HALL, Circuit Judge:
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
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, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Jackson invoked his right to remain silent and refused to speak with Sergeant Bittner or any other officer. The police placed him in a holding cell, where he remained until approximately 3:20 that afternoon.
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
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.
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."
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
The defense theory of the case was straightforward: the State would not present any physical evidence of the alleged 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.
The trial evidence is extensively described in the district court's opinion, see Jackson v. Conway, 765 F.Supp.2d 192, 205-29 (W.D.N.Y.2011), and we reproduce it here only as necessary for our decision.
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.
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.
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.
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.
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."
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:
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 objected 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
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:
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.
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.
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:
Trial Tr. at 503-04.
The defense did not introduce any evidence at trial. In closing, defense counsel
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."
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 [Jackson's] penis would have been rubbing."
Addressing Bonisteel's testimony, ADA Briggs stated:
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
Ultimately, the jury convicted Jackson on all 47 submitted counts.
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.
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.
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 postarrest 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.
Jackson's ineffective assistance arguments were essentially the same as those raised in his § 440.10 motion.
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, 4 A.D.3d 848, 772 N.Y.S.2d 149, 150 (App.Div. 4th Dep't 2004). The Fourth Department held that Jackson's Miranda claim was meritless because the "record establishe[d] that [Bonisteel] was not engaged in law enforcement activity." Id. (citation omitted).
Jackson sought leave to appeal all of his claims to the New York Court of Appeals. Then-Chief Judge Kaye denied his application
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." 154 F.3d 51, 52 (2d Cir.1998) (per curiam). At the resulting hearing, the magistrate judge heard testimony from a medical expert and from defense counsel, who explained his trial preparation and strategy.
By amended order entered in February 2011, the magistrate judge granted Jackson's application for habeas relief in part. See Jackson v. Conway, 765 F.Supp.2d 192 (W.D.N.Y.2011). The magistrate judge held that the Fourth Department's rejection of Jackson's Miranda claim was both contrary to and an unreasonable application of clearly established Supreme Court precedent, and that the admission of his post-arrest statement to Bonisteel was sufficiently injurious as to warrant habeas relief on the convictions involving CJ. See id. at 270-84. The magistrate judge also held that the prosecutor's pretrial and trial conduct cumulatively deprived Jackson of his right to due process, and that the Fourth Department's decision to the contrary was an unreasonable application of Supreme Court precedent. See id. at 251-60. Finding that the prosecutor's misconduct "permeated the entire trial proceeding," the magistrate judge vacated all of Jackson's convictions on this ground. Id. at 253, 260.
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
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 magistrate judge granted habeas relief and Jackson cross-appealed those portions of the decision adverse to him.
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, 731 F.3d 169, 177 (2d Cir.2013).
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, 562 U.S. 86, 131 S.Ct. 770, 787, 178 L.Ed.2d 624 (2011). A number of requirements and doctrines, four of which are relevant to this appeal, ensure the centrality of the state courts in this arena. First, the exhaustion requirement ensures that state prisoners present their constitutional claims to the state courts in the first instance. See id. (citing 28 U.S.C. § 2254(b)). Should the state court reject a federal claim on procedural grounds, the procedural default doctrine bars further federal review of the claim, subject to certain well-established exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82-84, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977). If the state court denies a federal claim on the merits, then the provisions of § 2254(d) come into play and prohibit federal habeas relief unless the state court's decision was either: (1) "contrary to, or involved an unreasonable application of, clearly established Federal law," or (2) "based on an unreasonable determination of the facts in light of the evidence presented in the State court." 28 U.S.C. § 2254(d)(1)-(2). Finally, when conducting its review under § 2254(d), the federal court is generally confined to the record before the state court that adjudicated the claim. See Cullen v. Pinholster, ___ U.S. ___, 131 S.Ct. 1388, 1398-99, 179 L.Ed.2d 557 (2011).
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.
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, 633 F.3d 95, 104 (2d Cir.2011). This requires that the prisoner "fairly present" his constitutional claim to the state courts, which he accomplishes "by presenting the essential factual and legal premises of his federal constitutional claim to the highest state court capable of reviewing it." Rosa v. McCray, 396 F.3d 210, 217 (2d Cir.2005) (citing Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir.2003)). While "a state prisoner is not required to cite chapter and verse of the Constitution in order to satisfy this requirement," he must tender his claim "in terms that are likely to alert the state courts to the claim's federal nature." Carvajal, 633 F.3d at 104 (internal citations, quotation marks, and brackets omitted).
