Hughes v. Sheahan (312 F. Supp. 3d 306, 2018)

TABLE OF CONTENTS

I. INTRODUCTION...316

II. RELEVANT BACKGROUND...316

III. LEGAL STANDARDS...317

A. AEDPA Standard of Review...317

B. Exhaustion and Procedural Default... 318

C. Ineffective Assistance of Counsel...319

IV. DISCUSSION...320

A. Ineffective Assistance of Trial Counsel...320

1. Failure to Object to Leading Questions and Bolstering Testimony...321

a. Leading Questions...321

b. Bolstering...322

2. Failure to Argue a Violation of the Ex Post Facto Clause...323

3. Failure to Object to the Scope of Expert Witness's Testimony...324

4. Failure to Interview and/or Call Certain Prospective Witnesses...325

5. Failure to Investigate Potential Alibis...329

6. Failure to Present Certain Other Evidence...330

7. Failure to Investigate Petitioner's Medical Condition...331

8. Failure to Present an Expert Witness Regarding False Confessions...332

B. Ineffective Assistance of Appellate Counsel...333

C. Involuntary Confession...336

D. Legal Sufficiency and Ex Post Facto Violation Regarding Count One...338

1. Legal Sufficiency of the Evidence Regarding Count One...338

2. Ex Post Facto Clause Violation...339

E. Legal Sufficiency of Other Counts and Double Jeopardy...342

1. Regarding Counts Two, Three, and Four...342

2. Double Jeopardy-Related Claims...344

V. CONCLUSION...346

I. INTRODUCTION

On December 1, 2015, petitioner Patrick Hughes ("Hughes" or "petitioner") filed an amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent Michael Sheahan ("respondent") answered the amended petition on February 12, 2016, and petitioner filed a reply.

On June 9, 2016, this action was stayed in order to permit Hughes an opportunity to fully exhaust certain claims in state court. The stay was lifted on March 9, 2017, after petitioner's counsel informed the Court that petitioner had completed the exhaustion process. Thereafter, petitioner filed a supplemental memorandum of law and exhibits from his collateral state court proceedings, respondent filed a supplemental memorandum of law in response, and petitioner filed a reply memorandum of law.

Hughes raises the following grounds for habeas relief: (1) his trial counsel and appellate counsel rendered ineffective assistance; (2) his confession was obtained in violation of his rights under the Fifth Amendment; (3) his conviction for predatory sexual assault against a child was based on legally insufficient evidence and violated the Ex Post Facto Clause; and (4) his convictions on counts one through four of the indictment were based on legally insufficient evidence and violated principles of double jeopardy.

For the reasons that follow, the amended petition is denied and dismissed.

II. RELEVANT BACKGROUND

On March 6, 2012, following a jury trial in the Albany County Supreme Court, Hughes was convicted of predatory sexual assault against a child in violation of N.Y. Penal Law § 130.96, rape in the first degree in violation of Penal Law § 130.35(1), rape in the second degree in violation of Penal Law § 130.30(1), and three counts of endangering the welfare of a child in violation of Penal Law § 260.10(1).

The facts precipitating the charges against Hughes were later summarized as follows:

When the police located defendant's 16-year-old stepdaughter after she ran away from home, she told them that she had been subjected to physical and sexual abuse by the 39-year-old defendant. He then voluntarily spoke with police and, in a video-recorded interview, gave a written statement in which he admitted that he had "disciplined" the victim by making her fellate him and have sexual intercourse with him on at least four separate occasions.

People v. Hughes , 114 A.D.3d 1021, 1021, 981 N.Y.S.2d 158 (N.Y. App. Div. 3d Dep't 2014).

After his conviction but prior to sentencing, Hughes filed a motion to set aside the verdict pursuant to New York Criminal Procedure Law ("CPL") § 330.30. The Albany County Supreme Court denied his § 330.30 motion on May 22, 2012, and on June 5, 2012 the trial court sentenced petitioner to an aggregate prison sentence of fifty years to life. Hughes , 114 A.D.3d at 1021, 981 N.Y.S.2d 158.

Hughes took a direct appeal in which he raised numerous arguments, but the Third Department affirmed the judgment of conviction on February 20, 2014. Hughes , 114 A.D.3d at 1025, 981 N.Y.S.2d 158. In affirming his conviction, the Appellate Division rejected certain of petitioner's arguments on the merits and concluded that his "remaining arguments were not preserved for our review ... and their inclusion in his posttrial CPL 330.30 motion is insufficient to preserve them as issues for appeal[.]" Id. at 1024, 981 N.Y.S.2d 158. Petitioner sought leave to appeal further, but the New York Court of Appeals denied that application. People v. Hughes , 23 N.Y.3d 1038, 993 N.Y.S.2d 251, 17 N.E.3d 506 (2014).

On July 23, 2015, Hughes, through counsel, filed a petition for writ of habeas corpus, but as noted above the proceeding was stayed on June 9, 2016 to allow petitioner to exhaust his claims that trial counsel was ineffective for failing to (1) interview or call to testify at trial certain individuals identified by petitioner; (2) investigate petitioner's financial records and petitioner's medical condition; (3) call two individuals for purposes of impeaching the credibility of the victim, C.D. ("C.D." or "the victim"); (4) enter into evidence photographs of a garage and camp that would have supported his defense; (5) consult with or call an expert witness regarding false confessions and/or false memories; and that (6) his appellate counsel was ineffective for failing to argue that his confession was coerced.

On July 5, 2016, Hughes filed in state court a notice of motion for writ of error coram nobis, which the Third Department denied on August 17, 2016. On November 5, 2016, the Court of Appeals denied leave to appeal. People v. Hughes , 28 N.Y.3d 1072, 69 N.E.3d 1027 (2016).

On July 7, 2016, Hughes, through counsel, also filed in state court a motion seeking to vacate his conviction pursuant to CPL § 440.10. The Albany County Supreme Court denied the motion on September 22, 2016 and, on November 28, 2016, the Third Department denied leave to appeal further. Thereafter, petitioner returned to federal court to pursue habeas relief in this action.

III. LEGAL STANDARDS

A. AEDPA Standard of Review

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant habeas corpus relief with respect to a claim adjudicated on the merits in state court only if, based upon the record before the state court, the state court's decision (1) "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) "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)(1), (2) ; Cullen v. Pinholster , 563 U.S. 170, 180-81, 185, 131 S.Ct. 1388, 179 L.Ed.2d 557 (2011) ; Premo v. Moore , 562 U.S. 115, 120-21, 131 S.Ct. 733, 178 L.Ed.2d 649 (2011) ; Schriro v. Landrigan , 550 U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007).

