Opinion
19-CV-04171 (VSB)(SN)
05-23-2022
NELSON RODRIGUEZ, Petitioner, v. MICHAEL CAPRA, Respondent.
TO THE HONORABLE VERNON S. BRODERICK:
REPORT AND RECOMMENDATION
SARAH NETBURN, UNITED STATES MAGISTRATE JUDGE.
Federal habeas relief was “meant to be” difficult to obtain. Harrington v. Richter, 562 U.S. 86, 102 (2011). “[E]ven a strong case for relief does not mean the state court's contrary conclusion was unreasonable.” Id. And while the Antiterrorism and Effective Death Penalty Act (AEDPA) “stops short of imposing a complete bar on federal-court relitigation of claims already rejected in state proceedings,” it permits relief only “where there is no possibility fairminded jurists could disagree.” Id. Under this highly deferential standard, Nelson Rodriguez is not entitled to habeas relief.
I. Factual Background
The complainant is JR, Rodriguez's daughter, who was born in 1994. ECF No. 1, Appendix to 28 U.S.C. § 2254 Petition, A897. Until 2005, JR lived with Rodriguez, her mother Angela, and her brother Nelson Jr., in a public housing complex in Manhattan. A898-99, A901-03. Angela worked long hours as a home health aide. Rodriguez worked maintenance in their housing complex and was responsible for taking care of JR and her nephew after school. A 906 07. After Angela and Rodriguez divorced in 2005, JR and her brother chose to live with Rodriguez, who continued to act as their primary caregiver. A902-03.
At trial, JR testified that her father began touching her inappropriately when she was eight years old. A907-08. He subsequently engaged in sexual contact with her twice a week over the next four to five years. A917, A932-33. JR testified that this sexual contact included kissing, touching, oral sex, and vaginal and anal sex. A909-34. According to JR, Rodriguez last initiated sexual contact when she was approximately 13 years old. A933.
After a fight with her father in September 2008, JR left Rodriguez's apartment and moved in with her mother. A936-38. Still, she visited her father regularly, and in December traveled with him to Pennsylvania to visit his sister (JR's aunt). A939-40. During that visit, JR disclosed the abuse for the first time, sharing her account with her aunt. A940-41. JR's aunt did not notify authorities. A942. On January 13, 2009, JR told her mother that Rodriguez had sexually abused her. A1007-08. Angela immediately contacted JR's pediatrician, who reported the abuse to ACS and advised Angela to notify the police. A1008-09. The police initiated an investigation. Rodriguez was arrested on April 7, 2009, A1135, and charged with a Course of Sexual Conduct Against a Child in the First Degree, A3.
II. State Court Procedural History
A. State Court Conviction
Before trial, the People moved pursuant to People v. Molineux, 168 N.Y. 264 (1901), to admit evidence that Rodriguez sexually abused nine other family members: his stepdaughter Carolina Alcantara, and eight of his nieces and nephews. A5-7. The People argued that (1) the evidence was admissible as probative of intent, (2) it served to counter any claim of fabrication or collusion, (3) the evidence was interwoven with JR's testimony and necessary to understand a statement Rodriguez made to police after his arrest, and (4) the probative value outweighed any prejudice. A8-14. The defense objected on the ground that intent was not an element of the strict liability offense. A17-22. The trial court concluded that evidence of Rodriguez's abuse of his nieces and nephews was unduly prejudicial and excluded it but permitted Alcantara's testimony as relevant for background and interwoven with JR's testimony. A807-08. The trial court later ruled that if the defense offered character witnesses, the prosecution would be permitted to ask those witnesses if they had heard rumors about Rodriguez's conduct with respect to six other family members, without stating the nature of the allegations. A868-69.
At trial, JR, her mother Angela, and Alcantara testified. Alcantara is Angela's daughter from a previous relationship and JR's older half-sister. She testified that Rodriguez sexually abused her regularly beginning when she was 11 years old and threatened her with a knife when she resisted. A1036, A1039. Prosecution witnesses also included Tawny Lowe, the pediatric nurse practitioner who conducted a physical examination of JR a few days after she first reported the abuse, A1105-06, A1115, and Christopher Montgomery, the NYPD detective assigned to the case, A1133-34. Dr. Donald J. Lewittes testified as an expert in clinical and forensic psychology and intrafamilial child sexual abuse syndrome. A1059-60, A1066.
In the trial and hearing transcripts, the witnesses use the terms “intrafamilial child sexual abuse syndrome” and Child Sexual Abuse Accommodation Syndrome (CSAAS) interchangeably.
The defense's theory of the case focused on the lack of physical evidence and JR's delay in reporting the abuse. A885, A891, A1254-55, A1259. The defense emphasized that JR disclosed the abuse only after she had a fight with her father that caused her to move in with her mother. A1262. The defense presented four witnesses. Neighbor Barbara Pray testified regarding the fight that precipitated JR's move. A1151-56. Three other witnesses, Gwendolyn Young, a resident of the public housing complex where Rodriguez lived and worked and Sharon Pickens and Cathy Ramos, two co-workers, testified to Rodriguez's reputation for peacefulness in the community. A1178-80, A1204-06, A1194-97. The Court permitted the People to ask the character witnesses if they had heard any rumors or reports about Rodriguez's interactions with six individuals, without stating that (1) the individuals were his nieces and nephews and (2) they had accused him of sexual abuse. A1191-94, A1202-04, A1210-11. In rebuttal, the prosecution introduced a phone recording that Rodriguez made to Ramos while he was detained at Rikers Island that suggested that they were in a romantic relationship. A1234-42.
On November 30, 2009, the jury convicted Rodriguez of one count of Course of Sexual Conduct Against a Child in the First Degree. N.Y. Penal Law § 130.75(1)(b). He was sentenced to 23 years in prison and five years of post-release supervision. Rodriguez is currently incarcerated.
B. State Motion to Vacate
On June 10, 2013, Rodriguez-represented by appellate counsel-moved to vacate his conviction pursuant to CPL § 440.10(1)(h) on the grounds of ineffective assistance of counsel. A26. Rodriguez argued that defense counsel was ineffective because (1) he opened the door to six uncharged allegations of sexual abuse against Rodriguez by presenting the three character witnesses; (2) he failed to consult with or call a psychological expert; (3) he did not educate himself on the scientific issues or conduct independent research regarding the People's psychological expert; (4) he failed to consult with a medical expert; (5) he failed to secure Nelson Jr's testimony, who would have substantiated the fight that preceded JR's reporting; and (6) he did not effectively cross-examine witnesses, including JR. A66-81. In a supporting affirmation, Rodriguez's appellate counsel also asserted that during opening statements, defense counsel failed to develop a coherent theory of defense for the jury. A31.
The court held a § 440.10 hearing on October 6, 7, 8, and 10, 2014, with a final day of testimony on August 7, 2015. A1364, A1411, A1543, A1603, A653. Rodriguez's defense counsel, Kenneth Ware, testified extensively. A1366. As relevant here, he testified that in preparation for trial he reviewed the results of JR's medical evaluation but chose not to consult with any experts because there were no findings of abuse. A1722-23. While he prepared for the cross-examination of Dr. Lewittes by researching the admissibility of testimony on intrafamilial child abuse syndrome, reviewing his CV, and studying strategies for cross-examining medical and psychological experts, A1637, A1721, A1649-50, he admitted that he did not consult with a forensic psychologist before trial or conduct any review of the medical literature concerning intrafamilial child sexual abuse syndrome, A1646. He explained that he chose not to aggressively cross-examine JR because she was “fairly consistent” in her descriptions of the abuse, and he was concerned that such an approach would prejudice the jury against him and, as a result, Rodriguez. A1593, A1596-99. Furthermore, he testified that despite his efforts to explain that presenting character witnesses could open the door to evidence of uncharged crimes, Rodriguez wanted character witnesses to testify on his behalf. A1396-97, A1400-01. Based on the lack of physical evidence of abuse, defense counsel concluded that this approach was reasonable. Id. While his investigator, John Lutterloh, interviewed Nelson Jr. and initially hoped he would testify, there came a time when Nelson Jr. was no longer friendly to Lutterloh, and he subsequently left for the Dominican Republic. A1626-28. Although Lutterloh contacted him in the Dominican Republic, Nelson Jr. made clear that he did not want to testify on his father's behalf. A1702.
