11-922-pr(L)
Jackson v. Conway	
	                                                                             	                                    	
                                                   UNITED STATES COURT OF APPEALS
                                                      FOR THE SECOND CIRCUIT

                                                                     August Term, 2011

                                    (Submitted: May 21, 2012                        Decided: August 14, 2014)

                   Docket Nos. 11-922-pr(L), 11-972-pr(XAP)
________________________________________________________________________

                                                                     SHAWN A. JACKSON,

                                                                            Petitioner-Appellee-Cross-Appellant,

                                                                           - v. -

                                JAMES T. CONWAY, Superintendent, Attica Correctional Facility,

                                     Respondent-Appellant-Cross-Appellee.
________________________________________________________________________

Before:
                                PARKER, HALL, and WALLACE,* Circuit Judges.

        Appeals from the February 28, 2011 amended judgment of the United States District
Court for the Western District of New York (Bianchini, M.J.) granting in part the petitioner’s
habeas corpus application. Respondent appeals from so much of the judgment as granted
petitioner’s application for a writ of habeas corpus and ordered his convictions conditionally
vacated. Petitioner cross-appeals that portion of the judgment as denied his other grounds
for habeas relief. We hold that although the district court correctly determined that the state
court’s rejection of Petitioner’s Miranda claim was an “unreasonable application” of clearly
established Supreme Court precedent, it failed to afford the state court’s rejection of
Petitioner’s prosecutorial misconduct and ineffective assistance of counsel claims the proper
deference it was entitled under the Antiterrorism and Effective Death Penalty Act.

                AFFIRMED in part; REVERSED in part.



																																																																		
	
*The Honorable J. Clifford Wallace, United States Circuit Judge for the United States Court
of Appeals for the Ninth Circuit, sitting by designation.


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Jackson v. Conway	
	                                              	                                                  	
                                    BRIAN SHIFFRIN, Easton Thompson Kasperek Shiffrin,
                                    LLP, Rochester, NY, for Petitioner-Appellee-Cross-Appellant
                                    Shawn A. Jackson.

                                    LESLIE SWIFT, Senior Assistant District Attorney, for
                                    Michael C. Green, Monroe County District Attorney,
                                    Rochester, NY, for Respondent-Appellant-Cross-Appellee
                                    James T. Conway.


HALL, Circuit Judge:

                                     BACKGROUND

       In the pre-dawn hours of November 30, 2000, officers of the Town of Greece Police

Department responded to a 911 call placed from Shawn A. Jackson’s (“Jackson’s”)

residence. Jackson’s wife, Rebecca Jackson (“Rebecca”), met the officers on arrival and,

upon entering the house, the officers encountered Jackson’s ex-wife, Karen Jackson

(“Karen”), and his fourteen-year-old daughter, “CJ.” The three visibly upset women told the

officers that Jackson had raped them each multiple times over the course of the evening and

early morning. The officers woke Jackson, who was asleep on the living room couch, and

transported him to police headquarters. Karen and CJ went to Rochester General Hospital

for medical evaluations. From the house, the officers collected potential physical evidence,

including sheets from the living room floor and from Jackson’s bed.

        At police headquarters, Sergeant Christopher Bittner interviewed Jackson at

approximately 6:45 that morning. The sergeant initially told Jackson he was not under arrest

but then formally arrested him when Jackson sought to leave the interview room. After

being informed of his rights pursuant to Miranda v. Arizona,	384 U.S. 436 (1966), Jackson

invoked his right to remain silent and refused to speak with Sergeant Bittner or any other


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officer. The police placed him in a holding cell, where he remained until approximately 3:20

that afternoon.

        At some point during the day, a member of the Town of Greece Police Department

informed the Monroe County Department of Social Services, Child Protective Services

(“CPS”) about the incident. Kathy Bonisteel, a CPS caseworker, contacted Sergeant Bittner

to request an interview with the victims as part of her parallel investigation into the sexual

abuse allegations. Later that afternoon, Bonisteel and Town of Greece police officers

interviewed Karen and CJ at police headquarters. When those interviews concluded,

Bonisteel asked to speak with Jackson. Sergeant Bittner agreed and escorted Jackson from

his holding cell to a table in the hallway at which Bonisteel sat. The sergeant retreated

around a corner where he was out of sight of the table but within earshot of the ensuing

conversation.

       At the time she interviewed Jackson, Bonisteel knew that he was in custody and had

refused to speak with the police. Bonisteel introduced herself as a CPS caseworker,

explained her role, and asked Jackson if she could speak with him about the victims’

allegations. She did not, however, inform him of his right to an attorney or give him any

other warnings. Jackson agreed to speak with her.

       During the interview, Jackson first detailed the nature of his relationship with

Rebecca and Karen, explaining that he lived with both of them to keep all of his children

together. Jackson described himself as the “alpha male” of the family. While he denied

hitting either woman, he stated that both Rebecca and Karen knew “what to do” and that he

was “in charge.” He stated that he regularly engaged in sexual intercourse with each woman


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separately and, occasionally, all three had sex together. Jackson asserted that both women

knew the “routine” on these latter occasions, which usually occurred in the early morning

hours: Jackson would send Rebecca upstairs to wake Karen and bring her to the living room

where, on a sheet spread on the floor, Jackson would engage in anal sex with Karen while

she performed oral sex on Rebecca.

       Jackson told Bonisteel that he began to drink around 8:00 the night of the incident,

visiting several bars over the course of the evening. He also snorted several lines of cocaine.

Jackson did not recall the time he arrived home, but remembered pulling into the driveway

and “feeling happy that he . . . made it home safe.” Jackson entered in the house where he

found Rebecca sleeping on the couch. He woke her up “to get a little loving” and, the next

he knew, the police were in the house. In response to Bonisteel’s questions, Jackson

repeatedly denied hurting CJ, but acknowledged the “possibility” that he may have been “so

drunk that he wouldn’t have remembered if he raped [her].”

        Eventually, a grand jury in Monroe County, New York, charged Jackson in a 48-

count indictment with numerous counts of first- and third-degree rape, first- and third-

degree sodomy, first-degree attempted sodomy, third-degree assault, first-degree sexual

abuse, incest, endangering the welfare of a child, and coercion. The indictment alleged that

on the night of November 29-30, 2000, Jackson committed multiple acts of oral and anal

sodomy against Rebecca and Karen, raped and sexually abused CJ a number of times, and

committed multiple acts of incest, oral sex, and anal sodomy against CJ. It also alleged that

Jackson (1) assaulted, sexually abused, and committed acts of anal sodomy against Karen in

June 1999 and November 2000; (2) coerced, raped, assaulted, and committed acts of oral


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Jackson v. Conway	
	                                                	                                              	
and anal sodomy against Rebecca in June 1999, June 2000, and November 2000; and (3)

assaulted his son, “GJ,” in June 1999 and January 2000.

I.     Pretrial Proceedings

       On March 23, 2001, County Court Judge Stephen R. Sirkin held a suppression

hearing to determine the admissibility of Jackson’s statements to CPS Caseworker Bonisteel.

Jackson, then represented by the Monroe County Public Defender’s Office, argued that

Bonisteel acted as an agent of the police when she interviewed him on the day of his arrest.

The trial court disagreed, concluding that Bonisteel interviewed Jackson “as part of a

completely separate civil proceeding” and “did not act as a law enforcement officer or an

agent of a law enforcement officer.” The court held that, as a “child protective worker,”

Bonisteel was not required to give Jackson Miranda warnings and, therefore, his statements

to her were admissible at trial.

       One week before the scheduled trial date, the State notified Jackson of its intent to

call Tony Arnold—a jailhouse informant also represented by the Public Defender’s Office.

This resulted in a conflict that disqualified the Public Defender’s Office from the case and

necessitated the appointment of a new defense attorney, Joseph D’Amelio. Upon his

appointment, D’Amelio informed the court at an April 23, 2001 conference that he needed

one month to prepare for trial. After the court suggested a start date of June 18, D’Amelio

instead proposed May 29 and the court scheduled trial accordingly. At some point before

trial, the State furnished the defense with a letter stating that it would not call an expert

medical witness at trial.




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Jackson v. Conway	
	                                                	                                                	
       On the date of trial, County Court Judge Peter E. Corning—the third judge assigned

to the case—ruled on the State’s intended introduction of Jackson’s various prior acts and

threats of violence against his family members that occurred between 1983 and 2000. Over

defense counsel’s objection, the court held that such evidence could be admitted to prove

the element of forcible compulsion as to the charged rapes, but ruled that the State would be

limited to acts that occurred “subsequent to 1994,” because any acts before then were “too

remote.”

II.      Trial

        A.       Opening Statements

       Assistant District Attorney (“ADA”) Cara M. Briggs theorized in her opening

statement that Jackson used physical violence and threats of violence to exert control over

his family and to force Rebecca and Karen to satisfy his sexual proclivities. Briggs alluded to

the testimony the jury would hear from Karen, Rebecca, and CJ about the sexual and

physical abuse they suffered at the hands of Jackson on the night of November 29-30, 2000,

as well as on a number of previous occasions. The witnesses’ testimony, Briggs asserted,

would expose Jackson “as a twisted, sadistic man who delighted in controlling the members

of his very own family to the point that he abused them constantly.”

       The defense theory of the case was straightforward: the State would not present any

physical evidence of the alleged sexual and physical abuse, and the witnesses fabricated their

testimony. Defense counsel highlighted that although the police collected several sheets and

the victims’ clothing for testing, the jury would not hear the results of those tests.

       B.        State’s Trial Evidence


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Jackson v. Conway	
	                                                                                	                                           	
              The trial evidence is extensively described in the district court’s opinion, see Jackson v.

Conway, 765 F. Supp. 2d 192, 205-29 (W.D.N.Y. 2011), and we reproduce it here only as

necessary for our decision.

                            1.            Testimony of Karen, Rebecca, and CJ

              Karen and Rebecca told the jury about the nature of their relationship with Jackson,

described previous instances of physical and sexual abuse, and gave their accounts of the

events of the night of November 29-30, 2000. Karen married Jackson in 1983 and divorced

him in 1990, although she continued a relationship with him thereafter. Jackson left Karen’s

house after the divorce but moved back several months later with Rebecca, whom he

married in 1991. From at least 1995 onwards, the three regularly participated in sexual

activity together. The State elicited from Rebecca that, shortly after the three began living

together, Jackson raped Karen, causing her to become pregnant with a daughter.1

              Both women described Jackson as controlling and physically abusive. He routinely

threatened to kill Karen or injure members of her family if she left him and he hit Rebecca

when she disobeyed his orders. In June 1999, Jackson beat and strangled Karen until she

lost consciousness. When she woke, he proceeded to engage in oral and anal sex with her.2

That same month, Jackson became angry with Rebecca, cut her shorts, removed her

underwear, and forced her to walk down several city streets in that condition while calling

																																																																		
	
1	The trial court sustained defense                                  counsel’s objection to this testimony, but denied the
request for a mistrial.

2 These allegations were the subject of indictment counts one (first-degree sodomy) and two
(third-degree assault).


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her a “prostitute.”3 Approximately one year later, in June 2000, Jackson punched Rebecca in

the mouth, knocking out one of her teeth.4 Jackson hit Rebecca again several days later

when she complained about her tooth and then had oral, anal, and vaginal sex with her

multiple times.5 Two days before the events that led to his arrest, Jackson forced Rebecca

and Karen to perform numerous sexual acts.6 In the process, Jackson squeezed Rebecca’s

throat, nearly causing her to lose consciousness.7

                The women testified that on the night of November 29-30, 2000, Jackson returned

home drunk and told Rebecca, who was on the couch, to retrieve Karen from the upstairs

bedroom she shared with CJ. When the women returned to the living room, Jackson had

them disrobe and spread a sheet on the floor. After directing each woman to perform oral

sex on him, Jackson had anal sex with Karen. Several minutes later, Jackson left the living

room and went upstairs. CJ testified that she had been sleeping in her upstairs bedroom

when Jackson woke her and took her to his bedroom. There, he placed her onto the bed,




																																																																		
	
3   These allegations were the subject of indictment count eight (first-degree coercion).

4   This allegation was the subject of indictment count nine (third-degree assault).

5 These allegations were the subject of indictment counts 10-12 (first-degree rape), 13-15
(first-degree (anal) sodomy), and 16-17 (first-degree (oral) sodomy).

6 These allegations were the subject of indictment count three (first-degree (anal) sodomy as
to Karen), count four (first-degree sexual abuse as to Karen), and counts 18-19 (first-degree
(oral) sodomy as to Rebecca).

7   This allegation was the subject of indictment count 20 (third-degree assault as to Rebecca).


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Jackson v. Conway	
	                                                                    	                                	
touched her breasts, and had both vaginal and anal sex with her.8 He then returned to the

living room, where he again made Rebecca perform oral sex on him before attempting to

have anal sex with Karen.

                Jackson repeated this cycle of going upstairs to CJ and then returning to Karen and

Rebecca in the living room two additional times. The three women testified that, over the

course of the entire evening, Jackson made Rebecca perform oral sex on him three times,

had anal sex with Karen once and attempted to have anal sex with her twice, and had vaginal

sex with CJ “[a]t least twice” and anal sex with her two times.9 According to Karen, Jackson

had difficulty maintaining an erection—while he was “[s]omewhat” erect the first time he

had anal sex with her, he was not able to fully penetrate her on the latter two occasions. CJ

did not know whether Jackson ejaculated that night. The women complied with Jackson’s

demands because they were frightened he would become violent if they refused. When

Jackson finally fell asleep, Rebecca called the police.

                Later, at Rochester General Hospital, medical personnel examined Karen and CJ,

taking samples of their pubic hair and swabs of their vaginal and anal areas that they placed

into sexual assault kits. Neither Karen nor CJ complained of any injuries to their vaginal or

																																																																		
	
8Rebecca and Karen testified that they remained in the living room while Jackson was
upstairs but could hear him and CJ over the baby monitor stationed in Jackson’s bedroom,
where two younger children also slept.

