Case Information
UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT August Term, 2011
(Submitted: May 21, 2012 Decided: August 14, 2014) Docket Nos. 11-922-pr(L), 11-972-pr(XAP) ________________________________________________________________________
S HAWN A. J ACKSON ,
Petitioner-Appellee-Cross-Appellant , - v. -
J AMES T. C ONWAY , Superintendent, Attica Correctional Facility,
Respondent-Appellant-Cross-Appellee . ________________________________________________________________________ Before:
P ARKER , H ALL , and W ALLACE , [*] Circuit Judges . Appeals from the February 28, 2011 amended judgment of the United States District Court for the Western District of New York (Bianchini, M.J. ) granting in part the petitioner’s habeas corpus application. Respondent appeals from so much of the judgment as granted petitioner’s application for a writ of habeas corpus and ordered his convictions conditionally vacated. Petitioner cross-appeals that portion of the judgment as denied his other grounds
for habeas relief. We hold that although the district court correctly determined that the state court’s rejection of Petitioner’s Miranda claim was an “unreasonable application” of clearly established Supreme Court precedent, it failed to afford the state court’s rejection of Petitioner’s prosecutorial misconduct and ineffective assistance of counsel claims the proper deference it was entitled under the Antiterrorism and Effective Death Penalty Act.
AFFIRMED in part; REVERSED in part. B RIAN S HIFFRIN , Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, for Petitioner-Appellee-Cross-Appellant Shawn A. Jackson .
L ESLIE S WIFT , Senior Assistant District Attorney, for Michael C. Green, Monroe County District Attorney, Rochester, NY, for Respondent-Appellant-Cross-Appellee James T. Conway .
H ALL , Circuit Judge :
BACKGROUND
In the pre-dawn hours of November 30, 2000, officers of the Town of Greece Police Department responded to a 911 call placed from Shawn A. Jackson’s (“Jackson’s”) residence. Jackson’s wife, Rebecca Jackson (“Rebecca”), met the officers on arrival and, upon entering the house, the officers encountered Jackson’s ex-wife, Karen Jackson (“Karen”), and his fourteen-year-old daughter, “CJ.” The three visibly upset women told the officers that Jackson had raped them each multiple times over the course of the evening and early morning. The officers woke Jackson, who was asleep on the living room couch, and transported him to police headquarters. Karen and CJ went to Rochester General Hospital for medical evaluations. From the house, the officers collected potential physical evidence, including sheets from the living room floor and from Jackson’s bed.
At police headquarters, Sergeant Christopher Bittner interviewed Jackson at
approximately 6:45 that morning. The sergeant initially told Jackson he was not under arrest
but then formally arrested him when Jackson sought to leave the interview room. After
being informed of his rights pursuant to
Miranda v. Arizona
,
At some point during the day, a member of the Town of Greece Police Department informed the Monroe County Department of Social Services, Child Protective Services (“CPS”) about the incident. Kathy Bonisteel, a CPS caseworker, contacted Sergeant Bittner to request an interview with the victims as part of her parallel investigation into the sexual abuse allegations. Later that afternoon, Bonisteel and Town of Greece police officers interviewed Karen and CJ at police headquarters. When those interviews concluded, Bonisteel asked to speak with Jackson. Sergeant Bittner agreed and escorted Jackson from his holding cell to a table in the hallway at which Bonisteel sat. The sergeant retreated around a corner where he was out of sight of the table but within earshot of the ensuing conversation.
At the time she interviewed Jackson, Bonisteel knew that he was in custody and had refused to speak with the police. Bonisteel introduced herself as a CPS caseworker, explained her role, and asked Jackson if she could speak with him about the victims’ allegations. She did not, however, inform him of his right to an attorney or give him any other warnings. Jackson agreed to speak with her.
During the interview, Jackson first detailed the nature of his relationship with Rebecca and Karen, explaining that he lived with both of them to keep all of his children together. Jackson described himself as the “alpha male” of the family. While he denied hitting either woman, he stated that both Rebecca and Karen knew “what to do” and that he was “in charge.” He stated that he regularly engaged in sexual intercourse with each woman separately and, occasionally, all three had sex together. Jackson asserted that both women knew the “routine” on these latter occasions, which usually occurred in the early morning hours: Jackson would send Rebecca upstairs to wake Karen and bring her to the living room where, on a sheet spread on the floor, Jackson would engage in anal sex with Karen while she performed oral sex on Rebecca.
Jackson told Bonisteel that he began to drink around 8:00 the night of the incident, visiting several bars over the course of the evening. He also snorted several lines of cocaine. Jackson did not recall the time he arrived home, but remembered pulling into the driveway and “feeling happy that he . . . made it home safe.” Jackson entered in the house where he found Rebecca sleeping on the couch. He woke her up “to get a little loving” and, the next he knew, the police were in the house. In response to Bonisteel’s questions, Jackson repeatedly denied hurting CJ, but acknowledged the “possibility” that he may have been “so drunk that he wouldn’t have remembered if he raped [her].”
Eventually, a grand jury in Monroe County, New York, charged Jackson in a 48- count indictment with numerous counts of first- and third-degree rape, first- and third- degree sodomy, first-degree attempted sodomy, third-degree assault, first-degree sexual abuse, incest, endangering the welfare of a child, and coercion. The indictment alleged that on the night of November 29-30, 2000, Jackson committed multiple acts of oral and anal sodomy against Rebecca and Karen, raped and sexually abused CJ a number of times, and committed multiple acts of incest, oral sex, and anal sodomy against CJ. It also alleged that Jackson (1) assaulted, sexually abused, and committed acts of anal sodomy against Karen in June 1999 and November 2000; (2) coerced, raped, assaulted, and committed acts of oral and anal sodomy against Rebecca in June 1999, June 2000, and November 2000; and (3) assaulted his son, “GJ,” in June 1999 and January 2000.
I. Pretrial Proceedings
On March 23, 2001, County Court Judge Stephen R. Sirkin held a suppression hearing to determine the admissibility of Jackson’s statements to CPS Caseworker Bonisteel. Jackson, then represented by the Monroe County Public Defender’s Office, argued that Bonisteel acted as an agent of the police when she interviewed him on the day of his arrest. The trial court disagreed, concluding that Bonisteel interviewed Jackson “as part of a completely separate civil proceeding” and “did not act as a law enforcement officer or an agent of a law enforcement officer.” The court held that, as a “child protective worker,” Bonisteel was not required to give Jackson Miranda warnings and, therefore, his statements to her were admissible at trial.
One week before the scheduled trial date, the State notified Jackson of its intent to call Tony Arnold—a jailhouse informant also represented by the Public Defender’s Office. This resulted in a conflict that disqualified the Public Defender’s Office from the case and necessitated the appointment of a new defense attorney, Joseph D’Amelio. Upon his appointment, D’Amelio informed the court at an April 23, 2001 conference that he needed one month to prepare for trial. After the court suggested a start date of June 18, D’Amelio instead proposed May 29 and the court scheduled trial accordingly. At some point before trial, the State furnished the defense with a letter stating that it would not call an expert medical witness at trial.
On the date of trial, County Court Judge Peter E. Corning—the third judge assigned to the case—ruled on the State’s intended introduction of Jackson’s various prior acts and threats of violence against his family members that occurred between 1983 and 2000. Over defense counsel’s objection, the court held that such evidence could be admitted to prove the element of forcible compulsion as to the charged rapes, but ruled that the State would be limited to acts that occurred “subsequent to 1994,” because any acts before then were “too remote.”
II. Trial
A. Opening Statements
Assistant District Attorney (“ADA”) Cara M. Briggs theorized in her opening statement that Jackson used physical violence and threats of violence to exert control over his family and to force Rebecca and Karen to satisfy his sexual proclivities. Briggs alluded to the testimony the jury would hear from Karen, Rebecca, and CJ about the sexual and physical abuse they suffered at the hands of Jackson on the night of November 29-30, 2000, as well as on a number of previous occasions. The witnesses’ testimony, Briggs asserted, would expose Jackson “as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly.”
The defense theory of the case was straightforward: the State would not present any physical evidence of the allеged sexual and physical abuse, and the witnesses fabricated their testimony. Defense counsel highlighted that although the police collected several sheets and the victims’ clothing for testing, the jury would not hear the results of those tests.
