MICHAEL P. SHEA, District Judge.
The petitioner, Michael Torres, is currently confined at Osborn Correctional Institution. In this habeas corpus action filed pursuant to 28 U.S.C. § 2254, the petitioner challenges his 2004 conviction for sexual assault in the first degree and risk of injury to a minor.
Following a jury trial in July 2004, the petitioner was convicted of sexual assault in the first degree and risk of injury to a minor. He was sentenced to a thirty-year term of imprisonment, execution suspended after twenty-one years. Pet., Doc. No. 1, at 2.
On direct appeal, the petitioner argued that he was denied a fair trial because the court improperly instructed the jury regarding the penetration element of sexual assault in the first degree and the date of the offense. The Connecticut Appellate Court affirmed the conviction and the Connecticut Supreme Court denied certification to appeal. State v. Michael T., 97 Conn.App. 478, 905 A.2d 670, cert. denied, 280 Conn. 927, 909 A.2d 524 (2006).
In January 2005, the petitioner filed a state habeas action on the ground that trial counsel was ineffective and he was actually innocent of the charge. He included six examples of ineffective assistance, alleging that trial counsel failed to (1) present an expert in the pretrial stage of the case regarding the petitioner's propensity, or lack of propensity, to engage in sexual abuse of a child; (2) present an expert at trial on the issue of the reliability of the victim's disclosure; (3) present an expert at the pretrial stage concerning the disease trichomonas; (4) present an expert at trial concerning the disease trichomonas; (5) adequately investigate the case; and (6) engage in effective pretrial discovery. Torres v. Warden, No. CV05-4000278-S, 2008 WL 2426600, at *10 (Conn. Super. Ct. May 28, 2008). The habeas court found that trial counsel was ineffective in failing to present expert testimony on issues of the reliability of the victim's disclosures and the disease trichomonas. Id. at *13.
The respondent appealed. The petitioner did not file a cross-appeal regarding the other four examples of ineffective assistance on which his petition was denied. The Connecticut Appellate Court affirmed the judgment of the habeas court regarding trial counsel's failure to present an expert to rebut the state's inculpatory medical evidence. Michael T. v. Commissioner of Correction, 122 Conn.App. 416, 417-18, 999 A.2d 818, 819 (2010). The Connecticut Supreme Court reversed on the issue of expert testimony regarding trichomonas and remanded the case to the Appellate Court to consider the issue of expert testimony on the suggestibility of the victim and the reliability of her recollections. Michael T. v. Commissioner of Correction, 307 Conn. 84, 103-04, 52 A.3d 655, 667 (2012). On remand, the Connecticut Appellate Court held that trial counsel's failure to present expert testimony on the reliability of the victim's disclosures constituted ineffective assistance. Michael T. v. Commissioner of Correction, 144 Conn.App. 45, 47, 71 A.3d 660, 662 (2013). Again, the Connecticut Supreme Court reversed. Michael T. v. Commissioner of Correction, 319 Conn. 623, 624-26, 126 A.3d 558, 559-60 (2015).
The petitioner challenges his conviction on four grounds. In the first two grounds, the petitioner asserted claims of improper jury instructions. He argued that the trial judge erred when he explained the penetration element of the crime sexual assault in the first degree and in charging the jury regarding the date of the offense. In the third ground, the petitioner asserted the same six examples of ineffective assistance of trial counsel asserted in his state habeas petition. In the fourth ground, the petitioner argued that the Connecticut Supreme Court relied on factual inaccuracies in its opinion.
The respondent filed a motion to dismiss the petition because the petitioner did not exhaust his state court remedies with regard to all grounds for relief. In response, the petitioner stated that he wishes to proceed only on the exhausted claims, specifically, his claims for denial of a fair trial because the trial court improperly instructed the jury regarding the penetration element of sexual assault in the first degree and the date of the offense, and his claim for ineffective assistance of counsel based on trial counsel's failure to present expert testimony on the issue of the reliability of the victim's disclosures and on the disease trichomonas. The Court then denied the motion to dismiss and directed the respondent to address the merits of the petitioner's claims.
The Connecticut Appellate Court determined that, based on the evidence presented at trial, the jury reasonably could have found the following facts.