9 These allegations were the subject of indictment count five (first-degree (anal) sodomy as
to Karen); counts 6-7 (first-degree attempted (anal) sodomy as to Karen); counts 21-23 (first-
degree (oral) sodomy as to Rebecca); counts 29-32 (first-degree sexual abuse as to CJ);
counts 33, 35, and 37 (first-degree rape as to CJ); counts 34, 36, and 38 (third-degree rape as
to CJ); 39 and 41 (first-degree sodomy as to CJ); 40 and 42 (third-degree sodomy as to CJ);
43-47 (incest as to CJ); and 48 (endangering the welfare of a child as to CJ).

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Jackson v. Conway	
	                                               	                                               	
anal areas, although Karen “always felt like there were cuts” around her anus. At the time of

the incident, CJ was menstruating—she put on a sanitary napkin before she went to bed and

wore the same one to the hospital. The State introduced two of CJ’s medical reports

prepared at Rochester General Hospital on November 30, 2000. The first, prepared by Dr.

Everett, indicated that a gynecological examination “reportedly” showed the presence of an

“irritation at the introitus,” or vaginal opening. The second, a sexual assault form prepared

by Dr. Thompson, indicated that CJ had no bruises on her body or lacerations in her vaginal

area. Dr. Thompson noted, however, the existence of an “abrasion” on CJ’s “introitus” and

the presence of “old blood in vault.”

               2.      Dr. Ann Lenane

       Dr. Ann Lenane was an emergency physician at the University of Rochester who

worked in the Child Abuse Program. Defense counsel objected as she took the stand,

explaining that he believed the State was about to breach its pretrial written representation

that it would not elicit expert testimony. ADA Briggs conceded that she had made such a

representation, but argued that the defense had subpoenaed the relevant medical records

and, as a result, should have been on notice that the State would likely introduce the

testimony of a “doctor or a sexual assault nurse examiner.” The court stated that Dr.

Lenane was entitled to testify about her findings and conclusions made “as a treating

physician,” but that, due to the lack of notice, the State could not allow her testimony to

“escalate” into expert opinion. After ADA Briggs assured the court that she would not elicit

from Dr. Lenane any “hypothetical[s]” or “theories,” the court permitted the doctor to

testify “[a]s a treating physician.”


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Jackson v. Conway	
	                                              	                                                 	
         Upon retaking the stand, Dr. Lenane described the findings contained in CJ’s

medical report:

               The relevant physical findings that [CJ] had when she was
               examined were mainly an abrasion, on the written notes they
               said [it] was at the introitus, and when they circled on the
               diagram where that was, it is in the area of the genitalia that is
               just below the hymen and above the rectal area . . . . The other
               finding that they noted was old blood in the vulva, which means
               that he was inside the vagina[.]

App’x at 210. The State then inquired whether the “abrasion[]” indicated on CJ’s medical

records was “consistent with penetration.” Dr. Lenane responded that the abrasion was

“consistent with some type of trauma” that “could include penetration, but . . . wouldn’t

necessarily have to.” When asked again whether the abrasion was “consistent with

penetration,” Dr. Lenane answered, “Yes.”

       Defense counsel objected as the State attempted to move on to Karen’s medical

records, arguing that it had not established that the doctor treated Karen. In response to the

court’s questioning, Dr. Lenane stated that she had not personally examined the women, and

that the State had asked her “to review the medical records and express an opinion about the

consistency of the history and the physical findings.” Upon hearing this, the court sustained

defense counsel’s objection and excused the jury, explaining that because Dr. Lenane had

not personally examined the women, her testimony was that of an expert, not a treating

physician. ADA Briggs argued that her questions were not taking Dr. Lenane’s testimony

beyond “the realm of what the treating physician would be able to say,” and repeatedly

reiterated her position that the defense should have known that the State would call a doctor

to testify about the physical findings contained in the medical reports. At one point, she


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Jackson v. Conway	
	                                                 	                                                   	
acknowledged that Dr. Lenane was an expert, but argued that the defense “had notice.” The

court rejected these arguments, declaring that defense counsel was entitled to rely on the

State’s pretrial written representation that it would not call an expert.

       Defense counsel moved for a mistrial, arguing that he relied on the State’s pretrial

representation when highlighting in his opening statement the lack of physical evidence.

The court, apologizing for its “unfamiliarity with the case,” stated that it had “presumed that

[Dr. Lenane] was the treating physician.” Although it initially considered a mistrial, the court

took that option off the table after reviewing the doctor’s testimony, explaining that the only

expert opinion given was that CJ’s “abrasion [wa]s consistent with penetration.” Instead, the

court gave defense counsel two options: either the court could direct the jury to disregard

Dr. Lenane’s testimony in its entirety, or defense counsel could have the weekend to obtain

his own expert. When defense counsel declared it impossible to hire an expert on such short

notice, the court expressed confusion as it had previously authorized the defense to consult

with a medical expert. Defense counsel explained that although he had “review[ed] the

records” with a nurse, he did not intend to “bring a nurse in here to try and combat what a

doctor had to say on the issue of abrasion versus irritation.” Accordingly, defense counsel

opted for the curative instruction.

       After recalling the jury, the court stated that initially it had been “a little bit unclear”

about whether the State brought Dr. Lenane “in as a treating physician or . . . as an expert”

but, as she testified, it had become evident she was an expert. The court explained:

               [B]efore bringing in an expert, the [State] must give notice to
               the defendant . . . which they failed to do. . . . Accordingly, I am
               directing you to disregard the testimony of Dr. Lenane on the
               grounds that she was called as an expert and no notice was

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Jackson v. Conway	
	                                               	                                            	
               given . . . . Any statements of fact or any conclusions that she
               would render to you I direct that you disregard in their entirety.

App’x at 228-29. Later in the proceeding, defense counsel objected to the nature of the

curative instruction, asserting that the court had given “the impression that but for that

improper notice,” the testimony would have been acceptable, “rather than advising the jury

that the evidence was improper[ly] before them and should not be considered.” The court

overruled this objection.

               3.     Jailhouse Informant Tony Arnold

       Tony Arnold, who shared a cell with Jackson, testified that Jackson told him about

the November 29-30, 2000 incident. According to Arnold, Jackson stated that he was

intoxicated and had sex with “both of his wives,” who waited until he fell asleep and then

called the police with allegations that he had raped his daughter. Jackson offered Arnold

$100,000 to kill his “wife and ex-wife,” which Arnold declined.

               4.     Kathy Bonisteel

       CPS Caseworker Kathy Bonisteel related Jackson’s statements made to her during

their post-arrest conversation at police headquarters. This testimony included Jackson’s

assertion that he was sexually active with both Karen and Rebecca, his claim that both

women knew the sexual “routine” they were to perform, and his boast that he was the

“alpha male” who was “in charge” of the family. Bonisteel also recounted Jackson’s version

of the events on the night of November 29-30, 2000—that he had returned home after

consuming a large amount of alcohol and some cocaine, woke Rebecca for “a little lovin’”

and then remembered nothing more until he was awoken by the police. With respect to

Jackson’s statements about CJ, Bonisteel testified:

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Jackson v. Conway	
	                                                                     	                              	
                                I asked [Jackson] if he remember[ed] [molesting his daughter],
                                or if he did that. He said he would never hurt [CJ]. And I
                                asked him again if anything happened the night before when he
                                got home. He repeated again that he would never hurt [CJ]. . . .
                                I said, was it possible that he was so drunk that he couldn’t
                                remember raping [CJ]? And he said it was a possibility.

Trial Tr. at 503-04.

                C.              Closing Arguments

                The defense did not introduce any evidence at trial. In closing, defense counsel

pointed out that despite their allegations of rape and assault, Rebecca and Karen had both

lived with Jackson for many years without complaint. Counsel also emphasized that

although police had collected the sheets, victims’ clothing, and sexual assault kits, the State

had been unable to present at trial any physical evidence of the numerous alleged acts of

rape and sodomy that occurred on the evening of November 29-30, 2000.

                ADA Briggs began her closing argument by telling the jurors that the case required

their “courage” to recognize that the allegations “really happened” and that the “person

[who] committed these heinous, horrific acts has been sitting in the same room with [the

jurors] for almost a week now.” Pointing Jackson out, ADA Briggs stated, “that man sitting

there, looking like he is pondering every word that is being said, is guilty.”10 ADA Briggs

argued that “no one can feign the terror” that the victims had displayed and that “[e]ven the

best actor or actress could probably not tremble with fear as continuously as some of these

witnesses did.” She also questioned why Jackson’s family members would testify against


																																																																		
	
10   The trial court overruled defense counsel’s objection to this statement.


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him, positing that “[t]he only possible explanation for what they told [the jury] is because it is

true and he is guilty.”11 The witnesses’ testimony, ADA Briggs contended, left the jury with

“a picture of a man that has consistently abused his family for years, basically beaten them

into submission and he committed all of the counts of the indictment here against his family.

. . . He is guilty of everything.”

                With respect to the lack of physical evidence, ADA Briggs argued that the absence of

semen did not contradict the witnesses’ testimony, as both Rebecca and Karen testified that

Jackson had been unable to “get an erection” the evening of November 29-30, 2000. ADA

Briggs also argued that CJ’s medical records corroborated her version of the events because

the “abrasion” on her introitus was “right where [Jackson’s] penis would have been

rubbing.”

                Addressing Bonisteel’s testimony, ADA Briggs stated:

                                Kathy Bonisteel asked [Jackson], Is it possible that you were so
                                drunk that you don’t remember raping [CJ]? And he says, Yeah,
                                that’s possible. Now, I ask you, ladies and gentlemen, if you
                                were a person who stood accused of having sex with your own
                                child, and you hadn’t done it, if somebody asked you if that was
                                possible, would you say ‘maybe,’ or would your answer be, no, I
                                would never, ever, ever do something like that? There would be
                                adamant denial, there would be something of a much stronger
                                reaction than, “Yeah, maybe, I could have.” And the reason he
                                says, “Yeah, maybe, I could have” is because he did. It’s that
                                simple. Innocent people don’t admit that there is a possibility
                                that they did something wrong, particularly when what we are
                                talking about is sex with his own daughter.

App’x at 271.


																																																																		
	
11   The trial court overruled defense counsel’s objection to this statement.

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Jackson v. Conway	
	                                                                     	                               	
                Following closing arguments, defense counsel unsuccessfully moved for a mistrial on

the ground that the summation was “replete with comments arousing sympathy for the

victims.” Defense counsel also took issue with the State’s proposed jury charge on the first-

degree sodomy counts because, in defense counsel’s view, first degree sodomy “require[d]

some penetration.” The court disagreed, declaring that “[j]ust touching” was sufficient. In

its subsequent jury charge, the trial court reminded the jury that statements made by the

attorneys in summation were not evidence and that the jurors were to draw their own

conclusions from the facts, rather than rely on those supplied by counsel. It also reminded

the jury that it was not to consider any testimony the court had ordered stricken from the

record.

                Ultimately, the jury convicted Jackson on all 47 submitted counts.12 On June 21,

2001, the trial court sentenced Jackson to an aggregate total of 64 years’ incarceration.

III.            State Postconviction Proceedings & Direct Appeal

                Through counsel, Jackson appealed his judgment of conviction to the New York

State Supreme Court, Appellate Division, Fourth Department. Proceeding pro se, he

simultaneously moved in the trial court to vacate the judgment pursuant to New York

Criminal Procedure Law § 440.10.

                A.              Section 440.10 Motion

                Jackson argued in his § 440.10 motion that defense counsel’s performance was

deficient in several respects. He indicated that he had brought the motion before filing his

																																																																		
	
12At the close of the State’s evidence, the trial court dismissed one endangering the welfare
of a child count involving Jackson’s youngest son.

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appellate brief because the trial record was insufficient to permit direct appellate review of

his ineffective assistance claims. As exhibits to his motion, Jackson included reports of tests

performed by the Monroe County Public Safety Laboratory. The first report found no

spermatozoa or “seminal material” on any of the victims’ clothing or on the vaginal and anal

swabs taken of Karen and CJ as part of the sexual assault kits. The second, dated March 27,

2001, excluded CJ as the source of DNA obtained from bloodstains found on the fitted

sheet recovered from Jackson’s bed.

                In its response, the State principally argued that the motion should be summarily

denied pursuant to New York Criminal Procedure Law § 440.10(2)(b) because Jackson’s

direct appeal remained pending and the record contained facts sufficient to permit adequate

appellate review of his ineffective assistance claims. By order dated November 17, 2003, the

trial court agreed with the State and denied Jackson’s motion on the ground that the record

contained sufficient facts to permit review of his claims on direct appeal.13 Jackson sought

from the Appellate Division leave to appeal this decision but it denied his application on

February 3, 2004.

                B.              Direct Appeal

                While his § 440.10 motion remained pending in the trial court, Jackson filed a

counseled appellate brief in the Fourth Department. In that brief he argued that his post-

arrest statements made to CPS Caseworker Bonisteel were improperly admitted in violation

																																																																		
	
13 The trial court also held, in the alternative, that Jackson’s ineffective assistance claims
lacked merit because they constituted nothing more than his disagreement with defense
counsel over trial strategy and tactics.


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of his Miranda rights, that prosecutorial misconduct denied him a fair trial, and that he

received ineffective assistance of counsel.14 In his Miranda claim, Jackson argued that

Bonisteel acted either as a law enforcement officer or as the “functional equivalent” of a

police officer when she interviewed him without first providing the required Miranda

warnings, and that his statements to her were thus inadmissible. In his prosecutorial

misconduct claim, Jackson maintained that ADA Briggs’s improper conduct “pervaded the

proceedings” and deprived him of a fair trial. He identified four instances of such

misconduct: (1) the delayed disclosure that Tony Arnold would be a witness, which

prompted a last minute change in defense counsel; (2) the opening statement comments

about Jackson’s “twisted” and “sadistic” nature; (3) the improper attempt to elicit expert

testimony from Dr. Lenane; and (4) the summation, in which ADA Briggs repeatedly

expressed her personal opinion of Jackson’s guilt and the truth of the witnesses’ testimony,

and argued facts not in evidence.

