Opinion
1:18-cv-05928 (ER) (SDA)
01-18-2022
George Medlin, Petitioner, v. Jeffrey A. Tedford,[1] Respondent.
TO THE HONORABLE EDGARDO RAMOS, UNITED STATES DISTRICT JUDGE.
REPORT AND RECOMMENDATION
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
INTRODUCTION
Petitioner George Medlin (“Medlin” or “Petitioner”) seeks a writ of habeas corpus under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), 28 U.S.C. § 2254. (Pet., ECF No. 1.) On February 5, 2005, following a jury trial, a judgment was rendered in the Supreme Court of the State of New York, Bronx County (Cirigliano, J.), convicting Medlin of three counts of rape in the first degree (New York Penal Law § 130.35[1], [3]) and six counts of criminal sexual act In the first degree (New York Penal Law § 130.50[1], [3]). (Chariott Decl., ECF No. 27, ¶ 6.) He was sentenced to a determinate term of imprisonment of twenty-five years for each of the nine counts, to run concurrently, and five years of post-release supervision. (Id.)
In his Petition, Medlin challenges his conviction on two grounds: (1) ineffective assistance of defense counsel based on failure to call, or consult with, a medical expert regarding child sexual abuse; and (2) ineffective assistance of defense counsel based on failure to call, or consult with, an expert in Child Sexual Abuse Accommodation Syndrome (sometimes referred to as Child Sexual Abuse Syndrome (see footnote 5, infra)). (Pet. at PDF pp. 5, 7.)
References to page numbers in citations to the Petition correspond to the ECF Docket PDF page number found at the top-right corner of each page.
For the reasons set forth below, I respectfully recommend that the Petition be DENIED.
BACKGROUND
I. Introductory Summary
Medlin was convicted for sexually assaulting Aisha, the six-year-old daughter of his then-girlfriend, Cheryl, on three separate occasions between November 2003 and February 2004. (Pet. at PDF p. 1.)Medlin testified that he had watched Aisha twice, not three times, and denied abusing her. (Medlin: T2 at 271-75.) Cheryl reported the abuse to the police on February 14, 2004. (Cheryl: T2 at 124.)
Pursuant to New York Civil Rights Law § 50-b, the victim and her mother are referred to by their first names only, though their full names appear in the record.
Records filed in Medlin's state court proceedings have been compiled at ECF Nos. 27-1 through 27-11 (exhibits), 33 to 33-4 (trial transcript), 33-5 (sentencing transcript) and 34 to 34-5 (N.Y. C.P.L. § 440.10 hearing). Page references denoted with the prefix “T1” are to Volume I of the trial transcript (consisting of pages 1 to 220, found at ECF Nos. 33 and 33-1), encompassing jury selection through opening statements, and page references denoted with the prefix “T2" are to Volume II of the trial transcript (consisting of pages 1 to 436, found at ECF Nos. 33-2 to 33-4), encompassing the remainder of the trial through verdict.
At trial, Dr. Evelyn Shukat, a board-certified pediatrician, testified on behalf of the People as an expert in the fields of pediatric medicine and child sexual abuse. (Shukat: T2 at 154-55, 157.) Dr. Shukat had examined Aisha on February 17, 2004, approximately two weeks after the third alleged incident of abuse. (See id. 159, 161-62, 164-65.) Before conducting the examination, Dr. Shukat interviewed Aisha, alone, and then Cheryl. (Id. at 162-63.) During the examination, Dr. Shukat observed an approximately two-millimeter tear in the perihymenal tissue around Aisha's hymen; the tissue was red but not bleeding; and the hymen was normal. (Id. at 167-68.) Dr. Shukat testified that this injury and medical history were consistent with the acts Aisha alleged Medlin to have committed. (See id. at 162, 174.)
The People also called Dr. Don J. Lewittes, a clinical psychologist, who testified as an expert in the field of Child Sexual Abuse Syndromeand criminal psychology. (Lewittes: T2 at 76, 81-82.) Dr. Lewittes testified about the Child Sexual Abuse Syndrome, and why a sexually abused child may not disclose promptly that abuse to the police or a parent, why the child may be afraid to disclose even in the absence of threats from the abuser, and why the child may not remember certain details of the abuse, such as dates. (Id. at 86-88, 93-94, 95-97.)
Dr. Lewittes sometimes has referred to this syndrome as the “Child Sexual Abuse Accommodation Syndrome.” See Gersten v. Senkowski, 426 F.3d 588, 596 (2d Cir. 2005) (referring to Dr. Lewittes' testimony about “Child Sexual Abuse Accommodation Syndrome”), cert denied sub nom. Artus v. Gersten, 547 U.S. 1191 (2006).
Medlin's counsel, Robert Johnston, Esq. (“Johnston”), opted not to call any expert to testify on behalf of Medlin. This decision was not informed by consultation with any expert in child sexual abuse; rather, Johnston decided against calling an expert because he believed that “the only area of contention that could have been disputed by an expert was whether or not an adult male of normal size could have committed the alleged acts” without causing greater injury to Aisha, and Johnston decided “to allow that matter to be decided by the common sense of the jury.” (Johnston Aff., ECF 27-1, at 93-94.)
II. Relevant State Court Proceedings
A. Trial
1. Defense Counsel's Opening Statement
In his opening statement, Johnson raised doubt as to (1) whether Johnston had time to have committed the acts of which he was accused, and (2) whether some other male visitor to the victim's apartment may have committed any wrongdoing:
So, he would be working in the daytime in Harlem from 8:00 to 4:00, he'd meet [a friend] at 6:30 and walk her home, and in addition to that, since the woman he was living with, Gloria McDuffy[,] worked at nights, he would walk Gloria to the bus stop-to the place where she had to get the bus so she could go to work.
So, there was a very, very little window of opportunity for George to have committed any of the acts that the People allege that he committed.
On the contrary, there were others that went to that apartment on Trinity Avenue that had a much greater opportunity to commit any sort of acts against this little girl.(T1 at 218; see also id. at 219 (“Now, it's not my intention and it's not within my ability to prove to you which person or persons, if it happened at all, committed any sexual acts against [Aisha].”). Johnston did not address the perihymenal tear at issue. (See T1 at 215-19.)
2. Aisha's Testimony
Aisha was seven years old and in the second grade at the time of trial in January of 2005. At the time of the incidents in question-late 2003 and early 2004-she was six years old and in the first grade, living with her mother, Cheryl, in an apartment at 595 Trinity Avenue in the Bronx. (Aisha: T2 at 15-17.) Medlin was Cheryl's boyfriend and lived across the street. According to Aisha, on three occasions from 2003 to 2004, Medlin babysat for her when Cheryl went out, leaving them alone in the apartment. (Id. at 21.)