This standard is "highly deferential" and "demands that state-court decisions be given the benefit of the doubt." Felkner v. Jackson , 562 U.S. 594, 598, 131 S.Ct. 1305, 179 L.Ed.2d 374 (2011) (per curiam) (quoting Renico v. Lett , 559 U.S. 766, 773, 130 S.Ct. 1855, 176 L.Ed.2d 678 (2010) (internal quotation marks omitted) ). The Supreme Court has repeatedly explained that "a federal habeas court may overturn a state court's application of federal law only if it is so erroneous that 'there is no possibility fairminded jurists could disagree that the state court's decision conflicts with th[e Supreme] Court's precedents.' " Nevada v. Jackson , 569 U.S. 505, 508-09, 133 S.Ct. 1990, 186 L.Ed.2d 62 (2013) (per curiam) (quoting Harrington v. Richter , 562 U.S. 86, 102, 131 S.Ct. 770, 178 L.Ed.2d 624 (2011) ); see Metrish v. Lancaster , 569 U.S. 351, 358, 133 S.Ct. 1781, 185 L.Ed.2d 988 (2013) (explaining that success in a habeas case premised on § 2254(d)(1) requires the petitioner to "show that the challenged state-court ruling rested on 'an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement' ") (quoting Richter , 562 U.S. at 103, 131 S.Ct. 770 ) ).

Additionally, the AEDPA foreclosed " 'using federal habeas corpus review as a vehicle to second-guess the reasonable decisions of state courts.' " Parker v. Matthews , 567 U.S. 37, 38, 132 S.Ct. 2148, 183 L.Ed.2d 32 (2012) (per curiam) (quoting Renico, 559 U.S. at 779, 130 S.Ct. 1855 ). A state court's findings are not unreasonable under § 2254(d)(2) simply because a federal habeas court reviewing the claim in the first instance would have reached a different conclusion. Wood v. Allen , 558 U.S. 290, 301, 130 S.Ct. 841, 175 L.Ed.2d 738 (2010). "The question under AEDPA is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable-a substantially higher threshold." Schriro , 550 U.S. at 473, 127 S.Ct. 1933.

Federal habeas courts must presume that the state courts' factual findings are correct unless a petitioner rebuts that presumption with "clear and convincing evidence." Schriro , 550 U.S. at 473-74, 127 S.Ct. 1933 (quoting 28 U.S.C. § 2254(e)(1) ). "A state court decision is based on a clearly erroneous factual determination if the state court failed to weigh all of the relevant evidence before making its factual findings." Lewis v. Conn. Comm'r of Corr. , 790 F.3d 109, 121 (2d Cir. 2015) (internal quotation marks omitted). Finally, "[w]hen a state court rejects a federal claim without expressly addressing that claim, a federal habeas court must presume that the federal claim was adjudicated on the merits[.]" Johnson v. Williams , 568 U.S. 289, 301, 133 S.Ct. 1088, 185 L.Ed.2d 105 (2013).

B. Exhaustion and Procedural Default

An application for a writ of habeas corpus may not be granted until a petitioner has exhausted all remedies available in state court, a requirement excused only if "there is an absence of available State corrective process" or where "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. §§ 2254 (b)(1)(A), (B)(i), (ii). "The exhaustion requirement 'is principally designed to protect the state courts' role in the enforcement of federal law and prevent disruption of state judicial proceedings[.]' " Jimenez v. Walker , 458 F.3d 130, 149 (2d Cir. 2006) (quoting Rose v. Lundy , 455 U.S. 509, 518, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982) ).

To satisfy the exhaustion requirement, a petitioner must do so both procedurally and substantively. Procedural exhaustion requires that a petitioner raise all claims in state court prior to raising them in a federal habeas corpus petition. Substantive exhaustion requires that a petitioner "fairly present" each claim for habeas relief in "each appropriate state court (including a state supreme court with powers of discretionary review), thereby alerting that court to the federal nature of the claim." Baldwin v. Reese , 541 U.S. 27, 29, 124 S.Ct. 1347, 158 L.Ed.2d 64 (2004) (citations omitted); Fama v. Comm'r. of Corr. Servs. , 235 F.3d 804, 808 (2d Cir. 2000). In other words, a petitioner "must give the state courts one full opportunity to resolve any constitutional issues by invoking one complete round of the State's established appellate review process." O'Sullivan v. Boerckel , 526 U.S. 838, 845, 119 S.Ct. 1728, 144 L.Ed.2d 1 (1999).

"[W]hen a 'petitioner fail[s] to exhaust state remedies and the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred,' the federal habeas court should consider the claim to be procedurally defaulted." Clark v. Perez , 510 F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson , 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) ). Unexhausted claims may be deemed exhausted if "it is clear that the unexhausted claim is procedurally barred by state law," rendering presentation of the claim in state court "futile." Aparicio v. Artuz , 269 F.3d 78, 90 (2d Cir. 2001) (citing Reyes v. Keane , 118 F.3d 136, 139 (2d Cir. 1997) ).

Procedurally defaulted claims are not subject to habeas review unless a petitioner shows cause for the default and actual resulting prejudice, or that the denial of habeas relief would result in a fundamental miscarriage of justice, i.e., that he or she is actually innocent. House v. Bell , 547 U.S. 518, 536-39, 126 S.Ct. 2064, 165 L.Ed.2d 1 (2006) ; Schlup v. Delo , 513 U.S. 298, 327, 115 S.Ct. 851, 130 L.Ed.2d 808 (1995) ; see also Dunham v. Travis , 313 F.3d 724, 730 (2d Cir. 2002) (" '[A]ctual innocence means factual innocence, not mere legal insufficiency.").

To establish cause, petitioner must show that some objective external factor impeded his ability to comply with the relevant procedural rule. Maples v. Thomas , 565 U.S. 266, 280, 132 S.Ct. 912, 181 L.Ed.2d 807 (2012) ; Coleman , 501 U.S. at 753, 111 S.Ct. 2546. If a petitioner fails to establish cause, a court need not decide whether he suffered actual prejudice, because federal habeas relief is generally unavailable as to procedurally defaulted claims unless both cause and prejudice are demonstrated. See Murray v. Carrier , 477 U.S. 478, 496, 106 S.Ct. 2639, 91 L.Ed.2d 397 (1986) (referring to the "cause-and-prejudice standard"); Stepney v. Lopes , 760 F.2d 40, 45 (2d Cir. 1985).