                Jackson’s ineffective assistance arguments were essentially the same as those raised in

his § 440.10 motion.15 With respect to defense counsel’s pretrial conduct, Jackson

contended that his attorney: (1) did not adequately investigate the forensic and medical

evidence or consult with an expert concerning that evidence; and (2) failed to prepare


																																																																		
	
14Jackson also argued that the trial court erred when, in contravention of its pretrial ruling, it
permitted the State to elicit testimony concerning Jackson’s prior bad acts that occurred
before 1995.

15Jackson included his § 440.10 motion and attached exhibits in the record submitted to the
Fourth Department.


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Jackson v. Conway	
	                                                                     	                            	
adequately for trial, as shown by his unfamiliarity with the elements of first-degree sodomy.

As for counsel’s trial conduct, Jackson maintained that counsel: (1) presented no evidence

and called no witnesses in defense, thus failing “to utilize the plethora of indisputable

scientific evidence” not introduced by the State; (2) failed to utilize the medical and forensic

evidence to conduct effective cross-examinations of the victims by exposing inconsistencies

between their accounts of the sexual abuse and the medical findings; and (3) failed to offer

expert medical testimony to explain the medical and forensic evidence.16

                The Fourth Department affirmed Jackson’s conviction on February 11, 2004, but

reduced his overall sentence to 50 years’ imprisonment on New York statutory grounds not

relevant here. See People v. Jackson, 772 N.Y.S.2d 149, 150 (App. Div. 4th Dep’t 2004). The

Fourth Department held that Jackson’s Miranda claim was meritless because the “record

establishe[d] that [Bonisteel] was not engaged in law enforcement activity.” Id. (citation

omitted).17 Addressing the prosecutorial misconduct claim, the Fourth Department held

that “the comments of the prosecutor in her opening and closing statements were not so

egregious as to deprive defendant of his right to a fair trial.” Id. (brackets, quotation marks,

and citation omitted). Finally, it rejected Jackson’s “contention . . . that he received


																																																																		
	
16In response to Jackson’s ineffective assistance arguments, the State contended on direct
appeal that the claim was “based on factual assertions outside the appropriate record” and
therefore could be remedied only via a § 440.10 motion, notwithstanding its position in the
§ 440.10 proceeding that the claims were only properly raised on direct appeal.

17The Fourth Department also rejected this claim on the ground that “[t]he filing of a child
abuse petition does not trigger the right to counsel” and, therefore, Bonisteel “was not
required to advise defendant of his Miranda rights before speaking with him.” Id. (citation
omitted).

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Jackson v. Conway	
	                                                	                                                	
ineffective assistance of counsel,” holding that he was “not entitled to error-free

representation” and had “failed to demonstrate the absence of strategic or other legitimate

explanations for counsel’s alleged failures.” Id. (citations and quotation marks omitted).

       Jackson sought leave to appeal all of his claims to the New York Court of Appeals.

Then-Chief Judge Kaye denied his application on May 20, 2004, see People v. Jackson, 2 N.Y.3d

801 (2004) (table), and Jackson timely filed a habeas application in the United States District

Court for the Western District of New York pursuant to 28 U.S.C. § 2254.

IV.    Federal Habeas Proceedings

        In his § 2254 petition and addendum to that petition, Jackson raised his Miranda,

prosecutorial misconduct, and ineffective assistance claims, with some slight modifications

to the latter two. First, Jackson added to his allegations of prosecutorial misconduct the

prosecutor’s “improper tactics of introducing prior uncharged crimes and bad acts” and her

“abuse of the charging function.” Second, Jackson divided his ineffective assistance claim

into four “points.” In “Point One,” Jackson argued that defense counsel’s lack of

preparation was “painfully exposed” by counsel’s “decision to NOT put on a defense . . .

due to the fact that he was under the incorrect assumption that the prosecution was required

to prove the element of penetration in order to sustain a conviction of Sodomy in the 1st.”

App’x at 15 (emphasis in original) (additional capitalization removed). Jackson maintained in

“Point Two” that counsel “failed to correctly marshal an investigation into the plethora of

exculpatory evidence (physical, medical, forensic, visual, tactile, [etc.])” and then failed to

introduce this evidence at trial. Id. at 16 (capitalization removed). In “Point Three” he

contended that defense counsel failed to consult with a medical expert “to help him interpret


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Jackson v. Conway	
	                                                	                                                 	
and then apply through [t]estimony the results of the entire battery” of medical and forensic

tests. Id. at 16-17. Finally, in “Point Four,” Jackson asserted that the above deficiencies,

coupled with defense counsel’s failure to cross-examine the victims using the medical

evidence, constituted ineffective assistance. Id. at 17.

       After reviewing the petition, the magistrate judge appointed counsel and ordered an

evidentiary hearing pursuant to our decision in Sparman v. Edwards, in which we expressed

our belief that “a district court facing the question of constitutional ineffectiveness of

counsel should . . . offer the assertedly ineffective attorney an opportunity to be heard and to

present evidence.” 154 F.3d 51, 52 (2d Cir. 1998) (per curiam). At the resulting hearing, the

magistrate judge heard testimony from a medical expert and from defense counsel, who

explained his trial preparation and strategy.

       By amended order entered in February 2011, the magistrate judge granted Jackson’s

application for habeas relief in part. See Jackson v. Conway, 765 F. Supp. 2d 192 (W.D.N.Y.

2011). The magistrate judge held that the Fourth Department’s rejection of Jackson’s

Miranda claim was both contrary to and an unreasonable application of clearly established

Supreme Court precedent, and that the admission of his post-arrest statement to Bonisteel

was sufficiently injurious as to warrant habeas relief on the convictions involving CJ. See id.

at 270-84. The magistrate judge also held that the prosecutor’s pretrial and trial conduct

cumulatively deprived Jackson of his right to due process, and that the Fourth Department’s

decision to the contrary was an unreasonable application of Supreme Court precedent. See

id. at 251-60. Finding that the prosecutor’s misconduct “permeated the entire trial




	                                               21
	
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Jackson v. Conway	
	                                               	                                                 	
proceeding,” the magistrate judge vacated all of Jackson’s convictions on this ground. Id. at

253, 260.

       Next, the magistrate judge found that Jackson had failed to exhaust in the state courts

Points One and Two of his ineffective assistance claim, and that those Points were barred by

the operation of a state procedural rule because they could have been, but were not, raised

on direct appeal. See id. at 260-61. The magistrate judge grouped Jackson’s remaining

ineffective assistance arguments into two sections—counsel’s failure to consult with and call

a medical expert to explain State’s medical evidence, and counsel’s failure to investigate

adequately the medical and forensic reports not introduced by the State at trial. See id. at

262-70. The magistrate judge found habeas relief was warranted only as to the first group,

and then only as to the convictions involving CJ, because it was as to those allegations that

the State’s medical evidence and the defense’s lack of a medical expert were most damaging.

See id. at 262-68.

       For these reasons, the magistrate judge directed the State to vacate Jackson’s

convictions on all counts unless it commenced re-prosecution of Jackson within ninety days.

Id. at 287. The magistrate judge stayed the judgment pending the completion of any

appellate proceedings. Id. The State appealed insofar as the magistrate judge granted habeas

relief and Jackson cross-appealed those portions of the decision adverse to him.

                                        DISCUSSION

       We review a district court’s grant of habeas relief de novo, and its underlying findings

of fact for clear error. See Cardoza v. Rock, 731 F.3d 169, 177 (2d Cir. 2013).




	                                              22
	
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Jackson v. Conway	
	                                                 	                                                  	
I.     Rules Governing Federal Habeas Corpus Review under the Antiterrorism and
       Effective Death Penalty Act of 1996

       As amended by the Antiterrorism and Effective Death Penalty Act of 1996

(“AEDPA”) and interpreted by the Supreme Court, 28 U.S.C. § 2254—the statutory

provision authorizing federal courts to provide habeas corpus relief to prisoners in state

custody—is “part of the basic structure of federal habeas jurisdiction, designed to confirm

that state courts are the principal forum for asserting constitutional challenges to state

convictions.” Harrington v. Richter, __ U.S. __, 131 S. Ct. 770, 787 (2011). A number of

requirements and doctrines, four of which are relevant to this appeal, ensure the centrality of

the state courts in this arena. First, the exhaustion requirement ensures that state prisoners

present their constitutional claims to the state courts in the first instance. See id. (citing 28

U.S.C. § 2254(b)). Should the state court reject a federal claim on procedural grounds, the

procedural default doctrine bars further federal review of the claim, subject to certain well-

established exceptions. See generally Wainwright v. Sykes, 433 U.S. 72, 82-84 (1977). If the state

court denies a federal claim on the merits, then the provisions of § 2254(d) come into play

and prohibit federal habeas relief unless the state court’s decision was either: (1) “contrary to,

or involved an unreasonable application of, clearly established Federal law,” or (2) “based on

an unreasonable determination of the facts in light of the evidence presented in the State

court.” 28 U.S.C. § 2254(d)(1)-(2). Finally, when conducting its review under § 2254(d), the

federal court is generally confined to the record before the state court that adjudicated the

claim. See Cullen v. Pinholster, __ U.S. __, 131 S. Ct. 1388, 1398-99 (2011).




	                                                23
	
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Jackson v. Conway	
	                                                  	                                                 	
       Because the issues presented in this appeal implicate all of the above facets of federal

habeas jurisdiction, we provide a general overview of the standards governing each before

applying those standards to Jackson’s case.

       A.      Exhaustion and Procedural Default

       To provide the state with the first opportunity to consider and correct alleged

violations of its prisoners’ constitutional rights, a state prisoner is required to exhaust all of

his available state remedies before a federal court can consider his habeas application. See 28

U.S.C. § 2254(b)(1)(A); Carvajal v. Artus, 633 F.3d 95, 104 (2d Cir. 2011). This requires that

the prisoner “fairly present” his constitutional claim to the state courts, which he

accomplishes “by presenting the essential factual and legal premises of his federal

constitutional claim to the highest state court capable of reviewing it.” Rosa v. McCray, 396

F.3d 210, 217 (2d Cir. 2005) (citing Cotto v. Herbert, 331 F.3d 217, 237 (2d Cir. 2003)). While

“a state prisoner is not required to cite chapter and verse of the Constitution in order to

satisfy this requirement,” he must tender his claim “in terms that are likely to alert the state

courts to the claim’s federal nature.” Carvajal, 633 F.3d at 104 (internal citations, quotation

marks, and brackets omitted).

       A state prisoner’s procedural default in the state courts will also bar federal review

except in narrow circumstances not relevant here. A procedural default occurs in one of two

ways. First, if the state prisoner fails to exhaust his state remedies in a manner in which,

were he to return to the state courts with his unexhausted claim, those courts would find the

claim barred by the application of a state procedural rule, “we ‘must deem the claim

procedurally defaulted.’” Id. (quoting Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001))


	                                                24
	
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Jackson v. Conway	
	                                                                     	                              	
(brackets omitted). Alternatively, a procedural default occurs if the state court’s rejection of

a federal claim rests on a state law ground—such as the operation of a state procedural

rule—that is both “‘independent of the federal question and adequate to support the

judgment.’” Clark v. Perez, 510 F.3d 382, 390 (2d Cir. 2008) (quoting Coleman v. Thompson,

501 U.S. 722, 729 (1991)). In this latter case, “[t]he preclusion of federal review applies only

when the last state court rendering a judgment in the case clearly and expressly states that its

judgment rests on a state procedural bar.” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir.

2006) (internal quotation marks omitted); see also Harris v. Reed, 489 U.S. 255, 262 (1989)

(“[A] federal claimant’s procedural default precludes federal habeas review . . . only if the last

state court rendering a judgment in the case rests its judgment on the procedural default.”).

                B.              28 U.S.C. § 2254(d) –Review of State Court Decisions on the Merits

                As noted above, § 2254(d) is implicated when the habeas petitioner seeks federal

review of a constitutional claim that was adjudicated by the state courts on the merits. As

relevant here, AEDPA provides that habeas relief “shall not be granted” on such claims

“unless the adjudication of the claim . . . 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.” 28 U.S.C. § 2254(d)(1).18 The analysis under

§ 2254(d)(1) proceeds in two steps. The first is to identify the governing “clearly established

Federal law.” See Marshall v. Rodgers, __ U.S. __, 133 S. Ct. 1446, 1449 (2013) (per curiam)


																																																																		
	
18Section 2254(d)(2), which permits federal relief if the state court decision “was based on
an unreasonable determination of the facts in light of the evidence presented in the State
court,” is not implicated in this case.

	                                                                    25
	
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Jackson v. Conway	
	                                                	                                                  	
(“The starting point for cases subject to §2254(d)(1) is to identify the ‘clearly established

Federal law, as determined by the Supreme Court of the United States’ that governs the

habeas petitioner’s claims.”); Yarborough v. Alvarado, 541 U.S. 652, 660 (2004) (“We begin by

determining the relevant clearly established law.”). The second asks whether, in the context

of the petitioner’s case, the state court’s decision was contrary to or an unreasonable

application of that clearly established precedent. See Alvarado, 541 U.S. at 663; Williams v.

Taylor, 529 U.S. 362, 412 (2000). Separate considerations govern each step, and it is to those

that we now turn.

               1.     “Clearly Established” Federal Law

       In the AEDPA context, “‘[c]learly established federal law’ refers only to the holdings

of the Supreme Court” extant at the time of the relevant state court decision. Rodriguez v.

Miller, 537 F.3d 102, 106 (2d Cir. 2008); see also Lockyer v. Andrade, 538 U.S. 63, 71-72 (2003)

(“‘[C]learly established law’ under § 2254(d)(1) is the governing legal principle or principles

set forth by the Supreme Court at the time the state court renders its decision.”). Thus,

“[n]o principle of constitutional law grounded solely in the holdings of the various courts of

appeals or even in the dicta of the Supreme Court can provide the basis for habeas relief.”