Rodriguez called Dr. Ronald Paynter, a senior attending emergency room physician at Winthrop University Hospital. A1412-14. He testified that it was unlikely that a child subjected to repeated sexual abuse would not show signs of injury. He specifically challenged Nurse Lowe's trial testimony about the resilience of a prepubescent child's hymen and testified that, based on his training and experience, such child would likely show injury from penetration by an adult male penis. A1439-40, A1446. He also disagreed with her statement regarding healing, noting that the more instances of repeated penetration the more likely it is that you would find something abnormal even years after the alleged abuse. A1472.
The People called Dr. Jocelyn Brown, a professor of Clinical Pediatrics at Columbia University and the Medical Director of the Manhattan Child Advocacy Center, to refute Dr. Paynter's testimony. A1479-80. Dr. Brown bolstered Nurse Lowe's testimony about the likelihood of healing and normal findings years after the abuse. She described the healing to be “extremely rapid.” A1494.
Nelson Jr. testified pursuant to a subpoena at the hearing. A1544, A1559. He explained that he did not want to speak to defense counsel or the assistant district attorney. A1560-61. He said his mother got him a one-way ticket to the Dominican Republic before the trial. A1556. Nelson Jr. testified that he never observed anything to make him suspect that his father was abusing JR, and that JR could be “maybe a little manipulative sometimes.” A1552-53. He admitted that he loved his sister and father and did not want to be in the middle of this family dispute. A1566, A1571-72.
The court denied Rodriguez's CPL § 440.10 motion in a 38-page opinion. A504. The court stated the correct federal standard for an ineffective assistance of counsel claim, citing to Strickland v. Washington, 466 U.S. 668 (1984). A553-34. Relying on state law, the court noted that disagreement over trial strategies or the scope of possible cross-examination will rarely be sufficient to demonstrate that a defendant was denied a fair trial. A534.
The court rejected the argument that defense counsel's opening statement was incoherent. A536. He argued that the case was about revenge, there was no physical or corroborating evidence of abuse, and JR never reported the abuse despite multiple opportunities to do so. Id. Defense counsel continued these themes during his examinations and through summation. Id.
The court concluded that counsel consistently cross-examined the People's witnesses about the timing of JR's disclosure, her possible motives to fabricate the abuse, the lack of medical or physical evidence, and JR's strong academic performance while she lived with her father. A536-38. The court concluded that trial decisions such as whether to focus on a discrepancy between how JR and her sister described their father's genitals, or whether to question JR more aggressively were reasonable. A537, A540.
Given the lack of physical evidence, the Court reasoned that defense counsel's strategy of calling character witnesses was not objectively unreasonable, even though it opened the door to allow the People to admit the names of six nephews and nieces who had accused Rodriguez of abuse. A538. Because the names were offered without context, the court reasoned that neither “witnesses nor the jurors knew that these six individuals had also made allegations of abuse against defendant.” Id. Additionally, the character witnesses placed Rodriguez in a favorable light. Id.
The court held that defense counsel's decision not to call any expert witnesses was not objectively unreasonable given the lack of physical evidence. A538-39. The People's expert testified that physical evidence was not necessary to prove abuse. The court concluded that a defense expert stating the opposite would not likely have been helpful, especially where the defense strategy was to have the jurors use their common sense regarding the significant trauma of repeated penetration of a child as young as eight. A539. Similarly, Rodriguez was not denied effective assistance of counsel by the failure to call an expert to discredit the People's psychologist, who had testified that child sex abuse victims often delay reporting. Id. Such testimony is regularly accepted in New York courts, and counsel successfully elicited that the expert could not determine whether JR was abused. Id. Rodriguez, in any event, failed to establish that the outcome of his trial would have been different had he called an expert. A540.
With respect to Nelson Jr., the Court noted that “defense counsel sufficiently investigated the facts and searched for potential witnesses,” there were “legitimate explanations for defense counsel's failure to locate him as he was in the Dominican Republic and refused to return to the United States to testify despite numerous attempts by the defense,” and he was “not an exculpatory witness.” A541.
Accordingly, the court concluded that Rodriguez “received a fair, albeit not perfect, trial.” A541. Applying Strickland, the court found that Rodriguez received effective assistance of counsel. Id. Justice Moskowitz of the Appellate Division, First Department, granted Rodriguez permission to appeal the denial of his CPL § 440.10 motion, A543, which was consolidated with his direct appeal.
C. Direct Appeal
On appeal to the Appellate Division, Rodriguez argued that Alcantara's testimony amounted to propensity evidence and that its admission denied him his due process right to a fair trial. A604-12. He disputed the trial court's conclusion that the testimony was admissible as background and that it was interwoven with JR's description of the abuse, countering that the relationship between JR and her father was clear, Rodriguez's alleged abuse of Alcantara had stopped by the time his abuse of JR began, and the reasons for JR's compliance with her father's demands was irrelevant to the elements of the offense. A608-10. In addition to the ineffective assistance of counsel claim raised in his CPL § 440.10 motion, Rodriguez also argued that his sentence was excessive. A644.
The Appellate Division, First Department, unanimously affirmed both Rodriguez's conviction and the denial of his CPL § 440.10 motion. People v. Rodriguez, 159 A.D.3d 631, 631 (1st Dep't 2018). The Court concluded that Alcantara's testimony was admissible because the “victim's testimony that [Rodriguez] told her about these acts against his stepdaughter tended to explain his daughter's delay in reporting defendant's regular sexual conduct with her over the course of four years, and to rebut the defense attack on her credibility based on the delay.” Id. (citing People v. Nicholson, 26 N.Y.3d 813, 829 (2016)). Additionally, Alcantara's account served to corroborate JR's testimony. Id. at 631-32 (citing People v. Morris, 21 N.Y.3d 588, 597 (2013)). The Court further reasoned that “[t]he probative value of the testimony outweighed any prejudice, which was minimized by the court's limiting instruction,” and that any error was harmless in light of the overwhelming evidence of guilt. Id. at 632.
The Appellate Division also rejected Rodriguez's ineffective assistance of counsel claim, concluding that defense counsel “reasonably chose not to cross-examine the victim about apparent inconsistencies concerning her allegations, to avoid the risks of making a negative impression on the jury by questioning the young witness too aggressively, or prompting an emotional reaction that could have enhanced the victim's credibility in the jury's mind.” Id. The Court reasoned that defense counsel's presentation of character witnesses was a “reasonable strategy of seeking to cast defendant in a positive light and raise doubts about whether the alleged incidents actually occurred,” and that given the lack of physical evidence of abuse, “counsel's decision not to call a medical expert did not constitute ineffective assistance of counsel.” Id. The Court rejected Rodriguez's remaining arguments that he was denied the effective assistance of counsel, or that his sentence was excessive. Id.
Rodriguez sought leave to appeal to the New York Court of Appeals, but a Judge of the Court denied leave on June 12, 2018. People v. Rodriguez, 31 N.Y.3d 1121 (2018) (Fahey, J.). On May 8, 2019, Rodriguez filed a petition for a writ of habeas corpus. ECF No. 1.