B. State’s Trial Evidence
The trial evidence is extensively described in the district court’s opinion,
see Jackson v.
Conway
,
1. Testimony of Karen, Rebecca, and CJ Karen and Rebecca told the jury about the nature of their relationship with Jackson, described previous instances of physical and sexual abuse, and gave their accounts of the events of the night of November 29-30, 2000. Karen married Jackson in 1983 and divorced him in 1990, although she continued a relationship with him thereafter. Jackson left Karen’s house after the divorce but moved back several months later with Rebecca, whom he married in 1991. From at least 1995 onwards, the three regularly participated in sexual activity together. The State elicited from Rebecca that, shortly after the three began living together, Jackson raped Karen, causing her to become pregnant with a daughter. [1]
Both women described Jackson as controlling and physically abusive. He routinely threatened to kill Karen or injure members of her family if she left him and he hit Rebecca when she disobeyed his orders. In June 1999, Jackson beat and strangled Karen until she lost consciousness. When she woke, he proceeded to engage in oral and anal sex with her. [2] That same month, Jackson became angry with Rebecca, cut her shorts, removed her underwear, and forced her to walk down several city streets in that condition while calling her a “prostitute.” [3] Approximately one year later, in June 2000, Jackson punched Rebecca in the mouth, knocking out one of her teeth. [4] Jackson hit Rebecca again several days later when she complained about her tooth and then had oral, anal, and vaginal sex with her multiple times. [5] Two days before the events that led to his arrest, Jackson forced Rebecca and Karen to perform numerous sexual acts. [6] In the process, Jackson squeezed Rebecca’s throat, nearly causing her to lose consciousness. [7]
The women testified that on the night of November 29-30, 2000, Jackson returned home drunk and told Rebecca, who was on the couch, to retrieve Karen from the upstairs bedroom she shared with CJ. When the women returned to the living room, Jackson had them disrobe and spread a sheet on the floor. After directing each woman to perform oral sex on him, Jackson had anal sex with Karen. Several minutes later, Jackson left the living room and went upstairs. CJ testified that she had been sleeping in her upstairs bedroom when Jackson woke her and took her to his bedroom. There, he placed her onto the bed, touched her breasts, and had both vaginal and anal sex with her. [8] He then returned to the living room, where he again made Rebecca perform oral sex on him before attempting to have anal sex with Karen.
Jackson repeated this cycle of going upstairs to CJ and then returning to Karen and Rebecca in the living room two additional times. The three women testified that, over the course of the entire evening, Jackson made Rebecca perform oral sex on him three times, had anal sex with Karen once and attempted to have anal sex with her twice, and had vaginal sex with CJ “[a]t least twice” and anal sex with her two times. [9] According to Karen, Jackson had difficulty maintaining an erection—while he was “[s]omewhat” erect the first time he had anal sex with her, he was not able to fully penetrate her on the latter two occasions. CJ did not know whether Jackson ejaculated that night. The women complied with Jackson’s demands because they were frightened he would become violent if they refused. When Jackson finally fell asleep, Rebecca called the police.
Later, at Rochester General Hospital, medical personnel examined Karen and CJ, taking samples of their pubic hair and swabs of their vaginal and anal areas that they placed into sexual assault kits. Neither Karen nor CJ complained of any injuries to their vaginal or anal areas, although Karen “always felt like there were cuts” around her anus. At the time of the incident, CJ was menstruating—she put on a sanitary napkin before she went to bed and wore the same one to the hospital. The State introduced two of CJ’s medical reports prepared at Rochester General Hospital on November 30, 2000. The first, prepared by Dr. Everett, indicated that a gynecological examination “reportedly” showed the presence of an “irritation at the introitus,” or vaginal opening. The second, a sexual assault form prepared by Dr. Thompson, indicated that CJ had no bruises on her body or lacerations in her vaginal area. Dr. Thompson noted, however, the existence of an “abrasion” on CJ’s “introitus” and the presence of “old blood in vault.”
2. Dr. Ann Lenane
Dr. Ann Lenane was an emergency physician at the University of Rochester who worked in the Child Abuse Program. Defense counsel objected as she took the stand, explaining that he believed the State was about to breach its pretrial written representation that it would not elicit expert testimony. ADA Briggs conceded that she had made such a representation, but argued that the defense had subpoenaed the relevant medical records and, as a result, should have been on notice that the State would likely introduce the testimony of a “doctor or a sexual assault nurse examiner.” The court stated that Dr. Lenane was entitled to testify about her findings and conclusions made “as a treating physician,” but that, due to the lack of notice, the State could not allow her testimony to “escalate” into expert opinion. After ADA Briggs assured the court that she would not elicit from Dr. Lenane any “hypothetical[s]” or “theories,” the court permitted the doctor to testify “[a]s a treating physician.”
Upon retaking the stand, Dr. Lenane described the findings contained in CJ’s medical report:
The relevant physical findings that [CJ] had when she was examined were mainly an abrasion, on the written notes they said [it] was at the introitus, and when they circled on the diagram where that was, it is in the area of the genitalia that is just below the hymen and above the rectal area . . . . The other finding that they noted was old blood in the vulva, which means that he was inside the vagina[.]
App’x at 210. The State then inquired whether the “abrasion[]” indicated on CJ’s medical records was “consistent with penetration.” Dr. Lenane responded that the abrasion was “consistent with some type of trauma” that “could include penetration, but . . . wouldn’t necessarily have to.” When asked again whether the abrasion was “consistent with penetration,” Dr. Lenane answered, “Yes.”
Defense counsel оbjected as the State attempted to move on to Karen’s medical records, arguing that it had not established that the doctor treated Karen. In response to the court’s questioning, Dr. Lenane stated that she had not personally examined the women, and that the State had asked her “to review the medical records and express an opinion about the consistency of the history and the physical findings.” Upon hearing this, the court sustained defense counsel’s objection and excused the jury, explaining that because Dr. Lenane had not personally examined the women, her testimony was that of an expert, not a treating physician. ADA Briggs argued that her questions were not taking Dr. Lenane’s testimony beyond “the realm of what the treating physician would be able to say,” and repeatedly reiterated her position that the defense should have known that the State would call a doctor to testify about the physical findings contained in the medical reports. At one point, she acknowledged that Dr. Lenane was an expert, but argued that the defense “had notice.” The court rejected these arguments, declaring that defense counsel was entitled to rely on the State’s pretrial written representation that it would not call an expert.
Defense counsel moved for a mistrial, arguing that he relied on the State’s pretrial representation when highlighting in his opening statement the lack of physical evidence. The court, apologizing for its “unfamiliarity with the case,” stated that it had “presumed that [Dr. Lenane] was the treating physician.” Although it initially considered a mistrial, the court took that option off the table after reviewing the doctor’s testimony, explaining that the only expert opinion given was that CJ’s “abrasion [wa]s consistent with penetration.” Instead, the court gave defense counsel two options: either the court could direct the jury to disregard Dr. Lenane’s testimony in its entirety, or defense counsel could have the weekend to obtain his own expert. When defense counsel declared it impossible to hire an expert on such short notice, the court expressed confusion as it had previously authorized the defense to consult with a medical expert. Defense counsel explained that although he had “review[ed] the records” with a nurse, he did not intend to “bring a nurse in here to try and combat what a doctor had to say on the issue of abrasion versus irritation.” Accordingly, defense counsel opted for the curative instruction.
After recalling the jury, the court stated that initially it had been “a little bit unclear” about whether the State brought Dr. Lenane “in as a treating physician or . . . as an expert” but, as she testified, it had become evident she was an expert. The court explained:
[B]efore bringing in an expert, the [State] must give notice to the defendant . . . which they failed to do. . . . Accordingly, I am directing you to disregard the testimony of Dr. Lenane on the grounds that she was called as an expert and no notice was given . . . . Any statements of fact or any conclusions that she would render to you I direct that you disregard in their entirety.
App’x at 228-29. Later in the proceeding, defense counsel objected to the nature of the curative instruction, asserting that the court had given “the impression that but for that improper notice,” the testimony would have been acceptable, “rather than advising the jury that the evidence was improper[ly] before them and should not be considered.” The court overruled this objection.
