Burch v. Millas (663 F. Supp. 2d 151, 2009)

DECISION AND ORDER

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. Introduction

Lawrence W. Burch, II (“Burch” or “petitioner”), represented by attorney Charles Edward Fagan, Esq. (“Attorney Fagan” or “habeas counsel”), brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 challenging his conviction in Chautauqua County Court on one charge of aggravated sexual abuse in the second degree. The parties have consented to final disposition of this matter by a magistrate judge pursuant to 28 U.S.C. § 636(c)(1).

II. Jurisdiction

A. “In Custody” Requirement

Under 28 U.S.C. § 2254, a habeas petitioner must establish that he is “in custody in violation of the Constitution or laws ... of the United States.” See 28 U.S.C. § 2254(a). However, a petitioner need not actually be imprisoned to meet the “in custody” requirement, and may satisfy this requirement if he presently suffers from substantial restraints not shared by the public generally. See, e.g., Hensley v. Municipal Court, 411 U.S. 345, 351, 93 S.Ct. 1571, 36 L.Ed.2d 294 (1973) (release on own recognizance); Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963) (parole). Moreover, once the petitioner has satisfied the “in custody” requirement, jurisdiction is not thereafter defeated by petitioner’s subsequent release from custody. See Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968). Burch was sentenced to an indeterminate term of four to eight years in prison. Burch served his sentence at Mt. McGregor Correctional Facility and was released during the pendency of the instant federal habeas corpus proceeding. Because he filed his petition while he was incarcerated, he has satisfied the “in custody” requirement of 28 U.S.C. § 2254(a). See Maleng v. Cook, 490 U.S. 488, 109 S.Ct. 1923, 1925-26, 104 L.Ed.2d 540 (1989).

B. Mootness

As with all litigants in federal court, a habeas petitioner must satisfy the case or controversy requirement of Article III, § 2, of the Constitution in order to be eligible for relief. A case becomes moot if, at any stage of the proceedings, it fails to satisfy the case-or-controversy requirement. Kamagate v. Ashcroft, 385 F.3d 144, 150 (2d Cir.2004) (citing Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998)); accord Marrero Pichardo v. Ashcroft, 374 F.3d 46, 51 (2d Cir.2004); Swaby v. Ashcroft, 357 F.3d 156, 159-60 (2d Cir.2004). Burch’s petition was not rendered moot by his subsequent release from custody. However, in order for a habeas petitioner who is no longer in custody to demonstrate a live case or controversy, there must exist a concrete and continuing injury which is a collateral consequence of the detention and which can be remedied by granting the writ. See Spencer, 523 U.S. at 7, 118 S.Ct. 978; see also Perez v. Greiner, 296 F.3d 123, 125 (2d Cir.2002).

A prisoner’s challenge to the validity of his conviction always satisfies the “case or controversy” requirement of Article III because the incarceration constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. Spencer v. Kemna, 523 U.S. at 7, 118 S.Ct. 978. However, when the prisoner’s sentence has expired, some concrete and continuing injury other than the now-ended incarceration—that is, some “collateral consequence” of the conviction—must exist if petition is to remain justiciable. Id. (citing Carafas v. LaVallee, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968)). The Supreme Court has held that collateral consequences are presumed to flow from a felony conviction such as the one at issue here, such that petitioner’s release from custody does not moot the habeas petition. Sibron v. New York, 392 U.S. 40, 55-56, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968); Evitts v. Lucey, 469 U.S. 387, 391 n. 4, 105 S.Ct. 830, 83 L.Ed.2d 821 (1985); accord Spencer, 523 U.S. at 8, 12, 118 S.Ct. 978 (not departing from Sibron’s presumption that “a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur),” but declining to extend the Sibron to the parole revocation context).

Here, Burch challenges the underlying felony conviction that led to his detention, and the Sibron presumption of collateral consequences exists. See Spencer, 523 U.S. at 7-8, 118 S.Ct. 978 (citing Sibron, 392 U.S. at 55-56, 88 S.Ct. 1889). Accordingly, Burch’s habeas petition has not been mooted by his release from incarceration in state custody and presents a justiciable controversy amenable to review by this Court.

III. Factual Background and Procedural History

A. Indictment and Trial Proceedings (First and Second Trials)

On June 11, 1997, Burch was indicted by a Chautauqua County Grand Jury on one count of aggravated sexual abuse in the second degree (N.Y. Penal Law § 130.67(l)(a)), a class C felony. The indictment alleged that “on or about February, 1997,” Burch “did insert a finger in the vagina of another person causing physical injury to such person by forcible compulsion.” The alleged victim was the eleven-year-old daughter (“the complainant”) of Burch’s girlfriend, A.B., with whom he was living at the time.

At the trial-court level, Burch was assigned an attorney from the Chautauqua County Public Defender’s Office, Donald V. Nihoul, Esq. (“Attorney Nihoul” or “trial counsel”). Burch’s first jury trial in Chautauqua County Court (Ward, J.) ended in a mistrial because the jury was unable to reach a unanimous verdict. See Affidavit of Charles Edward Fagan, Esq., Submitted In Support of Habeas Petition (“Fagan Habeas Aff.”) ¶ 6 (stating that in certain state court pleadings, the prosecutor noted that, upon information and belief, the vote was eight to four in favor of acquittal.); see also Petitioner’s Memorandum of Law in Support of Habeas Petition (“Pet’r Habeas Mem.”) at 1; People’s Brief on Direct Appeal (“Peo. App. Br.”).

Jury selection for petitioner’s second trial was scheduled for early April of 1998. Another mistrial was declared, this time because counsel ran out of prospective jurors before a full jury could be seated. Id.

B. Trial Proceedings—Petitioner’s Third Trial

Burch’s third jury trial commenced on April 28, 1998, in Chautauqua County Court before Acting County Court Judge Robert C. Noonan. Burch again was represented by Attorney Nihoul. In his opening statement on April 29, 1998, trial counsel set forth the defense theory of the case—namely, that the victim was upset about her mother’s new relationship with Burch and wanted “unfettered access to her mom and her mom’s attention!)]” T.196. Trial counsel told the jury that “for about six months prior to this alleged incident [the victim] had become increasingly rebellious, defiant, and had just got to the point where she could hardly tell the truth about anything.” T.195. According to the defense, the victim “threatened her parents at least on two occasions with being reported to Child Protection.” T.195-96. The victim was portrayed as having “a grudge against Mr. Burch and ... wanted him out of the house;” id.; hence, the victim concocted the story about Burch sexually abusing her in order to oust him from the household and her mother’s life. As the trial judge would later observe, the “issue of credibility” was “critical to the case .... ” T.332.