DISCUSSION
I. Procedural Issues
A. Timeliness
It is uncontested that Rodriguez's habeas petition is timely. AEDPA requires a state prisoner whose conviction has become final to seek federal habeas corpus relief within one year. 28 U.S.C. § 2244(d)(1)(A). This one-year period serves the “well-recognized interest in the finality of state court judgments.” Duncan v. Walker, 533 U.S. 167, 179 (2001). A petitioner's judgment becomes final 90 days after an order of the Court of Appeals is filed - i.e., after the “period to petition for a writ of certiorari to the United States Supreme Court.” Pratt v. Greiner, 306 F.3d 1190, 1195, n.1 (2d Cir. 2002).
The AEDPA tolls the one-year limitations period for the “time during which a properly filed application for State post-conviction or other collateral review . . . is pending.” 28 U.S.C. § 2244(d)(2). “The time that an application for state postconviction review is ‘pending' includes the period between (1) a lower court's adverse determination, and (2) the prisoner's filing of a notice of appeal, provided that the filing of the notice of appeal is timely under state law.” Evans v. Chavis, 546 U.S. 189, 191 (2006) (emphasis in original) (citing Carey v. Saffold, 536 U.S. 214 (2002)).
A judgement was rendered against Rodriguez on November 30, 2009, and his judgment became final on September 10, 2018 - 90 days after the Court of Appeals denied leave to appeal. Rodriguez timely filed his federal habeas petition on May 8, 2019, less than one year after his conviction became final.
B. Exhaustion
It is also uncontested that Rodriguez has exhausted his state court remedies.
Before a federal court may review a petition for a writ of habeas corpus, a petitioner must exhaust all state-provided remedies. 28 U.S.C. § 2254(b)(1)(A); see also O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999) (to exhaust a claim, a petitioner must “invoke[] one complete round of the State's established appellate review process” before bringing the same claim in federal court). A claim is deemed exhausted if the petitioner: (1) fairly presented to an appropriate state court the same federal constitutional claim that he now urges upon the federal courts; and (2) presented his claim to the highest state court that could hear his claim. Baldwin v. Reese, 541 U.S. 27, 29 (2004); O'Sullivan, 526 U.S. at 844-48.
To fairly present his claims, a petitioner may not rely solely on general principles of fairness, and instead must refer to specific constitutional provisions or concepts. See Reid v. Senkowski, 961 F.2d 374, 376 (2d Cir. 1992) (minimal reference to the constitution satisfies the exhaustion requirement); see also De La Cruz v. Kelly, 648 F.Supp. 884, 888 (S.D.N.Y. 1986) (finding that petitioner alerted the state court of the constitutional aspect of his claims when he argued that the ruling denied him a fair trial and cited the Fourteenth Amendment). The legal doctrine asserted in the state courts does not need to be identical to that raised in the habeas petition, but “the nature or presentation of the claim must have been likely to alert the court to the claim's federal nature.” Daye v. Att'y Gen. of State of N.Y., 696 F.2d 186, 192 (2d Cir. 1982).
The Court of Appeals for the Second Circuit applies the “fair presentation” standard liberally, allowing that a state court may be deemed to be on notice of the constitutional nature of a claim even if the petitioner did not specifically quote the United States Constitution. Notice will be found when the appellate brief shows “(a) reliance on pertinent federal cases employing constitutional analysis, (b) reliance on state cases employing constitutional analysis in like fact situations, (c) assertion of the claim in terms so particular as to call to mind a specific right protected by the Constitution, and (d) allegation of a pattern of facts that is well within the mainstream of constitutional litigation.” Ramirez v. Att'y Gen. of State of N.Y., 280 F.3d 87, 95 (2d Cir. 2001) (quoting Daye, 696 F.2d at 194). This position protects petitioners who rely on constitutional principles without citing “book and verse on the federal constitution,” while ensuring that state courts have the opportunity to “pass upon and correct” alleged violations of federal rights. Picard v. Connor, 404 U.S. 270, 275, 278 (1971) (citations omitted).
In his § 440 motion and his direct appeal, Rodriguez raised the same ineffective assistance of counsel arguments that he asserts here. He seeks federal habeas relief on the grounds that his trial counsel was ineffective for (1) failing to consult with or call medical and psychological experts, (2) failing to impeach JR, (3) presenting a flawed theory of defense by choosing to call character witnesses and failing to secure the testimony of Nelson Jr., and (4) failing to articulate a coherent theory of defense in both his opening and closing statements. Each of these arguments was raised through to the Court of Appeals and was fairly presented by citing the governing federal law, including Strickland v. Washington.
Rodriguez also seeks habeas relief on the ground that Alcantara's testimony was relevant only to propensity and should not have been admitted at trial. This argument was previously raised in his direct appeal in his Appellate Division brief and his letter in support of his motion for leave to appeal to the New York Court of Appeals. Although the claim is rooted in state law, Rodriguez asserted that the error was so prejudicial that he was denied his due process right to a fair trial under the Fourteenth Amendment. Because this argument was raised to New York's highest court and was fairly presented as a constitutional claim, it is also exhausted.
II. Merits Review
A. Standard of Review
After exhaustion, but before a federal court can issue a writ of habeas corpus, a petition must satisfy a “difficult to meet[] . . . and highly deferential standard for evaluating state-court rulings, which demands that state-court decisions be given the benefit of the doubt.” Cullen v. Pinholster, 563 U.S. 170, 181 (2011) (citations and internal quotation marks omitted). Under the AEDPA, habeas relief may be granted only when the state court's decision:
(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).
“‘[C]learly established Federal law' under § 2254(d)(1) is the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.” Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003). Under this rule, “circuit precedent does not constitute ‘clearly established Federal law'” and “cannot provide a basis for habeas relief.” Parker v. Matthews, 567 U.S. 37, 48-49 (2012); see also Rodriguez v. Miller, 537 F.3d 102, 106-07 (2d Cir. 2008) (“No principle of constitutional law grounded solely in the holdings of the various courts of appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.”).
A state court decision is “contrary to” clearly established federal law “if the state court ‘applied a rule that contradicts' that precedent, or reached a different result than the Supreme Court on facts that are ‘materially indistinguishable.'” Mannix v. Phillips, 619 F.3d 187, 195 (2d Cir. 2010) (internal alterations omitted) (quoting Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). As long as the state court decision applied the correct legal rule to the facts of a petitioner's case, it is not subject to habeas review, even if the federal court would have reached a different conclusion if it were to apply the rule itself. Williams, 529 U.S. at 406.
A state court decision involves an “unreasonable application” of clearly established federal law if the court identified the correct legal rule set forth in governing Supreme Court cases, but unreasonably applied the rule to the facts of the case. Id. at 407-08. A federal court may grant habeas relief only when the state court decision, as it pertains to the issue of federal law, was “objectively unreasonable” in light of relevant precedent; thus, in construing and applying federal law, even erroneous state court decisions, if deemed reasonable, will survive habeas review. Id. at 409-13; see also Besser v. Walsh, 601 F.3d 163, 178 (2d Cir. 2010) (“The proper inquiry is not whether a state court's application of, or refusal to extend, the governing law was erroneous, but whether it was ‘objectively unreasonable.'”) (quoting Williams, 529 U.S. at 409-10). “In other words, the existence of ‘reasonable arguments on both sides' is ‘all [the government] needs to prevail in [an] AEDPA case.'” Jordan v. Lamanna 2022 WL 1416738, at *5 (2d Cir. 2022) (quoting White v. Woodall, 572 U.S. 415, 427 (2014)).
B. Ineffective Assistance of Counsel
1. Statement of Law
Defendants have a Sixth Amendment right to competent counsel. For the purposes of habeas review, Strickland is the relevant “clearly established Federal law” in an ineffective assistance of counsel claim. 28 U.S.C. § 2254(d)(1); Knowles v. Mirzayance, 556 U.S. 111, 122 (2009); Lynn v. Bliden, 443 F.3d 238, 247 (2d Cir. 2006). To demonstrate that his counsel was ineffective under Strickland, a defendant must show that: “(1) counsel's representation fell below an objective standard of reasonableness under prevailing professional norms and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Lynn, 443 F.3d at 247 (citing Strickland, 466 U.S. at 688, 694). Both prongs are necessary to meet the defendant's burden. Strickland, 466 U.S. at 697 (“[T]here is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one.”).