C. Ineffective Assistance of Counsel

To demonstrate constitutionally ineffective assistance of counsel, a petitioner must show that counsel's performance fell below an objective standard of professional reasonableness, and but for counsel's alleged errors, the result of the proceedings would have been different. Premo , 562 U.S. at 121-22, 131 S.Ct. 733 ; accord Strickland v. Washington , 466 U.S. 668, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

" Strickland does not guarantee perfect representation, only a reasonably competent attorney." Richter , 562 U.S. at 110, 131 S.Ct. 770 (quoting Strickland , 466 U.S. at 687, 104 S.Ct. 2052 ) (internal quotation marks omitted). A petitioner must overcome "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ... [and] that, under the circumstances, the challenged action 'might be considered sound trial strategy.' " Strickland , 466 U.S. at 689, 104 S.Ct. 2052 (quoting Michel v. Louisiana , 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 (1955) ). Even if a petitioner can establish that counsel was deficient, he still must show that he suffered prejudice. Strickland , 466 U.S. at 693-94, 104 S.Ct. 2052.

Meeting this burden is "never an easy task ... [and] [e]stablishing that a state court's application of Strickland was unreasonable under § 2254(d) is all the more difficult." Premo , 562 U.S. at 122, 131 S.Ct. 733 (citations and internal quotation marks omitted); Burt v. Titlow , 571 U.S. 12, 16, 134 S.Ct. 10, 187 L.Ed.2d 348 (2013) (noting that "AEDPA erects a formidable barrier" to federal habeas review of claims that have been adjudicated in state court).

When reviewing a state court's decision under section 2254, "[t]he question is not whether a federal court believes the state court's determination under the Strickland standard was incorrect but whether that determination was unreasonable-a substantially higher threshold." Knowles v. Mirzayance , 556 U.S. 111, 123, 129 S.Ct. 1411, 173 L.Ed.2d 251 (2009) (internal quotation marks and citation omitted). Federal habeas courts "must guard against the danger of equating unreasonableness under Strickland with unreasonableness under § 2254(d)" because "[w]hen § 2254(d) applies, the question is not whether counsel's actions were reasonable." Richter , 562 U.S. at 105, 131 S.Ct. 770. Instead, "[t]he question is whether there is any reasonable argument that counsel satisfied Strickland's deferential standard." Id.

IV. DISCUSSION

A. Ineffective Assistance of Trial Counsel

Hughes contends that his trial counsel was ineffective for numerous reasons discussed below. Respondent argues petitioner's various claims lack merit.

On direct appeal, the Appellate Division concluded that Hughes's trial counsel was not ineffective, explaining that

the record reveals that trial counsel made appropriate pretrial motions, presented cogent opening and closing statements, pursued a reasonable defense, vigorously cross-examined the People's witnesses, presented an expert to rebut the People's expert witness and raised appropriate objections throughout the trial. Viewing the totality of the circumstances, we conclude that defendant received the effective assistance of counsel[.]

Hughes , 114 A.D.3d at 1024-25, 981 N.Y.S.2d 158.

Similarly, in reviewing Hughes's CPL § 440.10 motion, the Albany County Supreme Court concluded that his trial counsel rendered effective assistance. In particular, the state court found that petitioner's trial counsel was "well prepared to try this case and exerted significant effort on defendant's behalf."

The record supports these conclusions. Before trial, Hughes's counsel made several motions, including motions to dismiss the indictment, to compel the production of information, and to suppress Hughes's statements to law enforcement officers. Trial counsel also moved to preclude testimony from numerous witnesses, arguing that such testimony would constitute hearsay from the victim, would not be probative of any material fact, and would "merely bolster the People's case."

At trial, Hughes's counsel pursued a credible theory of defense, arguing that C.D. was motivated by her dislike for petitioner, her stepfather, and the fact that she was forced to "split her [mother's] attention [and] affection" with him. In a cogent opening statement, trial counsel asserted that C.D. "didn't like" the family's "rules" that she "had to live by," and that she falsely accused petitioner of abusing her to avoid getting into trouble after she ran away from home and was discovered by the police.

Moreover, trial counsel argued that the videotaped interrogation demonstrated that Hughes had actually been coerced by law enforcement-who confronted him with false evidence-to provide an inculpatory, and untrue, statement. Petitioner's trial counsel also made numerous objections to testimony or exhibits offered by the People. Trial counsel also conducted vigorous cross-examination of the People's witnesses and moved for a trial order of dismissal at the close of the People's case and at the conclusion of evidence.

"[I]t is difficult to establish ineffective assistance when counsel's overall performance indicates active and capable advocacy," as it does here.

Richter , 562 U.S. at 111, 131 S.Ct. 770. Accordingly, and for the reasons discussed below, each of Hughes's ineffective-assistance claims will be denied. Whether his ineffective-assistance arguments are considered individually or in combination, petitioner has failed to establish trial counsel's representation was deficient or that he was prejudiced. As a result, the state courts' rejection of those claims were not contrary to, or an unreasonable application of, clearly established Supreme Court precedent, nor did they constitute an unreasonable determination of the facts in light of the evidence presented.

1. Failure to Object to Leading Questions and Bolstering Testimony

Hughes contends that his trial counsel was ineffective for failing to object to "leading and bolstering" questions posed to the victim "and other prosecution witnesses." Respondent argues petitioner's claim lacks merit.

a. Leading Questions

On direct appeal, Hughes argued that his trial counsel was ineffective for failing to object to leading questions posed to the victim "that were clearly designed to suggest the dates of the alleged offenses," and to a leading question posed to the victim regarding certain circumstances that followed petitioner's arrest. However, the Third Department found that trial counsel, inter alia , pursued "a reasonable defense" and "raised appropriate objections throughout the trial." Hughes , 114 A.D.3d at 1024, 981 N.Y.S.2d 158.

Regarding the dates of the offenses, the record reveals that C.D.'s identification of when the "physical abuse started" was not in response to a leading question. Rather, the prosecutor's questions regarding the dates of the specific events underlying the charges were asked after the victim voluntarily stated when the "physical abuse started"; the questions at issue were asked to clarify the victim's then-extant responses. During the line of questioning, which included questions as to how old the victim was during various school years, the victim twice stated she was "confused" and agreed to have the prosecutor start the line of questioning over.