Aisha's testimony indicated that the first occasion occurred sometime between Thanksgiving and Christmas of 2003. (Aisha: T2 at 21-22, 27-31, 60.) On that day, after breakfast, Cheryl went out to buy snacks, leaving Aisha and Medlin at home. (Id. at 22, 60.) While Aisha was watching television in the bedroom, Medlin allegedly entered the room and began “taking off his pants.” (Id. at 22, 58-59.) Medlin allegedly pulled up Aisha's nightgown, pulled down her panties, got on top of her, and “put his privates into [hers],” which “hurted.” (Id. at 23-24.) He next opened her mouth with his hands, put his “private” into her mouth, and “moved it a little bit.” (Id. at 2426.) Aisha told Medlin to stop, but he ignored her. (Id. at 26-27.) When her mother returned, Aisha did not tell her what had occurred because Medlin had warned her not to and she was scared. (Id. at 26-27, 65.)
The second occasion allegedly took place sometime between Christmas and New Year's Eve of 2003, when Aisha stayed home with Medlin while Cheryl went to the neighborhood supermarket. (Aisha: T2 at 31-32, 36-38a, 67.) This time, when Medlin entered her room, Aisha tried to run away, but she was unable to get out of the room before Medlin grabbed her by the waist and threw her onto the bed. (Id. at 33-35.) Medlin pulled his pants down, opened Aisha's mouth with his hands, placed his “private” into her mouth, and “moved a little bit” while inside her mouth. (Id. at 34-35.) Aisha testified that while he was lying on top of her, he was “going up and down,” “hump[ing]” her. (Id. at 36.)
On a third occasion that Medlin babysat for Aisha, sometime in early 2004 prior to Aisha's birthday on February 7 (Aisha: T2 at 45-46), she was staying home from school due to illness. After Cheryl left to go drop her timesheets off at her job in Manhattan, Medlin made soup for Aisha at her request, bringing two servings to her while she lay in her bed. (Id. at 40.) Later, however, Aisha testified that Medlin entered her bedroom, grabbed her by the waist as she tried to run, and put her on the bed, on her back. (Id. at 40-41.) Next, he allegedly lay on top of Aisha and put “his private into [her] private,” which “hurted.” (Id. at 41-42.) He also placed his “private into [her] mouth.” (Id. at 42-43.) Medlin moved “a little bit” in her mouth, after which the “white stuff” from his “private” went inside her mouth and on her cheek. (Id. at 43-44.) Aisha said the “white stuff” looked like milk, “gooey and sticky,” and did not taste good. (Id. at 44.) Afterwards, Aisha washed her mouth and face in the bathroom, while Medlin changed the bedsheets. (Id. at 44.)
On direct examination, Aisha explained that the first person that she told about these incidents was a friend of hers. (Aisha: T2 at 48.) Aisha later told another friend, then the first friend told Aisha's mother, after which Aisha then told the police. (Id. at 48-49.)
During cross-examination, Johnston focused on whether male visitors other than Medlin could have been present in the victim's apartment. (Aisha: T2 at 60, 70-71.) Aisha testified that Medlin was her mother's only boyfriend who visited their apartment, and that she never saw “any other . . . strange men, not related by family in the apartment.” (Id. at 59-60, 71.)
When cross-examined as to why, on the second occasion that she was left with Medlin, Aisha did not ask to accompany her mother to the supermarket, she testified that “my mother said to stay home [be]cause it was cold.” (T2 67.) When defense counsel followed that response by asking Aisha “why didn't you say mommy, . . . I don't want to be alone with George . . .?,” Aisha did not answer. (Id. at 68.)
3. Petitioner's Testimony
Medlin testified that the first time he babysat Aisha was on a Monday morning sometime in the winter, while Cheryl dropped her timesheet off at work. (Medlin: T2 at 271, 274, 299, 302, 303.) He testified that after Cheryl left, he fell asleep listening to the radio and slept until Aisha woke him because she was hungry and complained of a sore throat. (Id. at 272-73, 300.) Medlin then made two bowls of soup for Aisha upon her request. (Id. at 273.) When Cheryl returned, she told Medlin that she was going to take Aisha to the doctor later that afternoon for her sore throat. (Id.) Medlin denied touching Aisha or doing anything improper to her while babysitting. (Id.)
Medlin testified that the second time he babysat Aisha, Cheryl was going to go to the store to “get some kind of steam and peel or something for her head” and she asked Aisha to come with her. (Medlin: T2 at 274, 301.) Aisha did not want to go so Cheryl let her stay home because it was “cold outside.” (Id.) Medlin claimed that Cheryl was gone for five or six minutes and returned with potato chips, pills and beer, then he left shortly thereafter. (Id. at 275, 302.) Medlin testified that Aisha was watching TV in the bedroom the whole time Cheryl was gone. (Id.)
Medlin also testified that when he hugged or kissed Cheryl, Aisha would want to be hugged or kissed by him too. (Medlin: T2 at 278, 305-06.) He also claimed that he saw other unknown men in Cheryl's house when Aisha was in the room. (Id. at 278-79.)
4. Dr. Shukat
Dr. Evelyn Shukat testified as an expert in the fields of Pediatric Medicine and Child Sexual Abuse. (Shukat: T2 at 157.) Dr. Shukat examined Aisha on February 17, 2004, three days after Aisha was examined at Lincoln Hospital for alleged sexual abuse. (Id. at 161-62.) First, without Cheryl present, Dr. Shukat explained to Aisha what the examination would be like and then asked what had happened to her. (Id. at 162-63.) Then, Dr. Shukat spoke to Cheryl to ascertain a more specific medical history. (Id. at 163.) After taking the medical history from both Aisha and Cheryl, Dr. Shukat testified that she conducted a head-to-toe examination on Aisha, which included a gynecological examination. (Id. at 164-65.) During the gynecological examination, Dr. Shukat testified that she visualized Aisha's labia and hymenal tissue using a colposcope, which magnified the genital area. (Id. at 166.) Using the colposcope, Dr. Shukat testified that she observed a two-millimeter tear in the tissue around Aisha's hymen. (Id. at 167.) The tear was reddened, but not bleeding. (Id.) Dr. Shukat also testified that Aisha's hymen did not have “abnormalities,” but she noted that this did not constitute evidence one way or the other as to whether sexual abuse had occurred. (Id. at 168.) Dr. Shukat documented her findings on a diagram used at the sexual abuse clinic to demonstrate the location of the perihymenal tear that she visualized. (Id. at 170-72.)