1. The Prosecution’s Case

a. The Complainant

The complainant testified that Burch had lived with her and her mother, along with her half-brother and half-sister for “[m]aybe three or four years” prior to the incident in 1997, and that she called Burch her “dad.” Id. She left her mother’s home in March 1997, after reporting the sexual abuse to her guidance counselor at school. The complainant testified that Burch was touching her “[i]n [her] private areas[,]” meaning her “breasts and ... vagina area.” T.209-10. According to the complainant’s recollection, the incident at issue had occurred after “a couple of days” after Valentine’s Day in 1997. B.B. remembered that it was near Valentine’s Day because she had “heard a thing on the radio about like a—competition kissing [sic] ... and [she] asked [Burch] about it.” T.210, 218. In response to her question about the kissing contest, Burch then “started kissing [her].” Id. The complainant recalled that when Burch kissed her, it was “almost ... like [she] couldn’t breath [sic].” T.210 She testified that Burch also rubbed her breasts. T.211. (This alleged instance of Burch kissing her and touching her breasts was not part of the indictment.)

When asked by the assistant district attorney whether there was “another day when something else happened,” T.211, the victim replied affirmatively, but could not pinpoint a date:

Q: When did that [second incident] occur?

A: Um, I’m not quite sure.

Q: Did it occur sometime before you left the house?

A: Yes.

Q: Did it occur sometime before you told your guidance counselor?

A: Yes.

Q: Can you give us an idea of when that would have happened?

A: Like I can’t remember quite when, but—

Q: Is there an occasion that comes to mind.

A: Not really.

Q: Is it fair to say it was after Valentine’s Day and before you left in March?

A: Yes.

T.211-12. Defense counsel did not object to that line of questioning by the prosecutor. The complainant then testified that on the second occasion, Burch “forced her on [his] bed and he started kissing [her],” and “touched the inside of [her] vagina.” T.212. She “hardly could move.” T.212. When Burch “would stick [his fingers] inside [her] vagina,” it was painful and “felt like crayfish pinchers[.]” The complainant explained that being pinched by crayfish feels “like a bunch of nails are sticking into your skin.” T.218.

She stated that she did not tell anyone immediately what had happened because she was “scared [she] would get in trouble.” She also testified that Burch and her mother were going to a shooting range, and she was afraid that Burch was going to shoot her mother. T.213.

The complainant related that years earlier, she had been abused at age three by her paternal grandfather. When the prosecutor asked if she remembered where that incident happened, the complainant replied, “Not quite. It’s vivid [sic].” T.215. The complainant at first was unable to recount any details of the abuse, stating simply, “Um, my grandfather abused me.” T.215. She then elaborated somewhat, stating that her grandfather had “touched [her]” “[l]ike all over” with “his hands and his penis,” but she could not recall “how [her grandfather] touched [her].” T.215. When asked what her grandfather did with his hands, the complainant replied, “I’m not quite sure.” T.216, see also T.217-18. When asked if there was “any pain associated when [her] grandfather abused [her],” she replied, “I remember like I was just laying on the bed and there was like—like pinching my shoulder.” T.216. She later said that there was no pain associated with when her grandfather abused her, but she reiterated that there was pain when petitioner touched her. T.217. When asked if she remembered her grandfather doing “anything with his fingers or penis to put them inside [her]” she replied, “I’m not sure.” T.216.

On cross-examination, the complainant admitted that at first she thought petitioner “was okay because he like bought [their family] a whole bunch of stuff.” The complainant admitted that she told her mother that she “didn’t want her [mother] to be in a relationship just then,” T.226, but did not say anything specific to her mother about Burch.

Trial counsel elicitéd admissions from the victim that she had lied to her mother and to petitioner’s mother, who was like her grandmother, on several occasions in the past about whether she had done her homework. T.225.

The victim admitted that in January 1997, she and her mother had gotten into an argument “involving string.” She said that she was “kicking and it threw her [mother’s] glasses off.” T.232. While she was struggling to get way from her mother, who was trying to spank her, the complainant admitted that she threatened to call child protective services. However, she never did. T.232, 233.

Trial counsel then asked her to describe again the two incidents about which she had testified on direct examination. The complainant indicated that the first incident occurred while her mother “[m]ost likely” was at work, but she did not recall the exact time or date. T.234. She surmised that she and Burch were “[p]robably” watching T.V. T.235. The second incident, in which petitioner inserted his finger into her vagina, occurred during the afternoon “a couple of days later” in the bedroom shared by petitioner and her mother. T.235. T.236. Burch “took [her] upstairs” and then “he pushed [her] on the bed,” where he “held [her] down and he kissed [her]” with his hands “[l]ike in front of him on [her] shoulders.” T.237. According to the complainant, her brother and sister were present in the house on both occasions. T.234, 236.

Trial counsel then chose to elicit testimony about additional uncharged incidents of sexual abuse, asking the complainant, “Were there any other times [that Burch touched her]?” T.238 (emphases supplied). She responded that there were “[m]aybe two,” in addition to the two described above. T.238. The complainant explained that petitioner did “the same thing,” T.238, that is, he touched her in her vaginal area with his fingers. T.238-39. She stated that a third incident occurred in petitioner’s bedroom while her brother and sister also were in the house, but she could not provide a date and could not say whether it occurred in the daytime or nighttime. T.239. She then contradicted her earlier testimony, admitting that she was “not sure” if there was a fourth incident. T.240.