Regarding the victim's testimony about the circumstances following her allegations, the prosecutor asked C.D., "[a]nd after [Hughes] was arrested, you were the one thrown out of the house, right?" That question was posed on redirect examination, after extensive questioning about the incidents at issue had already occurred.

Upon review, Hughes's trial counsel was not ineffective for refraining from objecting during this questioning. C.D. was seventeen years old at the time of the trial and was being questioned about sensitive and embarrassing subjects that occurred starting when she was approximately nine years old.

"Courts have recognized that while leading questions are generally not permissible on direct examination, there are some circumstances in which leading questions should be allowed 'as may be necessary to develop the witness' testimony.' " Humphrey v. Fisher , No. 9:07-CV-1200 (TJM/DRH), 2010 WL 7417094, at *14 (N.D.N.Y. July 23, 2010) (finding that "leading questioning did not amount to egregious misconduct since it was necessary to elicit testimony from the young victim" where the fifteen-year-old victim was "testifying about a sensitive and embarrassing subject" and "was clearly having difficulty formulating verbal responses"), adopted by , 2011 WL 4055407 (N.D.N.Y. Sept. 12, 2011).

In addition, a defendant's attorney might reasonably "choose not to object to some leading questions [so as] not to appear obstructionist and thus offend the jury." Martina v. Rock , No. 6:09-CV-6345, 2011 WL 1792916, at *8 (W.D.N.Y. May 10, 2011) (internal quotation marks omitted) (concluding that defense counsel reasonably elected not to object to leading questions "[g]iven the young age of the victim in th[e] case" and the "desire to stay in good standing with the jury").

To the extent the prosecutor may have asked leading questions in order to clarify when the abuse occurred and regarding certain events following Hughes's arrest, trial counsel was not deficient for refraining from objecting. Indeed, while trial counsel may have validly chosen to object to the prosecutor's question about C.D. getting "thrown out of the house" after petitioner was arrested, doing so would have only further drawn the jury's attention to the fact that, having made accusations of heinous abuse at the hands of her stepfather, C.D. was the one displaced from the family residence.

b. Bolstering

Hughes also argues that his trial counsel was ineffective for failing to object to the prosecution's elicitation of bolstering testimony from Child Protective Services ("CPS") caseworker Jennifer Mengel ("Caseworker Mengel") Lieutenant Edward Watson ("Lieutenant Watson"), and Sergeant Patrick Donlon ("Sergeant Donlon"). Petitioner argued on direct appeal that these witnesses' "sole aim was to bolster and repeat statements and allegations" made by the victim to police.

The Third Department did not unreasonably apply clearly established Supreme Court precedent in rejecting this basis for Hughes's ineffective-assistance claim. As the Third Department correctly noted, Caseworker Mengel's limited testimony regarding C.D.'s allegations-that petitioner abused her from age "ten till approximately eighth grade"-served to "describe the reaction of the victim's mother to [Caseworker Mengel's] report to her of [those] allegations." Hughes , 114 A.D.3d at 1022, 981 N.Y.S.2d 158. Caseworker Mengel's testimony regarding C.D.'s allegations also gave context to the subsequent steps she took as part of her investigation, and her observations about the demeanor of petitioner's mother upon learning of the allegations were relevant to explain C.D.'s "apparent delay in disclosing the abuse." Id. at 1023, 981 N.Y.S.2d 158.

Moreover, this testimony was also relevant to C.D.'s decision to run away from home, which Hughes's trial counsel cast as C.D.'s attempt to avoid getting into trouble for disobeying his household rules. The Third Department properly concluded that, even if Caseworker Mengel's testimony concerning C.D.'s allegations constituted bolstering, its admission was harmless because the prosecution did not rely upon that "brief" testimony as direct evidence of petitioner's guilt. Hughes , 114 A.D.3d at 1023, 981 N.Y.S.2d 158. Given that the Third Department considered the merits of petitioner's bolstering argument with respect to Caseworker Mengel's testimony-and specifically rejected that argument-it cannot be said that defense counsel was ineffective for failing to "consistently object" to that testimony.

Turning to the testimony of Lieutenant Watson and Sergeant Donlon, the Third Department aptly characterized these witnesses's testimony as being "limited to a brief repetition of the general allegation of sexual abuse made by the victim, without reference to any time frame or other details."

Hughes , 114 A.D.3d at 1023, 981 N.Y.S.2d 158.

In particular, Sergeant Donlon's testimony provided background information regarding his limited role in the preliminary stages of the investigation, including his brief interview of C.D. and his encounter with Hughes. Sergeant Donlon testified that, on March 20, 2011, he was working as shift supervisor at the Watervliet Police Department when law enforcement from Green Island contacted him about a missing person-C.D.-who had been located. Sergeant Donlon directed another officer to transport C.D. to the Watervliet Police Department, and, while there, C.D. disclosed that petitioner had subjected her to physical and sexual abuse. Later that day, after petitioner agreed to come to the police station to speak about C.D. (but before he was aware of the allegations made by her), Sergeant Donlon gave petitioner a ride to the station.

The prosecution limited its questioning to background information and repeatedly advised Sergeant Donlon that he should not testify as to "specifics about what [the victim] said." Instead, Sergeant Donlon testified that C.D. stated she "wasn't exactly sure" regarding the time frame of alleged abuse, and that he had "concerns ... that [C.D.] may be making this up" to avoid being disciplined at home.

Lieutenant Watson also provided background information, testifying, in part, that he interviewed the victim at the request of Sergeant Donlon. Notably, Lieutenant Watson testified that C.D. was "unable to recall dates and times of ... particular sexual assaults" except for the date of the first assault, and that he had "concerns" about the veracity of C.D.'s statements.

On cross-examination, defense counsel elicited testimony from Lieutenant Watson to the effect that "a lot of information [the victim provided to him] just didn't flow" and he "[a]bsolutely" was skeptical of the information she provided to him; in fact, he advised her that making a false statement was a crime. Defense counsel also elicited testimony that Lieutenant Watson "misled [petitioner's wife] about the nature and circumstances of what the allegations were," and did not tell her of the "potential punishments" in order for her to ask petitioner to come to the police station.

In short, rather than improperly bolstering the victim's account, Lieutenant Watson's and Sergeant Donlon's testimony merely served to provide background information and explain their subsequent actions in pursuing the investigation. The Third Department did not unreasonably apply Strickland in rejecting petitioner's argument.