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, 269 F.3d 78, 90 (2d Cir.2001)) (brackets omitted). Alternatively, a procedural default occurs if the state court's rejection of a federal claim rests on a state law ground — such as the operation of a state procedural rule — that is both "`independent of the federal question and adequate to support the judgment.'" Clark v. Perez, 510 F.3d 382, 390 (2d Cir.2008) (quoting Coleman v. Thompson, 501 U.S. 722, 729, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In this latter case, "[t]he preclusion of federal review applies only when the last state court rendering a judgment in the case clearly and expressly states that its judgment rests on a state procedural bar." Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir.2006) (internal quotation marks omitted); see also Harris v. Reed, 489 U.S. 255, 262, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989) ("[A] federal claimant's procedural default precludes federal habeas review ... only if the last state court rendering a judgment in the case rests its judgment on the procedural default.").
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).
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, 537 F.3d 102, 106 (2d Cir.2008); see also Lockyer v. Andrade, 538 U.S. 63, 71-72, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003) ("`[C]learly established 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."). Thus, "[n]o 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." Rodriguez, 537 F.3d at 106-07 (citing Carey v. Musladin, 549 U.S. 70, 74, 76-77, 127 S.Ct. 649, 166 L.Ed.2d 482 (2006)); see also Marshall, 133 S.Ct. at 1451 (A federal habeas court "may not canvass circuit decisions to determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct."). While we may rely on our prior decisions to the limited extent that we have "already held that the particular point in issue is clearly established by Supreme Court precedent," Marshall, 133 S.Ct. at 1450 (citation omitted), we must scrupulously avoid using our decisions (or those of other circuits) "to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] Court has not announced," id. (citing Parker v. Matthews, 567 U.S. ___, 132 S.Ct. 2148, 2155, 183 L.Ed.2d 32 (2012) (per curiam)); see also Rodriguez, 537 F.3d at 109 (observing that we may no longer rely "on our own precedents to interpret and flesh out Supreme Court decisions").
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 either (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, 712 F.3d 125, 132 (2d Cir.2013) (quoting Williams, 529 U.S. at 405, 120 S.Ct. 1495).
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."
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 court 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, 715 F.3d 79, 82 (2d Cir.2013) (Parker, J., concurring in the denial of rehearing en banc).
With these principles in mind, we turn to the merits of Jackson's claims.
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.
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. CONST. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964) (extending the protection from compulsory self-incrimination to the states through the Fourteenth Amendment). In Miranda v. Arizona, the Supreme Court held that "the prosecution may not use statements, whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination." 384 U.S. at 444, 86 S.Ct. 1602; see also Georgison, 588 F.3d at 155 ("It is well settled that Miranda requires all individuals who are under arrest, or otherwise in police custody, to be informed prior to interrogation, inter alia, of their right to remain silent and to have an attorney present during questioning."). Should a person subject to custodial interrogation invoke his right to remain silent, "the interrogation must cease." Miranda, 384 U.S. at 473-74, 86 S.Ct. 1602. 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. Mosley, 423 U.S. 96, 104, 96 S.Ct. 321, 46 L.Ed.2d 313 (1975) (internal quotation marks omitted); see id. at 106, 96 S.Ct. 321 (holding a statement made after the suspect's invocation of his Miranda rights admissible when questioning resumed "only after the passage of a significant period of time and the provision of a fresh set of warnings," and the second interrogation was restricted "to a crime that had not been a subject of the earlier interrogation").
The Miranda safeguards apply only to "custodial interrogations." That phrase has two components: the "in custody"
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 391 U.S. at 3 & n. 2, 88 S.Ct. 1503. Over the defendant's objection that he was not provided the requisite Miranda warnings, the government was permitted to introduce the defendant's incriminating statements to the IRS agent at the defendant's criminal trial for tax fraud. See id. at 3, 88 S.Ct. 1503. Before the Supreme Court, the government sought to "escape application of ... Miranda" by arguing that the IRS agent's "questions were asked as a part of a routine tax investigation where no criminal proceedings might even be brought." Id. at 4, 88 S.Ct. 1503. The Court rejected this argument, observing that although tax investigations may be initiated "for the purpose of a civil action," they "frequently lead to criminal prosecutions." Id. The Court also noted that the IRS agent who interviewed the defendant admitted that "there was always the possibility during his investigation that his work would end up in a criminal prosecution." Id. For these reasons, the Court "reject[ed] the contention that tax investigations are immune from the Miranda requirements for warnings to be given a person in custody." Id.