3. Jailhouse Informant Tony Arnold
Tony Arnold, who shared a cell with Jackson, testified that Jackson told him about the November 29-30, 2000 incident. According to Arnold, Jackson stated that he was intoxicated and had sex with “both of his wives,” who waited until he fell asleep and then called the police with allegations that he had raped his daughter. Jackson offered Arnold $100,000 to kill his “wife and ex-wife,” which Arnold declined.
4. Kathy Bonisteel CPS Caseworker Kathy Bonisteel related Jackson’s statements made to her during their post-arrest conversation at police headquarters. This testimony included Jackson’s assertion that he was sexually active with both Karen and Rebecca, his claim that both women knew the sexual “routine” they were to perform, and his boast that he was the “alpha male” who was “in charge” of the family. Bonisteel also recounted Jackson’s version of the events on the night of November 29-30, 2000—that he had returned home after consuming a large amount of alcohol and some cocaine, woke Rebecca for “a little lovin’” and then remembered nothing more until he was awoken by the police. With respect to Jackson’s statements about CJ, Bonisteel testified:
I asked [Jackson] if he remember[ed] [molesting his daughter], or if he did that. He said he would never hurt [CJ]. And I asked him again if anything happened the night before when he got home. He repeated again that he would never hurt [CJ]. . . . I said, was it possible that he was so drunk that he couldn’t remember raping [CJ]? And he said it was a possibility.
Trial Tr. at 503-04.
C. Closing Arguments
The defense did not introduce any evidence at trial. In closing, defense counsel pointed out that despite their allegations of rape and assault, Rebecca and Karen had both lived with Jackson for many years without complaint. Counsel also emphasized that although police had collected the sheets, victims’ clothing, and sexual assault kits, the State had been unable to present at trial any physical evidence of the numerous alleged acts of rape and sodomy that occurred on the evening of November 29-30, 2000.
ADA Briggs began her closing argument by telling the jurors that the case required their “courage” to recognize that the allegations “really happened” and that the “person [who] committed these heinous, horrific acts has been sitting in the same room with [the jurors] for almost a week now.” Pointing Jackson out, ADA Briggs stated, “that man sitting there, looking like he is pondering every word that is being said, is guilty.” ADA Briggs argued that “no one can feign the terror” that the victims had displayed and that “[e]ven the best actor or actress could probably not tremble with fear as continuously as some of these witnesses did.” She also questioned why Jackson’s family members would testify against him, positing that “[t]he only possible explanation for what they told [the jury] is because it is true and he is guilty.” The witnesses’ testimony, ADA Briggs contended, left the jury with “a picture of a man that has consistently abused his family for years, basically beaten them into submission and he committed all of the counts of the indictment here against his family. . . . He is guilty of everything.”
With respect to the lack of physical evidence, ADA Briggs argued that the absence of semen did not contradict the witnesses’ testimony, as both Rebecca and Karen testified that Jackson had been unable to “get an erection” the evening of November 29-30, 2000. ADA Briggs also argued that CJ’s medical records corroborated her version of the events because the “abrasion” on her introitus was “right where [Jaсkson’s] penis would have been rubbing.”
Addressing Bonisteel’s testimony, ADA Briggs stated: Kathy Bonisteel asked [Jackson], Is it possible that you were so drunk that you don’t remember raping [CJ]? And he says, Yeah, that’s possible. Now, I ask you, ladies and gentlemen, if you were a person who stood accused of having sex with your own child, and you hadn’t done it, if somebody asked you if that was possible, would you say ‘maybe,’ or would your answer be, no, I would never, ever, ever do something like that? There would be adamant denial, there would be something of a much stronger reaction than, “Yeah, maybe, I could have.” And the reason he says, “Yeah, maybe, I could have” is because he did. It’s that simple. Innocent people don’t admit that there is a possibility that they did something wrong, particularly when what we are talking about is sex with his own daughter.
App’x at 271.
Following closing arguments, defense counsel unsuccessfully moved for a mistrial on the ground that the summation was “replete with comments arousing sympathy for the victims.” Defense counsel also took issue with the State’s proposed jury charge on the first- degree sodomy counts because, in defense counsel’s view, first degree sodomy “require[d] some penetration.” The court disagreed, declaring that “[j]ust touching” was sufficient. In its subsequent jury charge, the trial court reminded the jury that statements made by the attorneys in summation were not evidence and that the jurors were to draw their own conclusions from the facts, rather than rely on those supplied by counsel. It also reminded the jury that it was not to consider any testimony the court had ordered stricken from the record.
Ultimately, the jury convicted Jackson on all 47 submitted counts. On June 21, 2001, the trial court sentenced Jackson to an aggregate total of 64 years’ incarceration. III. State Postconviction Proceedings & Direct Appeal
Through counsel, Jackson appealed his judgment of conviction to the New York State Supreme Court, Appellate Division, Fourth Department. Proceeding pro se , he simultaneously moved in the trial court to vacate the judgment pursuant to New York Criminal Procedure Law § 440.10.
A. Section 440.10 Motion
Jackson argued in his § 440.10 motion that defense counsel’s performance was deficient in several respects. He indicated that he had brought the motion before filing his appellate brief because the trial record was insufficient to permit direct appellate review of his ineffective assistance claims. As exhibits to his motion, Jackson included reports of tests performed by the Monroe County Public Safety Laboratory. The first report found no spermatozoa or “seminal material” on any of the victims’ clothing or on the vaginal and anal swabs taken of Karen and CJ as part of the sexual assault kits. The second, dated March 27, 2001, excluded CJ as the source of DNA obtained from bloodstains found on the fitted sheet recovered from Jackson’s bed.
In its response, the State principally argued that the motion should be summarily denied pursuant to New York Criminal Procedure Law § 440.10(2)(b) because Jackson’s direct appeal remained pending and the record contained facts sufficient to permit adequate appellate review of his ineffective assistance claims. By order dated November 17, 2003, the trial court agreed with the State and denied Jackson’s motion on the ground that the record contained sufficient facts to permit review of his claims on direct appeal. Jackson sought from the Appellate Division leave to appeal this decision but it denied his application on February 3, 2004.
B. Direct Appeal
While his § 440.10 motion remained pending in the trial court, Jackson filed a counseled appellate brief in the Fourth Department. In that brief he argued that his post- arrest statements made to CPS Caseworker Bonisteel were improperly admitted in violation of his Miranda rights, that prosecutorial misconduct denied him a fair trial, and that he received ineffective assistance of counsel. [14] In his Miranda claim, Jackson argued that Bonisteel acted either as a law enforcement officer or as the “functional equivalent” of a police officer when she interviewed him without first providing the required Miranda warnings, and that his statements to her were thus inadmissible. In his prosecutorial misconduct claim, Jackson maintained that ADA Briggs’s improper conduct “pervaded the proceedings” and deprived him of a fair trial. He identified four instances of such misconduct: (1) the delayed disclosure that Tony Arnold would be a witness, which prompted a last minute change in defense counsel; (2) the opening statement comments about Jackson’s “twisted” and “sadistic” nature; (3) the improper attempt to elicit expert testimony from Dr. Lenane; and (4) the summation, in which ADA Briggs repеatedly expressed her personal opinion of Jackson’s guilt and the truth of the witnesses’ testimony, and argued facts not in evidence.
Jackson’s ineffective assistance arguments were essentially the same as those raised in his § 440.10 motion. [15] With respect to defense counsel’s pretrial conduct, Jackson contended that his attorney: (1) did not adequately investigate the forensic and medical evidence or consult with an expert concerning that evidence; and (2) failed to prepare adequately for trial, as shown by his unfamiliarity with the elements of first-degree sodomy. As for counsel’s trial conduct, Jackson maintained that counsel: (1) presented no evidence and called no witnesses in defense, thus failing “to utilize the plethora of indisputable scientific evidence” not introduced by the State; (2) failed to utilize the medical and forensic evidence to conduct effective cross-examinations of the victims by exposing inconsistencies between their accounts of the sexual abuse and the medical findings; and (3) failed to offer expert medical testimony to explain the medical and forensic evidence. [16]
The Fourth Department affirmed Jackson’s conviction on February 11, 2004, but
reduced his overall sentence to 50 years’ imprisonment on New York statutory grounds not
relevant here.