2. Failure to Argue a Violation of the Ex Post Facto Clause

Hughes contends that his trial counsel was ineffective for failing to object and preserve "the Ex Post Facto violation contained [in] Count One of the Indictment-Predatory Sexual Assault Against a Child." Petitioner argued on direct appeal that trial counsel rendered ineffective assistance because, among other things, he did not "raise an objection with respect to the ex post facto nature of the top count" of the indictment.

Hughes first advanced this ex post facto challenge in his post-trial motion to set aside the verdict. The trial court found this argument unpreserved. Later, the Third Department concluded that trial counsel's failure to raise this argument did not "deprive [Hughes] of meaningful representation" because (1) even if the court considered petitioner's unpreserved ex post facto claim, it "would find" that underlying claim "to be without merit," and (2) the totality of the circumstances-including counsel's "appropriate pretrial motions,"

"cogent" opening statement and summation, "pursu[it of] a reasonable defense," and vigorous cross-examination of prosecution witnesses-demonstrated that petitioner received the effective assistance of counsel. Hughes , 114 A.D.3d at 1024-25, 981 N.Y.S.2d 158.

As discussed in greater detail below, the Third Department reasonably concluded that the evidence was legally sufficient to support the predatory sexual assault conviction. Moreover (and as also discussed below), Hughes's ex post facto claim is barred and, in any event, lacking merit. Sufficient evidence supported the conclusion that petitioner committed the offense of predatory sexual assault against a child within the timeframe alleged (and thus, after the effective date of the Penal Law § 130.96 ). Accordingly, trial counsel was not ineffective for failing to challenge that count as violative the Ex Post Facto Clause.

"It is well settled that '[t]he failure to include a meritless argument does not fall outside the wide range of professionally competent assistance" to which a petitioner is entitled. Parks v. Sheahan , 104 F.Supp.3d 271, 286 (E.D.N.Y. 2015) (holding that petitioner suffered no prejudice under the second prong of Strickland as a result of trial counsel's failure to preserve a meritless issue because the state court's outcome would not have been different).

Even if trial counsel had timely raised the ex post facto claim before the trial court, the Appellate Division would have properly rejected it on appeal. See Hughes , 114 A.D.3d at 1024, 981 N.Y.S.2d 158 (noting that the claims contained in petitioner's post-trial motion to set aside the verdict were not preserved and, in any event, "the failure to raise these objections at trial" did not constitute ineffectiveness because the those claims were "without merit"). As a result, petitioner's argument provides no basis for habeas relief. See Lawrence v. Graham , No. 1:12-CV-0814, 2014 WL 585301, at *10 (W.D.N.Y. Feb. 13, 2014) (concluding that petitioner's ex post facto challenge "had little to no chance of success on the merits" and therefore he was not prejudiced by his trial counsel's failure to assert the claim).

3. Failure to Object to the Scope of Expert Witness's Testimony

Hughes contends that his trial counsel was ineffective for failing to object to the allegedly improper scope of the testimony given by the prosecution's expert, Dr. Richard M. Hamill, who testified regarding Child Sexual Abuse Accommodation Syndrome ("CSAAS"). Respondent argues this claim lacks merit.

At the outset, respondent acknowledges that Hughes argued on direct appeal that his trial counsel was ineffective for, among other things, failing to "object to the scope of the testimony presented by the People's expert witness." However, whether petitioner properly exhausted that particular claim is less clear to the Court. Although petitioner argued on direct appeal that he was deprived of a fair trial because the prosecution "improperly used" Dr. Hamill's testimony in order to draw similarities between the victim's behavior and behaviors consistent with the victims of sexual abuse, he did not specifically argue that counsel was ineffective for failing to object to that testimony.

Additionally, although Hughes argued conclusorily in his CPL § 440.10 motion that trial counsel "[f]ailed to object to the scope of the People's expert testifying on" CSAAS, that claim was plainly record-based and should have been raised on direct appeal. See Clark , 510 F.3d at 392 ("[A] motion to vacate based on facts visible on the trial record must be dismissed where the defendant unjustifiably failed to raise the issue on direct appeal.").

In any event, however, Hughes's claim is plainly meritless. Petitioner does not identify with specificity what questions posed by the prosecutor to Dr. Hamill to which trial counsel purportedly should have objected, or what aspect of Dr. Hamill's testimony was constitutionally improper. The Third Department rejected petitioner's standalone claim that Dr. Hamill's testimony should have been precluded, explaining that it

is well settled that testimony to explain the range of behaviors of sexually abused children-including why they may delay in reporting sexual abuse-may be admitted as beyond the ordinary understanding of the average juror. Here, the People's expert testified about these behaviors generally in an effort to counter negative inferences urged by defendant's counsel and did not attempt to impermissibly prove that the victim had been sexually abused.

Hughes , 114 A.D.3d at 1023-24, 981 N.Y.S.2d 158 (citations omitted).

Hughes does not assert in this proceeding, as an independent ground for federal habeas relief, that the Third Department unreasonably applied clearly established Supreme Court precedent in concluding that Dr. Hamill's testimony was properly admitted, and a review of the state court record does not suggest otherwise.

Testimony regarding CSAAS "is admissible as a matter of New York state evidentiary law when it is relevant in a particular case." Miles v. Conway , 739 F.Supp.2d 324, 337 (W.D.N.Y. 2010) (finding that petitioner could not demonstrate that the trial court erred in allowing expert testimony regarding CSAAS, and collecting cases).

The state court record provides no support for the proposition that trial counsel's representation was deficient in this regard, or that petitioner suffered resulting prejudice. Trial counsel opposed the prosecution's pretrial motion in limine to introduce the testimony of an expert on CSAAS to explain in general terms the behavior of abuse victims.

Moreover, Dr. Hamill's testimony at trial was limited to CSAAS in general. On direct examination, he explicitly stated he was not testifying with regard to whether C.D. was a victim of sexual abuse. During cross-examination, trial counsel elicited testimony reiterating that Dr. Hamill "knew very little about the specific factual allegations [in] this case," had never met the victim, had not reviewed any of "her documents" or "any notes," and was not testifying to offer an opinion as to whether or not petitioner was guilty. Notably, petitioner also presented his own expert, Dr. Jacqueline Bashkoff, who testified regarding CSAAS in general.

Based upon the foregoing, even if it can be said that trial counsel "[f]ailed to object to the scope of" Dr. Hamill's testimony on CSAAS, the Third Department plainly considered, and found proper, Dr. Hamill's testimony in the context of the trial record. There is no basis on which to conclude trial counsel's strategy with respect to countering the prosecution's expert was deficient, or that further objection to the expert's testimony would have swayed the state courts to reach a different conclusion. Accordingly, this basis for petitioner's ineffective-assistance claim is lacking in merit.