Later during his cross-examination of the victim, trial counsel returned to the topic of the other instances during which Burch allegedly touched her inappropriately, asking her, “[W]here did [petitioner] kiss you during those times?” T.261. The complainant replied that Burch kissed her on her mouth. T.261. Although no oral-genital contact was alleged in the indictment or brought up by the prosecutor during direct examination of the complainant, trial counsel asked her, “Did [petitioner] ever kiss you on the vagina?” T.261. The complainant responded, ‘Yes,” and said that it occurred “[w]hen they were up in the room [ie., Burch and her mother’s bedroom].” T.261. The complainant agreed that Burch kissed her on her vagina occurred only once “out of the three or four instances” that he abused her. T.262. Apparently attempting to show that the victim’s recollection was faulty and inconsistent, trial counsel brought up her testimony in the family court proceeding in which she testified that he did “more to [her] than he did the first time,” T.263, and that “[s]inee the first time he has on three or four occasions rubbed his fingers inside of [her] vagina and kissed [her] vagina.” T.264. Trial counsel asked the complainant if she recalled testifying previously, at the family court proceeding, that the abuse occurred “maybe five or six” times and she said, “No, I didn’t really recall that.” The victim indicated that she believed she testified that petitioner touched her “maybe two, maybe three” times. T.265.

Trial counsel then questioned the complainant about March 19th, day she reported the abuse. She recalled the date, she said, because she had gone home sick from school at about 2 p.m.; Burch’s brother, Lance Burch (“Lance”), picked her up at school and brought her home. T.240-41. Because petitioner’s brother, was playing computer games and “wasn’t paying any attention to [her],” the complainant decided to walk back to school to get her homework from her English teacher. T.242. The victim testified that her teacher thought something was wrong so she took her (the victim) to the guidance counselor’s office. T.242.

When Burch first moved in with them, the complainant thought that he was going to be like her sister’s father who had been physically abusive. T.253-54. Trial counsel then explored the complainant’s feelings about her mother’s relationship with Burch by introducing the complainant’s testimony from the family court proceeding where she testified that she told her mother about her apprehensions but her mother “told [her] to forget about it and so [she] did.” T.255. The complainant admitted that she wanted her mother “to give him [Burch] up[.]” T.255.

Trial counsel’s next focus of cross-examination was to elicit the complainant’s opinion of petitioner, asking her, “What kind of man is Mr. Burch?” T.243. The complainant testified, ‘Well, right now I think he’s sick.” T.243. Trial counsel then attempted to clarify the question, referring the complainant to the period of time that she was living with him. T.243. The complainant said that she “thought he was nice” and she agreed that he “was good to [her] mom[.]” T.243, 251. The complainant admitted that Burch never hit her mother, like the previous boyfriends had. T.244. Before the abuse occurred, the complainant said that she felt that petitioner “was a nice guy” but that after he “did this to [her],” she did not feel safe around him. T.253. Trial counsel elicited testimony that she did not feel safe around Burch “[f]rom the very beginning” because “he just didn’t look like a safe person.” T.256. When asked what she meant, the complainant testified, “Like, um, he would like work at night and sleep all day, and I just didn’t feel safe.” T.256. The complainant testified that it was “safe to say” that she “wanted him out of the house ... from the first time he moved in[.]” T.256.

Defense counsel questioned the complainant about Burch’s alleged threats not to reveal the sexual abuse: “[0]nce he told me I shouldn’t tell my mom ... [l]ike about the abuse.” T.244. Trial counsel asked if petitioner told the complainant what would happen if she told her mother. The complainant replied, “No, except for like she would be mad at me or something.” T.244.

Trial counsel then attempted to have the victim characterize her relationship with her mother as contentious. However, she disagreed with defense counsel’s characterization of her mother as “often mad” at her, stating it was “[o]nly like when [she] was bad.” T.244. The complainant testified that petitioner punished her “[a] couple of times” by grounding her for failing to do her homework and the dishes. T.245. The complainant stated that she got spanked on occasion but was “not quite sure” when it happened. T.246. She stated that getting a spanking “made [her] cry.” T.246.

b. The Prosecution’s Medical Expert: Dr. Robert Daniels

Robert Daniels, M.D. (“Dr. Daniels”) testified as the prosecution’s expert witness in its case-in-chief. Upon examining the victim, Dr. Daniels found that her hymenal ring was broken and that there was a “posterior tag,” which “by definition means that there had been a tear along this side and this side of her hymenal ring.” T.282-82. Instead of a “nice soft tissue opening,” T.282, the edges of the vagina appeared to Dr. Daniels to be “calloused from chronic penetration,” T.282. Dr. Daniels opined that, to a reasonable degree of medical certainty, the physical findings were caused by “[c]hronic vaginal introduction.” T.282. Dr. Daniels testified that the penetration would have had to have been done “many” or “multiple times over a course of a fairly decent amount of time” in order to produce the physical symptoms he found. T.284. The doctor likened the victim’s sub-acute injuries to “a callous, [which] ... just cannot happen overnight.” Dr. Daniels explained that the victim’s vaginal opening had “adapted to penetration the way most adult vaginas do.” T.284. In his opinion, the victim’s broken hymenal ring had occurred when she was near maturity (as she was at the time of the allegations), not when she was three years-old. T.285. He opined that, to a reasonable degree of medical certainty, the injuries to the victim’s vagina were caused by repeated penetration at or near the time of maturity. T.286. Dr. Daniels testified that “it had not happened recently ... [b]ut it had happened many times.” T.284.

On cross-examination, Dr. Daniels stated that he “would guess” that the “minimum” number of penetrations that could have caused the condition seen in the victim was “four or five times over the course of about two to three weeks.” T.287. When asked whether “two or three times [would] have done it,” Dr. Daniels testified “[p]ossibly,” but it would be “less likely.” T.287, 288. Dr. Daniels testified that the victim would have felt pain “initially” but over time the tissue would become adapted to the penetration and there would not be “nearly as much” pain. T.286. Dr.

Daniels conceded that the disruption of the victim’s hymen could have occurred a year before the alleged incident. T.288. When asked if the victim could have disrupted her own hymen, Dr. Daniels stated, “I imagine she could have. It would have been very painful. I suppose she could have.” T.289. He did not agree that she could have gotten the callousing of the tissue by just “exploring herself,” explaining that she would have to do more than explore—she would have had to chronically rub the area for it to become adapted. T.289. Dr. Daniels conceded that the complainant did not say anything about a sharp pain when she gave her medical history; she did mention that there was “some pain” but she “wasn’t very specific about it[.]” T.290.