See People v. Jackson
,
Jackson sought leave to appeal all of his claims to the New York Court of Appeals. Then-Chief Judge Kaye denied his application on May 20, 2004, see People v. Jackson , 2 N.Y.3d 801 (2004) (table), and Jackson timely filed a habeas application in the United States District Court for the Western District of New York pursuant to 28 U.S.C. § 2254.
IV. Federal Habeas Proceedings
In his § 2254 petition and addendum to that petition, Jackson raised his Miranda , prosecutorial misconduct, and ineffective assistance claims, with some slight modifications to the latter two. First, Jackson added to his allegations of prosecutorial misconduct the prosecutor’s “improper tactics of introducing prior uncharged crimes and bad acts” and her “abuse of the charging function.” Second, Jackson divided his ineffective assistance claim into four “points.” In “Point One,” Jackson argued that defense counsel’s lack of preparation was “painfully exposed” by counsel’s “decision to NOT put on a defense . . . due to the fact that he was under the incorrect assumption that the prosecution was required to prove the element of penetration in order to sustain a conviction of Sodomy in the 1st.” App’x at 15 (emphasis in original) (additional capitalization removed). Jackson maintained in “Point Two” that counsel “failed to correctly marshal an investigation into the plethora of exculpatory evidence (physical, medical, forensic, visual, tactile, [etc.])” and then failed to introduce this evidence at trial. Id. at 16 (capitalization removed). In “Point Three” he contended that defense counsel failed to consult with a medical expert “to help him interpret and then apply through [t]estimony the results of the entire battery” of medical and forensic tests. Id. at 16-17. Finally, in “Point Four,” Jackson asserted that the above deficiencies, coupled with defense counsel’s failure to cross-examine the victims using the medical evidence, constituted ineffective assistance. Id. at 17.
After reviewing the petition, the magistrate judge appointed counsel and ordered an
evidentiary hearing pursuant to our decision in
Sparman v. Edwards
, in which we expressed
our belief that “a district court facing the question of constitutional ineffectiveness of
counsel should . . . offer the assertedly ineffective attorney an opportunity to be heard and to
present evidence.”
By amended order entered in February 2011, the magistrate judge granted Jackson’s
application for habeas relief in part.
See Jackson v. Conway
,
Next, the magistrate judge found that Jackson had failed to exhaust in the state courts Points One and Two of his ineffective assistance claim, and that those Points were barred by the operation of a state procedural rule because they could have been, but were not, raised on direct appeal. See id. at 260-61. The magistrate judge grouped Jackson’s remaining ineffective assistance arguments into two sections—counsel’s failure to consult with and call a medical expert to explain State’s medical evidence, and counsel’s failure to investigate adequately the medical and forensic reports not introduced by the State at trial. See id. at 262-70. The magistrate judge found habeas relief was warranted only as to the first group, and then only as to the convictions involving CJ, because it was as to those allegations that the State’s medical evidence and the defense’s lack of a medical expert were most damaging. See id. at 262-68.
For these reasons, the magistrate judge directed the State to vacate Jackson’s convictions on all counts unless it commenced re-prosecution of Jackson within ninety days. Id. at 287. The magistrate judge stayed the judgment pending the completion of any appellate proceedings. Id. The State appealed insofar as the magistratе judge granted habeas relief and Jackson cross-appealed those portions of the decision adverse to him.
DISCUSSION
We review a district court’s grant of habeas relief
de novo
, and its underlying findings
of fact for clear error.
See Cardoza v. Rock
,
I. Rules Governing Federal Habeas Corpus Review under the Antiterrorism and
Effective Death Penalty Act of 1996
As amended by the Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the statutory
provision authorizing federal courts to provide habeas corpus relief to prisoners in state
custody—is “part of the basic structure of federal habeas jurisdiction, designed to confirm
that state courts are the principal forum for asserting constitutional challenges to state
convictions.”
Harrington v. Richter
, __ U.S. __,
Because the issues presented in this appeal implicate all of the above facets of federal habeas jurisdiction, we provide a general overview of the standards governing each before applying those standards to Jackson’s case.
A. Exhaustion and Procedural Default
To provide the state with the first opportunity to consider and correct alleged
violations of its prisoners’ constitutional rights, a state prisoner is required to exhaust all of
his available state remedies before a federal court can consider his habeas application.
See
28
U.S.C. § 2254(b)(1)(A);
Carvajal v. Artus
,
A state prisoner’s procedural default in the state courts will also bar federal review
except in narrow circumstances not relevant here. A procedural default occurs in one of two
ways. First, if the state prisoner fails to exhaust his state remedies in a manner in which,
were he to return to the state courts with his unexhausted claim, those courts would find the
claim barred by the application of a state procedural rule, “we ‘must deem the claim
procedurally defaulted.’”
Id.
(quoting
Aparicio v. Artuz
,
B.
28 U.S.C. § 2254(d) –Review of State Court Decisions on the Merits
As noted above, § 2254(d) is implicated when the habeas petitioner seeks federal
review of a constitutional claim that was adjudicated by the state courts on the merits. As
relevant here, AEDPA provides that habeas relief “shall not be granted” on such claims
“unless the adjudication of the claim . . . 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.” 28 U.S.C. § 2254(d)(1). The analysis under
§ 2254(d)(1) рroceeds in two steps. The first is to identify the governing “clearly established
Federal law.”
See Marshall v. Rodgers
, __ U.S. __,
1. “Clearly Established” Federal Law
In the AEDPA context, “‘[c]learly established federal law’ refers only to the holdings
of the Supreme Court” extant at the time of the relevant state court decision.
Rodriguez v.
Miller
,
2.
The “Contrary to” and “Unreasonable Application” Prongs
Once the clearly established Supreme Court principle has been distilled, the petitioner
may pursue relief under § 2254(d)(1) via two paths. First, he may show that the state court’s
decision was “contrary to” that clearly established principle by demonstrating еither (1) “that
the state court reached a conclusion of law that directly contradicts” a Supreme Court
holding, or (2) that the state court arrived at a result opposite to that reached by the Supreme
Court when presented with “‘facts that are materially indistinguishable from [the] relevant
Supreme Court precedent.’”
Evans v. Fischer
,
More commonly, a petitioner may seek relief by demonstrating that the state court’s
decision involved an “unreasonable application” of the clearly established principle. A state
court unreasonably applies clearly established law if it “‘identifies the correct governing legal
principle but unreasonably applies that principle to the facts’ of the case before it.”
Id.
(quoting
Williams
,
Finally, federal review under either prong of § 2254(d)(1) “is limited to the record that
was before the state court that adjudicated the claim on the merits.”
Pinholster
, 131 S. Ct. at
1398-99. Thus, “evidence introduced in federal сourt has no bearing on § 2254(d)(1)
review.”
Id.
at 1399. Put another way, the rule expressed in
Pinholster
generally “prohibits us
from relying on evidence beyond the state court record to reach our result.”
Young v. Conway
,
With these principles in mind, we turn to the merits of Jackson’s claims.
II. Miranda Claim
As part of his
Miranda
claim pressed in the Fourth Department, Jackson argued that
CPS Caseworker Bonisteel acted as the “functional equivalent” of a police officer because
she was a government employee who interrogated him about the events leading to his arrest.
See
App’x at 100-01. As relevant here, the Fourth Department rejected the
Miranda
claim on
the ground that Bonisteel “was not engaged in law enforcement activity.”
See Jackson
, 772
N.Y.S. 2d at 150. Jackson argues, and the magistrate judge held, that this conclusion was
both contrary to, and an unreasonable application of, the clearly established federal law set
forth in the holdings of
Miranda
,
A. Clearly Established Law
The Fifth Amendment of the United States Constitution provides that “[n]o
person . . . shall be compelled in any criminal case to be a witness against himself.” U.S. C ONST . amend. V;
see also Malloy v. Hogan
,
have an attorney present during questioning.”). Should a person subject to custodial
interrogаtion invoke his right to remain silent, “the interrogation must cease.”