4. Failure to Interview and/or Call Certain Prospective Witnesses

Hughes contends that his trial counsel was ineffective for failing to interview, and/or call as trial, certain "critical witnesses" who would have established his innocence. More specifically, petitioner argues that counsel unreasonably failed to investigate or call at trial the following prospective witnesses: (1) petitioner's wife (C.D.'s mother); (2) Meghan Hughes (petitioner's sister); (3) Linda Hughes (petitioner's mother); and (4) Patrick "Rico" Hughes (petitioner's son). Respondent argues the petitioner's claim is without merit because trial counsel was concerned about the credibility of petitioner's wife, and argues that petitioner failed to provide information to trial counsel regarding these individuals that would have necessitated interviews with those individuals.

While this action was stayed, Hughes raised this argument in a counseled CPL § 440.10 motion. In support of his motion, petitioner filed affidavits from each of the witnesses at issue, and he attached the same affidavits to his original petition in this action. The affidavits supplied by Hughes asserted, in essence, that petitioner could not, and would not, have committed the acts alleged by C.D., who the affiants characterized as dishonest and manipulative. Petitioner's wife averred, inter alia , that (1) she was never interviewed by trial counsel, (2) she never observed petitioner abusing the victim, (3) petitioner could not have sexually assaulted the victim in the garage of their residence in the summer of 2006 because (a) he "could not obtain an erection" when he was intoxicated, (b) the garage was too cluttered to complete an assault there, (c) if petitioner were ever left home alone with the victim, petitioner "would have been in bed drunk and asleep" and would not have had sufficient time to assault the victim, and (4) petitioner could not have sexually assaulted the victim in petitioner's camping trailer in the summer of 2009 because the camper was "small and cramped" and offered no privacy.

Hughes's sister averred, inter alia , that (1) she "believe[s] that [petitioner] is innocent," (2) even if she and other family members left petitioner and the victim home alone on one occasion to purchase dinner, as the victim claimed happened preceding the summer 2006 incident, the family members returned home "no more than 15 minutes" later and petitioner was drunk in bed, (3) the garage where that alleged sexual assault occurred had "junk all over the floors," (4) the victim regularly lied "to get her way" and never reported being abused before her allegations precipitating the prosecution, and (5) on one occasion in the past, the victim stated that she was "going to come up with something that is going to put [petitioner] in jail for the rest of his life."

Hughes's mother averred, inter alia , that (1) she did not live in the same house as petitioner and the victim, (2) the victim never complained to her that petitioner was abusing her, (3) the victim "would frequently lie, deceive and generally act out to try and get what she wanted or to get her way with things," and (4) petitioner could not have assaulted the victim at petitioner's camp because (a) petitioner told his mother that "he could not go to camp that summer" due to "financial troubles" and (b) someone would have heard or seen the assault.

Finally, Hughes's son averred, inter alia , that (1) on the night of the alleged garage assault in the summer of 2006, he, petitioner's wife, and petitioner's sister left the residence for "no more than ten (10) minutes" to pick up dinner, (2) there was "no room at all for anyone to lay down in the garage" due to "boxes, trash and other objects," (3) the family did not go to the camp during the summer of 2009, (4) the victim had a reputation for lying, and (5) petitioner "drank too much and he abused" his son, but could not have committed the crimes charged.

The prosecution opposed Hughes's motion and filed as exhibits trial counsel's witness list, which listed petitioner's wife as a potential witnesses along with an affidavit from petitioner's trial counsel. In his affidavit, trial counsel asserted that his "two-fold" strategy at trial was to present (1) testimony that petitioner "was coerced to provide a false confession" and (2) expert testimony related to CSAAS, a "controversial and oft-litigated condition," for the purpose of "undermin[ing]" the victim's credibility.

Trial counsel averred that the affidavit proffered by Hughes's wife was "woefully inaccurate," particularly regarding "whether [he] interviewed" her. Counsel recalled that he met with petitioner on multiple occasions to discuss the case, that petitioner's wife was present and "actively engaged in" the discussion "at all of our meetings," and frequently asked questions, answered questions, "offered suggestions" on the defense, and "often commented on the evidence against" petitioner. Petitioner's wife "believed that ... the victim was lying" and, according to counsel, "fully supported [his] defense strategy." Additionally, counsel averred that he had over "sixteen telephone conferences with" petitioner, and that petitioner's wife was "on speaker phone actively participating in" "[m]any of" those conversations.

Counsel asserted that he "at one point ... contemplated" calling Hughes's wife as a witness at trial, but, based on his many interactions with her, "made the strategic decision" not to call her. He had "concerns about her appearance of credibility to the jury" because she "did not appear candid as to many of the important issues regarding" petitioner's case, and "had an excuse for each piece of evidence against him[.]"

On the prosecution's direct case, C.D. testified that she had, "very early on," disclosed Hughes's abuse to her mother, who had "minimized the seriousness of the abuse" and "discouraged" C.D. from reporting it to anyone else. Counsel "[f]ear[ed] that" C.D.'s account would place C.D.'s "credibility directly at odds with" that of her mother, "or worse, require" her mother to answer questions on cross-examination about that conversation.

With respect to C.D.'s credibility, trial counsel averred that, during his investigation, "several instances" of C.D.'s "deceitful behavior" and "fabrication of minute details became known to" him. Nevertheless, counsel decided to present this evidence only through cross-examination, due to his concern that the prosecution's "countervailing theory that the victim's overall behavior was due to her being a victim of abuse," a prospect to which he "did not want to draw the jury's attention[.]"

Counsel asserted that he also "invited [Hughes] and [his wife] to provide insight into the family dynamic, the background of camp in the Town of Berne, and the overall behavior of the victim." At no point did petitioner or his wife "mention any of the information sworn to in the affidavits" proffered by petitioner in support of his motion.

Finally, counsel noted that he had also interviewed C.D.'s "Aunt Faith and Uncle Tim" prior to trial. Contrary to the assertions of Hughes and his wife, however, counsel found that these prospective witnesses "could provide no meaningful testimony" on petitioner's behalf, and what little they could provide "would drastically undermine the theory of [petitioner's] defense[.]"

