     19-2736-pr
     Errington v. Warden, Bedford Hills Correctional Facility

                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                              SUMMARY ORDER

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

 1         At a stated term of the United States Court of Appeals for the Second Circuit,
 2   held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
 3   City of New York, on the 26th day of May, two thousand twenty.
 4
 5            PRESENT: PIERRE N. LEVAL,
 6                             RAYMOND J. LOHIER, JR.,
 7                             MICHAEL H. PARK,
 8                                     Circuit Judges.
 9            ------------------------------------------------------------------
10            SHERRI ERRINGTON,
11
12                            Petitioner - Appellant,
13
14                      v.                                                         No. 19-2736-pr
15
16            WARDEN, BEDFORD HILLS CORRECTIONAL
17            FACILITY,
18
19                             Respondent - Appellee. ∗
20            ------------------------------------------------------------------


     ∗
         The Clerk of Court is directed to amend the caption as set forth above.
 1         FOR PETITIONER:                         Robert J. Boyle, Law Office of Robert
 2                                                 J. Boyle, New York, NY
 3
 4         FOR RESPONDENT:                         Barbara Underwood, Solicitor
 5                                                 General, Nikki Kowalski, Deputy
 6                                                 Solicitor General for Criminal
 7                                                 Matters, Andrew W. Amend,
 8                                                 Assistant Deputy Solicitor General,
 9                                                 Margaret A. Cieprisz, Assistant
10                                                 Attorney General, for Letitia James,
11                                                 Attorney General for the State of
12                                                 New York, New York, NY.

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

14   Western District of New York (Elizabeth A. Wolford, Judge).

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

16   AND DECREED that the judgment of the District Court is AFFIRMED.

17         Petitioner Sherri Errington appeals from a judgment of the District Court

18   (Wolford, J.) denying her petition for a writ of habeas corpus under 28 U.S.C.

19   § 2254. Errington was convicted after a jury trial in New York state court of two

20   counts of a course of sexual conduct against a child in the first degree and one

21   count of first-degree sexual abuse. As relevant to this appeal, Errington’s

22   habeas petition alleged ineffective assistance of counsel related to her trial




                                               2
 1   attorney’s purported failure to advise her of her right to testify. 1 We assume the

 2   parties’ familiarity with the underlying facts and the record of prior proceedings,

3    to which we refer only as necessary to explain our decision to affirm.

 4         We review a district court’s denial of habeas relief de novo. Cornell v.

 5   Kirkpatrick, 665 F.3d 369, 374 (2d Cir. 2011). The New York state court denied

 6   Errington’s motion to vacate her convictions pursuant to section 440.30(4)(d) of

 7   New York Criminal Procedural Law. 2 The parties do not contest, and we

 8   therefore assume without deciding, that the state court’s denial of the motion to

 9   vacate constitutes an “adjudicat[ion] on the merits” under 28 U.S.C. § 2254(d).

10   See Chrysler v. Guiney, 806 F.3d 104, 117 (2d Cir. 2015). Accordingly, we can

11   grant the petition only if the state decision “was contrary to, or involved an


     1 Errington’s petition raised other grounds for relief, but Errington conceded to the
     District Court that all but the ineffective assistance of counsel claim and a due process
     claim were procedurally barred based on her failure to exhaust state remedies. The
     District Court rejected the due process claim on the merits, and Errington does not
     challenge that ruling on appeal. See Storey v. Cello Holdings, L.L.C., 347 F.3d 370, 380
     n.6 (2d Cir. 2003).
     2 Under section 440.30(4)(d), the state court may deny a motion to vacate without a

     hearing if, “[u]pon considering the merits,” the court determines that “[a]n allegation of
     fact essential to support the motion . . . is made solely by the defendant and is
     unsupported by any other affidavit or evidence,” and, under “all the other
     circumstances attending the case, there is no reasonable possibility that such allegation
     is true.” N.Y. Crim. Proc. L. § 440.30(4)(d).

                                                 3
 1   unreasonable application of, clearly established Federal law, as determined by

 2   the Supreme Court[,]” or if it “was based on an unreasonable determination of

 3   the facts in light of the evidence presented in the State court proceeding.” 28

 4   U.S.C. § 2254(d)(i)–(ii); see also Chrysler, 806 F.3d at 117.

 5         To prevail on an ineffective assistance of counsel claim, a defendant must

 6   show prejudice, meaning that “there is a reasonable probability that, but for

 7   counsel’s unprofessional errors, the result of the proceeding would have been

 8   different.” Strickland v. Washington, 466 U.S. 688, 694 (1984). We agree with

 9   the District Court that, on this record, Errington cannot show that she was

10   prejudiced by the alleged failure to advise her of her right to testify. Errington

11   argues that her testimony would have been crucial to a duress defense, but most

12   of the content of her proffered testimony was introduced into the trial record

13   through video-taped and written statements in which Errington contradicted

14   portions of the testimony of one of the victims and another witness and

15   described her husband’s history of controlling and threatening her. The record

16   also suggests that, if Errington had chosen to testify, she would have been

17   subjected to damaging cross-examination about inconsistent statements and


                                                4
 1   actions that would have undermined her defense. See Rega v. United States,

 2   263 F.3d 18, 26 (2d Cir. 2001) (rejecting ineffective assistance claim for failure to

 3   show prejudice where defendant’s testimony “would have added little weight to

4    his defense but would have opened the door to” damaging impeachment).

5    Thus, Errington has failed to show that her testimony would have created a

6    reasonable probability of a different outcome.

 7         We have considered Errington’s remaining arguments and conclude that

 8   they are without merit. For the foregoing reasons, the judgment of the District

 9   Court is AFFIRMED.

10                                           FOR THE COURT:
11                                           Catherine O’Hagan Wolfe, Clerk of Court




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