On re-direct, Dr. Daniels agreed that it was “true” that the injury could have been caused by “somebody sticking his finger inside of her vagina and rubbing it back and forth.” T.291. That is what he meant by the chronic injury. T.291. Dr. Daniels reiterated that he did not believe that the injury was self-inflicted “because the first time [it occurred] would have been quite painful[.]” T.291.

On re-cross, Dr. Daniels admitted that he could not pinpoint when the first instance of penetration would have been, stating that it could have been some period of time, e.g., months, before the callousing happened. T.291-92.

However, Dr. Daniels opined on re-redirect that the initial penetration “[absolutely” could have occurred during a shorter period of time (i.e., “weeks or days possibly”) before the callousing occurred. T.292.

c. The Complainant’s Younger Sister

The victim’s eight-year-old half-sister S. R. testified as an unsworn witness for the prosecution. S.R. testified that she “[s]ometimes” saw Burch and the complainant kiss but she did not know what kind of kisses they would do. T.314. S.R. testified that Burch did not kiss the complainant in the same way he would kiss her mother. Id. The sister testified that she “sometimes [sic]” remembered Burch kissing the victim around Valentine’s Day, but that it was a short kiss, not a long kiss. T. 315. S.R. denied remembering “telling anybody that sometimes it would be a long kiss[.]” The prosecution rested its case thereafter. T.318.

2. Defense Counsel’s Motion to Dismiss the Indictment

At the close of the prosecution’s direct case, trial counsel moved to dismiss the indictment “upon the People’s lack of proof of any substantial pain or impairment of bodily condition which is part of the element of the offense chargedf,]” arguing that the complainant’s testimony did not “come up to the legal requirements of substantial pain.” T.318. Trial counsel noted that the complainant stated that “it didn’t even cause her to cry, it was a brief duration, didn’t last any more than whatever the act was [and] [s]he couldn’t be very specific about how long that was.” T.318. After reviewing his notes, the trial judge agreed with the prosecutor’s argument that the victim “did say it’s like a crayfish pinching you, like nails sticking into your skin.” T.322. The trial judge also agreed that, contrary to defense counsel’s contention, the complainant had testified sufficiently to create an issue of fact as to forcible compulsion, in that she testified that Burch held her down with hands on her shoulders and that the “kissing occurred to the point where she either said she couldn’t breath [sic] or it was smothering[J” T.324, 325. Accordingly, the trial court denied the motion to dismiss the indictment. T.325.

3. The Defense Case

a. Petitioner

Burch testified that he had injured his knee in basic training while in the Army and received a disability-based discharge on October 31,1991. As a result, he developed degenerative osteoarthritis which, along with the criminal charges pending against him, now prevents him from working. T.428. In 1996, he was working as the head full-time sales associate at Radio Shack. T.430-31. He was having a lot of problems with his knee at the time; he had to wear a neoprene brace and would have to sit down when work got too taxing. T.433. He was taking prescription Tylenol with codeine for the pain. T.435. Sometimes his knee would give out and he would fall down. T.435-36. As a result of his knee problems, he was not able to help the complainant’s mother with the household chores as much or spend as much time with the children as he had wanted to do. T.436.

He and the complainant’s mother started dating in April 1994 and he moved in with her in September 1994. He did not feel that there were any problems at first between him and the children when he moved in. T.437. The children, including the complainant, called him “dad.” T.442. With their mother’s permission, he would sometimes discipline the children if they did not do their chores or get their homework done; that ranged from taking money out of their “penny jar” to spankings. T.438-39.

In March 1997, he and A.B. had an agreement with the complainant that if she kept up on her chores, did not get in-school suspension, did not throw tantrums or argue with her mother, for 30 days without any incident, he was going to buy her bookshelf stereo system. T.440. Burch brought one home from work, but he ended up having to return it about three days before the complainant “turned [them] in.” T.441. Burch testified that it was a Friday, and the complainant had argued with her mother about what she was wearing to school. Burch told her that since she had broken the agreement, he was going to take it back, and he did that next Sunday. The following day, March 19, 1997, was when the complainant made the allegations of sexual abuse. T.441.

Burch did not recollect the incident around Valentine’s Day of 1997 that the complainant had described, in which she had asked him what a “competition kiss” was. T.442. Burch denied ever giving her a long kiss on the lips, or touching her breasts or vagina with his hands or mouth. T.443.

On cross-examination, Burch insisted that on every occasion he watched the children, somebody would be there in “[s]ome shape or form” and that he “[all-ways” had company, and was “never” alone, stating that “Ann used to complain about it.” T.448; see also T.453, 455. The prosecutor confronted Burch with his statement to Detective Warner of the Jamestown Police Department in which he said that “roughly 90 percent of the time [he] was not alone” with the children. T.453. Burch testified that was not correct.

The prosecutor confronted Burch with his time-records from Radio Shack for Saturday, February 15th, which indicated he worked from 9 a.m. to 10 a.m. T.447. Burch stated, however, that the record reflected how many hours he was paid for, but he “could have been” working until 10 p.m. and not have gotten paid for it; he did not “remember exactly what happened all that day.” T.447. Burch reiterated his testimony that he believed that he worked until 10 p.m. even though he only got paid for an hour. T.450. Burch agreed that there was no visitors listed for February 15th in the date-book specially prepared by A.B.; the book indicated that only his brother, Lance, was babysitting. T.449. Although his brother had not testified yet, Burch stated that he knew Lance had to work at 5:30 p.m. T.452. Burch agreed that if Lance was not babysitting until 9:30 p.m., when the complainant’s mother got off work, then somebody would have had to come over and baby-sat for free. Burch admitted that did not know who that would have been. He acknowledged that the complainant’s mother had not listed any other babysitter besides Lance in her date-book. T.452.

b. The Complainant’s Mother/Petitioner’s Girlfriend

Defense counsel called the complainant’s mother, A.B., who had since become engaged to Burch. T.338-39. A.B. testified that her romantic relationship prior to the one with Burch had been “[v]ery abusive”, both physically and verbally. T.340. She stated that her relationship with Burch was different in that it “wasn’t as controlling” and she agreed with defense counsel that it was “very cooperative.” T.342. A.B. testified that there was “not really” “any friction” between her children and Burch; “[i]t was just the fact ... they [her children] weren’t too sure because it was a male, because of the previous [abusive] relationship” with S.R.’s father. T.342. A.B. testified that the children were “very careful” around Burch because “they were used to getting in trouble all the time for doing just little things.” T.342. A.B. testified that as far as she could tell, the complainant accepted Burch when she and petitioner started dating in 1993. T.342. When asked if she ever had a conversation with the complainant about her wanting her mother to “give him up,” A.B. testified (contrary to what the complainant had said), “No, not that I can remember.” T.343.