In Smith, 451 U.S. at 454, 101 S.Ct. 1866, the Court again analyzed the Miranda requirements in the context of questioning by someone other than a law enforcement official. In that case, the trial judge ordered the prosecutor to arrange a psychiatric evaluation of the criminal defendant to determine his competency to
On federal habeas review, the lower courts vacated the death sentence based on the admission of the doctor's statements. Smith, 451 U.S. at 460, 101 S.Ct. 1866. The Supreme Court affirmed, holding that the defendant's Fifth Amendment privilege was "directly" implicated because the state used against him "the substance of his disclosures during the pretrial psychiatric examination," id. at 464-65, 101 S.Ct. 1866, and the defendant was not warned that this "compulsory examination would be used to gather evidence necessary to decide whether, if convicted, he should be sentenced to death," id. at 467, 101 S.Ct. 1866. Because the defendant "did not voluntarily 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, 101 S.Ct. 1866. In reaching this conclusion, the Court found it "immaterial" that the defendant "was questioned by a psychiatrist designated by the trial court to conduct a neutral competency examination, rather than by a police officer, governmental informant, or prosecuting attorney." Id. at 467, 101 S.Ct. 1866. 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.
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, 772 N.Y.S.2d at 150, was an objectively unreasonable application of the above holdings. Echoing the Fourth Department, the State argues that Jackson's Miranda claim must be denied because Bonisteel interviewed Jackson in connection with "an independent civil investigation for possible family court action." State Br. at 35. As the above Supreme Court holdings make clear, where, as here, custody (as that term is used in Miranda and its progeny) is not at issue, whether the questioning official was engaged in "law enforcement activity" at the time incriminating statements are made is not the touchstone for applying the Miranda warning requirements. Mathis's rejection of the argument that Miranda did not apply to "routine tax investigation[s]" in which "no criminal proceedings might even be brought," requires as much. Mathis, 391 U.S. at 4, 88 S.Ct. 1503.
The State argues that Mathis is inapplicable to Jackson's case because it
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, 446 U.S. at 301-02, 100 S.Ct. 1682 (emphasis removed); accord Mathis, 391 U.S. at 4, 88 S.Ct. 1503 (observing that the IRS agent who interviewed the defendant acknowledged that the "there was always the possibility during his investigation that his work would end up in a criminal prosecution"). As she testified during the suppression hearing, Bonisteel knew at the time of the interview that Jackson had been arrested and was in police custody as a result of the same sexual abuse allegations she was investigating. See App'x 153-55, 168, 171. It is therefore clear from the record that Bonisteel should have known that her express questioning about CJ's rape allegations and about whether Jackson "did anything to [CJ]" could elicit an incriminating response. Contra Innis, 446 U.S. at 302-03, 100 S.Ct. 1682 (no interrogation when two officers held a conversation between themselves concerning the defendant's missing firearm and the defendant merely commented on that conversation).
The erroneous admission of a defendant's statements in violation of Miranda is subject to harmless-error review. See Perkins v. Herbert, 596 F.3d 161, 174 (2d Cir.2010). "`[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, 644 F.3d 83, 93-94 (2d Cir.2011) (quoting Fry v. Pliler, 551 U.S. 112, 121-22, 127 S.Ct. 2321, 168 L.Ed.2d 16 (2007)) (additional internal quotation marks removed); see also Brecht v. Abrahamson, 507 U.S. 619, 635-37, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993). Under Brecht, a federal court may overturn a state conviction "only when the constitutional violation `had a substantial and injurious effect or influence in determining the jury's verdict.'" Wood, 644 F.3d at 93 (quoting Brecht, 507 U.S. at 637, 113 S.Ct. 1710). To make this determination, "`we consider the importance of the wrongly admitted evidence, and the overall strength of the prosecution's case.'" Id. at 94 (quoting Wray v. Johnson, 202 F.3d 515, 526 (2d Cir.2000)) (brackets and ellipsis omitted). The strength of the prosecution's case without the erroneously admitted evidence "`is probably the single most critical factor in determining whether the error was harmless.'" Id. (quoting Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir.