Miranda
, 384
U.S. at 473-74. In this case, the admissibility of later statements made by the suspect will
turn on “whether his right to cut off the questioning was scrupulously honored.”
Michigan v.
Mosely
,
The
Miranda
safeguards apply only to “custodial interrogations.” That phrase has two
components: the “in custody” requirement,
see, e.g.
,
Stansbury v. California
,
In
Mathis
, the defendant was incarcerated on a state sentence when an agent of the
Internal Revenue Service (“IRS”) questioned him about discrepancies on his federal tax
returns.
See
In
Smith
,
On federal habeas review, the lower courts vacated the death sentence based on the
admission of the doctor’s statements.
Smith
,
consent to the pretrial psychiatric examination after being informed of his right to remain silent and the possible use of his statements,” the Court held that the defendant’s Fifth Amendment right against self-incrimination was violated. Id . at 468. In reaching this conclusion, the Court found it “immaterial” that the defendant “was questioned by a psychiatrist designatеd by the trial court to conduct a neutral competency examination, rather than by a police officer, governmental informant, or prosecuting attorney.” Id. at 467. The Court explained that, when the doctor “went beyond simply reporting to the court on the issue of competence and testified for the prosecution at the penalty phase on the crucial issue of [the defendant’s] future dangerousness, his role changed and became essentially like that of an agent of the State recounting unwarned statements made in a postarrest custodial setting.” Id.
B. Application
Under the circumstances of Jackson’s case, the state court’s rejection of his
Miranda
claim on the ground that Bonisteel “was not engaged in law enforcement activity,”
see
Jackson
,
The State argues that
Mathis
is inapplicable to Jackson’s case because it dealt with a
civil investigation by the IRS, which has “unique dual roles, focusing on both civil and
criminal enforcement of the federal tax laws.” State Br. at 36. Nothing in
Mathis
suggests,
however, that the Court based its holding on the dual nature of IRS agents’ roles. Instead,
the Court focused on the “possibility” that the IRS agent’s tax investigation would lead to a
criminal prosecution, and the agent’s awareness of that possibility during his investigation.
See Mathis
,
Our conclusion that the nature of the investigation is not the benchmark for
determining the applicability of
Miranda
does not end the matter. Instead, we must focus on
whether Bonisteel’s interview of Jackson constituted an “interrogation” within the meaning
of
Innis
,
i.e.
, whether Bonisteel objectively “should have known” that her questions were
“reasonably likely to evoke an incriminating response.”
Innis
,
C. Harmlessness
The erroneous admission of a defendant’s statements in violation of
Miranda
is
subject to harmless-error review.
See Perkins v. Herbert
,
“disastrous implications for social work,” but does not identify any such implications. State
Br. at 35. Nor do we discern any such disastrous results.
Miranda
prevents only the
prosecution’s
use of unwarned statements against a criminal defendant in his criminal trial. Its
prophylactic requirements, therefore, pose no impediment to social workers conducting
custodial interrogations in order to substantiate allegations of sexual abuse.
Cf. Smith
, 451
U.S. at 468-69 (noting that if the defendant had invoked his
Miranda
rights prior to the
court-ordered psychiatric examination, the examination could have proceeded with the
understanding that his statements would be used only to assess his competency, rather that
establish his future dangerousness at trial). Nor does it prevent social workers from sharing
the results of their investigations with law enforcement agents to help build a criminal case.
Cf. id.
at 467 (finding that the doctor’s “role changed” only when he “testified for the
prosecution” at trial). It does not even prevent the introduction of statements made during
such custodial interrogations in a civil proceeding such as one brought to terminate parental
rights.
See Chavez v. Martinez
,
“‘[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in
a state-court criminal trial under the substantial and injurious effect standard set forth in
[
Brecht v. Abrahamson
].’”
Wood v. Ercole
,
The magistrate judge held that the admission of Jackson’s statement to Bonisteel
acknowledging the “possibility” that he might have been “so drunk that he couldn’t
remember raping [CJ],” Trial Tr. at 503-04, was not harmless with respect to the jury verdicts
involving CJ.
See Jackson
,
Nonetheless, given this evidence, we would likely find the admission of Jackson’s
statements harmless were it not for two additional considerations – the lack of any physical
evidence of CJ’s sexual abuse and the damaging mischaracterization of Jackson’s statements
by the prosecutor in her summation. We have previously commented on the “particular
importance of physical evidence in child sexual abuse cases,” which often can turn into
credibility contests.
See, e.g.
,
Eze v. Senkowski
,
Beyond the absence of physical evidence, however, we are convinced that Jackson’s
statement influenced the jury because of the way the prosecutor mischaracterized that
statement in her closing argument. The prosecutor asserted that, after Bonisteel “accused
[Jackson] of having sex with [his] own child,” he responded, “Yeah, maybe, I could have.”
App’x at 271. This inaccurate portrayal of Bonisteel’s testimony completely reframed
Jackson’s statement in a way that made it appear much more damning. As noted above,
Bonisteel’s actual testimony was that, after Jackson denied hurting CJ, Bonisteel asked him
whether “it was possible that he was so drunk that he couldn’t remember raping [CJ],” to
which Jackson responded that “it was a possibility.” Trial Tr. at 503-04. The State argues
that the first part of Jackson’s statement to Bonisteel—his adamant denial that he had hurt
CJ—was beneficial to the defense. Although defense counsel did rely upon Jackson’s denials
in his closing argument, the State fails to acknowledge the effect of the prosecutor’s
inflammatory mischaracterization of the latter portion of Jackson’s statement into what
became, in essence, an admission of the crime. The degree to which the prosecutor found it
necessary to mischaracterize the latter portion of Jackson’s statement is indicative of its
centrality to the State’s case.
Cf. Wood
,
The State argues that Jackson’s statement to Bonisteel contained “somewhat redundant information,” comparable to that contained in his statement to Tony Arnold. See State Br. at 42-43. We are not persuaded as to the counts involving CJ because, unlike his statement to Bonisteel, Jackson never acknowledged to Arnold even the possibility that he had been so drunk he would not have remembered raping CJ. Instead, Jackson told Arnold that on the evening of November 29-30, 2000 he had sex with “both of his wives,” who waited until he fell asleep and then called the police in an attempt to “charge him with raping his daughter.” Tr. 549. Jackson’s admission to Arnold that he had sex with “both of his wives” undoubtedly lessens the injurious impact that his statement to Bonisteel had on the charges involving Rebecca and Karen. It cannot be said, however, that Jackson’s attempt to explain the charges involving CJ as stemming from his “wives’” false police report was cumulative of the most damaging portion of his inculpatory statement to Bonisteel.
“When a reviewing court has ‘grave doubt about whether a trial error . . . had
substantial and injurious effect or influence in determining the jury’s verdict,’ that error is
not harmless.”
Wood
,
Jackson argues that the erroneous admission of his statement caused a prejudicial
spillover having an impact on the entire case and necessitating the vacatur of all the
convictions, not just those involving CJ. We consider three factors in evaluating the
“spillover” effect of constitutional trial error that primarily effects only certain counts: “(1)
whether the evidence on the vacated counts was inflammatory and likely to inflame the jury;
(2) whether the evidence on the vacated counts was similar to that required to prove the
remaining counts; and (3) the strength of the prosecution’s case on the remaining counts.”
Gersten v. Senkowski
,
The strength of the prosecution’s case on the counts involving Karen and Rebecca arising from the November 29-30, 2000 incident was stronger than its case for thе counts involving CJ. Karen and Rebecca each witnessed Jackson sexually abusing the other and they both testified consistently about his actions that night. Moreover, as noted, Jackson admitted to Arnold that he had sex with “both of his wives” that evening, which provides additional corroboration.
All of the remaining counts involving Karen, Rebecca, and Jackson’s son, GJ, relate to events occurring before the November 29-30, 2000 incident. Accordingly, the evidence of the statement the State used to prove Jackson sexually assaulted CJ that night was completely dissimilar to that needed to prove he committed these remaining counts. Under the circumstances presented here, Jackson’s improperly admitted statements did not spill over and prejudice him as to the counts that did not involve CJ.