Rodriguez, 537 F.3d at 106-07 (citing Carey v. Musladin, 549 U.S. 70, 74, 76-77 (2006)); see also

Marshall, 133 S. Ct. at 1451 (A federal habeas court “may not canvass circuit decisions to

determine whether a particular rule of law is so widely accepted among the Federal Circuits

that it would, if presented to th[e] [Supreme] Court, be accepted as correct.”). While we may

rely on our prior decisions to the limited extent that we have “already held that the particular

point in issue is clearly established by Supreme Court precedent,” Marshall, 133 S. Ct. at 1450


	                                               26
	
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Jackson v. Conway	
	                                                	                                                  	
(citation omitted), we must scrupulously avoid using our decisions (or those of other

circuits) “to refine or sharpen a general principle of Supreme Court jurisprudence into a

specific legal rule that th[e] Court has not announced,” id. (citing Parker v. Matthews, 567 U.S.

---, 132 S. Ct. 2148, 2155 (2012) (per curiam)); see also Rodriguez, 537 F.3d at 109 (observing

that we may no longer rely “on our own precedents to interpret and flesh out Supreme

Court decisions”).

               2.      The “Contrary to” and “Unreasonable Application” Prongs

       Once the clearly established Supreme Court principle has been distilled, the petitioner

may pursue relief under § 2254(d)(1) via two paths. First, he may show that the state court’s

decision was “contrary to” that clearly established principle by demonstrating either (1) “that

the state court reached a conclusion of law that directly contradicts” a Supreme Court

holding, or (2) that the state court arrived at a result opposite to that reached by the Supreme

Court when presented with “‘facts that are materially indistinguishable from [the] relevant

Supreme Court precedent.’” Evans v. Fischer, 712 F.3d 125, 132 (2d Cir. 2013) (quoting

Williams, 529 U.S. at 405).

       More commonly, a petitioner may seek relief by demonstrating that the state court’s

decision involved an “unreasonable application” of the clearly established principle. A state

court unreasonably applies clearly established law if it “‘identifies the correct governing legal

principle but unreasonably applies that principle to the facts’ of the case before it.” Id.

(quoting Williams, 529 U.S. at 413) (ellipsis omitted). In this analysis, a state court’s

“unreasonable” application of law is not synonymous with an “incorrect” or “erroneous”

decision. See Andrade, 538 U.S. at 75. Thus, “a federal habeas court may not issue the writ


	                                               27
	
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Jackson v. Conway	
	                                                                     	                             	
simply because that court concludes in its independent judgment that the relevant state-court

decision applied clearly established law erroneously or incorrectly.” Renico v. Lett, 559 U.S.

766, 773 (2010) (internal quotation marks omitted). Instead, the state court’s application

must be “objectively unreasonable,” id. (quotation marks omitted), which, we have

recognized, requires “some increment of incorrectness beyond error,” Evans, 712 F.3d at 133

(quotation marks omitted).19 Whether the state court’s application is “objectively

unreasonable” depends, in part, on the specificity of the clearly established rule of law. See

Alvarado, 541 U.S. at 664. If a legal rule is very specific, then the range of reasonable

applications of that rule is correspondingly narrow.20 See id. By contrast, “[t]he more general

the rule, the more leeway [state] courts have in reaching outcomes in case-by-case

determinations.” Id. In short, the standard under the unreasonable application prong of

§ 2254(d)(1) “is difficult to meet,” Richter, 131 S. Ct. at 786, and “[a] state court’s

determination that a claim lacks merit precludes federal habeas relief so long as ‘fairminded

jurists could disagree’ on the correctness of the state court’s decision,” id. (quoting Alvarado,

541 U.S. at 664).




																																																																		
	
19We have also recognized, however, that “‘the increment of incorrectness beyond error
need not be great; otherwise, habeas relief would be limited to state court decisions so far off
the mark as to suggest judicial incompetence.’” Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d
Cir. 2011) (quoting Georgison v. Donelli, 588 F.3d 145, 154 (2d Cir. 2009)).

20A necessary corollary to this point is that “it is not an unreasonable application of clearly
established Federal law for a state court to decline to apply a specific legal rule that has not
been squarely established by [the Supreme] Court.” Knowles v. Mirzayance, 556 U.S. 111, 122
(2009) (internal quotation marks omitted).

	                                                                    28
	
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Jackson v. Conway	
	                                                                     	                                     	
                Finally, federal review under either prong of § 2254(d)(1) “is limited to the record that

was before the state court that adjudicated the claim on the merits.” Pinholster, 131 S. Ct. at

1398-99. Thus, “evidence introduced in federal court has no bearing on § 2254(d)(1)

review.” Id. at 1399. Put another way, the rule expressed in Pinholster generally “prohibits us

from relying on evidence beyond the state court record to reach our result.” Young v. Conway,

715 F.3d 79, 82 (2d Cir. 2013) (Parker, J., concurring in the denial of rehearing en banc).

                With these principles in mind, we turn to the merits of Jackson’s claims.

II.             Miranda Claim

                As part of his Miranda claim pressed in the Fourth Department, Jackson argued that

CPS Caseworker Bonisteel acted as the “functional equivalent” of a police officer because

she was a government employee who interrogated him about the events leading to his arrest.

See App’x at 100-01. As relevant here, the Fourth Department rejected the Miranda claim on

the ground that Bonisteel “was not engaged in law enforcement activity.” See Jackson, 772

N.Y.S. 2d at 150.21 Jackson argues, and the magistrate judge held, that this conclusion was



																																																																		
	
21 We agree with the magistrate judge that the Fourth Department’s alternate holding—that
“[t]he filing of a child abuse petition does not trigger the right to counsel” and therefore
Bonisteel “was not required to advise defendant of his Miranda rights before speaking with
him”—is not relevant to this inquiry. See Jackson, 772 N.Y.S. 2d at 150 (citing People v. Brooks,
585 N.Y.S.2d 30, 31 (App. Div. 1st Dep’t 1992)). As the district court explained, see Jackson,
765 F. Supp. 2d at 275, the case cited by the Fourth Department in support of this
proposition, People v. Brooks, in turn relied on the New York Court of Appeals decision in
People v. Smith. See Brooks, 585 N.Y.S.2d at 31 (citing People v. Smith, 62 N.Y.2d 306 (1984)).
That Court of Appeals case dealt with the issue of whether the initiation of civil child neglect
proceedings triggered the father’s right to counsel under the Sixth Amendment. See Smith, 62
N.Y.2d at 312-13. Here, the issue before us is not whether Bonisteel’s initiation of civil child
abuse proceedings implicated Jackson’s right to counsel, but whether the admission at
	

	                                                                    29
	
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Jackson v. Conway	
	                                                                                                        	                                                                                                         	
both contrary to, and an unreasonable application of, the clearly established federal law set

forth in the holdings of Miranda, 384 U.S. at 436, Mathis v. United States, 391 U.S. 1 (1968),

and Estelle v. Smith, 451 U.S. 454 (1981). See Jackson, 765 F. Supp. 2d at 275-82. While we do

not find relief warranted under the “contrary to” prong of §	2254(d)(1), we agree with the

magistrate judge that the Fourth Department’s rejection of Jackson’s Miranda claim

constituted an objectively unreasonable application of this Supreme Court precedent. We

further hold that the admission of Jackson’s statements had a substantial and injurious effect

or influence on the jury’s verdict as to the count’s involving CJ. We therefore affirm the

magistrate judge’s judgment insofar as it granted habeas relief on those counts.

                A.              Clearly Established Law

                The Fifth Amendment of the United States Constitution provides that “[n]o

person . . . shall be compelled in any criminal case to be a witness against himself.” U.S.

CONST. amend. V; see also Malloy v. Hogan, 378 U.S. 1, 6 (1964) (extending the protection

from compulsory self-incrimination to the states through the Fourteenth Amendment). In

Miranda v. Arizona, the Supreme Court held that “the prosecution may not use statements,

whether exculpatory or inculpatory, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the privilege

against self-incrimination.” 384 U.S. at 444; see also Georgison, 588 F.3d at 155 (“It is well

settled that Miranda requires all individuals who are under arrest, or otherwise in police

custody, to be informed prior to interrogation, inter alia, of their right to remain silent and to

																																																																																																																																																																																																																				
	
Jackson’s criminal trial of his statements to Bonisteel violated his Fifth Amendment right to
be free from compulsory self-incrimination.

	                                                                                                     30
	
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Jackson v. Conway	
	                                                                     	                                	
have an attorney present during questioning.”). Should a person subject to custodial

interrogation invoke his right to remain silent, “the interrogation must cease.” Miranda, 384

U.S. at 473-74. In this case, the admissibility of later statements made by the suspect will

turn on “whether his right to cut off the questioning was scrupulously honored.” Michigan v.

Mosely, 423 U.S. 96, 104 (1975) (internal quotation marks omitted); see id. at 106 (holding a

statement made after the suspect’s invocation of his Miranda rights admissible when

questioning resumed “only after the passage of a significant period of time and the provision

of a fresh set of warnings,” and the second interrogation was restricted “to a crime that had

not been a subject of the earlier interrogation”).

                The Miranda safeguards apply only to “custodial interrogations.” That phrase has two

components: the “in custody” requirement, see, e.g., Stansbury v. California, 511 U.S. 318, 322

(1994), and the “interrogation” requirement, see, e.g., Rhode Island v. Innis, 446 U.S. 291, 300-01

(1980). Only the interrogation requirement is at issue here—the State has never argued that

Jackson was not “in custody” at the time Bonisteel interviewed him.22 In the context of

Miranda, “the term ‘interrogation’ . . . refers not only to express questioning, but also to any

words or actions on the part of the police (other than those normally attendant to arrest and

custody) that the police should know are reasonably likely to elicit an incriminating response

from the suspect.” Innis, 446 U.S. at 301. Absent an interrogation, there can be no

infringement of the Fifth Amendment rights Miranda was designed to protect. See Edwards v.

																																																																		
	
22In its brief submitted to the Fourth Department, the State apparently conceded that
Jackson was in custody at the time he spoke to Bonisteel. See App’x at 120 (“[W]hile in
custody at the Greece police station, the defendant agreed to speak to Kathy Bonisteel.”). In
the district court, the State did not contest that Jackson was in custody.

	                                                                    31
	
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Jackson v. Conway	
	                                                                     	                              	
Arizona, 451 U.S. 477, 485 (1981) (defendant’s “voluntary, volunteered statements” not

protected). While the Innis definition of “interrogation” speaks only in terms of questioning

or other actions on the part of the “police,” the Supreme Court has not strictly limited its

holdings in this regard to law enforcement personnel conducting criminal investigations.

                In Mathis, the defendant was incarcerated on a state sentence when an agent of the

Internal Revenue Service (“IRS”) questioned him about discrepancies on his federal tax

returns. See 391 U.S. at 3 & n.2. Over the defendant’s objection that he was not provided

the requisite Miranda warnings, the government was permitted to introduce the defendant’s

incriminating statements to the IRS agent at the defendant’s criminal trial for tax fraud. See

id. at 3. Before the Supreme Court, the government sought to “escape application of . . .

Miranda” by arguing that the IRS agent’s “questions were asked as a part of a routine tax

investigation where no criminal proceedings might even be brought.” Id. at 4. The Court

rejected this argument, observing that although tax investigations may be initiated “for the

purpose of a civil action,” they “frequently lead to criminal prosecutions.” Id. The Court

also noted that the IRS agent who interviewed the defendant admitted that “there was always

the possibility during his investigation that his work would end up in a criminal

prosecution.” Id. For these reasons, the Court “reject[ed] the contention that tax

investigations are immune from the Miranda requirements for warnings to be given a person

in custody.” Id.23


																																																																		
	
23The second part of the Mathis opinion rejected the government’s argument that Miranda
was applicable only to questioning of those “in custody in connection with the very case
under investigation.” See id. at 4-5 (internal quotation marks omitted). As to this argument,
	

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Jackson v. Conway	
	                                                                                                        	                                                                                                         	
                In Smith, 451 U.S. at 454, the Court again analyzed the Miranda requirements in the

context of questioning by someone other than a law enforcement official. In that case, the

trial judge ordered the prosecutor to arrange a psychiatric evaluation of the criminal

defendant to determine his competency to stand trial. See id. at 456-57. Without

administering Miranda warnings, a doctor examined the defendant for approximately 90

minutes while he was in custody, ultimately concluding that the defendant was competent.

Id. at 457. After a jury convicted the defendant, the examining doctor was the state’s sole

witness at the capital sentencing stage of the trial, where, in order to obtain a sentence of

death, the state had to prove the defendant’s future dangerousness beyond a reasonable

doubt. Id. at 457-58. Based on his 90-minute examination of the defendant before trial, the

doctor offered a number of “devastating” opinions as to the defendant’s future

dangerousness. Id. at 459-60. The jury’s subsequent verdict made the death penalty

mandatory. Id. at 460.

                On federal habeas review, the lower courts vacated the death sentence based on the

admission of the doctor’s statements. Smith, 451 U.S. at 460. The Supreme Court affirmed,

holding that the defendant’s Fifth Amendment privilege was “directly” implicated because

the state used against him “the substance of his disclosures during the pretrial psychiatric

examination,” id. at 464-65, and the defendant was not warned that this “compulsory

examination would be used to gather evidence necessary to decide whether, if convicted, he

should be sentenced to death,” id. at 467. Because the defendant “did not voluntarily

																																																																																																																																																																																																																				
	
the Court held that nothing in Miranda suggested that its warning requirement was
dependent “on the reason why the person is in custody.” Id. at 5.

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Jackson v. Conway	
	                                              	                                                 	
consent to the pretrial psychiatric examination after being informed of his right to remain

silent and the possible use of his statements,” the Court held that the defendant’s Fifth

Amendment right against self-incrimination was violated. Id. at 468. In reaching this

conclusion, the Court found it “immaterial” that the defendant “was questioned by a

psychiatrist designated by the trial court to conduct a neutral competency examination,

rather than by a police officer, governmental informant, or prosecuting attorney.” Id. at 467.