The Albany County Supreme Court rejected Hughes's argument, explaining as follows:

Without submitting any affidavit from trial counsel or explaining the lack thereof, defendant has submitted affidavits from family members who did not testify at trial and asserts that trial counsel failed to properly investigate issues and without any good or strategic reason failed to call these people as witnesses. However, the list of potential witnesses makes it clear that defense counsel did consider calling defendant's wife as a witness but elected not to do so. Furthermore, defense counsel has refuted defendant's current claims concerning defense counsel not having interviewed defendant's wife in an effort to determine if her testimony would be helpful to him. It is noted that two children who lived in the house with defendant did testify for the prosecution at trial. These witnesses corroborated the victim's account of various incidents.

...

Defendant has failed to meet his burden of establishing any absence of strategic or other legitimate explanations for defense counsel's representation at trial. At trial, defense counsel attacked the credibility of the victim and the police actions in obtaining defendant's statement, vigorously cross-examined the prosecution witnesses and presented an expert to refute the conclusions of the prosecution expert. The prosecutor has submitted an affidavit from defense counsel detailing his numerous contacts with defendant's wife and defense counsel's concerns about the wife's credibility. The court record indicates that, in listing defendant's wife as a potential witness, defense counsel had clearly considered calling [her] as a witness but, in the end, did not call her. T he record thus supports the statements made by defense counsel in his affidavit such that it is not simply a matter of defendant saying one thing and defense counsel, without support in the record, saying another. Defense counsel's vigorous defense evinced a reasonable defense strategy. Defendant's present attempt to characterize it as otherwise and to submit statements from persons who were not present when the crime occurred, and which do not offer an alibi, are insufficient to establish, or even suggest, ineffectiveness. It is noted that in making a statement to the police, defendant mentioned various details which the police had not told him about when they explained what the victim had reported to them. These details supplied by defendant supported the credibility of the allegations. The statements in the affidavits, by family members who were not present during the two charged crimes, are insufficient to overcome this proof or to require a hearing on any material fact. Clearly, defense counsel was well prepared to try this case and exerted significant effort on defendant's behalf. Defendant has not made a sufficient showing that there was any lack of strategic explanation for defense counsel's course of action.

The state court reasonably concluded trial counsel was not ineffective for refraining from calling Hughes's wife as a witness or from interviewing the other individuals identified by petitioner. Regarding petitioner's wife, as the § 440.10 court found, trial counsel stated in his affidavit that he conducted several in-person and telephone meetings with petitioner for which petitioner's wife was present, invited petitioner's wife to provide certain information, and listed petitioner's wife on the witness list. Trial counsel stated he ultimately made a "strategic decision" not to call her as a witness due to credibility concerns.

Regarding the other individuals, trial counsel stated that prior to trial, he "thoroughly discussed his trial strategy and defense" with Hughes and his wife and "[a]t no point did [petitioner] or [petitioner's wife] mention any of the information sworn to in the affidavits" provided by these individuals. In any event, the state court reasonably concluded that petitioner's claim was without merit, noting the "statements in the affidavits ... [from individuals] who were not present during the two charged crimes, are insufficient to overcome this proof or to require a hearing on any material fact."

The decision "regarding whether to call witnesses on behalf of a defendant, and, if so, which witnesses to call, is a tactical decision that generally should not be disturbed on habeas review." Baptiste v. Ercole , 766 F.Supp.2d 339, 363 (N.D.N.Y. 2011) (McAvoy, J.) (denying petitioner's claim that trial counsel was ineffective for failing to call exculpatory witnesses where the petitioner set forth a vague and conclusory statement) (citing Greiner v. Wells , 417 F.3d 305, 323 (2d Cir. 2005) ("Courts applying Strickland are especially deferential to defense attorneys' decisions concerning which witnesses to put before the jury.") ); see also Schulz v. Marshall , 528 F.Supp.2d 77, 92-93 (E.D.N.Y. 2007) (noting that, "[w]ith respect to alibi witnesses in particular, courts have found that even if ... alibi evidence did exist, the trial attorney's decision not to call the purported alibi witnesses was a tactical decision that does not constitute deficient performance") (citation and quotation marks omitted), aff'd , 345 Fed. Appx. 627 (2d Cir. 2009).

The record in this case strongly supports the conclusion that trial counsel pursued a reasonable strategy in executing Hughes's defense based on the information available to him. It therefore cannot be said that the state court unreasonably applied clearly established Supreme Court precedent or unreasonably determined the facts. Habeas relief is thus unwarranted on this basis.

5. Failure to Investigate Potential Alibis

Hughes argues that his trial counsel was ineffective for failing to adequately investigate potential alibis which would have demonstrated that he did not visit his camp in the summer of 2009. Petitioner contends trial counsel "could have sought corroborating testimony from [p]etitioner's family and could have presented objective, corroborating documentation in the form of financial records as circumstantial evidence that [p]etitioner never went to Berne, New York in the summer of 2009 because of financial difficulty."

The Albany County Supreme Court reasonably rejected this claim. Among other things, the trial noted that the individuals who submitted affidavits "were not present when the crimes occurred[.]" Moreover, the trail court observed that petitioner's trial counsel asserted that he "thoroughly discussed his trial strategy and defense, including [petitioner's] testimony," with petitioner and his wife, and expressly "invited" them to provide information regarding "the background of camp in the Town of Berne[.]"

The state court credited trial counsel's assertion that they did not provide the information referenced in the affidavits submitted by Hughes, and this Court finds no basis for upsetting that determination. See Cardoza v. Rock , 731 F.3d 169, 178 (2d Cir. 2013) ("Where [r]easonable minds reviewing the record might disagree as to the relevant finding, that is not sufficient to supplant the state court's factual determination.") (internal quotation marks omitted). In any event, as respondent notes, it is not clear how petitioner's financial difficulties would have established that he did not visit the camp in the summer of 2009, and counsel reasonably pursued the theory that no sexual encounter ever took place rather than focusing on the specific date of the alleged incident.

6. Failure to Present Certain Other Evidence

Hughes contends that his trial counsel was ineffective for failing to present "strong evidence rebutting many of the charges" and for failing to "meaningfully attack" the victim's credibility. Petitioner appears to refer to the following as the purported evidence: (1) testimony and affidavits from "character witnesses," who allegedly could have impeached the victim; (2) "notes from CPS which indicate the [victim] was regularly considered untruthful and manipulative;" and (3) photographs of locations where incidents occurred.