In the 1996-1997 school year, the complainant started going to a new school and was “[c]onstantly” having discipline problems whereas before, she only had such problems occasionally. T.344-45. She was getting “into confrontations with other kids,” she would “butt into other people’s business or get detention or in-school suspension,” and would “constantly go into the school or class late, and she’d be somewhere after school that she shouldn’t have been .... ” T.345. At home, the complainant was not doing her homework and was not doing things that she knew she had to do, such as doing chores and cleaning her room. T.346. WTien told that she needed to do them, the complainant would respond, “you can’t make me.” T.346. Over the course of the school year, the complainant “got more defiant” to both her mother and Burch. T.347. When her mother questioned her about things that had happened at school and about which the school had called home, the complainant “would just totally deny it” or “blame it on somebody else.” T.347; see also T.401-02. A.B. testified that because the complainant kept getting caught in a “series” of lies about things such as getting detention or in-school suspension, it “was hard to believe anything she would tell” her mother. T.402.

A.B. testified that on “[s]everal occasions” the complainant threatened to call Child Protective Services on her mother and Burch. The first instance happened around Thanksgiving of 1996, and was made in response to being told to do the dishes and have them done by a certain time. T.348-49. A.B. recalled another incident that occurred in early February 1997, on a Sunday. A.B. testified that she went up to the complainant to ask her why there was kite string strung throughout the house; she “touched her shoulder to get her attention” and the complainant turned around, “grabbed [her] arm, and pulled [her] down to the floor.” T.351. The complainant “proceeded to say leave me alone, you can’t touch me, and she kicked [her] glasses off [her] face.” T.351. Said she was going to call Child Protective Services because she believed her mother “just went to spank [her],” to which A.B. replied that she wanted to ask her what was going on because her younger brother and sister were running through the house screaming. T.351. The third threat to call Child Protective Services occurred a few weeks later (right around the time of the alleged incident) when the complainant was told that she could not go to a Valentine’s Day dance at school because she had not kept up on her chores and had not completed a number homework assignments. Ultimately, the complainant was allowed to go to the dance. T.353.

When asked if she noticed any changes in the complainant or whether she seemed “afraid of anything or disturbed or bothered,” A.B. replied that the complainant “would just constantly tell [her] to come home and tell [her] that she got in arguments with school or just little things, things that kids do in school.” T.354. A.B. testified that the complainant never exhibited any fear of Burch. Id.

On cross-examination, A.B. admitted that she was engaged to Burch to be married once her divorce proceedings were final, and that he was the first boyfriend in nine years that had treated her well. A.B. testified that she did not believe her daughter’s allegations about Burch. T.377. However, A.B. did not agree that it was “impossible” for Burch to have been alone with the complainant. T.377-79. Over trial counsel’s objection, the prosecutor then impeached the complainant’s mother with her testimony from the earlier family court proceeding in which she testified that the ‘“biggest reason’” she did not believe her daughter was that there “ ‘was no time in which the allegations could have occurred.’ ” T.378. That statement was based on the date-book A.B. made regarding the times she and Burch were at work. T.379. A.B. testified at the family court proceeding that on February 15th, they worked similar shifts; she worked “11 to 9” and Burch worked “9 to 10”. T.379, 388. She worked until 9:30 at night, but she did not recall if Burch worked until 10 p.m. or 10 a.m. She believed he worked until 10 p.m. T.397. A.B. conceded that if he only worked until 10 a.m., petitioner “[p]ossibly” would have baby-sat the children while she was at work. T.389. Over defense counsel objection, see T.379-84, the prosecutor cross-examined A.B. using the personal datebook she had kept for the relevant time-period regarding her and Burch’s work schedules; her own document that she created regarding their various baby-sitters and the hours they worked; and an official document submitted to the Department of Social Services’ program for reimbursement for their baby-sitting expenses. T.378-99. That document indicated that petitioner’s brother, baby-sat for 7 hours on February 15th. T.395.

A.B. testified that the “major reason” was because the work schedules did not permit, and it was to “a large extent due to” Burch’s alleged physical disability, and “to some extent” because her daughter lied about whether she had done homework, chores, suspension at school. T.408. The prosecutor questioned A.B. as to how petitioner was “[s]o limited” in his physical capabilities that he could still bowl three games every Friday night, for thirty-two consecutive weeks, in a bowling league for two years. T.409. A.B. admitted that they were in a bowling league together but said that he “may have gone and sat” instead of bowling. T.410.

c. Lance Burch: The Babysitter and Petitioner’s Brother

Petitioner’s brother, Lance, testified for the defense that he babysat for the complainant about twenty hours a week for about a year to a year and a half. T.412. Lance testified that the complainant was “an argumentative child” but they “got along pretty good,” T.415, although the complainant sometimes threatened to report him to Child Protective Services when they would argue about her doing the dishes or cleaning her room. T.416. Lance admitted on cross-examination that the complainant never followed through on her threats, however. Lance testified that he never saw the complainant act “afraid” around his brother, the petitioner. T.417. Lance confirmed A.B.’s testimony about the complainant’s behavior when she was around Burch at the Easter pageant after the incident, stating that the complainant was “[n]o different than any other day.” T.418-19. Lance recalled that the complainant wanted to go to lunch with Burch and her mother. T.419. Lance did not go out to eat with the rest of the family.

On cross-examination, the prosecutor introduced Lance’s employment records from Camelot Music which indicated that worked there from 5:30 p.m. to 9:30 p.m. on February 15, 1997. T.424. Lance did not recall who was left in charge at home, but admitted that Burch “could have” been. T.424.

d. Linda Kay Burch: Petitioner’s Mother

Mrs. Burch knew A.B. and her children through participating in joint neighborhood projects together; this was before Burch and A.B. began dating. Also, Mrs. Burch’s daughter lived across the street from A.B. T.474. Mrs. Burch testified that she loved the complainant, Drake and Shannon, and they all called her grandma. T.475. Mrs. Burch also was the art teacher at the complainant’s elementary school. T.475. Petitioner attempted to have Mrs. Burch testify about something called “Project No,” which was part of the fifth-grade curriculum at the school, but because she did not have personal knowledge of the contents of the curriculum, the trial court sustained the prosecutor’s objections when counsel asked if it discussed sexual contact. T.478-80.