State v. Michael T., 97 Conn.App. 478, 480-82, 905 A.2d 670, 672-73 (2006) (footnotes omitted).
The federal court will entertain a petition for writ of habeas corpus challenging a state court conviction only if the petitioner claims that his custody violates the Constitution or federal laws. 28 U.S.C. § 2254(a).
The federal court cannot grant a petition for a writ of habeas corpus filed by a person in state custody with regard to any claim that was rejected on the merits by the state court unless the adjudication of the claim in state court either:
28 U.S.C. § 2254(d). The federal law defined by the Supreme Court "may be either a generalized standard enunciated in the Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909 (2002). Clearly established federal law is found in holdings, not dicta, of the Supreme Court at the time of the state court decision. White v. Woodall, 572 U.S. ___, ___, 134 S.Ct. 1697, 1702 (2014). Second Circuit law that does not have a counterpart in Supreme Court jurisprudence cannot provide a basis for federal habeas relief. See Renico v. Lett, 559 U.S. 766, 778 (2010) (holding that court of appeals erred in relying on its own decision in a federal habeas action); see also Kane v. Garcia Espitia, 546 U.S. 9, 10 (2005) (absent a Supreme Court case establishing a particular right, federal court inference of right does not warrant federal habeas relief).
A decision is "contrary to" clearly established federal law where the state court applies a rule different from that set forth by the Supreme Court or if it decides a case differently than the Supreme Court on essentially the same facts. Bell v. Cone, 535 U.S. 685, 694 (2002). A state court unreasonably applies Supreme Court law when the court has correctly identified the governing law, but unreasonably applies that law to the facts of the case. The state court decision must be more than incorrect; it must be "so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility of fairminded disagreement." Harrington v. Richter, 562 U.S. 86, 103 (2011); see also White, 134 S. Ct. at 1702 (the unreasonable application of Supreme Court holdings "must be objectively unreasonable, not merely wrong; even clear error will not suffice")(internal quotation marks and citation omitted); Burt v. Titlow, 571 U.S. ___, ___, 134 S.Ct. 10, 15 (2013) (federal habeas relief warranted only where the state criminal justice system has experienced an "extreme malfunction"); Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (objective unreasonableness is "a substantially higher threshold" than incorrectness).
When reviewing a habeas petition, the Court presumes that the factual determinations of the state court are correct. The petitioner has the burden of rebutting that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Cullen v. Pinholster, 563 U.S. 170, 171 (2011) (standard for evaluating state court rulings where constitutional claims have been considered on the merits and which affords state court rulings the benefit of the doubt is highly deferential and difficult for petitioner to meet). The presumption of correctness, which applies to "historical facts, that is, recitals of external events and the credibility of the witnesses narrating them[,]" will be overturned only if the material facts were not adequately developed by the state court or if the factual determination is not adequately supported by the record. Smith v. Mann, 173 F.3d 73, 76 (2d Cir. 1999) (internal quotation marks and citation omitted).
In addition, the federal court's review under both subsections of section 2254(d) is limited to the record that was before the state court that adjudicated the claim on the merits. Pinholster, 563 U.S. at 180. Because collateral review of a conviction applies a different standard than the direct appeal, an error that may have supported reversal on direct appeal will not necessarily be sufficient to grant a habeas petition. See Woods v. Donald, ___ U.S. ___, 135 S.Ct. 1372, 1376 (2015) (federal habeas review is "a guard against extreme malfunctions in the state criminal justice systems, not a substitute for ordinary error correction though appeal").
The petitioner argues that the trial court improperly instructed the jury in two ways. First, the trial court failed to provide the jury sufficient information to understand the term "labia majora" to evaluate properly the penetration element of sexual assault in the first degree. Second, the trial court failed to instruct the jury properly regarding the date of the offense.
"[N]ot every ambiguity, inconsistency, or deficiency in a jury instruction rises to the level of a due process violation. The question is `whether the ailing instruction . . . so infected the entire trial that the resulting conviction violates due process.'" Middleton v. McNeil, 541 U.S. 433, 437 (2004) (quoting Estelle v. McGuire, 502 U.S. 62, 72 (1991) (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973))). The petitioner must show "both that the instruction was ambiguous and that there was "`reasonable likelihood'" that the jury applied the instruction in a way that relieved the State of its burden of proving every element of the crime beyond a reasonable doubt." Waddington v. Sarausad, 555 U.S. 179, 190-91 (2009) (citations omitted). "[A] single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge." Middleton, 541 U.S. at 437 (internal quotation marks omitted).