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, 765 F.Supp.2d at 282-83. Absent Jackson's statements to Bonisteel, the State's case consisted of CJ's testimony, the medical reports prepared at Rochester General Hospital the night of the incident, and the testimony of Karen and Rebecca. Of this evidence, only CJ's testimony directly implicated Jackson. Karen and Rebecca did not witness the sexual assault — they merely heard the voices of CJ and Jackson over the baby monitor. And while the two medical reports revealed that there was an "abrasion" or "irritation" on CJ's vaginal opening, the reports gave no indication of its cause. We therefore agree with the magistrate judge that the State's case on these counts was not "overwhelming."
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, 321 F.3d 110, 128 (2d Cir.2003). Here, despite the tests performed on CJ's sexual assault kit and the sheets recovered from Jackson's bed, on which CJ testified the sexual assault occurred, the State was unable to present any physical evidence at trial. Defense counsel used this lack of evidence in his summation, arguing that although CJ had testified that Jackson sexually abused her on three separate occasions, the State had not been able to present any DNA, blood, semen, or pubic hair corroborating her account. The lack of physical evidence and defense counsel's exploitation of the absence of such evidence provided the jury with a legitimate reason to question CJ's account of the sexual abuse. Thus, Jackson's inculpatory acknowledgement of the "possibility" that he might have been so drunk that he could not remember raping CJ may well have had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637, 113 S.Ct. 1710.
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
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, 644 F.3d at 99 (quoting O'Neal v. McAninch, 513 U.S. 432, 436, 115 S.Ct. 992, 130 L.Ed.2d 947 (1995)) (additional quotation marks omitted). Here, where the State's case involving CJ was not overwhelming, defense counsel exploited the lack of physical evidence, and the prosecutor mischaracterized Jackson's wrongly admitted inclupatory statement to make it more damaging, we conclude that the error was not harmless as to the counts involving CJ. We therefore affirm the magistrate judge's judgment granting habeas relief as to those counts.
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, 426 F.3d 588, 614 (2d Cir.2005) (citing Lindstadt v. Keane, 239 F.3d 191, 205 (2d Cir.2001)). While the evidence against Jackson on the charges involving CJ was undeniably inflammatory because it related to allegations that he had raped and sodomized his fourteen-year-old daughter, we hold, based on the other two factors, that the effect of that evidence did not spill over to prejudice him on the remaining counts.
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.
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, 765 F.Supp.2d at 260. On appeal, the State contends that the magistrate judge improperly considered an argument that Jackson failed to exhaust in the state courts and failed to afford the Fourth Department's decision the proper deference under AEDPA.
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, 765 F.Supp.2d at 257-58. We agree with the State that the magistrate judges should not have considered this aspect of Jackson's claim because he did not present this issue to the Fourth Department as part of his prosecutorial misconduct claim. Although Jackson raised in the Fourth Department a separate claim based on the trial court's failure to adhere to its prior bad act ruling, he did not include the prosecutor's elicitation of the prior bad acts as an example of her prosecutorial misconduct. This portion of the prosecutorial misconduct claim is therefore unexhausted. See Rosa, 396 F.3d at 217. Jackson has no further state avenues in which to press this issue because he has completed his direct appeal and the nature of the claim is apparent from the face of the record, meaning that he would be barred from raising it in a motion to vacate the judgment. See N.Y.Crim. Proc. Law § 440.10(2)(c) (stating that the court "must deny" a § 440.10 motion when sufficient facts appear on the record to permit appellate review of the claim and the defendant unjustifiably failed to raise that issue on direct appeal); see also Sweet v. Bennett, 353 F.3d 135, 140 (2d Cir.2003) (applying section 440.10(2)(c) to claims raised for the first time in federal habeas petition). For these reasons, we deem this issue exhausted
As noted, the Fourth Department adjudicated Jackson's prosecutorial misconduct claim on the merits. See Jackson, 772 N.Y.S.2d at 150. As such, we must first identify the clearly established Supreme Court principles governing his claim. The district court identified four relevant Supreme Court decisions: Berger v. United States, 295 U.S. 78, 55 S.Ct. 629, 79 L.Ed. 1314 (1935), Donnelly v. DeChristoforo, 416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974), United States v. Young, 470 U.S. 1, 105 S.Ct. 1038, 84 L.Ed.2d 1 (1985), and Darden v. Wainwright, 477 U.S. 168, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986). The parties do not dispute this list. We consider each potential authority in turn.