The Court explained that, when the doctor “went beyond simply reporting to the court on

the issue of competence and testified for the prosecution at the penalty phase on the crucial

issue of [the defendant’s] future dangerousness, his role changed and became essentially like

that of an agent of the State recounting unwarned statements made in a postarrest custodial

setting.” Id.

       B.       Application

       Under the circumstances of Jackson’s case, the state court’s rejection of his Miranda

claim on the ground that Bonisteel “was not engaged in law enforcement activity,” see

Jackson, 772 N.Y.S.2d at 150, was an objectively unreasonable application of the above

holdings. Echoing the Fourth Department, the State argues that Jackson’s Miranda claim

must be denied because Bonisteel interviewed Jackson in connection with “an independent

civil investigation for possible family court action.” State Br. at 35. As the above Supreme

Court holdings make clear, where, as here, custody (as that term is used in Miranda and its

progeny) is not at issue, whether the questioning official was engaged in “law enforcement

activity” at the time incriminating statements are made is not the touchstone for applying the

Miranda warning requirements. Mathis’s rejection of the argument that Miranda did not apply


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Jackson v. Conway	
	                                                                     	                                  	
to “routine tax investigation[s]” in which “no criminal proceedings might even be brought,”

requires as much. Mathis, 391 U.S. at 4.

                The State argues that Mathis is inapplicable to Jackson’s case because it dealt with a

civil investigation by the IRS, which has “unique dual roles, focusing on both civil and

criminal enforcement of the federal tax laws.” State Br. at 36. Nothing in Mathis suggests,

however, that the Court based its holding on the dual nature of IRS agents’ roles. Instead,

the Court focused on the “possibility” that the IRS agent’s tax investigation would lead to a

criminal prosecution, and the agent’s awareness of that possibility during his investigation.

See Mathis, 391 U.S. at 4. Here, Bonisteel was certainly aware of a similar possibility at the

time she conducted her investigation into the allegations that Jackson had sexually abused CJ

on the evening of November 29-30, 2000. While her investigation was civil in nature, if she

discovered during the course of that investigation that Jackson sexually abused CJ, Bonisteel

was required by New York law to report that finding to the “appropriate local law

enforcement” authorities. N.Y. Soc. Serv. Law § 424(5-a). She in fact made such a

determination at the conclusion of her interview with Jackson. See App’x at 171. Jackson’s

case therefore falls within the ambit of Mathis.24



																																																																		
	
24The State also apparently urges us to disregard Mathis because the eight Justices who
decided it were “conflicted.” See State Br. at 35-36 (“With [three] Justices dissenting (and
one not participating in the case); however, even the Supreme Court was conflicted on the
holding.”). While there are times when lower courts may have wished they were permitted
to so cavalierly disregard the holding of five Supreme Court Justices as advocated by the
State, only the Supreme Court is vested with “the prerogative of overruling its own
decisions.” Rodriguez de Quijas v. Shearson/American Express, Inc., 490 U.S. 477, 484 (1989).


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Jackson v. Conway	
	                                                                     	                           	
                 Our conclusion that the nature of the investigation is not the benchmark for

determining the applicability of Miranda does not end the matter. Instead, we must focus on

whether Bonisteel’s interview of Jackson constituted an “interrogation” within the meaning

of Innis, i.e., whether Bonisteel objectively “should have known” that her questions were

“reasonably likely to evoke an incriminating response.” Innis, 446 U.S. at 301-02 (emphasis

removed); accord Mathis, 391 U.S. at 4 (observing that the IRS agent who interviewed the

defendant acknowledged that the “there was always the possibility during his investigation

that his work would end up in a criminal prosecution”). As she testified during the

suppression hearing, Bonisteel knew at the time of the interview that Jackson had been

arrested and was in police custody as a result of the same sexual abuse allegations she was

investigating. See App’x 153-55, 168, 171. It is therefore clear from the record that Bonisteel

should have known that her express questioning about CJ’s rape allegations and about

whether Jackson “did anything to [CJ]” could elicit an incriminating response. Contra Innis,

446 U.S. at 302-03 (no interrogation when two officers held a conversation between

themselves concerning the defendant’s missing firearm and the defendant merely

commented on that conversation).25 Because Jackson was not informed prior to Bonisteel’s


																																																																		
	
25The State faults the district court for “latch[ing] on to dicta” contained in the Third
Circuit’s decision in Saranchak v. Beard, 616 F.3d 292 (3d Cir. 2010), and argues that our
analysis should be guided by the Third Circuit’s ultimate holding. State Br. at 33-34. In that
case, the Third Circuit found no Miranda violation when the state introduced at the
defendant’s murder trial certain incriminating statements the defendant made to a child
services caseworker while in custody. See Saranchak, 616 F.3d at 298-99, 303-04. The facts
of Jackson’s case, however, are distinguishable from those addressed in Saranchak. Unlike
here, the caseworker in Saranchack was a “stranger to any aspect” of the defendant’s pending
murder charges and interviewed the defendant only in connection with his visitation rights
	

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Jackson v. Conway	
	                                                                                                        	                                                                                                         	
interrogation that his statements to her could be introduced at his criminal trial, the State

should not have been permitted to rely on those statements to secure Jackson’s conviction.

See Miranda, 384 U.S. at 444; see also Smith, 451 U.S. at 468-69. Accordingly, the admission of

Bonisteel’s testimony at trial violated Jackson’s right to be free from compelled self-

incrimination under the Fifth and Fourteenth Amendments.26

                   C.           Harmlessness

                The erroneous admission of a defendant’s statements in violation of Miranda is

subject to harmless-error review. See Perkins v. Herbert, 596 F.3d 161, 174 (2d Cir. 2010).


																																																																																																																																																																																																																				
	
with his minor children. See id. at 303-04. The Third Circuit determined that no
“interrogation” had occurred because, under those circumstances, the caseworker’s interview
“was not of the kind, like a tax investigation, that has a high probability of leading to
informant testimony at a criminal trial.” Id. at 304. In reaching this conclusion, the Third
Circuit expressly distinguished circumstances where a child services caseworker interviews a
defendant “charged with offenses involving children.” Id. (emphasis removed). We do not
rely on Saranchak to reach our conclusion.

26 The State contends that applying Miranda to Bonisteel’s interrogation would have
“disastrous implications for social work,” but does not identify any such implications. State
Br. at 35. Nor do we discern any such disastrous results. Miranda prevents only the
prosecution’s use of unwarned statements against a criminal defendant in his criminal trial. Its
prophylactic requirements, therefore, pose no impediment to social workers conducting
custodial interrogations in order to substantiate allegations of sexual abuse. Cf. Smith, 451
U.S. at 468-69 (noting that if the defendant had invoked his Miranda rights prior to the
court-ordered psychiatric examination, the examination could have proceeded with the
understanding that his statements would be used only to assess his competency, rather that
establish his future dangerousness at trial). Nor does it prevent social workers from sharing
the results of their investigations with law enforcement agents to help build a criminal case.
Cf. id. at 467 (finding that the doctor’s “role changed” only when he “testified for the
prosecution” at trial). It does not even prevent the introduction of statements made during
such custodial interrogations in a civil proceeding such as one brought to terminate parental
rights. See Chavez v. Martinez, 538 U.S. 760, 770 (2003) (“[A] violation of the constitutional
right against self-incrimination occurs only if one has been compelled to be a witness against
himself in a criminal case.” (emphasis removed in part, added in part)).

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Jackson v. Conway	
	                                                	                                                	
“‘[I]n § 2254 proceedings a court must assess the prejudicial impact of constitutional error in

a state-court criminal trial under the substantial and injurious effect standard set forth in

[Brecht v. Abrahamson].’” Wood v. Ercole, 644 F.3d 83, 93-94 (2d Cir. 2011) (quoting Fry v.

Pliler, 551 U.S. 112, 121-22 (2007)) (additional internal quotation marks removed); see also

Brecht v. Abrahamson, 507 U.S. 619, 635-37 (1993). Under Brecht, a federal court may overturn

a state conviction “only when the constitutional violation ‘had a substantial and injurious

effect or influence in determining the jury’s verdict.’” Wood, 644 F.3d at 93 (quoting Brecht,

507 U.S. at 637). To make this determination, “‘we consider the importance of the wrongly

admitted evidence, and the overall strength of the prosecution’s case.’” Id. at 94 (quoting

Wray v. Johnson, 202 F.3d 515, 526 (2d Cir. 2000)) (brackets and ellipsis omitted). The

strength of the prosecution’s case without the erroneously admitted evidence “‘is probably

the single most critical factor in determining whether the error was harmless.’” Id. (quoting

Latine v. Mann, 25 F.3d 1162, 1167-68 (2d Cir. 1994)). We assess the importance of the

wrongly admitted evidence by considering (1) the “prosecutor’s conduct with respect to the

evidence,” (2) whether the evidence “bore on an issue plainly critical to the jury’s decision,”

and (3) whether the evidence “was material to the establishment of the critical fact, or

whether it was instead corroborated and cumulative.” Id. (internal citations, quotation

marks, and ellipses omitted).

       The magistrate judge held that the admission of Jackson’s statement to Bonisteel

acknowledging the “possibility” that he might have been “so drunk that he couldn’t

remember raping [CJ],” Trial Tr. at 503-04, was not harmless with respect to the jury verdicts

involving CJ. See Jackson, 765 F. Supp. 2d at 282-83. Absent Jackson’s statements to


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Jackson v. Conway	
	                                                	                                                   	
Bonisteel, the State’s case consisted of CJ’s testimony, the medical reports prepared at

Rochester General Hospital the night of the incident, and the testimony of Karen and

Rebecca. Of this evidence, only CJ’s testimony directly implicated Jackson. Karen and

Rebecca did not witness the sexual assault – they merely heard the voices of CJ and Jackson

over the baby monitor. And while the two medical reports revealed that there was an

“abrasion” or “irritation” on CJ’s vaginal opening, the reports gave no indication of its cause.

We therefore agree with the magistrate judge that the State’s case on these counts was not

“overwhelming.”

       Nonetheless, given this evidence, we would likely find the admission of Jackson’s

statements harmless were it not for two additional considerations – the lack of any physical

evidence of CJ’s sexual abuse and the damaging mischaracterization of Jackson’s statements

by the prosecutor in her summation. We have previously commented on the “particular

importance of physical evidence in child sexual abuse cases,” which often can turn into

credibility contests. See, e.g., Eze v. Senkowski, 321 F.3d 110, 128 (2d Cir. 2003). Here, despite

the tests performed on CJ’s sexual assault kit and the sheets recovered from Jackson’s bed,

on which CJ testified the sexual assault occurred, the State was unable to present any

physical evidence at trial. Defense counsel used this lack of evidence in his summation,

arguing that although CJ had testified that Jackson sexually abused her on three separate

occasions, the State had not been able to present any DNA, blood, semen, or pubic hair

corroborating her account. The lack of physical evidence and defense counsel’s exploitation

of the absence of such evidence provided the jury with a legitimate reason to question CJ’s

account of the sexual abuse. Thus, Jackson’s inculpatory acknowledgement of the


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Jackson v. Conway	
	                                               	                                              	
“possibility” that he might have been so drunk that he could not remember raping CJ may

well have had a “substantial and injurious effect or influence in determining the jury’s

verdict.” Brecht, 507 U.S. at 637.

       Beyond the absence of physical evidence, however, we are convinced that Jackson’s

statement influenced the jury because of the way the prosecutor mischaracterized that

statement in her closing argument. The prosecutor asserted that, after Bonisteel “accused

[Jackson] of having sex with [his] own child,” he responded, “Yeah, maybe, I could have.”

App’x at 271. This inaccurate portrayal of Bonisteel’s testimony completely reframed

Jackson’s statement in a way that made it appear much more damning. As noted above,

Bonisteel’s actual testimony was that, after Jackson denied hurting CJ, Bonisteel asked him

whether “it was possible that he was so drunk that he couldn’t remember raping [CJ],” to

which Jackson responded that “it was a possibility.” Trial Tr. at 503-04. The State argues

that the first part of Jackson’s statement to Bonisteel—his adamant denial that he had hurt

CJ—was beneficial to the defense. Although defense counsel did rely upon Jackson’s denials

in his closing argument, the State fails to acknowledge the effect of the prosecutor’s

inflammatory mischaracterization of the latter portion of Jackson’s statement into what

became, in essence, an admission of the crime. The degree to which the prosecutor found it

necessary to mischaracterize the latter portion of Jackson’s statement is indicative of its

centrality to the State’s case. Cf. Wood, 644 F.3d at 98 (prosecutor’s focus in summation on

an erroneously admitted statement indicates that the statement was “central to the

prosecution’s case”).




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Jackson v. Conway	
	                                                	                                                	
       The State argues that Jackson’s statement to Bonisteel contained “somewhat

redundant information,” comparable to that contained in his statement to Tony Arnold. See

State Br. at 42-43. We are not persuaded as to the counts involving CJ because, unlike his

statement to Bonisteel, Jackson never acknowledged to Arnold even the possibility that he

had been so drunk he would not have remembered raping CJ. Instead, Jackson told Arnold

that on the evening of November 29-30, 2000 he had sex with “both of his wives,” who

waited until he fell asleep and then called the police in an attempt to “charge him with raping

his daughter.” Tr. 549. Jackson’s admission to Arnold that he had sex with “both of his

wives” undoubtedly lessens the injurious impact that his statement to Bonisteel had on the

charges involving Rebecca and Karen. It cannot be said, however, that Jackson’s attempt to

explain the charges involving CJ as stemming from his “wives’” false police report was

cumulative of the most damaging portion of his inculpatory statement to Bonisteel.

       “When a reviewing court has ‘grave doubt about whether a trial error . . . had

substantial and injurious effect or influence in determining the jury’s verdict,’ that error is

not harmless.” Wood, 644 F.3d at 99 (quoting O’Neal v. McAninch, 513 U.S. 432, 436 (1995))

(additional quotation marks omitted). Here, where the State’s case involving CJ was not

overwhelming, defense counsel exploited the lack of physical evidence, and the prosecutor

mischaracterized Jackson’s wrongly admitted inclupatory statement to make it more

damaging, we conclude that the error was not harmless as to the counts involving CJ. We

therefore affirm the magistrate judge’s judgment granting habeas relief as to those counts.