III. Prosecutorial Misconduct Claim
Jackson argued in his Fourth Department brief that three instances of prosecutorial
misconduct deprived him of his constitutional right to a fair trial: the prosecutor’s delayed
disclosure of Tony Arnold as a State witness; her improper attempt to elicit expert testimony
from Dr. Lenane; and her comments made during voir dire, her opening statement, and in
summation. The magistrate judge held that the Fourth Department’s rejection of this claim
on the ground that the prosecutor’s comments “in her opening and closing statements were
not so egregious as to deprive defendant of his right to a fair trial,”
Jackson
, 772 N.Y.S.2d at
150 (citation, quotation marks, and brackets omitted), was an objectively unreasonable
application of clearly established law,
see Jackson
,
A. Exhaustion
The magistrate judge found that Jackson’s prosecutorial misconduct claim warranted
habeas relief based, in part, on the prosecutor’s violation of the trial court’s prior bad act
evidentiary ruling.
See Jackson
,
B. Clearly Established Law
As noted, the Fourth Department adjudicated Jackson’s prosecutorial misconduct
claim on the merits.
See Jackson
,
1.
DeChristoforo
and
Darden DeChristoforo
and
Darden
involved habeas petitions brought by state prisoners who
argued that statements made by prosecutors in closing argument deprived them of their
Fourteenth Amendment right to a fair trial.
See Darden
,
2. Berger and Young
In
Berger
, the Supreme Court ordered a new trial when the evidence supporting the
defendant’s conspiracy conviction was “weak” and the record clearly demonstrated the
prosecutor’s “pronounced and persistent” misconduct throughout trial and during
summation.
[29]
Young
involved a prosecutor’s improper comments during summation made in
response to defense counsel’s equally improper remarks.
It is important to note that neither
Berger
nor
Young
expressed its holding in
constitutional terms. We are convinced, however, that we may consider these holdings in
this case because later Supreme Court cases incorporated them into the Court’s Fourteenth
Amendment prosecutorial misconduct jurisprudence.
See United States v. Agurs
,
Consideration of the four аbove holdings leaves us with the following principles,
which we now hold to be “clearly established” law governing prosecutorial misconduct
claims such as Jackson’s. First, on federal habeas review, the relevant standard is “‘the
narrow one of due process, and not the broad exercise of supervisory power.’”
Darden
, 477
U.S. at 180 (quoting
DeChristoforo
,
disclose exculpatory evidence,
see generally Brady v. Maryland
,
a “very general one” that affords courts “leeway in reaching outcomes in case-by-case
determinations.”
Matthews
,
C. Application
While we echo the magistrate judge’s opprobrium for several of the methods used by the prosecutor in Jackson’s case and may well have reached a different outcome were this case before us on direct appeal, we must reverse for the reasons set forth below.
The Fourth Department’s decision referenced only the prosecutor’s comments made
in her opening and closing statements and did not specifically address her delayed disclosure
of Arnold as a witness or her attempt to elicit expert testimony from Dr. Lenane.
See Jackson
,
As the magistrate judge observed, the prosecutor notified the defense that Arnold
would be a witness approximately one week after the Monroe Public Safety Laboratory
issued its March 27, 2001 report in which it excluded CJ as the source of the DNA found on
the fitted sheet recovered from Jackson’s bed. Jackson made this same observation in his
brief submitted to the Fourth Department. Faced with this chronology, the magistrate judge
found it “conceivable that the prosecutor might not have been intending to call Arnold up
until she received the results of the bloodstain testing.”
Jackson
,
The magistrate judge went on to find, however, that the prosecutor unethically
withheld identifying Arnold to the defense in order to force a last-minute change in counsel
and thus gain a tactical advantage by affording new counsel only one month to prepare.
See
Jackson
,
If the record is ambiguous as to the prosecutor’s motive for delaying the disclosure of
Arnold as a witness, it is all too clear about her improper attempt to elicit expert testimony
from Dr. Lenane. Not only did the prosecutor breach her pretrial representation to defense
counsel that the State would not call an expert at trial, she also failed to correct the trial
court’s incorrect assumption that Dr. Lenane was a “treating physician,” a misapprehension
that was the basis for the court allowing the doctor to testify.
See
App’x at 205-08. We
discern from the record no possible explanation for this behavior other than an attempt to
obtain an unfair advantage at trial and, like the magistrate judge, we find the prosecutor’s
“lack of professional candor . . . inexcusable.”
Jackson
,
Nevertheless, our task is not to determine whether this behavior was inappropriate,
unethical, or even erroneous. Instead, the sole issue before us is whether it was objectively
unreasonable for the Fourth Department to find that the behavior did not “so infect[] the
trial with unfairness” that it deprived Jackson of due process.
Darden
,
In his brief, Jackson identifies Dr. Lenane’s statement that the “abrasion” noted in
CJ’s medical reports was “consistent with penetration” as the most damaging part of her
testimony. Jackson Br. at 19-20. Immediately after it became apparent that Dr. Lenane was
not a treating physician, the trial court sustained defense counsel’s objection and, after some
discussion with counsel, directed the jury to disregard the “entirety” of her testimony
because the State had improperly called her as an expert witness without first providing
notice to the defense.
See
App’x at 228-29. We “presume that a jury will follow an
instruction to disregard inadmissible evidence . . . unless there is an overwhelming
probability that the jury will be unable to follow the court’s instructions, and a strong
likelihood that the effect of the evidence would be devastating to the defendant.”
Greer v.
Miller
,
While the magistrate judge characterized the trial court’s initial curative instruction as
“tepid,”
Jackson
,
Even if there was an “overwhelming probability” that the jury was unable to follow
the trial court’s instructions, Jackson cannot demonstrate a “strong likelihood” that Dr.
Lenane’s testimony was “devastating” because the most damaging portion of that testimony
was equivocal. When first asked whether the abrasion noted on CJ’s medical record was
consistent with penetration, Dr. Lenane stated that the abrasion was “consistent with some
type of trauma” that “could include penetration, but . . . wouldn’t necessarily have to.”
See
App’x at 212. It was only after the prosecutor asked the question a second time that Dr.
Lenane answered affirmatively.
Id.
In short, we find that the prosecutor’s improper
introduction of Dr. Lenane’s testimony did not violate Jackson’s right to a fair trial given the
trial court’s immediate curative instruction, its later reinforcement of that instruction, and the
equivocal nature of her most damaging statement.
Cf. Miller
,
Turning to the prosecutor’s opening and closing statements, we first note that certain comments flagged as inappropriate by the magistrate judge were supported by the trial evidence. Both Karen and Rebecca related to the jury numerous examples of Jackson’s domineering personality and the extensive physical and sexual abuse they suffered at his hands over the years. See, e.g. , Tr. at 242, 247-52, 350-56. We thus find nothing improper with the prosecutor’s remark in her opening statement that the victims’ testimony would expose Jackson as a “controlling” man who “abused them constantly,” App’x at 194, and her comment in summation that Jackson had “consistently abused his family for years,” id. at 281. In addition, the prosecutor’s characterization of Jackson in her opening statement as “twisted” and “sadistic” was no more inflammatory than the statements made by the prosecutor in Darden , which the Court found did not warrant habeas relief. See 477 U.S. at 180 & n.12 (prosecutor referred to the defendant as an “animal” and remarked, inter alia , that he would like to see the defendant’s face “blown away by a shotgun”); see also Matthews , 132 S. Ct. at 2155.
The prosecutor’s other statements made in her summation are somewhat more
troubling. In addition to referring to Jackson’s guilt a number of times, the prosecutor
ostensibly vouched for the victims’ credibility when she stated that “[e]ven the best actor or
actress could probably not tremble with fear as continuously as some of these witnesses
did.” App’x at 259. Unlike a direct appeal from a conviction, we need not decide
conclusively whether these statements were improper. In this challenge to the district
court’s determination of a § 2254 petition, it is sufficient that we hold fairminded jurists
could disagree as to the correctness of the Fourth Department’s conclusion that the
statements were not “so egregious” as to deprive Jackson of his right to a fair trial.