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.
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.
Young involved a prosecutor's improper comments during summation made in response to defense counsel's equally improper remarks. 470 U.S. at 4-6, 105 S.Ct. 1038. Specifically, the prosecutor expressed his personal view of the defendant's guilt and his belief that the defendant had not acted with "honor and integrity." See id. The Court held that the decision on whether the prosecutor's comments seriously affected the fairness or integrity of the trial was to be made by assessing those comments within the context of the record as a whole, including the improper statements made by defense counsel that had invited the prosecutor's response.
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, 427 U.S. 97, 107, 110-11, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976) (explaining that Berger's description of the prosecutor's duty "illuminates" the standard governing "his obligation to disclose exculpatory evidence" under the Due Process Clauses of the Fifth and Fourteenth Amendments); Darden, 477 U.S. at 182, 106 S.Ct. 2464 (invoking Young's holding to conclude that the prosecutor's statements in response to defense counsel's arguments did not deprive the habeas petitioner of a fair trial); see also Banks v. Dretke, 540 U.S. 668, 694, 124 S.Ct. 1256, 157 L.Ed.2d 1166 (2004) (citing Berger for the proposition that it was "appropriate for [the habeas petitioner] to assume that his prosecutors would not stoop to improper litigation conduct to advance prospects for gaining a conviction"); Kyles v. Whitley, 514 U.S. 419, 439-40, 115 S.Ct. 1555, 131 L.Ed.2d 490 (1995) (citing Berger when discussing the prosecutor's obligation to disclose exculpatory evidence).
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, 772 N.Y.S.2d at 150. Because the Fourth Department did not supply its reasoning as to these issues, our task is to identify the "`arguments or theories [that] could have supported'" its decision, and then inquire "`whether it is possible fair-minded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of the Supreme Court.'" Hawthorne v. Schneiderman, 695 F.3d 192, 196 (2d Cir.2012) (brackets omitted) (quoting Richter, 131 S.Ct. at 786). Here, the magistrate judge properly identified arguments that could have supported the Fourth Department's rejection of these issues. He failed, however, to afford those arguments the proper AEDPA deference.
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, 765 F.Supp.2d at 255. The Fourth Department also could have arrived at this innocuous theory for the delayed disclosure, which eliminates any stigma of improper conduct, especially given that New York's Criminal Procedure law "does not compel the production of witness lists except when a defendant asserts an alibi defense." People v. Williams, 243 A.D.2d 833, 664 N.Y.S.2d 835, 837 (App.Div. 1st Dep't 1997) (citing N.Y.Crim. Proc. Law § 250.20).
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, 765 F.Supp.2d at 255-56. Even if we were to agree with the magistrate judge's characterization of the prosecutor's motives (which is unsupported by the record), we would not find that her actions alone ultimately undermined the fairness of the proceedings. It was newly-appointed defense counsel, not the prosecutor, who informed the court that he needed only one month to prepare for trial and who suggested the ultimate trial date. See App'x at 188-90. There is no indication that the trial court would not have given defense counsel more time if asked; to the contrary, the court initially suggested holding the trial some three weeks after the date proffered by defense counsel. See id. at 189-90. Thus, any unpreparedness by defense counsel, and any concomitant unfairness 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, 765 F.Supp.2d at 257.
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, 477 U.S. at 180, 106 S.Ct. 2464 (quotation marks omitted). In light of the trial court's curative instruction, we cannot so conclude.
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, 483 U.S. 756, 766 n. 8, 107 S.Ct. 3102, 97 L.Ed.2d 618 (1987) (internal citations and quotation marks omitted); see also United States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir.2008) (same). For several reasons, we believe that this standard has not been met in this case.
While the magistrate judge characterized the trial court's initial curative instruction as "tepid," Jackson, 765 F.Supp.2d at 257, the court reminded the jurors in its jury charge that they "certainly" should not consider any stricken testimony, see Tr. at 670. By reinforcing its initial curative instruction immediately before the jury began its deliberations, the trial court thus reduced the probability that the jury would improperly rely on Dr. Lenane's stricken testimony when reaching a verdict.
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
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, 106 S.Ct. 2464 (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.
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.
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)).
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, 131 S.Ct. at 1392, 1401). Jackson argues that the evidentiary hearing was proper because he demonstrated, on the basis of the state court record alone, that the state courts' rejection of his ineffective assistance claim was unreasonable, and the evidentiary hearing "merely confirms what [he] alleged in the state court pleadings — that there could be no strategic basis for counsel's failings." Jackson Br. at 49-52.