The record supports the state court's observations that trial counsel "attacked" the victim's credibility, presented a "vigorous defense," and "evinced a reasonable defense strategy." Trial counsel challenged the victim's credibility during his opening statement, elicited testimony from the victim that she was untruthful at times, and questioned the victim's credibility during his summation by noting the victim was untruthful, had a motive to lie, and provided few details about the extensive abuse that she was alleging.

As noted above, Hughes's wife, sister, mother, and son averred that C.D. was untruthful. However, trial counsel explained that he made a "strategic decision" to highlight the victim's purported dishonesty primarily through cross-examination because he "did not want to draw the jury's attention" to the prosecution's "countervailing theory" that the victim was dishonest or deceitful as a result of the abuse she suffered.

That strategy was not an unreasonable one. "The decision to call, or not call, a witness is a classic example of trial strategy," and the decision of "whether to call a specific witness-even ones that might offer exculpatory evidence-is ordinarily not viewed as a lapse in professional representation.' " Moore v. Kirkpatrick , No. 09-CV-0457, 2011 WL 1233124, at *14 (W.D.N.Y. Mar. 30, 2011) (citing United States v. Schmidt , 105 F.3d 82, 90 (2d Cir. 1997) ). Here, trial counsel made strategic decisions to refrain from calling certain witnesses, including witnesses to statements unrelated to the incidents at issue. The state court reasonably found that this decision did not constitute ineffective assistance.

Regarding the CPS notes, Hughes filed certain "Family Services Progress Notes," documenting conversations case workers had in 2011 with the victim and/or the victim's aunt (with whom the victim resided after petitioner posted bail). However, the incidents in question here occurred from 2006 to 2009, and thus, these hearsay accounts of certain of the victim's statements shed little light on the truthfulness of her statements regarding the abuse, which occurred multiple years earlier.

Additionally, to the extent that Hughes contends that the victim's "Aunt Faith and Uncle Tim" would have, "upon information and belief," testified that the victim "threatened to make false allegations of abuse" against them, that contention is unsupported by any record evidence, such as affidavits from those prospective witnesses detailing when this statement purportedly occurred. See Moore , 2011 WL 1233124, at *14 ("With respect to the remaining individuals, Petitioner has failed to provide affidavits or declarations from any of them showing what their testimony would have been."); Schulz , 528 F.Supp.2d at 96 n.13 ("In evaluating claims of ineffective assistance of counsel based on failure to investigate witnesses, courts place weight on a defendant's ability to show that these witnesses would have had helpful information.") Moreover, trial counsel averred that he interviewed these individuals and elected not to call them at trial because their limited testimony would have undermined his defense.

Finally, Hughes argues that defense counsel should have introduced certain photographs that would have "corroborated" his statements and the potential statements of other individuals that the alleged assaults did not occur in the locations in question because, in the garage, there was "no room for the assault to occur;" and in the camping trailer, there were no "doors or barriers" separating petitioner and the victim from another individual.

However, the offenses occurred from 2006 to 2009, Hughes was charged in 2011, and the photographs of the trailer were taken in 2015. The photographs of the trailer also do not appear to seriously undermine C.D.'s trial testimony, which was that the encounter occurred on the bed in the trailer, outside the presence of the other children, and lasted only a brief time. Similarly, counsel could have reasonably concluded that photographs of the garage, merely depicting its messiness, would not have been a persuasive strategy for countering C.D.'s allegation that petitioner assaulted her there. The state courts' conclusion regarding counsel's performance did not constitute an unreasonable application of Strickland .

7. Failure to Investigate Petitioner's Medical Condition

Hughes argues that his trial counsel was ineffective for failing to investigate his medical condition. Specifically, petitioner claims that he suffered from erectile dysfunction during the time of the incidents and that this condition would have precluded him from committing the offenses. He contends that trial counsel should have obtained his medical records and interviewed his wife regarding his condition.

In rejecting this claim, the Albany County Supreme Court concluded that trial counsel contemplated calling Hughes's wife as a witness at trial and "refuted [petitioner's] current claims" that he failed to interview his wife to determine if her testimony would be helpful to the defense. The affidavit from Hughes's wife, which was prepared after petitioner was convicted, asserts that he "could not obtain an erection" when he was "heavily intoxicated." However, the affidavit does not establish that petitioner was diagnosed as suffering from erectile dysfunction, and the trial evidence supported the conclusion that petitioner's wife was not present during the trip to the camp at issue or the assault in the garage.

Moreover, Hughes has not alleged, much less shown, that he provided this information or medical records to trial counsel during any of their numerous meetings, and counsel asserted that neither petitioner nor his wife advised him of any of the matters set forth in his wife's affidavit. Accordingly, the state court reasonably determined trial counsel was not ineffective in this regard.

8. Failure to Present an Expert Witness Regarding False Confessions

Hughes argues that his trial counsel was ineffective for pursuing the strategy of "claiming a coerced confession" without consulting with, or calling as a witness, an expert on the subject of false confessions. Petitioner claims his confession was a result of interrogation techniques that were "overwhelmingly deceptive and coercive," and which a typical juror "would not understand ... without expert assistance."

There is no basis on which to conclude that the state court unreasonably rejected this claim. As an initial matter, Hughes has not established that testimony from a false confessions expert would have been admissible under New York law at the time of his trial. New York courts have long rejected attempts by defense counsel to call a false confessions expert and found that the failure to call such an expert does not amount to ineffective assistance of counsel. See, e.g. , Curry v. Burge , No. 03-CV-0901, 2007 WL 3097165, at *18 n.25 (S.D.N.Y. Oct. 23, 2007) (collecting cases), adopted , 2007 WL 4098115 (S.D.N.Y. Nov. 16, 2007) ; Wiggins v. Ercole , No. 1:08-CV-3053, 2011 WL 4526138, at *8 (S.D.N.Y. Aug. 5, 2011) (holding that "the law on the admissibility of false confession expert testimony was at best unsettled, such that the § 440 court's ruling was not so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fair-minded disagreement") (internal quotation marks and footnote omitted), adopted , 2011 WL 4502082 (S.D.N.Y. Sept. 29, 2011).

Hughes presents no evidence supporting his contention other than an article from 2008 pertaining to false confessions. Petitioner has not established that the New York courts would have allowed false confession expert testimony at the time of his trial, or, in any event that such testimony was required for trial counsel to have reasonably pursued his trial strategy.

On March 29, 2012, approximately three weeks after the jury rendered its verdict in Hughes's criminal trial, the New York Court of Appeals "for the first time ... considered the admissibility of expert testimony on the subject of false confessions." People v. Jere