Dr. Shukat testified that, based on her training and experience and to a reasonable degree of medical certainty, the perihymenal tear was caused by “penetrating blunt trauma,” which she described as “[a] penetrating force that's used with pressure against the tissue resulting in a tear.” (Shukat: T2 at 172-73.) She testified that the injury was “more internal” and not what was commonly associated with “a straddle injury, such as a falling on the bike bars,” which “are usually external injuries.” (Id. at 173). Dr. Shukat further testified that, in her opinion, the injury was consistent with the medical history that she had taken from Aisha and Cheryl. (Id. at 174.)
On cross-examination, Dr. Shukat acknowledged that there were other potential causes for the tear, but “none of [them] came out in [her] examination.” (Shukat: T2 at 183-84.) She conceded that the injury sustained could be caused by falling onto something hard that “was penetrating within the lips of her vagina . . . but [she] got no history for that.” (Id. at 179.) Dr. Shukat testified that “the history and findings were consistent” with sexual abuse. (Id. at 184.)
On redirect examination, Dr. Shukat testified that it was her opinion that the perihymenal tear was approximately “a week and-a-half to two weeks old.” (Shukat: T2 at 185-86.)
5. Dr. Lewittes
Dr. Don Lewittes testified as an expert about Child Sexual Abuse Syndrome. (Lewittes: T2 at 76, 82-83.) He testified about five distinct stages of a child's behavior when a child has been sexually abused: (1) engagement, (2) sexual interaction, (3) secrecy, (4) disclosure and (5) suppression and repression. (Id. at 83-88.) Dr. Lewittes testified to a child's typical psychology at each stage, including that a child may be afraid to disclose the abuse, even without a threat of harm, and that when disclosure does occur, the child may not disclose immediately nor to the police or his/her mother. (Id. at 86-88, 93-94.) Dr. Lewittes also testified about learned helplessness and how a child may not make active attempts to avoid the abuse or avoid being in the presence of the abuser. (Id. at 91-93.) Dr. Lewittes further explained that children may not remember specific dates, or peripheral action details, but they typically remember central action details, such as what was done to them and who did it. (Id. at 94-96.)
On cross-examination, Dr. Lewittes acknowledged that he had never spoken with Aisha, had not reviewed her medical records and had no opinion whether she was sexually abused. (Lewittes: T2 at 101.) Johnston asked no questions on cross-examination pertaining to the validity of Dr. Lewittes' theories of Child Sexual Abuse Syndrome. (See id. at 101-02.)
6. Defense Counsel's Summation
Regarding Johnston's strategy to appeal to the jury's “common sense” rather than relying on a rebuttal medical expert, Johnston stated on summation:
[J]ust because [Dr. Shukat] is qualified and testifies as an expert witness, does not mean that the jury has to blindly accept her opinion on the issue that she's testifying to. The jurors can analyze her reasoning for her opinion and use their own common sense in evaluating her reasons and deciding whether or not her opinion really holds water or not.
...
Well, this is where you have to use your common sense. Do you think a man, [Medlin's] size, if he put his privates in [Aisha's] privates, would only have a tiny little two millimeter tear, her hymen would still be intact and there would be no evidence of any scarring from any past injuries? To me that's pretty hard to believe using your common sense.(T2 at 322-23.)
7. Deliberations and Verdict
The trial court submitted nine counts to the jury. Deliberations began at 11:20 a.m. On Friday, January 14, 2005. (T2 at 411.) Shortly before lunch, the jury requested a readback of the testimony of Medlin, Aisha and Cheryl. (Id. at 413.) That afternoon, the jury sent the court a note requesting “guidance” because there was “one juror who [could not] decide guilty or not guilty.” (Id. at 419.) The court informed the jury that it would address the note when deliberations resumed the following week. (Id. at 420.) When the jury returned the following week, the court recharged the jury on its obligations; thereafter the jury thanked the court “for letting [the jury] think about this case over the weekend,” and informed the court that “the extra time allowed all of [the jurors] to come to a clear conclusion.” (Id. at 425-28.) The jury found Medlin guilty on all counts. (Id. at 433.)
B. Petitioner's CPL § 440.10 Motion
On July 29, 2009, Petitioner filed a counseled motion pursuant to C.P.L. § 440.10 in the New York State Supreme Court, Bronx County, to vacate his judgment of conviction on the ground that his trial counsel, Johnston, had provided ineffective assistance by failing to call as a witness, or consult with, any expert in the field of child sexual abuse. (Chariott Decl., Ex. 1, ECF No. 27-1.)
Petitioner supported his motion with affidavits from Johnston and Dr. Vincent Palusci, an expert in the fields of Pediatrics and Child Abuse Pediatrics. In his affidavit, Johnston stated as follows:
In that matter to the best of my memory and belief I did not consult with or have appointed an expert in the area of child sexual abuse. The reason for that decision was that the alleged victim was not examined by the People's expert until about two weeks after the alleged last act of abuse and that there was no evidence of sexual penetration and that the hymen of the alleged victim was intact. Under those circumstances an expert appointed by the court on his behalf would have had little to dispute. That the only area of contention that could have been disputed by an expert was whether or not an adult male of normal size could have committed the alleged acts and not have affected the hymen.
It was my decision to allow that matter to be decided by the common sense of the jury.(Johnston Aff., ECF No. 27-1, at PDF pp. 93-94.)
Among other things, Dr. Palusci affirmed as follows:
Had I been called to testify, I would have stated that based upon the examination findings and my clinical experience, the perihymenal “tear”, as located by Dr. Shukat in her report and trial testimony, is more consistent with having been caused by a sharp object or fingernail than penile-genital contact. I would also have testified that the force from a penis needed to cause the alleged two millimeter perihymenal “tear” would have caused other associated injuries to the genitalia, including bruising and tears to the posterior fourchette and labia, as well as tears, transections and other damage to the hymen. This lack of these associated findings is inconsistent with the allegation by the complainant of penile-vaginal penetration.(Palusci Aff., ECF No. 27-1, at PDF p. 87.) After observing that Dr. Shukat had testified that Aisha's perihymenal “tear” was one and one half to two weeks old, despite acknowledging “that she did not know the length of the tear when it originally occurred” and “that no scar tissue was present when she examined the complainant,” Dr. Palusci further testified that:
Had I been called to testify, I would have stated that, in the absence of evidence pertaining to the size of the original tear, and in the absence of evidence of granulation or healing tissue, it is not possible to estimate when the "tear" occurred to a reasonable degree of scientific certainty, based on the examination which occurred on February 17, 2004. I would also have testified that, had the tear been one and one-half to two weeks old, healing tissue should have been present at or near the site of the tear. I would also have testified that, based upon existing protocols, a follow-up examination should have been conducted, because, had neither granulation nor healing tissue have been found at a follow-up visit, it would have suggested, to a reasonable degree of medical certainty, that the two millimeter tear was not the result of recent trauma, but instead, was due to infection or other medical disease.(Palusci Aff., ECF No. 27-1, at PDF pp. 89-90.)