Mrs. Burch testified that she and the complainant had a very good friendship with the complainant, and that she and the complainant trusted each other. The complainant would quite frequently confide in Mrs. Burch about confidential things, like parents, school, friends, brothers and sisters, different everyday activities. T.481. In 1996-1997, after she started junior high school, “[o]n occasions” the complainant would tell her that “she knew how and would turn her parents in” to Child Protective Services (“CPS”). T.482. They had these conversations “[wjhenever things didn’t go [the complainant’s] way, a lot of times.” T.482. Mrs. Burch admitted that the first time she mentioned the complainant’s threats to call CPS was during one of the prior family court proceedings on this matter; she did not tell the police department or the district attorney’s office or social services. T.494, 496.

Mrs. Burch recalled on particular time, around February 14,1997, when the complainant wanted to go to a Valentine’s Day school dance on, and her parents would not let her go, and she wanted Mrs. Burch to intervene on her behalf. T.483. The complainant was “really upset and she said if they don’t let me go, this is ... one of the times, she said[,] I could turn then [sic] in.” T. 483. The complainant told Mrs. Burch that she knew who to call at Child Protective Services. T.484. Mrs. Burch talked to her daughter, and ultimately the complainant was allowed to go to the dance.

Mrs. Burch testified that the complainant never displayed any fear of petitioner and called him “daddy.” After Valentine’s Day, she did not observe any changes in the complainant. T.485.

Following the complainant’s disclosure to her guidance counselor on March 19, 1997, Mrs. Burch observed the complainant interact with petitioner at the Easter pageant; petitioner was part of the stage crew. T.486-87. Afterwards, the family was planning to go out to dinner, and the complainant asked if she could go with them. T.487. Mrs. Burch knew that the complainant was still at the “safe house” and believed that the complainant was not allowed to go with them, but the complainant said that she would call and get permission. T.487. Mrs. Burch heard the complainant call and tell the “safe house” only that they were going to be a little longer because they had to clean up after the pageant; the child did not mention going out to dinner with her mother and Burch. T.488.

Mrs. Burch testified that throughout the pageant and dinner, the complainant showed no hesitation or fear in dealing with petitioner; she interacted and chatted with him as she usually did. T.489.

Several months later, in December 1997, there was a family birthday party at the bowling alley; the complainant was not invited to it and Mrs. Burch did not know she was going to be there. Apparently, the complainant was with her foster mother. After the foster mother left, the complainant approached Mrs. Burch and said “[s]omething about she had made a mistake, she couldn’t change it, and she wishes she could, something on that order[.]” T.502; see also T.498. The complainant was not any more specific than that and, as she was so taken aback by the comment, Mrs. Burch did not question her about it, although she believed she knew what the complainant was talking about “because of conversations that [they] have had.” T.502. Mrs. Burch told the complainant that they could pray about it and they could see if the complainant could talk to someone who could help her make a decision. Id.

4. The Prosecution’s Rebuttal Case

The prosecution’s key rebuttal witness was Dr. Anthony Bongiovanni, a child psychologist who previously been qualified as an expert witness in family courts and criminal courts in several counties in New York state. See T.562 et seq. The prosecutor presented Dr. Bongiovanni with several hypothetical situations. The first hypothetical involved “an 11 year old girl [who] is sexually abused by digital penetration of the vagina by her father substitute,” and who, more than a month after the incident, reports it not to her mother but to a school guidance counselor. He was asked whether there was “any explanation that you can give, any syndrome to which that might attachf.]” T.564. Dr. Bongiovanni replied, ‘Tes,” and proceeded to explain the tenets of Child Sexual Abuse Accommodation Syndrome, as articulated in 1983 by Dr. Roland Summitt. T.564.

Dr. Bongiovanni described Child Sexual Abuse Accommodation Syndrome as a collection of behaviors of family dynamics that included “several paradoxic [sic] or questionable or opposite types of questions that are answered.” Id. He stated,

It is not unusual at all for a child who is sexually abused not to disclose that abuse immediately. In fact, it is the opinion of most, and I share that opinion, that most children do not disclose the abuse for several weeks, several months, several years. In fact, there is ample research to indicate that many children do not disclose being sexually abused until they are adults. And the thought is that there are many more who never disclose.

So the idea of disclosing is a very frightening thing for the vast majority of children. They feel frightened, they are often put under a cloak of secrecy by the individual who abused them, ...

As this goes on, the child begins to feel very helpless, very controlled and continues ironically to allow the abuse to go on. This is what is known as accommodation. In other words, the child allows the abuse to continue, accommodates a family, in other words, allows things to go on so that things remain the same even though they may be under significant pain and turmoil. Then sometimes what happens is in a delayed fashion the child will disclose it. There are many reasons why. A child may just have had enough. A child may be going through a troubled or conflictual [sic] time where their emotions arise when they are angry, and under the heat of emotions, sometimes things come out. It’s quite usual that the child will not initially disclose to a family member. It’s often a friend, it’s particularly often a school personnel [sic]; teacher, guidance counselor, school psychologist. There is a sense of more safety in disclosing it to someone else.

Again, within the accommodation there are many times when the child’s statements can be viewed as inconsistent, as not making sense, and there are many times—

T.565-67 (emphases supplied). At that point, trial counsel finally objected that Dr. Bongiovanni had “gone far afield from the question that was asked.” T.567. The trial court direct the prosecutor to move on to the next question, which was a hypothetical with the same subject as the first one, and asked the doctor why such a person, despite being abused, seeks to reunite with the family, to go to dinner with the family including the abuser.” T.567. Dr. Bongiovanni testified,

Once again, that is not a particularly unusual phenomenon. One has to understand that absent the act of sexual abuse, many children have ironically a positive or healthy relationship with the same individual is abusing them. Once a child has disclosed sexual abuse, typically that child’s world comes apart. The family becomes fragmented. Somebody is removed from the home ... and the child may start to feel guilty for having done this .... So many times the child in an effort to repair things ... will often continue to want to interact with the very same person who had sexually abused him or her. That is not an unusual occurrence.