Strickland's standard is rigorous and “highly deferential.” Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001). The first prong considers whether counsel's performance was objectively unreasonable, maintaining that any errors must be “so serious that counsel was not functioning as the ‘counsel' guaranteed . . . by the Sixth Amendment.” Strickland, 466 U.S. at 687. Thus, “strategic choices made after thorough investigation of law and fact relevant to plausible options are virtually unchallengeable.” Id. at 690; see Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (there is a “strong presumption” that counsel's attention to certain issues to the exclusion of others reflects trial tactics rather than “sheer neglect”); Henry v. Poole, 409 F.3d 48, 63 (2d Cir. 2005) (“Actions or omissions by counsel that might be considered sound trial strategy do not constitute ineffective assistance.”) (citations and internal quotation marks omitted). The defendant has the burden of proving “that counsel's representation was unreasonable under prevailing professional norms and that the challenged action was not sound strategy.” Kimmelman v. Morrison, 477 U.S. 365, 381 (1986).
Under the second prong, the defendant must establish prejudice, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “It is not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding' . . . Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Harrington v. Richter, 562 U.S. 86, 104 (2011) (quoting Strickland, 446 U.S. at 693, 687).
A petitioner who brings a habeas petition based on ineffective assistance of counsel has an even higher burden than a defendant on direct appeal raising the same legal claim. Richter, 562 U.S. at 101. The inquiry is not “whether defense counsel's performance fell below Strickland's standard.” Id. Rather, “[t]he pivotal question is whether the state court's application of the Strickland standard was unreasonable.” Id. “To meet that standard, a prisoner must show far more than that the state court's decision was ‘merely wrong' or ‘even clear error.'” Shinn v. Kayer, 141 S.Ct. 517, 523 (2020) (quoting Virginia v. LeBlanc, 137 S.Ct. 1726, 1728 (2017)). He “must show that the state court's decision is so obviously wrong that its error lies ‘beyond any possibility for fairminded disagreement.'” Shinn, 141 S.Ct. at 523 (quoting Richter, 562 U.S. at 103); see also Rivas v. Fischer, 780 F.3d 529, 547 (2d Cir. 2015) (“Our analysis must ‘determine what arguments or theories supported . . . the state court's decision; and then [we] must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent' with Strickland.”) (quoting Richter, 562 U.S. at 102). Moreover, “because the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied” it. Knowles, 556 U.S. at 123. As a result, review of habeas petitions is “doubly deferential.” Id.
2. Analysis
Rodriguez argues that the state court's decision was unreasonable in finding that defense counsel's performance satisfied Strickland. To prevail on this argument, Rodriguez must establish that there could be no dispute among “fairminded jurists” that defense counsel's performance fell below an objective standard and that but for counsel's ineffective performance, the outcome would have been different. Rodriguez cannot meet this “doubly deferential” standard.
a. Failure to Consult with Experts
Rodriguez contends that it was an objectively unreasonable strategic decision for defense counsel not to consult with or call medical and psychological experts to rebut the prosecution's experts. His arguments start from the proposition that in child sex abuse cases, credibility is key and so defense counsel needs to challenge any corroborating evidence of the victim's story, including equivocal evidence.
Nurse Lowe testified that JR's normal examination was “most definitely” consistent with her story of abuse because of the lapse of time since the last incident of sexual abuse, the resilience and healing capacity of the prepubescent anatomy, and the type of penetration she may have experienced. A1117-18. In support of her testimony, Nurse Lowe cited to “literature” and a “study” that found that only 4% of children evaluated for sexual abuse present abnormal findings. A1119. On cross-examination, defense counsel elicited from Nurse Lowe that, absent JR's self-reporting, her physical examination alone did not establish abuse. A1125-26. He also established that she had only ever testified for the prosecution. A1124.
At his § 440 hearing, defense counsel testified that he did not consult with a medical expert to prepare for his cross-examination of Nurse Lowe because there were no physical findings to challenge. A1722-23. Instead, his strategy was to attack Nurse Lowe's credibility because she was not a medical doctor, did not review JR's medical records, and had never testified for the defense. A1723-24. On this record, the § 440 court concluded that the “decision not to call an expert, given the lack of physical evidence of abuse and the long delay in making the claim of abuse, was not objectively unreasonable.” A538. Instead, it found that the decision to appeal to the jury's common sense - that repeated abuse over years would result in trauma -was “part of a coherent and legitimate overall defense strategy.” A539. On appeal, the Appellate Division held that “counsel's decision not to call a medical expert did not constitute ineffective assistance of counsel” because “the People's medical expert conceded that an examination of the victim did not reveal any physical signs of abuse.” Rodriguez, 159 A.D.3d at 632.
Rodriguez argues that defense counsel's strategy was not objectively reasonable. “In sexual abuse cases, 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.” Gersten v. Senkowski, 426 F.3d 588, 607 (2d Cir. 2005). This is particularly true where “the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony.” Id.
Rodriguez understandably leans heavily into Gersten, a case decided well before Rodriguez's trial and § 440 hearing. In that case, the Court of Appeals held that defense counsel was constitutionally ineffective, and the state court's application of Strickland was unreasonable, where counsel failed to consult with or call medical and psychological experts in a child sex abuse case. In Gersten, however, the prosecution's medical witness testified that the records substantiated the abuse. Id. at 594-95. In failing to call or consult medical experts, Gersten's trial counsel “essentially conceded that the physical evidence was indicative of sexual penetration without conducting any investigation to determine whether this was the case.” Id. at 608. By contrast, Nurse Lowe testified that there was no evidence of abuse and only that this was unsurprising given the delayed reporting and the body's healing capacity over time. As the § 440 court found, defense counsel's decision to appeal to common sense and discredit the prosecution's witness was a reasonable starategy.
Even if defense counsel's decision not to consult with or call an expert could be found objectively unreasonable, Rodriguez has not established prejudice. At the § 440 hearing, Rodriguez called Dr. Ronald Paynter, an emergency room physician with 33 years of experience in emergency medicine. A1412-13. Dr. Paynter is not certified in the field of child abuse and was qualified only as an expert in the field of emergency room medicine. A1430, A1436. Dr. Paynter expressed his view that child advocacy centers are “always advocating and not necessarily objectively understanding the situation.” A1427. He also criticized their studies as “unscientific,” without any “controlled studies,” and often “subjective[].” A1427-28.
Dr. Paynter testified that it was “more likely than not” that penetration of an adult penis could cause traumatic injury in the hymenal tissue. A1440. He further testified that the more episodes of assault, the more likely it is that you would see injury. He concluded that, based on his experience and training, he would have expected the photographs of JR's hymen to show “signs of penetration, such as nicks in it, retraction of it, some scarring of it.” A1449. As such, he disagreed with Nurse Lowe's testimony that JR's normal medical examination was consistent with abuse.
The § 440 court concluded that “it is unlikely, even if the defense proffered a medical expert, the expert's testimony would have been helpful to the defense.” A539. This decision is not so obviously wrong that the error lies beyond fairminded disagreement. Unlike in Gersten, there were no medical mistakes in Nurse Lowe's testimony that needed to be corrected. The evidence was not indicative of abuse and no medical expert could testify that the absence of signs of trauma proves there was no abuse. Accordingly, the state court's decision that counsel was effective was a reasonable application of Strickland.