Further, prior to the § 440.10 hearing, the People provided a letter from Assistant District Attorney (“ADA”) Julia Chariott to Petitioner's counsel, stating that, while speaking to Dr. Shukat by phone in preparation for the hearing, Dr. Shukat informed ADA Chariott “that, were she to testify today, regarding the examination she conducted of Aisha [], and the findings she observed, she would not testify as to the aging of the injuries, and the age of the specific injuries she observed, as she did in her 2005 [trial] testimony.” (Pet. Mem., ECF No. 7, at 47-48.)
Although this letter itself is not part of the record before the Court, during oral argument, Respondent confirmed that it was quoted accurately in Petitioner's memorandum. (See 1/10/22 Tr., ECF No. 40, at 17.)
Justice Cirigliano, who had presided over Petitioner's trial, held the § 440.10 hearing on Petitioner's motion on July 25, 2012, at which Dr. Palusci testified for Petitioner, and December 3, 2012, at which Dr. Aaron Miller testified for the prosecution. (ECF Nos. 34, 34-1 to 34-5.)
As noted in footnote 4, supra, the transcript of Petitioner's § 440.10 hearing is filed at ECF Nos. 34 to 345. Page references denoted with the prefix “H1” are to the July 25, 2012 transcript (found at ECF Nos. 34, 34-1 and 34-2) and page references denoted with the prefix “H2” are to the December 3, 2012 transcript (found at ECF Nos. 34-3 to 34-5).
On direct examination, Dr. Palusci testified as to Shukat's training and examination of Aisha. (Palusci: H1 at 7-11.) He noted that “[w]hat [Dr. Shukat's notes] didn't have was what [he] now expect[s] and would have expected back then at NYU Bellevue, which is more formal description, quotations of the child's statements, things like that.” (Id. at 10-11.) Regarding the examination, Dr. Palusci mentioned that “most colposcopes, and the one [he] used at Bellevue and afterwards back in the 80's and 90's had a camera attachment” to “tak[e] pictures of the genitals.” (Id. at 11-12.) He further testified that “those pictures are actually very good documentation used medically for medical care and treatment;” however, Dr. Palusci testified that, to his knowledge, there were no photographs taken in this case by Dr. Shukat. (Id. at 1213.)
Dr. Palusci then testified regarding Aisha's injury itself, i.e., the perihymenal tear. (Palusci: H1 at 13.) Based on his review of Dr. Shukat's records, he identified numerous potential explanations for the perihymenal tear other than sexual abuse: “irritation from inappropriate bubble bath or soap” such as “vulva vaginitis to dishwashing soap” (id. at 18); “[n]ot using the right toilet paper” (id.); eczema or lichen sclerosis (id.); “self-trauma, not necessarily masturbation, normal hygiene, wiping, scratching because it is itchy down there, other things we see” (id. at 21-22); and “straddle injury.” (Id. at 24).
With regard to the possibility that the injury had been caused by penile contact, Dr. Palusci testified that a “penis going into this child's vagina or hymen opening would generally cause much more trauma than we're seeing.” (Palusci: H1 at 21; see also id. at 22 (noting that the location of the injury was “not the classic location for just penile injury”).) Then, after articulating the ultimate questions as “what could cause this externally with a penis in the vulva, and is this more consistent with a story of a penis touching this?,” Dr. Palusci concluded that, “although the possibility is there, . . . the likelihood of other things is much greater.” (Palusci: H1 at 21.) On cross-examination, Dr. Palusci conceded that, in the absence of further information, the injury could be consistent with penetration by a penis. (Id. at 65.)
Dr. Palusci testified that the perihymenal tear was an injury to the vulva. (See Palusci: H1 at 17 (“Remember, it is not the vagina. We're in the vulva here.”); see also id. at 55 (agreeing with Dr. Shukat's testimony that tear could be consistent with penetration, but “differ[ing] on the description of it being the vagina, if you will”).)
At the hearing, the People called Dr. Aaron Miller to testify, as Dr. Shukat's successor as director at Lincoln Hospital's Child Abuse Sexual Abuse Clinic. (Miller: H2 at 2.) Dr. Shukat was unavailable to testify apparently because she “had moved out of New York State.” (See Opp. Mem., ECF No. 26, at 11.) Dr. Miller testified that he generally agreed with Dr. Shukat's interviewing and examination protocols. (See Miller: H2 at 18-19.) Regarding the two-millimeter perihymenal tear, Dr. Miller testified:
Well, when you are talking a small tear of two millimeters, I mean, that's really small. You can imagine a wide range of things that could cause a small tear like this. If a child takes too many bubble baths and they get what we call vulvitis which is just a generic term meaning inflammation or redness. If you have inflammation and redness of the vesicular area which is a very common complaint, all pediatricians have seen it, that would increase the susceptibility to causing a tear with less trauma or with less force being involved. I would say that's the most common scenario in a child of this age.(Miller: H2 at 28-29; see also id. at 19 (noting past medical history stated that Aisha took bubble baths with Joy dishwashing detergent).)
Dr. Miller further testified that “[o]ther explanations include sexual abuse,” for example, blunt force injury or injury caused by the perpetrator's fingernails. (See H2 at 29.) Dr. Miller noted that a straddle injury could cause such a tear, but opined that it was unlikely give that the injury was “more interior.” (Id. at 29-A.) On cross-examination, Dr. Miller agreed with Dr. Palusci in that, based on the diagram of Dr. Shukat's physical findings alone, he would not be able to determine with a reasonable degree of medical certainty what the cause of the injury was. (Id. at 62; see Palusci: H1 at 20.) Dr. Miller also admitted that he largely agreed with Dr. Palusci's testimony. (Miller: H1 at 63-64; see also id. 67 (confirming that “[i]n substance [he had] a substantial agreement with what [he] read of [Dr. Palusci's] hearing testimony and his affidavit”).)