T.567-68. This exposition evoked no objection from trial counsel.

The prosecution’s third and last hypothetical involved the same victim-profile. This time, the victim, after eight or nine months after reporting the incident, “says to a grand parental [sic] figure I made a mistake and I can’t undo it, is there an explanation for that[?]” T.568. Dr. Bongiovanni opined that “[o]ften a child will retract or ... recant” as “things change typically in a dramatic fashion after a child has disclosed.” T.568. Dr. Bongiovanni testified,

A child[,] out of a sense of guilt, anxiety, fear, apprehension, whatever, may feel [it] incumbent upon themselves to once again fix things up, change it, recant it, say it didn’t happen, say I lied, as a means of putting an end to a highly conflictual [sic] and typically fragmented family situation by that time. They are willing to be viewed as not telling the truth. They are even willing to be viewed as psyehiatrically ill or disturbed as a means of just getting things back to status quo.

T.568-69. Defense counsel did not object to this testimony.

Finally, Dr. Bongiovanni was asked whether “these matters to which [he] just testified” were “all in some type of psychiatrically or psychologically recognized syndrome?” T.569. He stated that “[t]his is a syndrome, the Child Sexual Abuse Accommodation Syndrome, noted by people, professionals, who are well experienced and have, unfortunately, a lot of experience in this particular area.” Id. Again, this testimony came in unopposed by defense counsel. Furthermore, defense counsel did not cross-examine Dr. Bongiovanni, stating he had “[n]o questions.” Id.

5. The Jury Charge and the Verdict

When charging the jury regarding the contents of the indictment, the trial court issued the following instruction:

This indictment charges the defendant, Lawrence Burch, with aggravated sexual abuse in the second degree alleging that shortly after Valentine’s Day, on or about February 14th or 15th, in the City of Jamestown, in the County of Chautauqua, he inserted his finger into the vagina of another person, [B.B.], causing physical injury to that person by forcible compulsion.

The jury returned a verdict convicting Burch as charged, of one count of second degree aggravated sexual abuse on May 1, 1998.

6. Sentencing

Soon after Burch’s trial ended, defense counsel Nihoul evidently left the state of New York and went to Florida to live, taking Burch’s entire file with him. Fagan Habeas Aff., ¶ 29. Nihoul did not appear for Burch’s sentencing hearing, which was adjourned so as to allow new counsel to be assigned to represent petitioner. Fagan Habeas Aff., ¶ 31. On July 31, 1998, new assigned counsel Peter D. Clark, Esq., appeared with Burch for sentencing. The trial court imposed an indeterminate term of imprisonment of four to eight years. Clark filed a notice of appeal that same day, but the preparation of the brief and oral argument was handled by Fagan, whom Burch’s family and friends had retained to represent him.

7. Post-Conviction Proceedings

a. Petitioner’s Collateral Attacks on the Conviction

On August 31, 1998, Fagan filed a motion to vacate the judgment pursuant to New York Criminal Procedure Law (“C.P.L.”) § 440.10(l)(f) and (h) alleging that Burch was denied the ineffective assistance of trial counsel because counsel, inter alia, allowed the introduction of uncharged crimes through the testimony of prosecution expert Dr. Daniels and through the cross-examination of the victim, and failed to cross-examine prosecution rebuttal expert witness Dr. Bongiovanni. See Post-Trial Proceedings at 64-67. Oral argument was held before Judge Noonan, the trial judge, on September 22, 1998. Judge Noonan thereafter denied the C.P.L. § 440.10 motion in a written decision and order, but granted Burch’s application for a stay of the judgment while his direct appeal was pending. See Petition at 4, ¶ 15 (Docket No. 1).

Still represented by attorney Fagan, Burch filed a second C.P.L. § 440.10 motion alleging that he received ineffective assistance of trial counsel, that his sentence was harsh and excessive, and that newly discovered evidence in the form of polygraph-test results showed that he was innocent. On February 25, 1999, the trial court (Noonan, J.) summarily denied this motion pursuant to C.P.L. § 440.30(2) and (4)(a), (b). See Record of Post-Trial Proceedings Submitted by Respondent at 165-67 (hereinafter “R__”).

Attorney Fagan has indicated that the Appellate Division, Fourth Department, of New York State Supreme Court granted leave to appeal on April 5, 1999, with regard to the initial C.P.L. § 440.10 motion. Fagan Habeas Aff., ¶¶ 13-14. Also, according to Fagan, the Appellate Division granted leave to appeal the denial of the second C.P.L. § 440.10 motion on June 11, 1999. Fagan Habeas Aff., ¶ 15. This Court was unable to locate a copy of the certificate granting leave in the documents submitted by respondent.

In any event, on May 10, 2000, the Appellate Division, Fourth Department, unanimously affirmed Judge Noonan’s decisions regarding the two C.P.L. § 440.10 motions in a summary order. See Exhibit A to Fagan Habeas Aff.; R.168-69; People v. Burch, 272 A.D.2d 855, 708 N.Y.S.2d 686 (2000). Fagan sought leave to appeal to the New York Court of Appeals, but this was denied on October 26, 2000, 95 N.Y.2d 904, 716 N.Y.S.2d 645, 739 N.E.2d 1150 (2000). Fagan Habeas Aff., ¶¶ 20 et seq.; R.170.

b. Direct Appeal

It is unclear on what date Burch, through attorney Fagan, filed his direct appeal of the judgment of conviction. In his brief, Fagan raised the following claims: (1) trial counsel was ineffective in (a) failing to seek pre-trial discovery, (b) failing to prepare adequately for trial, (c) allowing the introduction of uncharged crimes through the cross-examination of the victim, (d) failing to object to certain expert witness testimony, (e) failing to cross-examine the prosecution’s rebuttal expert, (f) appearing disorganized and confused in his opening statement, (g) negating the alleged defense theory in his summation, and (h) failing to appear for sentencing; (2) the trial court erred in not charging the jury on lesser included offenses; and (3) the trial court erred in specifying a date of the alleged incident when it read the indictment to the jury.