At trial, the People also called Dr. Donald J. Lewittes, a child psychologist who testified as an expert in intrafamilial child sexual abuse syndrome (or CSAAS). A1068. During direct examination, Dr. Lewittes described the factors that can lead a victim to disclose a history of abuse after years of maintaining the secret, including the increased independence that comes with adolescence, separation from the parent or guardian who abused them, and moving out of the family home. A1079-84. Dr. Lewittes's expert opinion rehabilitated JR's credibility by explaining why children delay reporting abuse by a close family member and how their own recollection of such abuse could be vague. On cross-examination, defense counsel challenged the reliability of the syndrome as a diagnostic tool. A1096-97.
At the § 440 hearing, defense counsel admitted that he did not conduct any research on Dr. Lewittes or CSAAS but instead focused on strategies for cross-examination of experts generally. A1648-50. Rodriguez offered an affidavit from appellate counsel, attesting that she consulted with Dr. John Yuille, a forensic psychologist. A43-45. According to counsel's affidavit, Dr. Yuille would have advised defense counsel, if consulted, how to challenge Dr. Lewittes's testimony. A45. It was Dr. Yuille's expert opinion that “no one has adopted this ‘syndrome' theory, and there is simply no extensive literature in support of Lewittes' testimony.” A44. Additionally, Dr. Yuille would have advised defense counsel to challenge Lewittes's testimony that adolescence prompts disclosure or that there is any standard pattern that is uniquely symptomatic of sexual abuse. Id.
The § 440 court concluded that Rodriguez was not denied effective assistance by his defense counsel's failure to call an expert to discredit Dr. Lewittes's testimony. The court reasoned that testimony by an expert psychologist that child sex abuse victims frequently delay disclosure of abuse is “generally accepted by New York courts when introduced for that purpose, so long as it is not used to prove that the abuse actually occurred.” A539 (citing People v. Medlin, 144 A.D.3d 426, 427 (1st Dept. 2016)). The Appellate Division rejected Rodriguez's ineffective assistance of counsel claim related to the failure to adequately prepare for Dr. Lewittes's testimony without analysis. Rodriguez, 159 A.D.3d at 632.
Coincidentally, Dr. Lewittes and Dr. Yuille are also the dueling experts in Gersten. There, the Court of Appeals stated: “It would appear from Dr. Yuille's affidavit that even a minimal amount of investigation into the purported ‘Child Sexual Abuse Accommodation Syndrome' would have revealed that it lacked any scientific validity for the purpose for which the prosecution utilized it: as a generalized explanation of children's reactions to sexual abuse, including delayed disclosure and blurred memory.” Gersten, 426 F.3d at 611. Accordingly, the Court of Appeals held that the lack of preparation and failure to challenge the credibility of Dr. Lewittes was not “sound trial strategy,” and “it was an unreasonable application of Strickland” to hold otherwise. Id.
Gersten is not “clearly established Federal law” for purposes of habeas relief. Renico v. Lett, 559 U.S. 766, 779 (2010) (circuit precedent does not constitute “clearly established Federal law, as determined by the Supreme Court”). Gersten, moreover, cannot be relied upon even as persuasive authority because it did not apply the correct standard of review. There, the Court of Appeals described the objective unreasonableness standard when reviewing the state court's decision as “[s]ome increment of incorrectness beyond error,” although that “increment need not be great.” Gersten, 426 F.3d at 607 (citing Henry, 409 F.3d at 68). The Court of Appeals has since recognized that the “some increment of incorrectness” standard is not the correct standard of review. Garner v. Lee, 908 F.3d 845, 861 n.14 (2d Cir. 2018) (“We do not believe . . . that [the “some increment of incorrectness” standard] . . . survived the Supreme Court's decision in Richter”); cf. Washington v. Griffin, 876 F.3d 395, 403 (2d Cir. 2017) (state court decision must be “so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement”) (quoting Richter, 562 U.S. at 103).
Thus, we evaluate the state court's decision under Strickland applying the standard of review in Richter. And because the Appellate Division's opinion denied the ineffective assistance claim related to Dr. Lewittes's testimony without reason, we “look through” that decision to the last reasoned decision, which is the § 440 decision. Wilson v. Sellers, 138 S.Ct. 1188, 1192 (2018).
The § 440 court concluded that counsel's total failure to educate himself on CSAAS was reasonable because such testimony is generally admissible. A539. This is an unreasonable application of the first prong in Strickland. The question is not whether counsel was ineffective because he failed to object to Dr. Lewittes's testimony but that he failed to conduct any preparation to cross-examine him with any efficacy. See Richter, 562 U.S. at 111 (reasoning that an expert is not always required and “[i]n many instances cross-examination will be sufficient to expose defects in an expert's presentation.”); see also United States v. Best, 219 F.3d 192, 20102 (2d Cir. 2000).
Defense counsel's voir dire of Dr. Lewittes asked whether he had ever studied gynecology and challenged the validity of his opinions because he could not “apply scientific evaluation or principles because [he's] not a medical doctor.” A1066-68. His cross-examination - which spanned fewer than ten trial pages and resulted in two sustained objections - did nothing to plant any doubt in the jurors' minds about CSAAS or Dr. Lewittes's credibility. Dr. Yuille's opinion - expressed in counsel's affidavit and in Gersten - demonstrate, however, that CSAAS is no longer regularly accepted in the child sexual abuse research community. With respect to Dr. Lewittes's critical testimony that adolescence can trigger a delayed disclosure, minimal research would reveal that there is no scientific validity for this theory. Thus, despite the “strong presumption” that counsel's representation was within the “wide range” of reasonable professional assistance, defense counsel's “representation fell below an objective standard of reasonableness.” Strickland, 466 U.S. at 688; cf. Spicola v. Unger, 703 Fed.Appx. 51, 53 (2d Cir. 2017) (failure to consult with or call expert to rebut State's CSAAS expert was not ineffective where counsel filed a motion in limine challenging the scientific basis for CSAAS). The state court's decision, which focused merely on the admissibility of evidence, was therefore an unreasonable application of the first prong of the Strickland test.
With respect to the second prong, the § 440 court concluded that, even if defense counsel's performance was objectively unreasonable, Rodriguez failed to demonstrate a reasonable probability that “calling” an expert would have affected the outcome. A540. Rodriguez argues that the § 440 court framed the question wrong. In his habeas petition, Rodriguez claims he was prejudiced not by the lack of a rebuttal expert, but because his lawyer was unable to mount an effective cross examination when he failed to educate himself at all about CSAAS. Cf Rodriguez v. Uhler, No. 15-cv-5075 (JPO), 2017 WL 354180, at *10 (S.D.N.Y. Jan. 24, 2017) (“[U]nlike in Gersten, defense counsel extensively and effectively cross-examined the prosecution expert . . . [indicating] that he educated himself regarding the relevant issues.”); Wallace v. Poole, No. 10-cv-00722 (MAT), 2011 WL 6370596, at *9 (W.D.N.Y. Dec. 20, 2011) (“Unlike the defendant's trial attorney in Gersten, who failed to educate himself sufficiently on the scientific issues relevant to the case and was thereby unable to mount an effective cross-examination of the prosecution's expert, Petitioner's counsel was familiar with [the expert] as an expert witness and CSAAS theory and possessed a knowledge and understanding of the subject matter, which he used to thoroughly and extensively crossexamine [him].”); O'Halloran v. Gonyea, No. 9:11-cv-0346, 2015 WL 93716, at *35 (N.D.N.Y. Jan. 7, 2015) (distinguishing Gersten on the grounds that counsel had “mounted an effective cross-examination”).