The Court considers the last reasoned state court decision in evaluating a Section 2254 petition. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). The last reasoned decision on the jury instruction claims was issued by the Connecticut Appellate Court on direct appeal.
Although the Connecticut Appellate Court cited only state cases, the law it applied is consistent with the federal standard. The Connecticut Appellate Court reviewed the jury instructions in their entirety and considered whether the petitioner was denied a fair trial. "The pertinent test is whether the charge, read in its entirety, fairly presents the case to the jury in such a way that injustice is not done to either party under the established rules of law." State v. Michael T., 97 Conn.App. 478, 483, 905 A.2d 670, 674 (2006) (citation omitted). Thus, the court's analysis is not contrary to Supreme Court law. The court next considers whether the analysis is a reasonable application of Supreme Court law.
The petitioner contends that the trial court's instruction on the penetration element of sexual assault in the first degree deprived him of a fair trial because the jury was not provided sufficient information to understand the term labia majora. He does not challenge the instruction stating that touching the labia majora, as the term is defined by Connecticut courts, constitutes penetration.
In analyzing this claim, the Connecticut Appellate Court noted the following additional facts.
Id. at 484-87, 905 A.2d at 674-76 (footnotes omitted).
Before the Connecticut Appellate Court, the petitioner argued that, by failing to define labia majora, the court did not define an element of the crime. The court rejected the argument because the statute at issue did not include the term labia majora. Rather it referred to sexual intercourse. Thus, the element the court needed to define for the jury was sexual intercourse. The Connecticut Appellate Court concluded that the trial court properly defined that term. Id. at 487-88, 905 A.2d at 676.
The petitioner's argument here is similar to the argument raised in Henderson v. Kibbe, 431 U.S. 145 (1977). In that case, the petitioner challenged the trial court's failure to define the element of causation in connection with the crime of second-degree murder.
In accordance with prior cases, the trial court instructed the jury that "sexual intercourse means vaginal intercourse," that "[p]enetration, however slight, is sufficient," and "penetration of the labia majora constitutes penetration of a body." Michael T., 97 Conn. App. at 484, 905 A.2d at 674. The petitioner does not challenge the instruction itself. The Connecticut Appellate Court noted that the state had presented extensive testimony from a nurse describing the anatomy of female genitalia, including the labia majora, utilizing exhibits. There is no suggestion in the record that that testimony was unclear, disputed, or inaccurate. The court, therefore, concluded that the instruction was correct with regard to the law and the issues at trial and that it was not reasonably possible that the jury was misled regarding the definition of sexual intercourse. Id. at 488, 905 A.2d at 676.
The Connecticut Appellate Court evaluated the significance of the omission of further definition in light of the evidence presented to the jury. As a detailed anatomical description was presented to the jury, the Connecticut Appellate Court concluded that the jury could not have been misled in understanding the definition of sexual intercourse. Upon review, this Court concludes that the Connecticut Appellate Court reasonably applied the applicable Supreme Court law when considering this claim. Accordingly, the petition for writ of habeas corpus is denied as to the first challenge to the jury instructions.
In his second challenge to the jury instructions, the petitioner contends that the trial court improperly charged the jury regarding the date of the offense. Specifically, the petitioner objected to the court's use of the terms "complaint" and "statute of limitations" without defining them. The Connecticut Appellate Court set forth the following additional facts.
Id. at 488-89, 905 A.2d at 677.
Upon reviewing this claim, the Connecticut Appellate Court noted that the petitioner had agreed that time was not an element of the offense and that the information (i.e., the charging document) was proper. The court determined that the contested issue was whether the petitioner had sexual intercourse with the victim, not the timing of such an event. The petitioner testified that he never put his penis into the victim's vagina, and the victim testified otherwise. As the statute of limitations and date of the complaint did not affect the jury's consideration of this issue, the Connecticut Appellate Court concluded that any lack of definition did not mislead the jury. Id. at 489-90, 905 A.2d at 677.