In a decision dated December 12, 2012, Justice Cirigliano denied Petitioner's motion, (Chariott Decl. Ex. 5, ECF No. 27-5.) With respect to the testimony of Dr. Palusci at the § 440.10 hearing, the judge “conclude[d] that although Dr. Palusci mentioned different possible causes for the child's injury, essentially, he agreed with the People's [trial] witness, Dr. Shukat, that the injury could be consistent with sexual abuse, specifically penetration by a penis.” (Id. at PDF p. 8.) Justice Cirigliano noted that he “was extremely impressed with the [victim's] testimony and [was] of the opinion that the testimony of Dr. Palusci would not have altered the verdict.” (Id. at 9.) The judge distinguished the case before him from Gersten,where defense counsel's failure to consult with or call a medical expert was found indicative of ineffective assistance of counsel. (See id.)
As discussed further below, in Gersten, the Second Circuit found ineffective assistance of counsel in a child sex abuse case where defense counsel failed to call as a witness, or consult with, any medical expert on child sexual abuse. See Gersten, 426 F.3d at 607-08.
On February 5, 2013, Justice Paul G. Feinman, of the Appellate Division, First Department, granted Petitioner's application for leave to appeal the denial of his § 440.10 motion to the Appellate Division, First Department. (Chariott Decl. Ex. 6, ECF No. 27-6.)
C. Direct Appeal
In March 2015, Petitioner, through counsel, filed his brief in support of his direct appeal to the Supreme Court of the State of New York, Appellate Division, First Department. (Chariott Decl. Ex. 7, ECF No. 27-7.) Petitioner raised the claim that his trial counsel was ineffective for failing to consult with, or call as trial witnesses, experts in child abuse or Child Sexual Abuse Syndrome, and, thus, Justice Cirigliano erred in denying his N.Y. C.P.L. § 440 motion. (See id.)
By decision dated November 1, 2016, the Appellate Division unanimously affirmed Petitioner's conviction. See People v. Medlin, 144 A.D.3d 426 (1st Dep't 2016). The Appellate Division concluded that Petitioner “ha[d] not shown that the alleged omissions fell below an objective standard of reasonableness, or that, viewed individually or collectively, they caused any prejudice under the state or federal standards” and that the trial court properly concluded that Petitioner received effective assistance of counsel. Id. at 426. The Appellate Division noted that, though the verdict rested primarily on the victim's testimony, that testimony was “highly credible.” Id. With respect to trial counsel's decision not to call a medical expert to testify about alternate causes of the observed injury, the Appellate Division found that counsel's strategy to appeal to the jury's common sense was objectively reasonable and a part of a “coherent and legitimate overall defense strategy.” Id. at 427.
With respect to counsel's decision not to call a witness to rebut the Dr. Lewittes's testimony, the Appellate Division stated that Dr. Lewittes had “simply explained that child sex abuse victims frequently delay disclosure of the abuse,” and that “[s]uch testimony is generally accepted by New York courts when introduced for that purpose, so long as it is not used to prove that the abuse actually occurred.” Medlin, 144 A.D.3d at 427 (citations omitted). The Appellate Division then held that, “[r]egardless of whether the particular record in [Gersten] may have indicated that a defense expert could have discredited the People's expert in that case, . . . [Petitioner] made no showing that [Dr. Lewittes's] limited testimony would have been readily rebuttable,” noting that, “[i]n the CPL 440.10 proceeding, [Petitioner] did not present an affidavit or testimony from any psychologist.” Id.
The Appellate Division found that Petitioner had failed to demonstrate “a reasonable probability” that either calling a medical expert or calling an expert to rebut Dr. Lewittes “would have affected the outcome.” Medlin, 144 A.D.3d at 427.
Petitioner then filed a counseled leave application with the Court of Appeals of the State of New York. On April 6, 2017, Associate Judge Abdus-Salaam denied Petitioner's application for leave to appeal. People v. Medlin, 29 N.Y.3d 999 (2017).
III. Habeas Proceeding
On June 29, 2018, the Petition was filed in this case challenging his conviction on the grounds of (1) ineffective assistance of defense counsel based on failure to call, or consult with, a medical expert regarding child sexual abuse; and (2) ineffective assistance of defense counsel based on failure to call, or consult with, an expert in Child Sexual Abuse Syndrome (see footnote 5, supra). (See Pet. at PDF pp. 5, 7.) Because the Petition had not been served, and no other action had been taken by Petitioner's counsel, on February 24, 2020, the Court ordered Petitioner to show cause why the case should not be dismissed for failure to prosecute. (See 2/24/20 Order, ECF No. 5.) On March 20, 2020, Petitioner filed a memorandum of law in support of the Petition. (See Pet. Mem.) On April 2, 2020, the Order to Show Cause was cancelled and this case was referred to me for a report and recommendation. (See 4/2/20 Mem. End., ECF No. 10; Order of Ref., ECF No. 9.)
On March 5, 2021, after numerous extensions had been granted on consent, Respondent's opposition memorandum was filed. (See Opp. Mem., ECF No. 26.) On October 27, 2021, after numerous extensions had been granted on consent, Petitioner's reply memorandum was filed. (See Reply, ECF No. 37.) On January 10, 2022, oral argument was held. (See 1/10/22 Tr.)
LEGAL STANDARDS
I. Habeas Proceedings Generally
Under 28 U.S.C. § 2254(a), as amended by AEDPA, a person in custody pursuant to a state court judgment only may prevail on an application for a writ of habeas corpus on the ground that his or her custody violates “the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254(a). The petitioner must show that the state court decision, having been adjudicated on the merits, is either “contrary to, or involved an unreasonable application of, clearly established Federal law” or is “based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d). For the purposes of federal habeas review, “clearly established law” is defined as “the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.” Williams v. Taylor, 529 U.S. 362, 412 (2000). A state court decision is an “unreasonable application of” clearly established law if it identifies the correct governing legal rule but unreasonably applies it to the facts of the petitioner's case. See id. at 412-13.