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, 131 S.Ct. at 1400. In cases such as this, where a district court relies on extra-state court record facts to grant habeas relief, see, e.g., Jackson, 765 F.Supp.2d at 263-64, we "might ordinarily remand for a properly limited review," Pinholster, 131 S.Ct. at 1401.
The clearly established law applicable to Jackson's ineffective assistance claim is the standard set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). The Strickland standard is twofold. To succeed, Jackson "must (1) demonstrate that his counsel's performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel's allegedly deficient representation." Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir.2011). When considering the first prong, we "`strongly presume[] [that counsel] rendered adequate assistance and made all significant decisions in the exercise of reasonable professional judgment,'" Pinholster, 131 S.Ct. at 1403 (quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052), a presumption that is overcome only through a showing that "counsel failed to act `reasonably considering all of the circumstances,'" id. (quoting Strickland, 466
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, 131 S.Ct. at 1403 (citations and quotation marks omitted). Like the Darden standard discussed above, the Strickland standard is general, meaning that the habeas court must afford the state courts "more latitude to reasonably determine that a defendant has not satisfied th[e] standard." Knowles v. Mirzayance, 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009).
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, 772 N.Y.S.2d at 150 (citations and quotation marks omitted). Jackson argues that this conclusion was unreasonable and organizes his claim into three subparts: (1) counsel's failure to consult with or call an expert; (2) his failure to introduce at trial the "exculpatory" laboratory and DNA test results; and (3) his failure to investigate adequately the exculpatory evidence and the elements of first-degree sodomy. See Jackson Br. at 54-66. We analyze each contention in turn.
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, 607 F.3d 36, 50-51 (2d Cir.2010) (quoting Strickland, 466 U.S. at 689, 104 S.Ct. 2052). In this case, defense counsel's decision not to consult with or call an expert must be evaluated in light of one significant fact: he was operating under the assumption, confirmed by the State's written representation, that the State would not call a medical expert at trial.
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, 426 F.3d at 607 (citing Eze, 321 F.3d at 127-28); see also id. at 608 ("The prosecution's case rested centrally on the alleged victim's testimony and its corroboration by the indirect physical evidence as interpreted by the medical expert." (emphasis added)); Lindstadt, 239 F.3d at 201-02 (defense counsel's failure to consult with medical expert left him unprepared to cross-examine the State's medical expert). From defense counsel's perspective in this case, he
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, 261 F.3d 210, 216-18, 224-25 (2d Cir.2001) (counsel opted not to prepare a defense, including consulting with medical personnel, "solely" because he believed the trial court would grant his motion to dismiss). Instead, as defense counsel informed the trial court, he reviewed the relevant medical records with a registered nurse. See App'x at 226-27. While such a consultation may not have been sufficient if the State had been preparing to call a medical expert at trial, cf. Gersten, 426 F.3d at 604-05, 607-11 (defense counsel's pretrial consultation with a nurse not sufficient where state presented at trial extensive medical and psychological expert testimony), we cannot say, in the circumstances of this case, that counsel's decision was unreasonable. More important, even if we found counsel's performance deficient on this point, the above considerations illustrate that the Fourth Department's decision was not objectively unreasonable.
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, 765 F.Supp.2d at 269-70. Our independent review of those reports confirms the magistrate judge's conclusion that, while they may have been helpful to the defense, they "did not have [any] exceptional value" in light of the victims' testimony that Jackson was unable to maintain an erection. See id. at 270. We also agree that, if these reports had contained evidence beneficial to the State, it certainly would have introduced them at trial, and its failure to do so allowed defense counsel to "take advantage of the negative reports even though he did not introduce the reports themselves." Id. Accordingly, Jackson is not entitled to relief on this aspect of his ineffective assistance claim.
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
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.
Given its history, we cannot say that the Tankleff test simply reflects what the Supreme Court has "clearly established" in its prior cases, and we decline to rely on it here given the Court's recent reversal of the Sixth Circuit for employing its somewhat similar test to determine whether a prosecutorial misconduct claim warranted relief under § 2254(d)(1). See Matthews, 132 S.Ct. at 2155 (explaining that the Sixth Circuit's "elaborate, multistep test" bore "scant resemblance" to Darden's "highly generalized standard").