Again, the petitioner does not argue that the instruction was deficient regarding any element of the offense. Rather, he contends that the trial court should have provided further definition of the terms "complaint" and "statute of limitations." The trial court specifically instructed the jury that it need not determine that the crime occurred on any specific date. Although the trial court referenced the statute of limitations, that was not an issue.
The petitioner next argues that trial counsel rendered ineffective assistance in two ways. First, trial counsel failed to call a medical expert to testify regarding the ways trichomonas is transmitted. Second, trial counsel failed to call an expert to testify about the reliability of the victim's statements.
An ineffective assistance of counsel claim is reviewed under the standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). To prevail, the petitioner must demonstrate, first, that counsel's conduct was below an objective standard of reasonableness established by prevailing professional norms and, second, that the deficient performance caused prejudice to him. Id. at 687-88. Counsel is presumed to be competent. The petitioner bears the burden of demonstrating unconstitutional representation. United States v. Cronic, 466 U.S. 648, 658 (1984). To satisfy the prejudice prong of the Strickland test, the petitioner must show that there is a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different"; the probability must "undermine confidence in the outcome" of the trial. Strickland, 466 U.S. at 694. The court evaluates counsel's conduct at the time the decisions were made, not in hindsight, and affords substantial deference to counsel's decisions. Rompilla v. Beard, 545 U.S. 374, 381 (2005). To prevail, the petitioner must demonstrate both deficient performance and sufficient prejudice. Strickland, 466 U.S. at 700. Thus, if the court finds one prong of the standard lacking, it need not consider the remaining prong. When reviewing ineffective assistance of counsel claims, federal review "must be doubly deferential in order to afford both the state court and the defense attorney the benefit of the doubt." Woods, 135 S. Ct. at 1376 (internal quotation marks and citation omitted).
Again, the Court considers the last reasoned state court decision in evaluating a section 2254 petition. Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991). Here, the last reasoned decisions on the ineffective assistance of counsel claims were issued by the Connecticut Supreme Court. In both decisions, the state court applied the Strickland standard. As the state court applied the correct legal standard, the state court decision cannot meet the "contrary to" prong of section 2254(d)(1). Accordingly, this Court must determine whether the state court decisions were a reasonable application of Strickland.
The question this Court must answer "is not whether counsel's actions were reasonable. The question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Harrington v. Richter, 562 U.S. 86, 105 (2011). "[R]eview under § 2254(d)(1) focuses on what a state court knew and did" and "measure[s]" the state-court decision against Supreme Court "precedents as of `the time the state court rendered its decision.'" Pinholster, 562 U.S. at 182 (quoting Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)). "[B]ecause the Strickland standard is a general standard, a state court has even more latitude to reasonably determine that a defendant has not satisfied that standard." Knowles v. Mirzayance, 556 U.S. 111, 123 (2009) (citing Yarborough v. Alvarado, 541 U.S. 652, 664 (2004) ("[E]valuating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.").
The Connecticut Supreme Court recounted additional facts relating to the use of experts at trial and testimony presented at the habeas hearing:
Michael T. v. Commissioner of Correction, 307 Conn. 84, 88-90, 52 A.3d 655, 659-60 (2012) (footnote omitted) (internal quotation marks and citations omitted).