The state court decision must be “more than incorrect or erroneous;” it must be “objectively unreasonable.” Lockyer v. Andrade, 538 U.S. 63, 75 (2003); see also Schriro v. Landrigan, 550 U.S. 465, 473 (2007) (operative question is “not whether a federal court believes the state court's determination was incorrect[,] but [rather] whether that determination was [objectively] unreasonable-a substantially higher threshold”). The AEDPA “dictates a highly deferential standard for evaluating state-court rulings” and “demands that state-court decisions be given the benefit of the doubt.” Bell v. Cone, 543 U.S. 447, 455 (2005) (internal quotation marks and citations omitted). A petitioner is required to establish “that the state court's ruling . . . was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 U.S. 86, 103 (2011).
II. Ineffective Assistance Of Counsel
To prevail on a claim of ineffective assistance of counsel, a petitioner must show (1) that his counsel's representation “fell below an objective standard of reasonableness,” and (2) that he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 688, 694 (1984).
Under the first Strickland prong, the Court looks to the totality of the record and must make “every effort . . . to eliminate the distorting effects of hindsight.” Strickland, 466 U.S. at 689. “[Strategic choices made by counsel after thorough investigation . . . are virtually unchallengeable,” id. at 690, and there is a strong presumption that counsel's performance falls “within the wide range of reasonable professional assistance.” Id. at 689-90. However, “counsel has a duty to make reasonable investigations, and a decision not to investigate will be reasonable only ‘to the extent that reasonable professional judgments support the limitations on investigation.'” Gersten, 426 F.3d at 607 (quoting Strickland, 466 U.S. at 690-91). Specifically, “[i]n sexual abuse cases, because of the centrality of medical testimony, the failure to consult with or call a medical expert is often indicative of ineffective assistance of counsel.” Id. (citing Eze v. Senkowski, 321 F.3d 110, 127-28 (2d Cir. 2003); Pavel v. Hollins, 261 F.3d 210, 224 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191, 201 (2d Cir. 2001). “This is particularly so where the prosecution's case, beyond the purported medical evidence of abuse, rests on the credibility of the alleged victim, as opposed to direct physical evidence such as DNA, or third party eyewitness testimony.” Id. (citing Eze, 321 F.3d at 128; Pavel, 261 F.3d at 224).
Under the second Strickland prong, the petitioner must demonstrate that the ineffective assistance prejudiced the defense, which means showing “a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. “A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Id. “That is, [a petitioner] must show that he was ‘deprive[d] . . . of a fair trial, a trial whose result is reliable.” Garner v. Lee, 908 F.3d 845, 862 (2d Cir. 2018) (quoting Strickland, 466 U.S. at 687). “‘[T]he question is not whether a court can be certain counsel's performance had no effect on the outcome or whether it is possible a reasonable doubt might have been established if counsel acted differently'; instead, ‘[t]he likelihood of a different result must be substantial, not just conceivable.'” Garner, 908 F.3d at 862 (quoting Richter, 562 U.S. at 111-12).
The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard.” Lindstadt, 239 F.3d at 199. “Establishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult [because] [t]he standards created by Strickland and § 2254(d) are both highly deferential, and when the two apply in tandem, review is doubly so.” Richter, 562 U.S. at 105 (internal quotation and citation omitted); see also Cullen v. Pinholster, 563 U.S. 170, 190 (2011) (“review of [state court's] decision . . . is doubly deferential [because] [w]e take a highly deferential look at counsel's performance [under Strickland] through the deferential lens of § 2254(d)”) (internal quotations and citations omitted).
It is an open question in this Circuit as to whether heightened deference applies to both prongs of a Strickland claim, or just the first one. See Waiters v. Lee, 857 F.3d 466, 478 n.20 (2d Cir. 2017) (noting open question but also noting that Supreme Court's decision in Cullen “has suggested that double deference is appropriate as to both prongs”). Nonetheless, here, as in Waiters, the Court need not decide this issue because the application of AEDPA deference alone is sufficient to decide the outcome.
DISCUSSION
As set forth above, when a state court adjudicates a petitioner's habeas claim on the merits, a district court may only grant relief where the state court's decision was “contrary to, or involved an unreasonable application of, clearly established Federal law,” or was “based on an unreasonable determination of the facts in light of the evidence presented.” 28 U.S.C. § 2254(d). In evaluating the Petition's ineffective assistance of counsel claims under 28 U.S.C. § 2254, the Court considers the last reasoned state court decision. See Taylor v. Connelly, 18 F.Supp.3d 242, 253 (E.D.N.Y. 2014) (citing Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)). Here, the Appellate Division applied the Strickland standard. See Medlin, 144 A.D.3d at 426. Because the Appellate Division applied the correct legal standard, the Appellate Division's decision cannot meet the “contrary to” aspect of § 2254(d)(1). Accordingly, this Court must determine whether the Appellate Division decision was a reasonable application of Strickland. See 28 U.S.C. § 2254(d)(1).
The Court need not decide whether the Appellate Division's determination regarding the first Strickland prong was objectively unreasonable, because even if Petitioner could make such a showing, I find that the Appellate Division did not unreasonably apply Strickland in holding that Petitioner failed to demonstrate prejudice. See Strickland, 466 U.S. at 697 (“The object of an ineffectiveness claim is not to grade counsel's performance. If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice, which we expect will often be so, that course should be followed. Courts should strive to ensure that ineffectiveness claims not become so burdensome to defense counsel that the entire criminal justice system suffers as a result.”); accord Waiters, 857 F.3d at 478 (“Because this appeal can be resolved with reference to Strickland's prejudice prong alone, we assume, without deciding, that there was no strategic rationale for [defense counsel's] decision not to call a medical expert.”).
Petitioner asserts that his trial counsel was ineffective due to his failure to consult or call to testify at trial two different experts: (1) a medical expert to rebut the testimony of Dr. Shukat, and (2) a psychological expert to rebut the testimony of Dr. Lewittes. (See Pet. Mem. at 100, 132.) The Court considers each of these experts below.
I. The Appellate Division Reasonably Applied Strickland In Determining That Petitioner Failed To Demonstrate Prejudice Based On Counsel's Failure To Consult Or Call Medical Expert To Testify At Trial
The Appellate Division found that Petitioner “ha[d] not shown that the alleged omissions [by trial counsel] . . ., viewed individually or collectively, . . . caused any prejudice under the state and federal standards.” Medlin, 144 A.D.3d at 426 (citing New York Court of Appeals decision and Strickland). The Appellate Division noted that, “[a]t the CPL 440.10 hearing, [Petitioner's] medical expert [Dr. Palusci] agreed with the People's expert [Dr. Shukat] that physical findings do not stand alone in forming a diagnosis of sexual abuse, but must be taken together with medical history, including statements from the child and caretakers,” and that “the victim's credible testimony was consistent with the medical history used to formulate the diagnosis of sexual abuse.” Id. at 426-27. The Appellate Division found that “it [was] unlikely that the proffered medical expert testimony [with respect to the perihymenal tear] would have been helpful to the defense.” Id. at 427.