       Jackson argues that the erroneous admission of his statement caused a prejudicial

spillover having an impact on the entire case and necessitating the vacatur of all the


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Jackson v. Conway	
	                                                	                                                  	
convictions, not just those involving CJ. We consider three factors in evaluating the

“spillover” effect of constitutional trial error that primarily effects only certain counts: “(1)

whether the evidence on the vacated counts was inflammatory and likely to inflame the jury;

(2) whether the evidence on the vacated counts was similar to that required to prove the

remaining counts; and (3) the strength of the prosecution’s case on the remaining counts.”

Gersten v. Senkowski, 426 F.3d 588, 614 (2d Cir. 2005) (citing Lindstadt v. Keane, 239 F.3d 191,

205 (2d Cir. 2001)). While the evidence against Jackson on the charges involving CJ was

undeniably inflammatory because it related to allegations that he had raped and sodomized

his fourteen-year-old daughter, we hold, based on the other two factors, that the effect of

that evidence did not spill over to prejudice him on the remaining counts.

       The strength of the prosecution’s case on the counts involving Karen and Rebecca

arising from the November 29-30, 2000 incident was stronger than its case for the counts

involving CJ. Karen and Rebecca each witnessed Jackson sexually abusing the other and

they both testified consistently about his actions that night. Moreover, as noted, Jackson

admitted to Arnold that he had sex with “both of his wives” that evening, which provides

additional corroboration.

       All of the remaining counts involving Karen, Rebecca, and Jackson’s son, GJ, relate

to events occurring before the November 29-30, 2000 incident. Accordingly, the evidence

of the statement the State used to prove Jackson sexually assaulted CJ that night was

completely dissimilar to that needed to prove he committed these remaining counts. Under

the circumstances presented here, Jackson’s improperly admitted statements did not spill

over and prejudice him as to the counts that did not involve CJ.


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Jackson v. Conway	
	                                                	                                                 	
III.   Prosecutorial Misconduct Claim

       Jackson argued in his Fourth Department brief that three instances of prosecutorial

misconduct deprived him of his constitutional right to a fair trial: the prosecutor’s delayed

disclosure of Tony Arnold as a State witness; her improper attempt to elicit expert testimony

from Dr. Lenane; and her comments made during voir dire, her opening statement, and in

summation. The magistrate judge held that the Fourth Department’s rejection of this claim

on the ground that the prosecutor’s comments “in her opening and closing statements were

not so egregious as to deprive defendant of his right to a fair trial,” Jackson, 772 N.Y.S.2d at

150 (citation, quotation marks, and brackets omitted), was an objectively unreasonable

application of clearly established law, see Jackson, 765 F. Supp. 2d at 260. On appeal, the

State contends that the magistrate judge improperly considered an argument that Jackson

failed to exhaust in the state courts and failed to afford the Fourth Department’s decision

the proper deference under AEDPA.

       A.      Exhaustion

       The magistrate judge found that Jackson’s prosecutorial misconduct claim warranted

habeas relief based, in part, on the prosecutor’s violation of the trial court’s prior bad act

evidentiary ruling. See Jackson, 765 F. Supp. 2d at 257-58. We agree with the State that the

magistrate judges should not have considered this aspect of Jackson’s claim because he did

not present this issue to the Fourth Department as part of his prosecutorial misconduct

claim. Although Jackson raised in the Fourth Department a separate claim based on the trial

court’s failure to adhere to its prior bad act ruling, he did not include the prosecutor’s

elicitation of the prior bad acts as an example of her prosecutorial misconduct. This portion


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Jackson v. Conway	
	                                                                     	                                	
of the prosecutorial misconduct claim is therefore unexhausted. See Rosa, 396 F.3d at 217.

Jackson has no further state avenues in which to press this issue because he has completed

his direct appeal and the nature of the claim is apparent from the face of the record, meaning

that he would be barred from raising it in a motion to vacate the judgment. See N.Y. Crim.

Proc. Law § 440.10(2)(c) (stating that the court “must deny” a § 440.10 motion when

sufficient facts appear on the record to permit appellate review of the claim and the

defendant unjustifiably failed to raise that issue on direct appeal); see also Sweet v. Bennett, 353

F.3d 135, 140 (2d Cir. 2003) (applying section 440.10(2)(c) to claims raised for the first time

in federal habeas petition). For these reasons, we deem this issue exhausted but procedurally

defaulted, see Sweet, 353 F.3d at 140, and do not consider it when assessing the prosecutorial

misconduct claim.27

                B.              Clearly Established Law

                As noted, the Fourth Department adjudicated Jackson’s prosecutorial misconduct

claim on the merits. See Jackson, 772 N.Y.S.2d at 150. As such, we must first identify the

clearly established Supreme Court principles governing his claim. The district court

identified four relevant Supreme Court decisions: Berger v. United States, 295 U.S. 78 (1935),

Donnelly v. DeChristoforo, 416 U.S. 637 (1974), United States v. Young, 470 U.S. 1 (1985), and


																																																																		
	
27 Jackson has not argued on appeal that his procedural default should be excused pursuant
to one of the exceptions to that doctrine and we therefore do not consider this issue. See,
e.g., Clark, 510 F.3d at 382 (“‘Where a defendant has procedurally defaulted a claim by failing
to raise it on direct review, the claim may be raised in habeas only if the defendant can first
demonstrate either cause and actual prejudice, or that he is actually innocent.’” (quoting
Bousley v. United States, 523 U.S. 614, 622 (1998))).


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Jackson v. Conway	
	                                                                           	                        	
Darden v. Wainwright, 477 U.S 168 (1986). The parties do not dispute this list. We consider

each potential authority in turn.

                                1.              DeChristoforo and Darden

                 DeChristoforo and Darden involved habeas petitions brought by state prisoners who

argued that statements made by prosecutors in closing argument deprived them of their

Fourteenth Amendment right to a fair trial.28 See Darden, 477 U.S. at 170; DeChristoforo, 416

U.S. at 638. These cases state the rule—first laid by DeChristoforo and then cemented by

Darden—that the relevant question when addressing such claims is “whether the prosecutors’

comments ‘so infected the trial with unfairness as to make the resulting conviction a denial

of due process.’” Darden, 477 U.S. at 180 (quoting DeChristoforo, 416 U.S. at 643). The

Supreme Court has recognized this rule as “clearly established” law for purposes of AEDPA.

See Matthews, 132 S. Ct. at 2153.

                                2.              Berger and Young

                In Berger, the Supreme Court ordered a new trial when the evidence supporting the

defendant’s conspiracy conviction was “weak” and the record clearly demonstrated the

prosecutor’s “pronounced and persistent” misconduct throughout trial and during



																																																																		
	
28 In DeChristoforo, the prosecutor commented on the defendant’s motive for standing trial,
stating that the defendant had done so in the hope that the jury would find the defendant
guilty of a lesser charge, rather than acquit him. 416 U.S. at 640. In Darden, the prosecutor
referred to the defendant as an “animal,” implied that the death penalty was the only
guarantee against future harm to the public, and remarked, inter alia, that he wished the
defendant had killed himself and that he would like to see the defendant’s face “blown away
by a shotgun.” 477 U.S. at 180 & n.12.


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Jackson v. Conway	
	                                                                     	                                	
summation.29 295 U.S. at 88-89. In ordering a new trial, the Court held that the

prosecution’s interest in a criminal case “is not that it shall win [the] case, but that justice

should be done” and, therefore, “[i]t is as much [a prosecutor’s] duty to refrain from

improper methods calculated to produce a wrongful conviction as it is to use every

legitimate means to bring about a just one.” Id. at 88.

                Young involved a prosecutor’s improper comments during summation made in

response to defense counsel’s equally improper remarks. 470 U.S. at 4-6. Specifically, the

prosecutor expressed his personal view of the defendant’s guilt and his belief that the

defendant had not acted with “honor and integrity.” See id. The Court held that the decision

on whether the prosecutor’s comments seriously affected the fairness or integrity of the trial

was to be made by assessing those comments within the context of the record as a whole,

including the improper statements made by defense counsel that had invited the prosecutor’s

response.30 See id. at 11, 16-17. Applying this standard, the Court held that while the

prosecutor’s statements were “inappropriate and amounting to error,” they “were not such

as to undermine the fundamental fairness of the trial” given the nature of defense counsel’s

																																																																		
	
29Among other improprieties during trial, the Berger prosecutor was “guilty of misstating the
facts in his cross-examination of witnesses; . . . of pretending to understand that a witness
had said something he had not said and persistently cross-examining the witness on that
basis; of assuming prejudicial facts not in evidence; [and] of bullying and arguing with
witnesses.” Berger, 295 U.S. at 84. In addition, the prosecutor’s summation “was undignified
and intemperate, containing improper insinuations and assertions calculated to mislead the
jury.” Id. at 85.

30 Because the defense did not object to the prosecutor’s comments, the issue in Young was
not whether the prosecutor’s comments were erroneous, but rather whether they constituted
“plain error” in that they seriously affected the fairness or integrity of the entire trial. See id.
at 6-7, 14-16.

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Jackson v. Conway	
	                                                                     	                            	
comments, the fact that the prosecutor had not implied that he had evidence of the

defendant’s guilt unknown to the jury, and the overall strength of the prosecution’s case. Id.

at 16-20.

                It is important to note that neither Berger nor Young expressed its holding in

constitutional terms. We are convinced, however, that we may consider these holdings in

this case because later Supreme Court cases incorporated them into the Court’s Fourteenth

Amendment prosecutorial misconduct jurisprudence. See United States v. Agurs, 427 U.S. 97,

107, 110-11 (1976) (explaining that Berger’s description of the prosecutor’s duty “illuminates”

the standard governing “his obligation to disclose exculpatory evidence” under the Due

Process Clauses of the Fifth and Fourteenth Amendments); Darden, 477 U.S. at 182

(invoking Young’s holding to conclude that the prosecutor’s statements in response to

defense counsel’s arguments did not deprive the habeas petitioner of a fair trial); see also

Banks v. Dretke, 540 U.S. 668, 694 (2004) (citing Berger for the proposition that it was

“appropriate for [the habeas petitioner] to assume that his prosecutors would not stoop to

improper litigation conduct to advance prospects for gaining a conviction”); Kyles v. Whitley,

514 U.S. 419, 439-40 (1995) (citing Berger when discussing the prosecutor’s obligation to

disclose exculpatory evidence).31


																																																																		
	
31 In Cone v. Bell, the Court, quoting Agurs and Berger, expressly stated that “[t]he right to a
fair trial, guaranteed to state criminal defendants by the Due Process Clause of the
Fourteenth Amendment, imposes on the States certain duties consistent with their sovereign
obligation to ensure ‘that justice shall be done’ in all criminal prosecutions.” 556 U.S. 449
(2009) (quoting Agurs, 427 U.S. at 111 (quoting, in turn, Berger, 295 U.S. at 88)). Cone,
however, was not decided until 2009, some five years after the Fourth Department
considered Jackson’s case and therefore it cannot be considered as a source of “clearly
	

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Jackson v. Conway	
	                                                                                                        	                                                                                                         	
                Consideration of the four above holdings leaves us with the following principles,

which we now hold to be “clearly established” law governing prosecutorial misconduct

claims such as Jackson’s.32 First, on federal habeas review, the relevant standard is “‘the

narrow one of due process, and not the broad exercise of supervisory power.’” Darden, 477

U.S. at 180 (quoting DeChristoforo, 416 U.S. at 642). Thus, while the State has a “duty to

refrain from improper methods calculated to produce a wrongful conviction,” Berger, 295

U.S. at 88, such methods will warrant habeas relief only if they “‘so infected the trial with

unfairness as to make the resulting conviction a denial of due process,’” Darden, 477 U.S. at

180 (quoting DeChristoforo, 416 U.S. at 643). The habeas court must consider the record as a

whole when making this determination, because even a prosecutor’s inappropriate or

erroneous comments or conduct may not be sufficient to undermine the fairness of the

proceedings when viewed in context. See Young, 470 U.S. at 16-17; Darden, 477 U.S at 182

(applying Young); see also DeChristoforo, 416 F.3d at 647-48 (distinguishing between “ordinary

trial error of a prosecutor” and the type of “egregious misconduct . . . [that] amount[s] to the

denial of constitutional due process”). When reviewing such claims under the “unreasonable

application prong” of § 2254(d)(1), the habeas court must keep in mind that this standard is

																																																																																																																																																																																																																				
	
established” law. See Andrade, 538 U.S. at 71-72. Nonetheless, the statement in Cone bolsters
our conclusion that Agurs incorporated Berger’s holding into the Court’s Fourteenth
Amendment jurisprudence.

32 We note that separate principles, not implicated here, govern a prosecutor’s duty to
disclose exculpatory evidence, see generally Brady v. Maryland, 373 U.S. 83 (1963), and claims of
prosecutorial misconduct implicating a defendant’s specific rights, such as the right to be
free from compelled self-incrimination, see DeChristoforo, 416 U.S. at 643 (citing Griffin v.
California, 380 U.S. 609 (1965)).


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Jackson v. Conway	
	                                                                     	                              	
a “very general one” that affords courts “leeway in reaching outcomes in case-by-case

determinations.” Matthews, 132 S. Ct. at 2155 (quotation marks and ellipses omitted).33

                C.              Application

                While we echo the magistrate judge’s opprobrium for several of the methods used by

the prosecutor in Jackson’s case and may well have reached a different outcome were this

case before us on direct appeal, we must reverse for the reasons set forth below.