See
Richter
,
We first observe that the prosecutor’s remarks were not explicitly couched in terms
of her personal opinion, which reduces the probability that the jury adopted the opinion of
the State (expressed through the prosecutor) in lieu of its own independent assessment of
the evidence.
Compare
App’x at 274 (“that man [(referring to Jackson)] sitting there . . . is
guilty),
id.
at 275 (positing that the only “possible explanation” for the victims’ testimony was
that “it is true and he is guilty”),
and id.
at 281 (stating that Jackson “is guilty of everything”),
with Young
,
expresses her “personal opinion” as to the defendant’s guilt: (1) “such comments can convey
the impression that evidence not presented to the jury, but known to the prosecutor,
supports the charges”; and (2) given that “the prosecution’s opinion carries with it the
imprimatur of the [g]overnment,” the jury may be induced “to trust the [g]overnment’s
judgment rather than its own view of the evidence.”
Young
,
from eliciting that information at trial due to certain procedural rules (emphasis removed)).
Finally, in its jury charge, the trial court explicitly reminded the jury that statements made by
the attorneys in summation were not evidence and that the jurors were to draw their own
conclusions from the facts, rather than rely on those supplied by counsel,
see
App’x 285-86,
thus further reducing the potential for prejudice.
Cf. DeChristoforo
,
IV. Ineffective Assistance of Counsel Claim
A. Procedural Considerations
Before reaching the merits of Jackson’s ineffective assistance claim, we address three procedural considerations. First, the district court found certain aspects of this claim unexhausted due to Jackson’s failure to present those issues to the state courts, a conclusion Jackson challenges on appeal. Second, the State argues that we are barred from considering the entire claim because the trial court denied Jackson’s § 440.10 motion on the procedural ground that he could have raised his ineffective assistance claim on direct appeal. Third, the State argues that, in contravention of the Supreme Court’s Pinholster decision, the district court improperly relied on evidence that was not before the state courts. We address each argument in turn.
The magistrate judge’s determination that Jackson failed to exhaust Points One and
Two of his ineffective assistance claim need not delay us long.
See Jackson
, 765 F. Supp. 2d at
260-61. In these Points, Jackson argued that (1) defense counsel’s lack of preparation was
“painfully exposed” by his incorrect assumption that the State was required to prove
penetration in order to sustain the first-degree sodomy convictions, and (2) counsel “failed
to correctly marshal an investigation into the plethora of exculpatory evidence (physical,
medical, forensic, visual, tactile, [etc.])” and then failed to introduce this evidence at trial.
App’x at 15-16 (capitalization removed). As Jackson argues on appeal, he clearly presented
these same arguments in his brief submitted to the Fourth Department,
see id.
at 107 (defense
counsel failed to offer evidence “despite the existence of substantial medical evidence . . .
not used by the prosecution”), 108 (arguing that defense counsel “fail[ed] to utilize the
plethora of indisputable scientific evidence”), 109 (defense counsel “fail[ed] to investigate
medical claims”), 111 (defense counsel’s lack of preparedness shown by his failure “even to
investigate so basic an item as the elements of the crimes”), and raised the same arguments
in his application for leave to appeal to the New York Court of Appeals,
see id.
at 294-331.
Accordingly, Jackson fully exhausted these issues by presenting them to the “highest state
court capable of reviewing” them,
Rosa
,
Although the State does not dispute Jackson’s exhaustion argument, it maintains that
the entirety of Jackson’s ineffective assistance claim is barred by the trial court’s November
2003 rejection of Jackson’s § 440.10 motion on the procedural ground that his claim could
be raised in his then-pending direct appeal.
See
App’x at 29-30 (citing N.Y. Crim. Proc. Law
§ 440.10(2)(b)). We are puzzled by this argument, as it completely ignores the fact that
Jackson did, in fact, raise the same ineffective assistance arguments on direct appeal, going
so far as to include his § 440.10 motion in the record he submitted to the Fourth
Department.
See id.
at 107. Moreover, while the State argued before the Fourth Department
that Jackson’s ineffective assistance claim was barred because it was “based on factual
assertions outside the record” and therefore could only be raised in a § 440.10 motion,
see id.
at 128, the Fourth Department did not reject Jackson’s claim on this ground. Instead, the
Fourth Department rejected the claim on the merits, holding that Jackson was “not entitled
to error-free representation” and had “failed to demonstrate the absence of strategic or other
legitimate explanations for counsel’s alleged failures.”
Jackson
,
As a final procedural point, the State argues that, when conducting our
de novo
review
of Jackson’s ineffectiveness claim, we should disregard the evidence presented to the district
court during its evidentiary hearing, and “limit [our] review to the records before the state
courts.” State Br. at 15-16 (citing
Pinholster
,
Because Jackson’s claim was adjudicated by the Fourth Department on the merits, we
agree with the State that Jackson “must overcome the limitation of § 2254(d)(1) on the
record that was before that state court.”
Pinholster
,
B. Clearly Established Law
The clearly established law applicable to Jackson’s ineffective assistance claim is the
standard set forth in
Strickland v. Washington
,
When evaluating an ineffective assistance claim under § 2254(d), our review is
“doubly deferential” in that “[w]e take a highly deferential look at counsel’s performance
through the deferential lens of § 2254(d).”
Pinholster
,
C. Application
The Fourth Department denied Jackson’s ineffective assistance claim on the ground
that he “failed to demonstrate the absence of strategic or other legitimate explanations for
counsel’s alleged failures.”
Jackson
,
1.
Failure to Consult with an Expert
Jackson argues that defense counsel’s failure to consult with an expert prior to trial
left him unable to (1) “develop and implement an effective means for communicating to the
jury the lack of [medical] evidence of inflicted trauma,” or (2) “effectively counter the
impact” of Dr. Lenane’s testimony.
See
Jackson Br. at 54-55. When assessing counsel’s
performance under
Strickland
, we must endeavor 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.’”
Bierenbaum v. Graham
,
This crucial fact distinguishes this case from those cited by Jackson, in which we have
held that, “because of the centrality of medical testimony, the failure to consult with or call a
medical expert is often indicative of ineffective assistance of counsel” in sexual assault cases.
Gersten
,
Moreover, the State’s pretrial representation is not only relevant to counsel’s decision
not to call an expert at trial but also informs the reasonableness of his consultation with
medical personnel before trial. This is not a case where counsel completely failed to conduct
a pretrial consultation.
Contra Pavel v. Hollins
,
2.
Failure to Introduce Laboratory Reports and DNA Tests
We agree with the magistrate judge that defense counsel’s decision not to introduce
the laboratory reports and DNA tests did not rise to the level of ineffective assistance.
See
Jackson
,
3. Failure to Investigate the Evidence or the Elements of Sodomy Counts Jackson argues that defense counsel’s failure to investigate adequately the “exculpatory evidence” and the elements of the sodomy counts constituted ineffective assistance. See Jackson Br. at 57-61. The only “exculpatory evidence” he identifies are the laboratory and DNA reports which, as we set forth above, would not have had “exceptional value” had they been presented at trial. Accordingly, even assuming that defense counsel failed to mount an adequate investigation of the reports, Jackson cannot demonstrate that he suffered prejudice as a result. Similarly, while defense counsel’s failure to research the elements of first-degree sodomy under New York law undoubtedly constitutes deficient performance, the only prejudice Jackson identifies as flowing from this deficiency is counsel’s decision not to introduce the laboratory reports, see Jackson Br. at 60-61, which is insufficient to warrant relief for the reasons already stated.
CONCLUSION
For the foregoing reasons, we affirm the judgment of the district court insofar as it: (1) granted Jackson habeas relief on his Miranda claim as to the counts of conviction involving CJ; and (2) denied Jackson’s ineffective assistance of counsel claims premised on counsel’s failure to conduct an adequate pretrial investigation and introduce the laboratory reports and DNA tests at trial. We reverse in all other respects.
[*] The Honorable J. Clifford Wallace, United States Circuit Judge for the United States Court of Appeals for the Ninth Circuit, sitting by designation.
Notes
[1] The trial court sustained defense counsel’s objection to this testimony, but denied the request for a mistrial.
[2] These allegations were the subject of indictment counts one (first-degree sodomy) and two (third-degree assault).