Regardless of how the question is framed, on this record, Rodriguez cannot establish prejudice under Strickland, and therefore cannot establish that the state court's decision was an unreasonable application of Federal law. At best, a better prepared defense would have neutralized Dr. Lewittes's testimony, leaving the jury to use its common sense to evaluate the facts. Defense counsel, through cross-examination of JR, highlighted her close relationship with her father, her choice to remain in his custody, and her failure to disclose the abuse notwithstanding multiple opportunities including a court-mandated interview during her parents' divorce proceeding. Counsel also put on a defense case, establishing the fight between JR and her father that precipitated the disclosure, and testimony from character witnesses who bolstered Rodriguez's likeability and raised doubt about opportunity for abuse. Against all this was the credible testimony of JR and, most damaging, the testimony of Alcantara. Even if the jury was given a reason to doubt the reliability of Dr. Lewittes's testimony, it is “not enough ‘to show that the errors had some conceivable effect on the outcome of the proceeding.' Counsel's errors must be ‘so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.'” Richter, 562 U.S. at 787-88 (quoting Strickland, 466 U.S. at 693, 687). Accordingly, the state court's application of the second prong of Strickland was not unreasonable and habeas relief is unavailable.
ORDER
b. Failure to Impeach the Complainant
Second, Rodriguez argues that defense counsel's failure to impeach JR effectively was not objectively reasonable. Rodriguez characterizes her account of the abuse as “ever changing and entirely uncorroborated,” highlighting purported inconsistencies in the details she reported to investigators, including:
• JR's early descriptions of the abuse were vague and not particularly detailed, while a comment in JR's medical records reflected that her mother told hospital staff that “JR feels desperate and trapped now since the ADA needs more specifics regarding the abuse but that JR can't remember.” A129.
• JR testified that Rodriguez anally penetrated her 12 times, but also stated that that he anally penetrated her “all the time,” approximately twice a week for years. A916-17.
• The initial criminal complaint alleged that the abuse occurred over an eight-year period from 1999 to 2007, but at trial JR testified that the abuse took place over roughly a five-year period. A1-2, A932-33.
Given the importance of JR's credibility, Rodriguez asserts that counsel's failure to elicit the inconsistencies and pressure her to provide more details was “inexcusable,” and the state court's decision was an unreasonable application of federal law.
During the § 440 hearing, Rodriguez's appellate counsel questioned defense counsel as to why he did not aggressively cross examine JR about various inconsistencies in her reporting. Defense counsel explained that, based on his prior experience working for HRA Child Welfare Administration where he assisted in the prosecution of abuse and neglect cases, it was his view that “you have to take special care” with child witnesses who are alleged to have been sexually assaulted. A1596. He found that JR's statements to his investigator indicated that she was “fairly consistent” in her account and thought other parts of her testimony were “more glaring” than her inconsistencies about the number of times she was assaulted. A1593, A1597. Defense counsel continued that he was also sensitive to the racial dynamic at the trial and was concerned about how a white jury would respond to a black man making a young Hispanic girl cry. A1598-99.
Recognizing that “a simple disagreement with strategies, tactics or the scope of possible cross-examination, weighed long after trial, does not suffice,” A534, the § 440 court concluded that Rodriguez received effective assistance of counsel, A536. The Appellate Division affirmed, finding that counsel “reasonably chose not to cross-examine the victim about apparent inconsistencies concerning her allegations, to avoid the risks of making a negative impression on the jury by questioning the young witness too aggressively, or prompting an emotional reaction that could have enhanced the victim's credibility in the jury's mind.” Rodriguez, 159 A.D.3d at 632. Rodriguez cannot establish that this is an unreasonable application of Strickland.
Generally, trial counsel's decisions about “whether to engage in cross-examination, and if so to what extent and in what manner, are . . . strategic in nature” and cannot support an ineffective assistance of counsel claim. Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)). Rodriguez cannot establish that his counsel's trial strategy was unreasonable, much less that there is no room for dispute among fairminded jurists.
Although Rodriguez highlights various inconsistencies, only one is based on JR's sworn testimony. As Respondent argues, attempting to cross-examine JR about dates in the criminal complaint and indictment-neither of which was written by JR-would likely have fallen flat, and the comment that JR was “desperate” to remember details was made by her mother, not JR. In contrast, in two of the cases cited by Rodriguez, there were significant inconsistencies between the alleged victims' account of the abuse in sworn statements made in a supporting deposition or grand jury testimony, and their testimony at trial. See Spencer v. Donnelly, 193 F.Supp.2d 718, 732 (W.D.N.Y. 2002); Dombrowski v. Giambruno, No. 03-cv-0620, 2006 WL 3717369, at *20-21 (W.D.N.Y. Dec. 14, 2006).
Furthermore, the inconsistencies in JR's description of the frequency of anal penetration did not “severely undercut [her] credibility” or rise to the level of exculpatory evidence. Eze v. Senkowski, 321 F.3d 110, 133 (2d Cir. 2003). Unlike in Eze, where the failure to cross-examine based on evidence that the victims had claimed someone else abused them, the omitted inconsistencies did not absolve Rodriguez of the crime. Id.; see also Sparman v. Edwards, 26 F.Supp.2d 450, 454 (E.D.N.Y. 1997) (ineffective assistance of counsel where inconsistency would have supported the defense theory that the victims were not abused by petitioner but rather by someone else). JR's confusing statements about the number of times her father anally penetrated her do not call into question the identity of the abuser. While JR may have struggled to recall details, she was always clear that her father was responsible.
Defense counsel's concern that overly aggressive cross-examination could backfire was also eminently reasonable. Courts have frequently recognized the inherent difficulty in crossexamining a young victim of sexual abuse. See, e.g., Eze, 321 F.3d at 133 (recognizing the “unenviable task” of cross-examining child abuse victims and the need to “take caution not to cross the line by questioning these sympathetic witnesses too severely in the presence of the jury”); Jelinik v. Costello, 247 F.Supp.2d 212, 292-93 (E.D.N.Y. 2003) (concluding that counsel's decision not to aggressively cross-examine the victims was reasonable because he risked “trapping the witnesses in relatively minor contradictions that might have had the unwelcome effect of yielding even more sympathy for the children” and acknowledging difficulty of choosing “between leaving the witness's testimony unchallenged and arguing with an emotional and sympathetic child”). Given the investigator's conclusion that JR was largely credible and consistent, defense counsel's decision not to draw out these inconsistencies is exactly the kind of “sound trial strategy” that does not constitute ineffective assistance. Henry, 409 F.3d at 63.
Finally, citing to McFarland, Rodriguez argues that counsel was ineffective because he allowed race to play a role in his litigation strategy. The Court of Appeals has held that a “race conscious argument is not constitutionally permissible unless the basis for it has a sufficiently high degree of reliability to warrant the risks inevitably taken when racial matters are injected into any important decision-making.” McFarland v. Smith, 611 F.2d 414, 419 (2d Cir. 1979). In McFarland, the court concluded that the prosecutor's racially charged statement to the jury invoked race “for a purpose that is either illogical or of very slight and uncertain logical validity, and does so at a distinct risk of stirring racially prejudiced attitudes.” Id. Rodriguez's counsel, of course, did not inject race into the trial even if he considered the racial make-up of the jury panel, the complaining witness, and himself. It is naive to ask counsel to be blind to implicit bias, and his decision to consider the jury's reaction to aggressive examination is not unreasonable when considered in the context of his performance overall.
Accordingly, the Appellate Division's application of Strickland was reasonable when it found that counsel's examination of JR was constitutionally adequate.
c. Presenting a Flawed Theory of Defense
Third, Rodriguez argues that defense counsel was ineffective for calling character witnesses and for failing to secure Nelson Jr.'s testimony. He contends that the character witnesses, who testified as to his reputation for peacefulness, were irrelevant given JR's testimony that her father did not use force, and prejudicial because it allowed the People to question them as to whether they were aware of rumors involving defendant's conduct with six individuals. Rodriguez further criticizes defense counsel for not fully developing the theory that JR's disclosure was motivated by sibling jealousy and rivalry, and for not securing Nelson Jr.'s testimony. He claims that this approach was not motivated by any objectively reasonable trial strategy, but rather was the result of “a total lack of pre-trial investigation, inappropriate deference to his client's uninformed preference for character witnesses, and no attempt to compel Nelson Jr.'s presence at trial.” Memorandum of Law in Support of Amended Habeas Petition (“Mem. of Law”) at 51.
