16-2285
Spicola v. Unger

                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                                    SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

        At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
30th day of November, two thousand seventeen.

Present:
            ROBERT A. KATZMANN,
                  Chief Judge,
            RAYMOND J. LOHIER, JR.,
            CHRISTOPHER F. DRONEY,
                  Circuit Judges.
_____________________________________

MICHAEL J. SPICOLA,

        Petitioner-Appellant,

                   v.                                              No. 16-2285

DAVID UNGER, Superintendent, Wyoming
Correctional Facility, NEW YORK STATE
ATTORNEY GENERAL,

    Respondents-Appellees.
_____________________________________

For Petitioner-Appellant:                 THOMAS F. CUNNINGHAM, Esq., Germantown, NY.

For Respondents-Appellees:                NICHOLAS T. TEXIDO (John J. Flynn, District Attorney
                                          of Erie County, Donna A. Milling, on the brief),
                                          Buffalo, NY.




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       Appeal from a judgment of the United States District Court for the Western District of

New York (Skretny, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

       Petitioner-Appellant Michael J. Spicola, who was convicted in state court of several

offenses relating to the sexual abuse of his younger relative, sought habeas relief on the ground

that he had received ineffective assistance of counsel. On May 17, 2016, the district court

(Skretny, J.), dismissed Spicola’s habeas petition, and Spicola moved for a certificate of

appealability. On November 15, 2016, this Court granted Spicola a certificate of appealability.

We assume the parties’ familiarity with the underlying facts, the procedural history of the case,

and the issues on appeal. We affirm the judgment of the district court.

       Following a jury trial, Spicola was convicted in New York Supreme Court of six counts

of committing a criminal sexual act in the first degree, in violation of N.Y. Penal Law

§ 130.50(3); three counts of first-degree sexual abuse, in violation of N.Y. Penal Law

§ 130.65(3); and one count of endangering the welfare of a child, in violation of N.Y. Penal Law

§ 260.10. These offenses stemmed from multiple instances of sexual contact by Spicola with his

relative, who was between six and eight years old when the incidents occurred. At trial, Spicola’s

counsel filed an unsuccessful motion in limine seeking to exclude expert testimony on Child

Sexual Abuse Accommodation Syndrome (“CSAAS”), a theory of children’s behavioral

responses to sexual abuse. Spicola continued to challenge the admission of expert testimony on

CSAAS in the direct appeal of his conviction. The Appellate Division affirmed Spicola’s

conviction, People v. Spicola, 877 N.Y.S.2d 591 (4th Dep’t 2009), as did the New York Court of

Appeals, over the dissent of three judges, People v. Spicola, 947 N.E.2d 620 (N.Y. 2011).


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       Spicola then moved to vacate his conviction under N.Y. Criminal Procedure Law

§ 440.10 on the ground that he received ineffective assistance of counsel, based on sixteen

alleged deficiencies in his representation at trial. The state trial court denied that motion, finding

that “counsel’s performance was effective as a matter of federal law (Strickland v. Washington,

466 U.S. 668 [(1984)]).” The Appellate Division and the Court of Appeals denied leave to appeal

the trial court’s denial of Spicola’s § 440.10 motion.

       Spicola sought federal habeas relief under 28 U.S.C. § 2254. On May 17, 2016, the

district court dismissed Spicola’s habeas petition. Spicola thereafter filed a motion in this Court

for a certificate of appealability. On November 15, 2016, this Court granted Spicola a certificate

of appealability solely as to “whether the state court’s denial of [Spicola’s] ineffective assistance

claim with respect to trial counsel’s failure to consult with or call a rebuttal expert on Child

Sexual Abuse Accommodation Syndrome was contrary to, or involved an unreasonable

application of, Strickland v. Washington, 466 U.S. 668 (1984).” The present appeal followed.

       “We review a district court’s denial of habeas relief de novo. . . .” Tueros v. Greiner, 343

F.3d 587, 590 (2d Cir. 2003). To prevail on a claim of ineffective assistance of counsel, a

defendant must satisfy both of Strickland’s two prongs. First, a “defendant must show that

counsel’s representation fell below an objective standard of reasonableness,” evaluated “under

prevailing professional norms.” Strickland v. Washington, 466 U.S. 668, 688 (1984). Second, a

“defendant must show that there is a reasonable probability that, but for counsel’s unprofessional

errors, the result of the proceeding would have been different. A reasonable probability is a

probability sufficient to undermine confidence in the outcome.” Id. at 694.

       Under the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132,

110 Stat. 1214 (codified at 28 U.S.C. § 2254), this Court’s review of the state court’s


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adjudication of Spicola’s ineffective assistance claim is “highly deferential.” Eze v. Senkowski,

321 F.3d 110, 112 (2d Cir. 2003). Specifically, “under § 2254(d)(1), it is not enough to convince

a federal habeas court that, in its independent judgment, the state-court decision applied

Strickland incorrectly. Rather, [a defendant] must show that the [state court] applied Strickland

to the facts of his case in an objectively unreasonable manner.” Bell v. Cone, 535 U.S. 685, 699

(2002) (citation omitted).

       Spicola contends that his trial counsel’s failure to consult with or call an expert witness to

rebut the State’s expert testimony concerning CSAAS constituted unreasonable representation

under this Court’s decision in Gersten v. Senkowski, 426 F.3d 588 (2d Cir. 2005). However,

Gersten does not create a requirement that defense attorneys in child sex abuse cases such as this

must always consult with or call a CSAAS expert in rebuttal; rather, the opinion states that in the

absence of expert consultation or use of an expert rebuttal witness, counsel may provide

reasonable representation in the face of expert testimony on CSAAS by “educat[ing]

[themselves] sufficiently on the scientific issues” to challenge such evidence effectively. Id. at

611.

       Gersten does not dictate that Spicola’s trial counsel was ineffective. Here, unlike in

Gersten, Spicola’s trial counsel educated himself regarding CSAAS sufficiently to file a motion

in limine that challenged the scientific basis for CSAAS. See Spicola, 947 N.E.2d at 627–28. In

addition, trial counsel’s cross examination of the prosecution’s expert on CSAAS was not

ineffective given the scope of our review. Accordingly, we cannot conclude that the state court

applied Strickland unreasonably in deciding that trial counsel’s failure to consult or call an expert

on CSAAS did not fall below Strickland’s objective standard of reasonable representation.




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       In light of this conclusion, we need not address Spicola’s arguments regarding prejudice.

We have considered the remainder of Spicola’s contentions on appeal and have found in them no

basis for reversal. For the foregoing reasons, the judgment of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   Catherine O’Hagan Wolfe, Clerk




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