[3] These allegations were the subject of indictment count eight (first-degree coercion).
[4] This allegation was the subject of indictment count nine (third-degree assault).
[5] These allegations were the subject of indictment counts 10-12 (first-degree rape), 13-15 (first-degree (anal) sodomy), and 16-17 (first-degree (oral) sodomy).
[6] These allegations were the subject of indictment count three (first-degrеe (anal) sodomy as to Karen), count four (first-degree sexual abuse as to Karen), and counts 18-19 (first-degree (oral) sodomy as to Rebecca).
[7] This allegation was the subject of indictment count 20 (third-degree assault as to Rebecca).
[8] Rebecca and Karen testified that they remained in the living room while Jackson was upstairs but could hear him and CJ over the baby monitor stationed in Jackson’s bedroom, where two younger children also slept.
[9] These allegations were the subject of indictment count five (first-degree (anal) sodomy as to Karen); counts 6-7 (first-degree attempted (anal) sodomy as to Karen); counts 21-23 (first- degree (oral) sodomy as to Rebecca); counts 29-32 (first-degree sexual abuse as to CJ); counts 33, 35, and 37 (first-degree rape as to CJ); counts 34, 36, and 38 (third-degree rape as to CJ); 39 and 41 (first-degree sodomy as to CJ); 40 and 42 (third-degree sodomy as to CJ); 43-47 (incest as to CJ); and 48 (endangering the welfare of a child as to CJ).
[10] The trial court overruled defense counsel’s objection to this statement.
[11] The trial court overruled defense counsel’s objection to this statement.
[12] At the close of the State’s evidence, the trial court dismissed one endangering the welfare of a child count involving Jackson’s youngest son.
[13] The trial court also held, in the alternative, that Jackson’s ineffective assistance claims lacked merit because they constituted nothing more than his disagreement with defense counsel over trial strategy and tactics.
[14] Jackson also argued that the trial court erred when, in contravention of its pretrial ruling, it permitted the State to elicit testimony concerning Jackson’s prior bad acts that occurred before 1995.
[15] Jackson included his § 440.10 motion and attached exhibits in the record submitted to the Fourth Department.
[16] In response to Jackson’s ineffective assistance arguments, the State contended on direct appeal that the claim was “based on factual assertions outside the appropriate record” and therefore could be remedied only via a § 440.10 motion, notwithstanding its position in the § 440.10 proceeding that the claims were only properly raised on direct appeal.
[17] The Fourth Department also rejected this claim on the ground that “[t]he filing of a child abuse petition does not trigger the right to counsеl” and, therefore, Bonisteel “was not required to advise defendant of his Miranda rights before speaking with him.” Id. (citation omitted).
[18] Section 2254(d)(2), which permits federal relief if the state court decision “was based on an unreasonable determination of the facts in light of the evidence presented in the State court,” is not implicated in this case.
[19] We have also recognized, however, that “‘the increment of incorrectness beyond error
need not be great; otherwise,
habeas
relief would be limited to state court decisions so far off
the mark as to suggest judicial incompetence.’”
Cornell v. Kirkpatrick
,
[20] A necessary corollary to this point is that “it is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.”
Knowles v. Mirzayance
,
[21] We agree with the magistrate judge that the Fourth Department’s alternate holding—that
“[t]he filing of a child abuse petition does not trigger the right to counsel” and therefore
Bonisteel “was not required to advise defendant of his
Miranda
rights before speaking with
him”—is not relevant to this inquiry.
See Jackson
,
[22] In its brief submitted to the Fourth Department, the State apparently conceded that Jackson was in custody at the time he spoke to Bonisteel. See App’x at 120 (“[W]hile in custody at the Greece police station, the defendant agreed to speak to Kathy Bonisteel.”). In the district court, the State did not contest that Jackson was in custody.
[23] The second part of the Mathis opinion rejected the government’s argument that Miranda was applicable only to questioning of those “in custody in connection with the very case under investigation.” See id. at 4-5 (internal quotation marks omitted). As to this argument,
[24] The State also apparently urges us to disregard
Mathis
because the eight Justices who
decided it were “conflicted.”
See
State Br. at 35-36 (“With [three] Justices dissenting (and
one not participating in the case); however, even the Supreme Court was conflicted on thе
holding.”). While there are times when lower courts may have wished they were permitted
to so cavalierly disregard the holding of five Supreme Court Justices as advocated by the
State, only the Supreme Court is vested with “the prerogative of overruling its own
decisions.”
Rodriguez de Quijas v. Shearson/American Express, Inc.
,
[25] The State faults the district court for “latch[ing] on to dicta” contained in the Third
Circuit’s decision in
Saranchak v. Beard
,
[27] Jackson has not argued on appeal that his procedural default should be excused pursuant
to one of the exceptions to that doctrine and we therefore do not consider this issue.
See,
e.g.
,
Clark
,
[28] In
DeChristoforo
, the prosecutor commented on the defendant’s motive for standing trial,
stating that the defendant had done so in the hope that the jury would find the defendant
guilty of a lesser charge, rather than acquit him.
[29] Among other improprieties during trial, the
Berger
prosecutor was “guilty of misstating the
facts in his cross-examination of witnesses; . . . of pretending to understand that a witness
had said something he had not said and persistently cross-examining the witness on that
basis; of assuming prejudicial facts not in evidence; [and] of bullying and arguing with
witnesses.”
Berger
,
[30] Because the defense did not object to the prosecutor’s comments, thе issue in Young was not whether the prosecutor’s comments were erroneous, but rather whether they constituted “plain error” in that they seriously affected the fairness or integrity of the entire trial. See id. at 6-7, 14-16.
[31] In
Cone v. Bell
, the Court, quoting
Agurs
and
Berger
, expressly stated that “[t]he right to a
fair trial, guaranteed to state criminal defendants by the Due Process Clause of the
Fourteenth Amendment, imposes on the States certain duties consistent with their sovereign
obligation to ensure ‘that justice shall be done’ in all criminal prosecutions.”
[33] Jackson urges us to employ the test set forth in
Tankleff v. Senkowski
, on which the district
court relied to grant relief on the prosecutorial misconduct claim.
See Jackson
, 765 F. Supp.
2d at 254. In that pre-AEDPA case, we set forth the
Darden
rule and then explained, citing
to a case discussing the harmless error standard applicable to certain claims on habeas
review, that the successful habeas petitioner must demonstrate he suffered “‘actual
prejudice’” because the prosecutor’s improper comments “‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’”
See Tankleff v. Senkowski
,
[34] The magistrate judge also apparently faulted the prosecutor for her assertion that all of the
victims testified consistently with the others, thus proving that their testimony was not part
of a рlan to frame Jackson.
See Jackson
,
[36] The prosecutor’s blatant mischaracterization of Bonisteel’s testimony may have been the proverbial straw that broke the camel’s back, at least with respect to the charges involving CJ. As noted above, Bonisteel related to the jury Jackson’s acknowledgment that it was “possible that [he] was so drunk that [he] couldn’t remember raping [CJ].” Trial Tr. at 503- 04. In summation, the prosecutor completely reframed this testimony, asserting that, when Jackson was “accused of having sex with [his] own child,” he stated, “Yeah, maybe, I could have.” App’x at 271. While we find this mischaracterization extremely inappropriate, we need not assess its impact as part of the overall prosecutorial misconduct claim because Bonisteel’s testimony on this point relates only to those charges involving CJ. As we held above, those charges must be vacated due to the improper admission of Bonisteel’s testimony in the first place.
[37] N.Y. Crim. Proc. Law § 440.10(2)(b) provides that the trial court “must deny a motion to vacate a judgment” when “[t]he judgment is, at the time of the motion, appealable or pending on appeal, and sufficient facts appear on the record with respect to the ground or issue raised upon the motion to permit adequate review thereof upon such appeal.”
[38] We note that, at the time the magistrate judge issued his decision in February 2011, Pinholster had yet to be decided.
[39] Given this conclusion, we need not address whether a district court that determines, on
the state court record alone, that a state court’s denial of a claim was objectively
unreasonable, may then hold an evidentiary hearing to determine whether it may “grant the
relief [the petitioner] requests.”
See Rossum v. Patrick
,