At the § 440 hearing, defense counsel testified that his investigator repeatedly tried to persuade Nelson Jr. to appear, but it became clear that he did not want to testify and would not provide exculpatory evidence at trial. Nelson Jr.'s own testimony at the hearing confirmed this: he stated that he “didn't know who to believe” and did not want “to take sides.” A1554, A1560.
“[T]he tactical decision of whether to call specific witnesses-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation.” United States v. Schmidt, 105 F.3d 82, 90 (2d Cir. 1997). Courts in this circuit have held that the decision whether to call a character witness is “eminently . . . tactical” and “another court is not in a good position to second-guess.” Jelinek, 247 F.Supp.2d at 289; see also Peters v. Graham, No. 6:13-cv-06222 (MAT), 2017 WL 2797915, at *6 (W.D.N.Y. June 28, 2017). “Absent an extraordinary showing by the petitioner, such a claim will not merit a finding that trial counsel performed below the constitutional minimum.” Jelinek, 247 F.Supp.2d at 289 (rejecting argument that trial counsel's failure to call character witnesses constituted ineffective assistance of counsel).
The Appellate Division reasoned that the decision to call character witnesses “was based on a reasonable strategy of seeking to cast defendant in a positive light and raise doubts about whether the alleged incidents actually occurred.” Rodriguez, 159 A.D.3d at 632. A fairminded jurist could find that this is a reasonable application of Strickland. Given the lack of corroborative physical evidence and the absence of any eyewitnesses, the case ultimately turned on the jury's assessment of the credibility of JR's testimony and whether they believed her father could commit these crimes. The character witnesses were designed to counter the damaging testimony from both JR and Alcantara and cast Rodriguez in a positive light. A1396-403. Although counsel was aware that presenting these witnesses could allow the People to crossexamine them about their knowledge of rumors about other people, the Court had ruled that the prosecution would be limited to asking if the witness was aware of any rumors pertaining to a named individual and could not state that the allegations were sexual in nature. A1400. Given the potential value of the witnesses' testimony, accepting the risk that a few jurors might be startled or confused by this line of questioning was a reasonable strategic calculation. There is no basis in the record for Rodriguez's claim that defense counsel failed to prepare the character witnesses. A1404-06.
The Appellate Division summarily rejected Rodriguez's argument that defense counsel was ineffective for failing to secure the testimony of Nelson Jr. Looking through that opinion, the § 440 court concluded that “defense counsel sufficiently investigated the facts and searched for potential witnesses, including Nelson Rodriguez, Jr.,” that there were “legitimate explanations” for why Nelson Jr. did not testify, and “he was not an exculpatory witness by any means.” A541. Counsel's inability to secure Nelson Jr.'s testimony was not objectively unreasonable and the state court's decision finding as much was a reasonable application of Strickland.
Even if counsel's strategic decisions could be deemed ineffective, Rodriguez cannot establish prejudice. The character witnesses bolstered counsel's theme that Rodriguez was a good father and community member and that there was no opportunity or suspicion of abuse. The People's cross-examination questions asked only if the character witnesses had heard any “rumors or reports” of six individuals, none of whom shared his last name. These questions solicited no damaging responses. Rodriguez argues that Nelson Jr.'s testimony was key to defense counsel's planned defense that JR's accusations were motivated by sibling rivalry. But counsel did not rely on this defense at trial, instead arguing in his opening statement and in summation that the People had not proven their case beyond a reasonable doubt. Accordingly, the outcome of the trial is not reasonably undermined by counsel's strategic decisions.
d. Opening and Closing Statements
Finally, Rodriguez argues that defense counsel failed to marshal the evidence effectively and present a cogent theory of defense in his opening and closing statements. He describes counsel as “rambling and often incoherent” and asserts that the state courts' “summary rejection of this aspect of counsel's deficient performance was an unreasonable application of Strickland.” Mem. of Law at 52.
Trial counsel's decisions about opening and closing statements are “ordinarily a matter of trial tactics and strategy which will not constitute the incompetence basis for a claim of ineffective assistance of counsel.” Nersesian, 824 F.2d at 1321 (rejecting petitioner's argument that trial counsel's decision not to give an opening statement and the “brevity” of his summation constituted ineffective assistance of counsel). Although “[t]he right to effective assistance extends to closing arguments,” trial counsel “has wide latitude in deciding how best to represent a client, and deference to counsel's tactical decisions in his closing presentation is particularly important because of the broad range of legitimate defense strategy at that stage.” Yarborough, 540 U.S. at 5-6. “Judicial review of a defense attorney's summation is therefore highly deferential-and doubly deferential when it is conducted through the lens of federal habeas.” Id. at 6.
In Yarborough, the petitioner argued that counsel was ineffective for failing to highlight potentially exculpatory evidence, repeatedly mentioning legally irrelevant but prejudicial details, particularly his criminal history, not arguing that the government had failed to prove its case, and implying that counsel did not believe his own client. See id. at 7-11. He also told the jury: “If he's lying and you think he's lying then you have to convict him. If you don't think he's lying, bad person, lousy drug addict, stinking thief, jail bird, all that to the contrary, he's not guilty.” Id. at 3. Applying the “doubly deferential” standard of review, the Court reasoned that there were plausible strategic explanations for trial counsel's decisions, and so the state court's application of Strickland was not unreasonable. Id. at 7-11. For example, the Court suggested that trial counsel's comment might have been an attempt to build credibility with the jury by “candidly acknowledging his client's shortcomings.” Id. at 9.
Defense counsel's opening and closing statements were, as Respondent acknowledges, inelegant. He opened by referencing fast-talking newscasters and made multiple general statements that were the subject of sustained objections. In his closing statement, he told the jury that the prosecution wanted them to believe that Rodriguez is “a combination of a Don Juan, the head of a drug cartel and a rapist.” A1254. Although his references to abuse reporting requirements was the topic of an extended sidebar during his opening statement, he once again mentioned mandated reporters in his closing. A1259. However, these missteps were nowhere near as clumsy as those of the attorney in Yarborough and both statements had a clear, unifying theme: defense counsel argued that the prosecution could not prove its case beyond a reasonable doubt, emphasizing the lack of physical evidence and the fact that JR did not report the abuse until years after it allegedly occurred. His references to mandated reporters were clearly intended to reinforce this final point, suggesting that if there had been any signs of abuse or mistreatment JR's teachers or doctors would have reported it. Given the level of deference modeled by the Supreme Court in Yarborough, the Appellate Division's summary rejection of this claim was not an unreasonable application of Strickland.
C. Evidentiary Error
1. Statement of Law
The Supreme Court has held that “federal habeas corpus relief does not lie for errors of state law,” including erroneous state evidentiary rulings. Estelle v. McGuire, 502 U.S. 62, 67 (1991) (quoting Lewis v. Jeffers, 497 U.S. 764, 780 (1990)); see also Jones v. Conway, 442 F.Supp.2d 113, 130 (S.D.N.Y. 2006) (“Where a petitioner merely challenges a state court's evidentiary rulings, this Court cannot consider the petitioner's claims.”). In order to show that “the admission of evidence by a state trial court constitutes a ground for federal habeas relief, a petitioner ‘must demonstrate that the alleged evidentiary error violated an identifiable constitutional right,'” namely, that the “alleged error was so prejudicial that it deprived him of a ‘fundamentally fair trial.'” Jones, 442 F.Supp.2d at 130 (internal citations omitted).