Petitioner argues that Dr. Palusci “cast great doubt” on the issue of whether the perihymenal tear corroborated the victim's testimony and, therefore, there was more than a reasonable probability that, if this testimony was presented to the jury, Petitioner would have been acquitted. (See Pet. Mem. at 127-28.) However, viewing the record evidence, the Appellate Division's contrary finding that Dr. Palusci's testimony regarding alternative causes of the perihymenal tear was unlikely to be helpful to the defense, see Medlin, 144 A.D.3d at 426, was not unreasonable. As Respondent points out, there was little support in the victim's medical history for other potential causes of the tear.(See Resp. Mem. at 25 (citing Palusci: H1 at 24-25 (referring to “psychiatric population” that “put things in themselves” like toilet paper, marbles, beads and sticks, that cause injuries), 42-45, 71 (referring to accidental straddle injuries), 48-50 (referring to skin diseases, such as vulvovaginitisand lichen sclerosus); Miller: H2 29-35 (discussing lack of medical history regarding other potential causes of tear), 50-51 (noting “there was nothing on medical exam to suggest vulvitis” as a cause of the tear).)
In its decision, the Appellate Division took note of Dr. Palusci's testimony at the § 440.10 hearing (see Palusci: H1 at 9-10, 43-44, 55) that “physical findings do not stand alone in forming a diagnosis of sexual abuse, but must be taken together with medical history, including statements from the child and caretakers.” Medlin, 144 A.D.3d at 426-27.
Dr. Palusci acknowledged that there was no medical history of “the kind of incident that would lead to a straddle injury.” (Palusci: H1 at 71.)
As noted by Petitioner, there was evidence in the record that the victim was bathed occasionally in dishwashing soap. (See Pet. Mem. at 23-24; 1/10/22 Tr. at 7.) Although Dr. Palusci testified that the victim's injury could have been caused by dishwashing soap, creating a condition known as vulvovaginitis (see Palusci: H1 at 18), he also testified that, if he learned that “a child was given a bubble bath in dishwashing liquid,” he would not assume that the child had vulvovaginitis, “[j]ust based on the history they were[] washed that way.” (See id. at 50.)
Although Dr. Palusci identified lichen sclerosus as a possible cause of the victim's injury, he testified that “we don't have other things in the history or physical examination documented to support that.” (Palusci: H1 at 71.)
In addition, although Dr. Palusci's testimony may have cast doubt on the cause of the perihymenal tear, it does not follow that an alternative explanation for the tear would have the effect of undermining the victim's credibility, as was the case in Gersten.Indeed, Dr. Palusci testified that the victim's perihymenal tear could “be consistent with a penis penetrating into [the] area.” (Palusci: H1 at 65.) Moreover, the victim testified that Petitioner put his “private[s]” into hers. (Aisha: T2 at 23-24, 41-42.) However, Dr. Palusci conceded that a child might describe a penis between her legs as penetration inside her, even though the penis was only between her legs. (See Palusci: H1 at 52-53.) Thus, this is not a case where, as in Gersten, undermining the medical expert testimony “would undermine the victim's credibility and thus the entire prosecution case as to all charges.” Gersten, 426 F.3d at 608.
In Gersten, the expert offered by the petitioner during the § 440.10 hearing in that case “concluded that the physical evidence did not appear in any respect to be indicative of penetrating trauma to the alleged victim's vagina or anus, and thus none of the medical evidence corroborated the allegations of abuse or the alleged victim's testimony.” Gersten, 426 F.3d at 600.
Petitioner also argues that there is a reasonable probability that the outcome would have been different because Johnston's main defense theory - an appeal to the common sense of the jury - failed because he did not consult or call a medical expert and that Dr. Palusci's testimony could have “proven that there should have been more injuries to complainant had she sustained penile sexual abuse.” (See Pet. Mem. at 129.) This overstates Dr. Palusci's testimony. When asked about Dr. Shukat's conclusion that the tear was consistent with penetration of the vaginal area, Dr. Palusci testified that a “penis going into this child's vagina or hymen opening would generally cause much more trauma than we're seeing.” (Palusci: H1 at 21.) However, Dr. Palusci did not suggest that penetration of the vagina or hymen occurred in this case. Instead, he explained that the perihymenal tear was an injury to the vulva. (See id.; see also id. at 17 (“Remember, it is not the vagina. We're in the vulva here.”); see also id. at 55 (agreeing with Dr. Shukat's testimony that tear could be consistent with penetration, but “differ[ing] on the description of it being the vagina, if you will.”).)
Dr. Palusci did testify that people often assume that greater injury would be sustained in child sex abuse cases and that there are situations were greater injury is found (id. at 74-75), but he also testified that some level of penetration could occur without causing significant physical injury. (See id. at 51-52 (“So I know it is hard to believe but sometimes things touch tissues down there and there is very little physical injury even though there has been physical contact internal to the labia majora/minora.”).) Thus, contrary to Petitioner's assertion, Dr. Palusci's testimony would not have proven that there should have been more injuries in this case if the allegations were true.
Petitioner argues that the defense was “damage[d]” at trial by the failure to call a medical expert because there the defense had no expert testimony to address the use the prosecution made of Dr. Shukat's testimony in summation, pointing to the summation argument that “that while the tear ‘may sound small,' a tear ‘in the private genitalia area of a seven-year-old child,' ‘shouldn't be there.'” (See Pet. Mem. at 129-30 (citation omitted).) However, the testimony by Dr. Palusci cited above (i.e., that “sometimes things touch tissues down there and there is very little physical injury”) is consistent with, and does not rebut, the argument made by the People in summation.
Petitioner's remaining arguments regarding the purported prejudice caused by trial counsel's failure to call a medical expert are unpersuasive. Petitioner's arguments regarding the motivations of the victim and her mother to fabricate testimony (see Pet. Mem. at 130) are unrelated to the impact of any expert testimony. Petitioner's argument that the “hold-out juror would not have resolved his or her doubts in favor of conviction, had that juror heard Dr. Palusci's testimony” (see Pet. Mem. at 131) is pure speculation.
For these reasons, I find that the Appellate Division's determination that Petitioner had failed to demonstrate “a reasonable probability” that calling a medical expert “would have affected the outcome,” see Medlin, 144 A.D.3d at 427, was a reasonable application of Strickland.