The Appellate Division issued a memorandum decision and order affirming Burch’s conviction. The Appellate Division noted that while trial counsel’s representation of Burch was “not error free,” Burch nevertheless received “meaningful representation” under People v. Baldi Leave to appeal to the New York Court of Appeals was denied.

8. The Federal Habeas Petition

On or about April 24, 2003, Burch, through attorney Fagan, filed his Petition (Docket No. 1) for relief pursuant to 28 U.S.C. § 2254. Ground One of the Petition alleges ineffective assistance of trial counsel on several grounds, namely, that

[djefense counsel elicited uncharged crimes, failed to demand a Bill of Particulars, failed to adequately cross-examine victim or the People’s expert witness, Dr. Robert Daniels, and failed to cross-examine the People’s expert witness, Dr. Anthony Bongiovanni, at all.

Petition at 7, ¶ 22(A) (Docket No. 1). Ground Two of the Petition alleges a “Denial of Due Process” on the basis that the “Trial Court, in its charge to the Jury, supplied dates to the charge that were not contained in the indictment, but which favored the Prosecution Rebuttal Case, but were never part of the case in chief.” Petition at 8, ¶ 22(B) (Docket No. 1).

Respondent answered the petition, interposing the defense of untimeliness. In addition, respondent argued, Burch’s claims of ineffective assistance of trial counsel and of trial court error are without merit. Respondent’s Memorandum of Law in Opposition to the Habeas Petition (“Resp’t Mem.”).

IY. Timeliness

The Anti-terrorism and Effective Death Penalty Act (“AEDPA”) amended the habeas statute in 1996 in numerous ways, one of which was to establish a one-year statute of limitations for petitioners in state custody petitioning for federal habeas corpus relief. The statute of limitations is tolled, however, for, “[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending.” 28 U.S.C.A. § 2244(d)(2). The Supreme Court has held that “an application is “properly filed” when its delivery and acceptance are in compliance with the applicable laws and rules governing filings. These usually prescribe, for example, the form of the document, the time limits upon its delivery, the court and office in which it must be lodged, and the requisite filing fee.... But in common usage, the question whether an application has been “properly filed” is quite separate from the question whether the claims contained in the application are meritorious and free of procedural bar”. Artuz v. Bennett, 531 U.S. 4, 8-9, 121 S.Ct. 361, 148 L.Ed.2d 213 (2000). When analyzing the phrase “an application for State post-conviction or other collateral review,” 28 U.S.C. § 2244(d)(2), the Supreme Court said, “Congress may have refrained from exclusive reliance on the term ‘post-conviction’ so as to leave no doubt that the tolling provision applies to all types of state collateral review available after a conviction and not just to those denominated ‘post-conviction’ in the parlance of a particular jurisdiction.” Duncan v. Walker, 533 U.S. 167, 177, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001).

Respondent does not dispute that Burch’s motions C.P.L. § 440.10 were “properly filed.” Nor does respondent contend that a C.P.L. § 440.10 motion does not constitute an application for “State post-conviction or other collateral review” within the meaning of Section 2244(d)(2). Rather, respondent’s only basis for arguing that the petition is untimely is that the third C.P.L. § 440.10 motion does not count for purposes of the tolling provided by Section 2244(d)(2) because petitioner did not include any claims from the third C.P.L. § 440.10 motion in his habeas petition. Clearly, such a requirement is not apparent on the face of the statute. Respondent does not identify any statutory language to support its position; nor does it cite any case law standing for the proposition that such a requirement be engrafted onto Section 2244(d)(2).

There is no question that Burch’s three C.P.L. § 440.10 motions provided sufficient tolling under Section 2244(d)(2). Respondent essentially concedes this point since the only way he can argue that the petition is untimely is if the third C.P.L. § 440.10 motion’s pendency is excluded from the computation of time. There being no support for such a methodology in the statute or in the case law, the Court declines to do so here. The petition is timely by virtue of the fact that the three C.P.L. § 440.10 motions sufficiently tolled the statute of limitations under 28 U.S.C. § 2244(d)(2).

V. Standard of Review in Habeas Corpus Petitions

Under the Anti-terrorism and Effective Death Penalty Act of 1996 (“AEDPA”), Pub.L. No. 104-132, 110 Stat. 1214 (1996), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was “adjudicated on the merits” in state court only if it concludes that the adjudication of the claim “(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d) (emphasis supplied). AEDPA’s provisions apply to Burch’s habeas petition, which was filed after the statute’s effective date of April 24,1996.

An “adjudication on the merits” is a “substantive, rather than a procedural, resolution of a federal claim.” Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir.2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir.1999)). Because the state courts considered and rejected Burch’s ineffective assistance claims on the merits, and did not rely upon any state procedural rules for dismissal, “this case is subject to the deferential standard of review of state court adjudications” under AEDPA. Gersten v. Senkowski 426 F.3d 588, 606 (2d Cir.2005).

Under the “contrary to” clause, “a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [that] Court has on a set of materially indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 412-13, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (O’Connor, J., concurring and writing for the majority in this part). Under the “unreasonable application” clause of § 2254(d), “a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413, 120 S.Ct. 1495. It is not sufficient under the “unreasonable application” prong of AEDPA for a habeas court to decide to issue the writ “simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable.” Id. at 411, 120 S.Ct. 1495. In order to grant the writ there must be “some increment of incorrectness beyond error,” although, as the Second Circuit has explained, “the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted); accord Henry v. Poole, 409 F.3d 48, 68 (2d Cir.2005).

“[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context.” Overton v. Newton, 295 F.3d 270, 278 (2d Cir.2002); see also Yung v. Walker, 341 F.3d 104 (2d Cir.2003) (amended opinion) (district court’s habeas decision that relied on precedent from the court of appeals is remanded for reconsideration in light of “the more general teachings” of Supreme Court decisions). The Second Circuit Court of Appeals has explained that habeas relief may be granted if a state court’s decision was “contrary to” or an “unreasonable application” of “a reasonable extension” of the Supreme Court’s jurisprudence on an issue. Torres v. Berbary, 340 F.3d 63, 68 (2d Cir.2003).

VI. Analysis of the Claims Raised in the Petition

A. Ground One: Ineffective Assistance of Trial Counsel

a. General Legal Principles

The Sixth Amendment provides in pertinent part that a criminal defendant “shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. The Supreme Court has explained that the right to counsel means “the