                The Fourth Department’s decision referenced only the prosecutor’s comments made

in her opening and closing statements and did not specifically address her delayed disclosure


																																																																		
	
33Jackson urges us to employ the test set forth in Tankleff v. Senkowski, on which the district
court relied to grant relief on the prosecutorial misconduct claim. See Jackson, 765 F. Supp.
2d at 254. In that pre-AEDPA case, we set forth the Darden rule and then explained, citing
to a case discussing the harmless error standard applicable to certain claims on habeas
review, that the successful habeas petitioner must demonstrate he suffered “‘actual
prejudice’” because the prosecutor’s improper comments “‘had a substantial and injurious
effect or influence in determining the jury’s verdict.’” See Tankleff v. Senkowski, 135 F.3d 235,
252 (2d Cir. 1998) (quoting Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994) (discussing the
harmless error standard set forth in Brecht, 507 U.S. at 619)). We then set forth a three-part
test for determining whether the petitioner suffered actual prejudice: “the severity of the
misconduct; the measures adopted to cure the misconduct; and the certainty of conviction
absent the” misconduct. Id. at 252 (quotation omitted). While the Tankleff test ostensibly
addresses the harmless error issue in the context of a prosecutorial misconduct claim
brought under § 2254, we have used an identical test in connection with prosecutorial
misconduct claims brought on direct appeal. See, e.g., United States v. Elias, 285 F.3d 183, 190
(2d Cir. 2002). Indeed, the Tankleff test appears to have its roots in United States v. Modica,
our decision on a direct appeal that pre-dated Darden and cited a law review article for the
proposition. See 633 F.2d 1173, 1181 (2d Cir. 1981); see also Tankleff, 135 F.3d at 252 (citing
Modica).
        Given its history, we cannot say that the Tankleff test simply reflects what the
Supreme Court has “clearly established” in its prior cases, and we decline to rely on it here
given the Court’s recent reversal of the Sixth Circuit for employing its somewhat similar test
to determine whether a prosecutorial misconduct claim warranted relief under § 2254(d)(1).
See Matthews, 132 S. Ct. at 2155 (explaining that the Sixth Circuit’s “elaborate, multistep test”
bore “scant resemblance” to Darden’s “highly generalized standard”).

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of Arnold as a witness or her attempt to elicit expert testimony from Dr. Lenane. See Jackson,

772 N.Y.S.2d at 150. Because the Fourth Department did not supply its reasoning as to

these issues, our task is to identify the “‘arguments or theories [that] could have supported’”

its decision, and then inquire “‘whether it is possible fair-minded jurists could disagree that

those arguments or theories are inconsistent with the holding in a prior decision of the

Supreme Court.’” Hawthorne v. Schneiderman, 695 F.3d 192, 196 (2d Cir. 2012) (brackets

omitted) (quoting Richter, 131 S. Ct. at 786). Here, the magistrate judge properly identified

arguments that could have supported the Fourth Department’s rejection of these issues. He

failed, however, to afford those arguments the proper AEDPA deference.

       As the magistrate judge observed, the prosecutor notified the defense that Arnold

would be a witness approximately one week after the Monroe Public Safety Laboratory

issued its March 27, 2001 report in which it excluded CJ as the source of the DNA found on

the fitted sheet recovered from Jackson’s bed. Jackson made this same observation in his

brief submitted to the Fourth Department. Faced with this chronology, the magistrate judge

found it “conceivable that the prosecutor might not have been intending to call Arnold up

until she received the results of the bloodstain testing.” Jackson, 765 F. Supp. 2d at 255. The

Fourth Department also could have arrived at this innocuous theory for the delayed

disclosure, which eliminates any stigma of improper conduct, especially given that New

York’s Criminal Procedure law “does not compel the production of witness lists except

when a defendant asserts an alibi defense.” People v. Williams, 664 N.Y.S.2d 835, 837 (App.

Div. 1st Dep’t 1997) (citing N.Y. Crim. Proc. Law § 250.20).




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       The magistrate judge went on to find, however, that the prosecutor unethically

withheld identifying Arnold to the defense in order to force a last-minute change in counsel

and thus gain a tactical advantage by affording new counsel only one month to prepare. See

Jackson, 765 F. Supp. 2d at 255-56. Even if we were to agree with the magistrate judge’s

characterization of the prosecutor’s motives (which is unsupported by the record), we would

not find that her actions alone ultimately undermined the fairness of the proceedings. It was

newly-appointed defense counsel, not the prosecutor, who informed the court that he

needed only one month to prepare for trial and who suggested the ultimate trial date. See

App’x at 188-90. There is no indication that the trial court would not have given defense

counsel more time if asked; to the contrary, the court initially suggested holding the trial

some three weeks after the date proffered by defense counsel. See id. at 189-90. Thus, any

unpreparedness by defense counsel, and any concomitant unfairness Jackson suffered as a

result, was as attributable to defense counsel as to the prosecutor, whatever her motivation.

For that reason, even assuming the prosecutor’s improper motivation, her conduct did not

deprive Jackson of due process.

       If the record is ambiguous as to the prosecutor’s motive for delaying the disclosure of

Arnold as a witness, it is all too clear about her improper attempt to elicit expert testimony

from Dr. Lenane. Not only did the prosecutor breach her pretrial representation to defense

counsel that the State would not call an expert at trial, she also failed to correct the trial

court’s incorrect assumption that Dr. Lenane was a “treating physician,” a misapprehension

that was the basis for the court allowing the doctor to testify. See App’x at 205-08. We

discern from the record no possible explanation for this behavior other than an attempt to


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obtain an unfair advantage at trial and, like the magistrate judge, we find the prosecutor’s

“lack of professional candor . . . inexcusable.” Jackson, 765 F. Supp. 2d at 257.

       Nevertheless, our task is not to determine whether this behavior was inappropriate,

unethical, or even erroneous. Instead, the sole issue before us is whether it was objectively

unreasonable for the Fourth Department to find that the behavior did not “so infect[] the

trial with unfairness” that it deprived Jackson of due process. Darden, 477 U.S. at 180

(quotation marks omitted). In light of the trial court’s curative instruction, we cannot so

conclude.

       In his brief, Jackson identifies Dr. Lenane’s statement that the “abrasion” noted in

CJ’s medical reports was “consistent with penetration” as the most damaging part of her

testimony. Jackson Br. at 19-20. Immediately after it became apparent that Dr. Lenane was

not a treating physician, the trial court sustained defense counsel’s objection and, after some

discussion with counsel, directed the jury to disregard the “entirety” of her testimony

because the State had improperly called her as an expert witness without first providing

notice to the defense. See App’x at 228-29. We “presume that a jury will follow an

instruction to disregard inadmissible evidence . . . unless there is an overwhelming

probability that the jury will be unable to follow the court’s instructions, and a strong

likelihood that the effect of the evidence would be devastating to the defendant.” Greer v.

Miller, 483 U.S. 756, 766 n.8 (1987) (internal citations and quotation marks omitted); see also

United States v. Elfgeeh, 515 F.3d 100, 127 (2d Cir. 2008) (same). For several reasons, we

believe that this standard has not been met in this case.




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       While the magistrate judge characterized the trial court’s initial curative instruction as

“tepid,” Jackson, 765 F. Supp. 2d at 257, the court reminded the jurors in its jury charge that

they “certainly” should not consider any stricken testimony, see Tr. at 670. By reinforcing its

initial curative instruction immediately before the jury began its deliberations, the trial court

thus reduced the probability that the jury would improperly rely on Dr. Lenane’s stricken

testimony when reaching a verdict.

       Even if there was an “overwhelming probability” that the jury was unable to follow

the trial court’s instructions, Jackson cannot demonstrate a “strong likelihood” that Dr.

Lenane’s testimony was “devastating” because the most damaging portion of that testimony

was equivocal. When first asked whether the abrasion noted on CJ’s medical record was

consistent with penetration, Dr. Lenane stated that the abrasion was “consistent with some

type of trauma” that “could include penetration, but . . . wouldn’t necessarily have to.” See

App’x at 212. It was only after the prosecutor asked the question a second time that Dr.

Lenane answered affirmatively. Id. In short, we find that the prosecutor’s improper

introduction of Dr. Lenane’s testimony did not violate Jackson’s right to a fair trial given the

trial court’s immediate curative instruction, its later reinforcement of that instruction, and the

equivocal nature of her most damaging statement. Cf. Miller, 483 U.S. at 766 (“The sequence

of events in this case – a single question, an immediate objection, and two curative

instructions – clearly indicates that the prosecutor’s improper question did not violate

Miller’s due process rights.” (footnote omitted)).

       Turning to the prosecutor’s opening and closing statements, we first note that certain

comments flagged as inappropriate by the magistrate judge were supported by the trial


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evidence. Both Karen and Rebecca related to the jury numerous examples of Jackson’s

domineering personality and the extensive physical and sexual abuse they suffered at his

hands over the years. See, e.g., Tr. at 242, 247-52, 350-56. We thus find nothing improper

with the prosecutor’s remark in her opening statement that the victims’ testimony would

expose Jackson as a “controlling” man who “abused them constantly,” App’x at 194, and her

comment in summation that Jackson had “consistently abused his family for years,” id. at

281. In addition, the prosecutor’s characterization of Jackson in her opening statement as

“twisted” and “sadistic” was no more inflammatory than the statements made by the

prosecutor in Darden, which the Court found did not warrant habeas relief. See 477 U.S. at

180 & n.12 (prosecutor referred to the defendant as an “animal” and remarked, inter alia, that

he would like to see the defendant’s face “blown away by a shotgun”); see also Matthews, 132

S. Ct. at 2155.

                The prosecutor’s other statements made in her summation are somewhat more

troubling. In addition to referring to Jackson’s guilt a number of times, the prosecutor

ostensibly vouched for the victims’ credibility when she stated that “[e]ven the best actor or

actress could probably not tremble with fear as continuously as some of these witnesses

did.” App’x at 259.34 Unlike a direct appeal from a conviction, we need not decide



																																																																		
	
34The magistrate judge also apparently faulted the prosecutor for her assertion that all of the
victims testified consistently with the others, thus proving that their testimony was not part
of a plan to frame Jackson. See Jackson, 765 F. Supp. 2d at 258. We, however, can discern no
precedent of the Supreme Court that prohibits prosecutors from commenting on witnesses’
consistent testimony. Cf. Matthews, 132 S. Ct. at 2154 (noting that the Sixth Circuit “cited no
precedent of th[e Supreme] Court in support of its conclusion that due process prohibits a
	

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conclusively whether these statements were improper. In this challenge to the district

court’s determination of a § 2254 petition, it is sufficient that we hold fairminded jurists

could disagree as to the correctness of the Fourth Department’s conclusion that the

statements were not “so egregious” as to deprive Jackson of his right to a fair trial.35 See

Richter, 131 S. Ct. at 786.

                We first observe that the prosecutor’s remarks were not explicitly couched in terms

of her personal opinion, which reduces the probability that the jury adopted the opinion of

the State (expressed through the prosecutor) in lieu of its own independent assessment of

the evidence. Compare App’x at 274 (“that man [(referring to Jackson)] sitting there . . . is

guilty), id. at 275 (positing that the only “possible explanation” for the victims’ testimony was

that “it is true and he is guilty”), and id. at 281 (stating that Jackson “is guilty of everything”),

with Young, 470 U.S. at 5 (“I think [the defendant intended to defraud the victim].” (emphasis

added)). Moreover, none of the prosecutor’s comments implied that she had evidence of

Jackson’s guilt beyond that presented to the jury. Contra Berger, 295 U.S. at 86-87 (after a

witness had difficulty identifying the defendant, the prosecutor stated in summation that

“you can bet your bottom dollar [the witness] knew Berger” but that he had been prevented

																																																																																																																																																																																																																				
	
prosecutor from emphasizing a criminal defendant’s motive to exaggerate exculpatory
facts”).

35Two dangers arise when a prosecutor vouches for the credibility of witnesses and
expresses her “personal opinion” as to the defendant’s guilt: (1) “such comments can convey
the impression that evidence not presented to the jury, but known to the prosecutor,
supports the charges”; and (2) given that “the prosecution’s opinion carries with it the
imprimatur of the [g]overnment,” the jury may be induced “to trust the [g]overnment’s
judgment rather than its own view of the evidence.” Young, 470 U.S. at 18-19 (citing Berger,
295 U.S. at 88-89).

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from eliciting that information at trial due to certain procedural rules (emphasis removed)).

Finally, in its jury charge, the trial court explicitly reminded the jury that statements made by

the attorneys in summation were not evidence and that the jurors were to draw their own

conclusions from the facts, rather than rely on those supplied by counsel, see App’x 285-86,

thus further reducing the potential for prejudice. Cf. DeChristoforo, 416 U.S. at 644 (noting

the trial court’s “special pains to correct any impression that the jury could consider the

prosecutor’s statements as evidence in the case”). Given all of the above, and recognizing

that the general Darden standard affords the state courts “leeway” in its application, see

Matthews, 132 S. Ct. at 2155, we reverse the district court’s grant of habeas relief on Jackson’s

prosecutorial misconduct claim.36

IV.             Ineffective Assistance of Counsel Claim

                A.              Procedural Considerations

                Before reaching the merits of Jackson’s ineffective assistance claim, we address three

procedural considerations. First, the district court found certain aspects of this claim

unexhausted due to Jackson’s failure to present those issues to the state courts, a conclusion


																																																																		
	
36The prosecutor’s blatant mischaracterization of Bonisteel’s testimony may have been the
proverbial straw that broke the camel’s back, at least with respect to the charges involving
CJ. As noted above, Bonisteel related to the jury Jackson’s acknowledgment that it was
“possible that [he] was so drunk that [he] couldn’t remember raping [CJ].” Trial Tr. at 503-
04. In summation, the prosecutor completely reframed this testimony, asserting that, when
Jackson was “accused of having sex with [his] own child,” he stated, “Yeah, maybe, I could
have.” App’x at 271. While we find this mischaracterization extremely inappropriate, we
need not assess its impact as part of the overall prosecutorial misconduct claim because
Bonisteel’s testimony on this point relates only to those charges involving CJ. As we held
above, those charges must be vacated due to the improper admission of Bonisteel’s
testimony in the first place.