The Connecticut Supreme Court concluded that the petitioner was not prejudiced by the failure of trial counsel to call an expert witness to discuss the transmission of trichomonas. At the time the Connecticut Supreme Court issued the decision, trial counsel was deceased. Thus, the court could not ascertain his precise reasoning. However, the court concluded that there was not a reasonable probability that the result would have been different if trial counsel had presented expert testimony. 307 Conn. at 102, 52 A.3d at 667. The court noted that the purpose of presenting expert testimony would be to establish that trichomonas could be transmitted through nonsexual means and, perhaps, to offer examples of nonsexual transmission. Trial counsel did that through his cross-examination of the state's expert. In addition, trial counsel argued the same points in closing argument. Indeed, the state conceded the possibility of nonsexual transmission in closing argument. The Connecticut Supreme Court acknowledged that a defense expert might have further reinforced these points, but noted that the attorney who testified on behalf of the petitioner at the habeas hearing conceded that all relevant points had been covered during cross-examination. Id., 52 A.3d at 667. See Harrington v. Richter, 562 U.S. 86, 111 (2011) ("In many instances cross-examination will be sufficient to expose defects in an expert's presentation."). More specifically, as the Connecticut Supreme Court noted, the petitioner's medical expert at the state habeas trial agreed that "trichomonas is primarily sexually transmitted," (ECF No. 18-7 at 44), and that one of the State's experts had acknowledged on cross-examination that CDC Guidelines indicated that it could also be non-sexually transmitted. This case is thus distinguishable from Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005)—on which the dissenting Connecticut Supreme Court justice relied in this case, see Michael T., 307 Conn. at 107—where the failure to consult with a medical expert meant that defense counsel missed a readily available opportunity to rebut the physical evidence of child sexual abuse offered by the State. There, defense counsel's failure meant that the defendant had to concede, in essence, that the victim had been sexually penetrated. See Gersten, 426 F.3d at 609. In this case, by contrast, that was not so, as the medical testimony by the State's experts left open the possibility that she was not; further, the same evidence that the missing expert would have supplied—as shown by her testimony in the habeas trial—was already before the jury, namely, that trichomonas "is primarily sexually transmitted," but that it can also be non-sexually transmitted, as CDC Guidelines recognize. In light of this, it was not an unreasonable application of the Strickland prejudice prong for the Connecticut Supreme Court to conclude that the greater depth in which a defense expert might have offered this evidence and possibility that the defense expert possessed more impressive credentials or experience than the State's experts were insufficient to raise a "reasonable probability," i.e., "a probability sufficient to undermine confidence in the outcome," that, "but for [trial] counsel's unprofessional errors, the result of the proceeding would have been different." Strickland, 466 U.S. at 694.
In light of the fact that trial counsel elicited all of the points he wanted to make through cross-examination of the state's expert and the petitioner's failure to point to of any significantly different evidence that could have been introduced through a defense expert, the Connecticut Supreme Court's conclusion that trial counsel was not ineffective in failing to present expert testimony as to trichomonas was a reasonable application of Supreme Court law. As this Court concludes that the Connecticut Supreme Court reasonably applied Supreme Court law in determining that trial counsel was not ineffective on the prejudice prong of the Strickland standard, the Court need not address the performance prong of the standard. The petition for writ of habeas corpus is denied on this ground.
In his last claim, the petitioner argues that trial counsel was ineffective for failing to call an expert about the suggestibility of young children and the reliability of their recollections. The Connecticut Supreme Court resolved the matter under the performance prong of the Strickland standard.
The Connecticut Supreme Court recounted additional facts relating to the use of experts at the criminal trial.
Michael T. v. Commissioner of Correction, 319 Conn. 623, 634-35, 126 A.3d 558, 565 (2015) (footnote omitted). In light of these facts, the Connecticut Supreme Court explained that the issue
Id. at 634, 126 A.3d at 564-65.
The court noted that trial counsel's goal was to raise questions for the jury about the victim's credibility. Thus, the court found that the decision not to call an expert and thereby prevent introduction of the victim's prior consistent statement was a strategic decision. Introducing a recorded statement of the same events given a year before the trial would have bolstered the victim's credibility, especially because the recorded statement provided additional, specific details that would have given texture to the victim's account and cast the petitioner in a bad light. Id. at 636-37 (victim disclosed in video statement that petitioner had told her to "shut up" and called her a "bitch," and also stated that she had been wearing her `Christmas clothes' that her `Nana' had given her when the petitioner sexually abused her). In addition, the recorded statement included statements that the petitioner had threatened the victim if she disclosed the abuse, thereby providing support for the delay in reporting. Id. at 635-36, 126 A.3d at 565-66. Thus, in cross-examining the state's expert, trial counsel deliberately stopped short of the point at which the State would argue that he had "opened the door" to admission of the video statement. (See ECF No. 18-2 at 47-51.)
The Connecticut Supreme Court determined that trial counsel's decision was an exercise of trial strategy and did not constitute deficient performance.
The petition for writ of habeas corpus [
The Clerk is directed to enter judgment in favor of the respondent and close this case.