To establish a due process violation, the evidence must be “sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed in the record without it” when viewed “objectively in light of the entire record before the jury.” Collins v. Scully, 755 F.2d 16, 19 (2d Cir. 1985). Federal courts apply a two-part analysis to determine whether the error deprived the petitioner of a fair trial, “examining (1) whether the trial court's evidentiary ruling was erroneous under state law, and (2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial” under clearly-established Supreme Court precedent. Taylor v. Connelly, 18 F.Supp.3d 242, 257 (E.D.N.Y. 2014); see also Martinez, 2018 WL 7047148, at *15. This is a “doubly difficult challenge” because it requires the petitioner to demonstrate not only that the admission of the evidence was “so prejudicial to his defense that he was deprived of due process and he must identify a Supreme Court case that clearly establishes that the admission of [the evidence] . . . constitutes a violation of the Fourteenth Amendment.” Evans v. Fischer, 712 F.3d 125, 133 (2d Cir. 2013) (reversing district court's grant of a writ of habeas where petitioner had not identified any Supreme Court holding that was contrary to that of the state court).
In Molineux, the New York Court of Appeals held that although evidence of uncharged crimes is generally inadmissible to show the defendant's propensity to commit the charged offense, it may be admitted to establish: (1) motive, (2) intent, (3) the absence of mistake or accident; (4) a common scheme or plan; or (5) identity. Id. at 293. “A decision to admit evidence of a criminal defendant's uncharged crimes or bad acts under [Molineux] constitutes an evidentiary ruling based in state law,” and so “evidence of other crimes properly introduced under this exception does not violate the rights of the accused or provide a basis for habeas relief.” Jones, 442 F.Supp.2d at 130-31; see also Roldan v. Artuz, 78 F.Supp.2d 260, 276 (S.D.N.Y. 2000).
2. Analysis
Rodriguez argues that the admission of Carolina Alcantara's testimony regarding her experiences of abuse violated the rule against propensity evidence established in Molineux, and that its admission was so prejudicial that it denied him his right to a fair trial under the Fourteenth Amendment. Specifically, he rejects the argument that the testimony was admissible to explain and corroborate JR's testimony. At trial, after asking JR what her father said to her during the abuse, the prosecutor asked JR if her father ever said anything about Alcantara. A933. JR responded that “[h]e said he would do it to my sister three times a day.” Id. Rodriguez contends that JR did not reference this comment in explaining why she did not disclose the abuse, and that Alcantara's testimony was unnecessary to provide background on the family relationships. Instead, it served only “to show that Mr. Rodriguez had a proclivity for sex with prepubescent girls.” Mem. of Law at 66.
The Appellate Division reasoned that JR's testimony that her father told her he regularly abused Alcantara was properly admitted because it explained JR's delay in disclosure and served “to rebut the defense attack on her credibility based on the delay,” and Alcantara's testimony was properly admitted to corroborate JR's testimony. Rodriguez, 159 A.D.3d at 631. Furthermore, “the probative value of the challenged evidence outweighed any prejudicial effect, which was minimized by the court's limiting instruction,” and “any error in the court's ruling was harmless in light of the overwhelming evidence of guilt.” Id. at 632.
Whether the admission of Alcantara's testimony was erroneous under state law is a close question. Alcantara did confirm the truth of Rodriguez's remark to JR, testifying there were times when she was sexually abused three times a day, and so her testimony did corroborate an important detail of JR's account. A1043; see also People v. Brewer, 28 N.Y.3d 271, 276-77 (2016). Given the defense's attacks on JR's credibility, Alcantara's testimony may have been admissible for the purpose of rehabilitation. Spicola, 16 N.Y.3d at 465-66. Furthermore, the New York Court of Appeals has held that evidence of prior bad acts may be admitted in a child sexual abuse case to explain the victim's delayed disclosure. Nicholson, 26 N.Y.3d at 829-30 (holding that victim's testimony about violent acts she observed and experienced was relevant to show she delayed reporting out of fear of defendant's possible violent reaction); see also People v. Rosario, 34 A.D.3d 370, 370 (1st Dep't 2006).
However, in People v. Leonard, 29 N.Y.3d 1 (2017), the New York Court of Appeals held that a victim's testimony about a prior alleged assault was inadmissible because it was not necessary to show the nature of the relationship or to provide context for the charged conduct and was highly prejudicial because it “showed that defendant had allegedly engaged in the exact same behavior on a prior occasion with the same victim-classic propensity evidence.” Id. at 8. Arguably, the facts of this case are closer to Leonard: just as the victim in that case testified regarding her relationship with the defendant and explained the events leading up to the alleged assault, id. at 7-8, so here JR had clearly explained her relationship with her father and other members of the family. While JR struggled to remember certain details and the exact timeline of the attack, Alcantara (who never observed the abuse) could not fill in gaps in the narrative.
Unlike in Nicholson, JR did not testify that she did not report the abuse because of her belief that Alcantara had been similarly abused. As such, not only was Alcantara's testimony of questionable relevance, it was also highly prejudicial: among other things, Alcantara testified that Rodriguez threatened her with a knife and told her he would throw her out of the house if she did not comply with his demands. Like the testimony in Leonard, Alcantara's account appears to primarily serve the purpose of demonstrating to a jury that Rodriguez had a propensity to sexually abuse children. Without Alcantara's testimony, the evidence against Rodriguez was not overwhelming, ultimately turning on the jury's assessment of JR's credibility.
On the other hand, in Leonard the New York Court of Appeals emphasized the trial court's failure to issue a limiting instruction. Id. at 8. In contrast, the trial court here issued a limiting instruction that the jury was “not to consider this testimony on the question of the Defendant's propensity to commit this crime and you should be aware of the fact that he has not been charged with any crime against Ms. Alcantara” and the testimony was to be considered only for “background information [and] also to complete the narrative.” A1045. “Jurors are presumed to have followed a trial judge's limiting instructions.” People v. Morris, 21 N.Y.3d 588, 598 (2013). Given this presumption, it could be concluded that the jury instruction nullified any prejudice to Rodriguez. See, e.g., Martinez, 2018 WL 7047148, at *17.
Regardless of whether the state courts correctly applied Molineux, Rodriguez cannot satisfy the second prong of the analysis because the Supreme Court has never held that the admission of evidence of prior bad acts or uncharged crimes constitutes a violation of the Due Process Clause. See Estelle, 502 U.S. at 75 n.5 (“[W]e express no opinion on whether a state law would violate the Due Process Clause if it permitted the use of “prior crimes” evidence to show propensity to commit a charged crime.”); see also Jones, 442 F.Supp.2d at 131 (“Given that the Supreme Court has not held that the use of un Clause, the Appellate Division's rejection of t unreasonable application of clearly establishe a due process violation because to do so woul constitutional law, which a federal court is no Riley v. Cully, No. 09-cv-0676 (MAT), 2011 Fernandez v. Ercole, No. 14-cv-2974 (HBPXR 2017); Martinez, 2018 WL 7047148, at *16.
Because Rodriguez cannot show that t his fundamental right to a fair trial, I recomme on the alleged violation of Molineux be denied.
CONCLUSION
For these reasons, the petition for a writ of habeas corpus should be DENIED. Because the issues raised in this case track so closely with the Court of Appeals' decision in Gersten v. Senkowski, the Court may wish to issue a certificate of appealability. See 28 U.S.C. § 2253. In such circumstances, I would recommend that the Court certify, pursuant to 28 U.S.C. § 1915(a)(3), that any appeal from this order would be taken in good faith and therefore in forma pauperis status should be granted for the purpose of an appeal. See Coppedge v. United States, 369 U.S. 438, 444-45 (1962).
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Vernon S. Broderick at the United States Courthouse, 40 Foley Square, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Broderick. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).