
photographs of W.H.’s hymen and argued that they were “going to see it’s pretty close
to identical.” He argued that it could be “evidence of sexual abuse”, but it was not
“proof of sexual abuse”. (T: 125-26).
During her summation, the prosecutor commented in response,
I would submit to you . . . Dr. Salzmann testified that this reproduction
here [i.e., Defense Exhibit A-1] does not represent a normal hymen on a
four year old child. So, asking you to compare this is like asking you to
compare it to something that it’s not supposed to be. It’s just a trick
basically.
This picture which was identified as being a normal vagina by Dr.
Salzmann of a child who has not been sexually active should be
compared with the photographs [of W.H.], which photographs which she
took and indicated were notching. When you put these two next to each
other, it doesn't get any clearer than that. This is what it’s supposed to
look like; this is what it looks like (indicating).
(T: 132-33).
The prosecutor did not improperly “mischaracterize the evidence or refer in
summation to facts not in evidence.” United States v. Rosa, 17 F.3d 1531, 1548-49
(2d Cir. 1994). Rather, the prosecutor’s comments on the diagram were fair comment
on the evidence and responsive to trial counsel’s argument that the diagram was a
depiction of a normal hymen. Even if trial counsel had objected to the prosecutor’s
“just a trick” comment, the trial court likely would have overruled the objection. See
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People v. Galloway, 54 N.Y.2d 396, 399 (1981) (“[T]he prosecutor’s characterization,
in summation, of the defense’s contention that the witness Cruz possessed a gun as
a ‘smokescreen’ or ‘a red herring’ and his aspersions on the credibility of the
defendant’s and the witness Taylor’s testimony did not exceed the broad bounds of
rhetorical comment permissible in closing argument.”); People v. Guerrero, 629
N.Y.S.2d 234, 234 (N.Y. App. Div. 1995) (stating that “characterization of defendant’s
testimony as a ‘fairytale’” was “properly responsive to defense arguments and
constituted fair comment on the evidence presented within the broad bounds of
rhetorical comment permissible in closing argument”).
If trial counsel believed the “just a trick” remark was objectionable, it was not
unreasonable for him to refrain from making an objection that was likely to be
overruled and would have called the jury’s attention to the comment. Even if the
comment was better left unsaid, it was so mild that there is no reasonable probability
it prejudiced the defense. See United States v. Resto, 824 F.2d 210, 212 (2d Cir.
1987) (“find[ing] no ground for reversal in the prosecutor’s references to specific
defense tactics as ‘slick bits’ and ‘slyness’ or in his statements that the defense
engaged in ‘sleight-of-hand’ and tried to pull the wool over the jury’s eyes”).
7. Failure to Call “the Doctor” at Trial
Petitioner contends that trial counsel was ineffective because he required
Petitioner’s parents to “bring him $500” “for a doctor,” but “the doctor” did not testify
at trial. (Dkt. No. 1, ¶ 23). Construing the pro se allegations liberally, as required, the

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Court interprets them as asserting ineffectiveness based on trial counsel’s failure to
call an expert witness to rebut Dr. Salzmann’s testimony.
Even in child sexual abuse cases, “there is no per se rule that requires trial
attorneys to seek out an expert.” Gersten v. Senkowski, 426 F.3d 588, 609 (2d Cir.
2005). “The decision not to call a particular witness is typically a question of trial
strategy that courts are ill-suited to second guess . . . [C]ounsel’s decision as to
whether to call specific witnesses--even ones that might offer exculpatory evidence—
is ordinarily not viewed as a lapse in professional judgment.” Greiner, 417 F.3d at 323
(internal citations and quotations omitted).
Petitioner’s claim about the uncalled “doctor” is based entirely on his selfserving and unsupported assumption that there actually existed a doctor, with whom
trial counsel had consulted, who would have testified differently than the prosecution’s
medical expert and favorably for the defense. There are no facts provided by
Petitioner to support this version of events, which alone is sufficient to deny the claim.
See Eisemann v. Herbert, 401 F.3d 102, 108 (2d Cir. 2005). On this record, it is
equally possible that, after consulting with the unidentified doctor, trial counsel
determined that he or she would not be able to provide favorable testimony for
Petitioner’s case and, accordingly, trial counsel made a reasonable strategic decision
not to call him or her.
In any event, the Court observes that trial counsel conducted a skilled and
effective cross-examination of Dr. Salzmann, demonstrating his familiarity with the
types of medical issues that arise in child sexual abuse cases and relevant literature
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on the subject. Because Petitioner has offered only speculation in support of this
claim, he is unable to establish that he was prejudiced by trial counsel’s failure to call
“the doctor” or that trial counsel’s decision was objectively unreasonable under the
circumstances.
CONCLUSION
For the reasons stated above, the Petition (Dkt. No. 1) is DENIED. Further,
pursuant to 28 U.S.C. § 2253(c)(1), the Court declines to issue a certificate of
appealability because Petitioner has not made “a substantial showing of the denial of
a constitutional right,” 28 U.S.C. § 2253(c)(2). Finally, the Court certifies, pursuant to
28 U.S.C. § 1915(a)(3), that any appeal taken from this decision would not be taken
in good faith. Thus, leave to appeal in forma pauperis is denied. Petitioner is advised
that “Federal Rule of Appellate Procedure 4(a) governs the time to appeal,” and “[a]
timely notice of appeal must be filed even” though the Court declined to issue a
certificate of appealability. Rule 11(b) of the Rules Governing Section 2254
Proceedings.
IT IS SO ORDERED.
s/Richard J. Arcara
HONORABLE RICHARD J. ARCARA
UNITED STATES DISTRICT JUDGE
Dated: March 27, 2024
Buffalo, New York.

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