II. The Appellate Division Reasonably Applied Strickland In Determining That Petitioner Failed To Demonstrate Prejudice Based On Counsel's Failure To Consult Or Call A Psychological Expert To Testify At Trial
Petitioner argues that he was prejudiced because a defense expert could have demonstrated that Dr. Lewittes's expert testimony about Child Sexual Abuse Syndrome had been rejected as scientifically invalid by the medical community and thus could have denied the prosecutor the opportunity to rely upon Dr. Lewittes's testimony in summation. (See Pet. Mem. at 142-43.) However, the Appellate Division found that Petitioner had “made no showing that the [Dr. Lewittes's] limited testimony [that child sex abuse victims frequently delay disclosure of the abuse] would have been readily rebuttable” and “failed to demonstrate a reasonable probability that calling the expert would have affected the outcome.” Medlin, 144 A.D.3d at 427.
It is undisputed that Petitioner failed to proffer expert testimony at the § 440.10 hearing or before this Court rebutting Dr. Lewittes' testimony. Petitioner argues that he was not required to call an expert at the § 440 hearing, by relying upon Burch v. Millas, 663 F.Supp.2d 151 (W.D.N.Y. 2009), to argue “that the failure of the defense to provide an affidavit from a [Child Sexual Abuse Syndrome] expert was not fatal to its ineffectiveness claim.” (See Pet. Mem. at 139 n.35.) The district court in Burch stated that it did “not read [Gersten and a district court case relying on Gersten] as holding that offering [affidavits from psychological experts regarding the scientific validity of Child Sexual Abuse Syndrome was] a prerequisite to granting [habeas] relief.” Burch, 663 F.Supp.2d at 188. However, that is not the question before this Court.
The question before this Court is whether the Appellate Division's decision finding that Petitioner “made no showing that the [Dr. Lewittes's] limited testimony [that child sex abuse victims frequently delay disclosure of the abuse] would have been readily rebuttable,” Medlin, 144 A.D.3d at 427, was an unreasonable application of Strickland. As the Appellate Division noted, testimony “that child sex abuse victims frequently delay disclosure of the abuse . . . is generally accepted by New York courts when introduced for that purpose, so long as it is not used to prove that the abuse actually occurred.” Medlin, 144 A.D.3d at 427. Indeed, “challenges to the scientific validity of . . . expert testimony [regarding Child Sexual Abuse Syndrome] have been rejected by the [New York] Court of Appeals.” People v. Felix, 2022 N.Y. Slip Op. 00258, 2022 WL 119973, at *1 (App. Div. 1st Dep't Jan. 13, 2022) (citing People v. Spicola, 16 N.Y.3d 441, 466-67, cert. denied, 565 U.S. 942 (2011)). See also People v. Lathrop, 171 A.D.3d 1473, 1473 (4th Dep't 2019) (“It is well settled that expert testimony concerning [Child Sexual Abuse Syndrome] ‘is admissible to explain the behavior of child sex abuse victims as long as it is general in nature and does not constitute an opinion that a particular alleged victim is credible or that the charged crimes in fact occurred.'” (citation omitted)).
During oral argument, Petitioner's counsel stated that, rather than submitting expert testimony regarding Child Sexual Abuse Syndrome, he was “relying on . . . the decision in Gersten, which evaluated Dr. Lewittes's testimony, the same Dr. Lewittes whose testimony is it at issue now, and that court found that it had been concluded that it was no longer scientifically valid.” (1/10/22 Tr. at 9.) To be sure, in 2005, the Second Circuit in Gersten stated that “[i]t would appear” that Child Sexual Abuse Syndrome “lacked any scientific validity for the purpose for which the prosecution utilized it: as a generalized explanation of children's reactions to sexual abuse, including delayed disclosure.” Gersten, 426 F.3d at 611. However, as set forth above, six years later, in Spicola, the New York Court of Appeals rejected a challenge to the scientific validity of the Child Sexual Abuse Syndrome. See Spicola, 16 N.Y.3d at 466. In so doing, the New York Court of Appeals stated: “While we have no way of knowing whether the record in Gersten justified the Second Circuit's conclusions about [Child Sexual Abuse Syndrome], the record here does not support a similar result.” Spicola, 16 N.Y.3d at 466.
Notably, since Gersten, in another case, the Appellate Division found defense counsel was not ineffective for failing to object to Dr. Lewittes's testimony about Child Sexual Abuse Syndrome. See People v. Adams, 135 A.D.3d 1154, 1157 (3d Dep't 2016). In addition, in Beltran v. Keyser, No. 15-CV-07201 (CBA), 2019 WL 2271360 (E.D.N.Y. May 28, 2019), a habeas petition was denied based upon an ineffective assistance claim where defense counsel failed to call an expert to rebut Dr. Lewittes. Id. at *9.
In these circumstances, it was incumbent on Petitioner to put forth an affidavit or testimony from a psychological expert stating how that expert would rebut Dr. Lewittes's testimony about the Child Sexual Abuse Syndrome in this case. Since Petitioner failed to do so, I find that the Appellate Division's determination that Petitioner had failed to demonstrate a reasonable probability that calling a psychological expert would have affected the outcome, see Medlin, 144 A.D.3d at 427, was a reasonable application of Strickland. Not having proffered a psychological expert, Petitioner simply cannot show that the “likelihood of a different result” is “substantial.” See Richter, 562 U.S. at 112.
One final note. Petitioner's ineffectiveness claims largely do not relate to Petitioner's conviction on the six counts of criminal sexual act In the first degree, which could be another reason for a lack of prejudice. After all, Petitioner received concurrent sentences of 25 years on each of those counts. (See Chariott Decl. ¶ 6.) However, during oral argument, Petitioner's counsel argued that trial counsel's errors had a “spillover” effect on the non-rape counts. (See 1/10/22 Tr. at 5.) The Second Circuit has recognized that the “spillover” effect of counsel's errors can cause prejudice on unrelated counts if certain factors are met. See Gersten, 426 F.3d at 614. The Court need not address these factors because, as discussed above, I find that there was no showing of prejudice regarding Petitioner's conviction on the rape counts to which the ineffectiveness claims relate.
CONCLUSION
For the reasons set forth above, I respectfully recommend that Medlin's Petition for a
Writ of Habeas Corpus be DENIED.
SO ORDERED.
* * *
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made under Fed.R.Civ.P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Ramos.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).