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Jackson challenges on appeal. Second, the State argues that we are barred from considering

the entire claim because the trial court denied Jackson’s § 440.10 motion on the procedural

ground that he could have raised his ineffective assistance claim on direct appeal. Third, the

State argues that, in contravention of the Supreme Court’s Pinholster decision, the district

court improperly relied on evidence that was not before the state courts. We address each

argument in turn.

       The magistrate judge’s determination that Jackson failed to exhaust Points One and

Two of his ineffective assistance claim need not delay us long. See Jackson, 765 F. Supp. 2d at

260-61. In these Points, Jackson argued that (1) defense counsel’s lack of preparation was

“painfully exposed” by his incorrect assumption that the State was required to prove

penetration in order to sustain the first-degree sodomy convictions, and (2) counsel “failed

to correctly marshal an investigation into the plethora of exculpatory evidence (physical,

medical, forensic, visual, tactile, [etc.])” and then failed to introduce this evidence at trial.

App’x at 15-16 (capitalization removed). As Jackson argues on appeal, he clearly presented

these same arguments in his brief submitted to the Fourth Department, see id. at 107 (defense

counsel failed to offer evidence “despite the existence of substantial medical evidence . . .

not used by the prosecution”), 108 (arguing that defense counsel “fail[ed] to utilize the

plethora of indisputable scientific evidence”), 109 (defense counsel “fail[ed] to investigate

medical claims”), 111 (defense counsel’s lack of preparedness shown by his failure “even to

investigate so basic an item as the elements of the crimes”), and raised the same arguments

in his application for leave to appeal to the New York Court of Appeals, see id.	at	294-331.

Accordingly, Jackson fully exhausted these issues by presenting them to the “highest state


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court capable of reviewing” them, Rosa, 396 F.3d at 217, and the magistrate judge’s

conclusion to the contrary was erroneous.

                Although the State does not dispute Jackson’s exhaustion argument, it maintains that

the entirety of Jackson’s ineffective assistance claim is barred by the trial court’s November

2003 rejection of Jackson’s § 440.10 motion on the procedural ground that his claim could

be raised in his then-pending direct appeal. See App’x at 29-30 (citing N.Y. Crim. Proc. Law

§ 440.10(2)(b)).37 We are puzzled by this argument, as it completely ignores the fact that

Jackson did, in fact, raise the same ineffective assistance arguments on direct appeal, going

so far as to include his § 440.10 motion in the record he submitted to the Fourth

Department. See id. at 107. Moreover, while the State argued before the Fourth Department

that Jackson’s ineffective assistance claim was barred because it was “based on factual

assertions outside the record” and therefore could only be raised in a § 440.10 motion, see id.

at 128, the Fourth Department did not reject Jackson’s claim on this ground. Instead, the

Fourth Department rejected the claim on the merits, holding that Jackson was “not entitled

to error-free representation” and had “failed to demonstrate the absence of strategic or other

legitimate explanations for counsel’s alleged failures.” Jackson, 772 N.Y.S.2d at 150 (citations

and quotation marks omitted). Thus, the State’s reliance on the procedural default doctrine

is misplaced because that doctrine bars federal review “only when the last state court

rendering a judgment in the case clearly and expressly states that its judgment rests on a state

																																																																		
	
37 N.Y. Crim. Proc. Law § 440.10(2)(b) provides that the trial court “must deny a motion to
vacate a judgment” when “[t]he judgment is, at the time of the motion, appealable or
pending on appeal, and sufficient facts appear on the record with respect to the ground or
issue raised upon the motion to permit adequate review thereof upon such appeal.”

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procedural bar.” Messiah, 435 F.3d at 195 (quotation marks omitted); see also Richter, 131 S.

Ct. at 784-85 (“When a federal claim has been presented to a state court and the state court

has denied relief, it may be presumed that the state court adjudicated the claim on the merits

in the absence of any indication or state-law procedural principles to the contrary.”).

                As a final procedural point, the State argues that, when conducting our de novo review

of Jackson’s ineffectiveness claim, we should disregard the evidence presented to the district

court during its evidentiary hearing, and “limit [our] review to the records before the state

courts.” State Br. at 15-16 (citing Pinholster, 131 S. Ct. at 1392, 1401). Jackson argues that

the evidentiary hearing was proper because he demonstrated, on the basis of the state court

record alone, that the state courts’ rejection of his ineffective assistance claim was

unreasonable, and the evidentiary hearing “merely confirms what [he] alleged in the state

court pleadings – that there could be no strategic basis for counsel’s failings.” Jackson Br. at

49-52.

                Because Jackson’s claim was adjudicated by the Fourth Department on the merits, we

agree with the State that Jackson “must overcome the limitation of § 2254(d)(1) on the

record that was before that state court.” Pinholster, 131 S. Ct. at 1400. In cases such as this,

where a district court relies on extra-state court record facts to grant habeas relief, see, e.g.,

Jackson, 765 F. Supp. 2d at 263-64, we “might ordinarily remand for a properly limited

review,” Pinholster, 131 S. Ct. at 1401.38 However, because Jackson argues on appeal that he


																																																																		
	
38We note that, at the time the magistrate judge issued his decision in February 2011,
Pinholster had yet to be decided.


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was entitled to relief on the state court record alone, we opt not to remand in this case but

instead conduct our de novo review without “relying on evidence beyond the state court

record to reach our result.” Young, 715 F.3d at 82 (Parker, J., concurring in the denial of

rehearing en banc). Based on this more limited review, we conclude that Jackson is not

entitled to relief.39

                B.              Clearly Established Law

                The clearly established law applicable to Jackson’s ineffective assistance claim is the

standard set forth in Strickland v. Washington, 466 U.S. 668 (1984). The Strickland standard is

twofold. To succeed, Jackson “must (1) demonstrate that his counsel’s performance fell

below an objective standard of reasonableness in light of prevailing professional norms; and

(2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.”

Cornell v. Kirkpatrick, 665 F.3d 369, 375 (2d Cir. 2011). When considering the first prong, we

“‘strongly presume[] [that counsel] rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional judgment,’” Pinholster, 131 S. Ct. at 1403

(quoting Strickland, 466 U.S. at 690), a presumption that is overcome only through a showing

that “counsel failed to act ‘reasonably considering all of the circumstances,’” id. (quoting

																																																																		
	
39 Given this conclusion, we need not address whether a district court that determines, on
the state court record alone, that a state court’s denial of a claim was objectively
unreasonable, may then hold an evidentiary hearing to determine whether it may “grant the
relief [the petitioner] requests.” See Rossum v. Patrick, 659 F.3d 722, 736 (9th Cir. 2011)
(Gertner, J., sitting by designation, dissenting); see also Pinholster, 131 S. Ct. at 1412 (Breyer, J.,
concurring in part and dissenting in part) (suggesting that if the “the state-court rejection [of
a claim] assumed the habeas petitioner’s facts (deciding that, even if those facts were true,
federal law was not violated),” then, after finding the state court wrong on one of the
grounds in § 2254(d), “an [evidentiary hearing] might be needed to determine whether the
facts alleged were indeed true”(emphasis in original)).

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Strickland, 466 U.S. at 690) (brackets omitted). To establish prejudice under the second

prong, Jackson “must show that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.” Strickland,

466 U.S. at 694. A “reasonable probability” is one that is “sufficient to undermine

confidence in the outcome,” id., which “requires a ‘substantial,’ not just ‘conceivable,’

likelihood of a different result.” Pinholster, 131 S. Ct. at 1403 (quoting Richter, 131 S. Ct. at

791).

        When evaluating an ineffective assistance claim under § 2254(d), our review is

“doubly deferential” in that “[w]e take a highly deferential look at counsel’s performance

through the deferential lens of §	2254(d).” Pinholster, 131 S. Ct. at 1403 (citations and

quotation marks omitted). Like the Darden standard discussed above, the Strickland standard

is general, meaning that the habeas court must afford the state courts “more latitude to

reasonably determine that a defendant has not satisfied th[e] standard.” Knowles v. Mirzayance,

556 U.S. 111, 123 (2009).

        C.     Application

        The Fourth Department denied Jackson’s ineffective assistance claim on the ground

that he “failed to demonstrate the absence of strategic or other legitimate explanations for

counsel’s alleged failures.” Jackson, 772 N.Y.S.2d at 150 (citations and quotation marks

omitted). Jackson argues that this conclusion was unreasonable and organizes his claim into

three subparts: (1) counsel’s failure to consult with or call an expert; (2) his failure to

introduce at trial the “exculpatory” laboratory and DNA test results; and (3) his failure to




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investigate adequately the exculpatory evidence and the elements of first-degree sodomy. See

Jackson Br. at 54-66. We analyze each contention in turn.

               1.      Failure to Consult with an Expert

       Jackson argues that defense counsel’s failure to consult with an expert prior to trial

left him unable to (1) “develop and implement an effective means for communicating to the

jury the lack of [medical] evidence of inflicted trauma,” or (2) “effectively counter the

impact” of Dr. Lenane’s testimony. See Jackson Br. at 54-55. When assessing counsel’s

performance under Strickland, we must endeavor to “‘eliminate the distorting effects of

hindsight, to reconstruct the circumstances of counsel’s challenged conduct, and to evaluate

the conduct from counsel’s perspective at the time.’” Bierenbaum v. Graham, 607 F.3d 36, 50-

51 (2d Cir. 2010) (quoting Strickland, 466 U.S. at 689). In this case, defense counsel’s

decision not to consult with or call an expert must be evaluated in light of one significant

fact: he was operating under the assumption, confirmed by the State’s written representation,

that the State would not call a medical expert at trial.

       This crucial fact distinguishes this case from those cited by Jackson, in which we have

held that, “because of the centrality of medical testimony, the failure to consult with or call a

medical expert is often indicative of ineffective assistance of counsel” in sexual assault cases.

Gersten, 426 F.3d at 607 (citing Eze, 321 F.3d at 127-28); see also id. at 608 (“The prosecution’s

case rested centrally on the alleged victim’s testimony and its corroboration by the indirect

physical evidence as interpreted by the medical expert.” (emphasis added)); Lindstadt, 239 F.3d at

201-02 (defense counsel’s failure to consult with medical expert left him unprepared to

cross-examine the State’s medical expert). From defense counsel’s perspective in this case,


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he and the State would be on the same footing at trial—neither would have access to an

expert and both would have to rely only on the bare medical records. Given this

perspective, counsel could have refrained from calling a medical expert for a valid strategic

reason: fear of the concessions the State may have been able to extract from that expert on

cross-examination. See Strickland, 466 U.S. at 690 (“[S]trategic choices made after thorough

investigation of law and facts relevant to plausible options are virtually unchallengeable.”); see

also Bell v. Cone, 535 U.S. 685, 698 (2002) (“[W]hen a court is presented with an ineffective-

assistance claim not subject to § 2254(d)(1) deference, a defendant must overcome the

presumption that, under the circumstances, the challenged action might be considered sound

trial strategy.” (citation and quotation marks omitted)).

       Moreover, the State’s pretrial representation is not only relevant to counsel’s decision

not to call an expert at trial but also informs the reasonableness of his consultation with

medical personnel before trial. This is not a case where counsel completely failed to conduct

a pretrial consultation. Contra Pavel v. Hollins, 261 F.3d 210, 216-18, 224-25 (2d Cir. 2001)

(counsel opted not to prepare a defense, including consulting with medical personnel,

“solely” because he believed the trial court would grant his motion to dismiss). Instead, as

defense counsel informed the trial court, he reviewed the relevant medical records with a

registered nurse. See App’x at 226-27. While such a consultation may not have been

sufficient if the State had been preparing to call a medical expert at trial, cf. Gersten, 426 F.3d

at 604-05, 607-11 (defense counsel’s pretrial consultation with a nurse not sufficient where

state presented at trial extensive medical and psychological expert testimony), we cannot say,

in the circumstances of this case, that counsel’s decision was unreasonable. More important,


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even if we found counsel’s performance deficient on this point, the above considerations

illustrate that the Fourth Department’s decision was not objectively unreasonable.

               2.      Failure to Introduce Laboratory Reports and DNA Tests

       We agree with the magistrate judge that defense counsel’s decision not to introduce

the laboratory reports and DNA tests did not rise to the level of ineffective assistance. See

Jackson, 765 F. Supp. 2d at 269-70. Our independent review of those reports confirms the

magistrate judge’s conclusion that, while they may have been helpful to the defense, they

“did not have [any] exceptional value” in light of the victims’ testimony that Jackson was

unable to maintain an erection. See id. at 270. We also agree that, if these reports had

contained evidence beneficial to the State, it certainly would have introduced them at trial,

and its failure to do so allowed defense counsel to “take advantage of the negative reports

even though he did not introduce the reports themselves.” Id. Accordingly, Jackson is not

entitled to relief on this aspect of his ineffective assistance claim.

               3.      Failure to Investigate the Evidence or the Elements of Sodomy Counts

       Jackson argues that defense counsel’s failure to investigate adequately the

“exculpatory evidence” and the elements of the sodomy counts constituted ineffective

assistance. See Jackson Br. at 57-61. The only “exculpatory evidence” he identifies are the

laboratory and DNA reports which, as we set forth above, would not have had “exceptional

value” had they been presented at trial. Accordingly, even assuming that defense counsel

failed to mount an adequate investigation of the reports, Jackson cannot demonstrate that he

suffered prejudice as a result. Similarly, while defense counsel’s failure to research the

elements of first-degree sodomy under New York law undoubtedly constitutes deficient


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11-922-pr(L)
Jackson v. Conway	
	                                                	                                               	
performance, the only prejudice Jackson identifies as flowing from this deficiency is

counsel’s decision not to introduce the laboratory reports, see Jackson Br. at 60-61, which is

insufficient to warrant relief for the reasons already stated.

                                        CONCLUSION

       For the foregoing reasons, we affirm the judgment of the district court insofar as it:

(1) granted Jackson habeas relief on his Miranda claim as to the counts of conviction

involving CJ; and (2) denied Jackson’s ineffective assistance of counsel claims premised on

counsel’s failure to conduct an adequate pretrial investigation and introduce the laboratory

reports and DNA tests at trial. We reverse in all other respects.




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