    09-5309-pr
    Byrd v. Alexander

                     UNITED STATES COURT OF APPEALS
                         FOR THE SECOND CIRCUIT

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

         At a stated term of the United States Court of Appeals
    for the Second Circuit, held at the Daniel Patrick Moynihan
    United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 9th day of March, two thousand eleven.

    PRESENT: DENNIS JACOBS,
                           Chief Judge,
             RICHARD C. WESLEY,
             DENNY CHIN,
                           Circuit Judges.

    - - - - - - - - - - - - - - - - - - - -X
    DARRELL BYRD,
             Petitioner-Appellant,

                 -v.-                                               09-5309-pr

    ANDREA W. EVANS, Chair and Chief
    Executive Officer, New York State
    Division of Parole, and ERIC T.
    SCHNEIDERMAN, New York State Attorney
    General,
             Respondents-Appellees.*


           *
           Pursuant to Federal Rule of Appellate Procedure 43(c)(2),
    Andrea W. Evans, the Chair and Chief Executive Officer of the New
    York State Division of Parole, is automatically substituted for
    former Chair and Chief Executive Officer, George B. Alexander,
    and New York State Attorney General, Eric T. Schneiderman, is
    automatically substituted for former New York State Attorney
    General, Andrew M. Cuomo.
- - - - - - - - - - - - - - - - - - - -X
FOR APPELLANT:              Lorca Morello, Arthur H.
                            Hopkirk, The Legal Aid Society,
                            Criminal Appeals Bureau, New
                            York, New York.

FOR APPELLEES:             Joseph N. Ferdenzi, Allen H.
                           Saperstein, Andrew S. Holland,
                           Assistant District Attorneys,
                           for Robert T. Johnson, District
                           Attorney, Bronx County, Bronx,
                           New York.

     Appeal from a judgment of the United States District
Court for the Southern District of New York (Kaplan, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
AND DECREED that the judgment of the district court be
AFFIRMED.

     Darrell Byrd appeals from an order of the United States
District Court for the Southern District of New York
(Kaplan, J.), denying his application for a writ of habeas
corpus brought pursuant to 28 U.S.C. § 2254.

     Byrd was convicted, after a jury trial, of sodomy in
the first degree, N.Y. Penal Law § 130.50(3) (1996), sexual
abuse in the first degree, N.Y. Penal Law § 130.65(3)
(1996), and endangering the welfare of a child, N.Y. Penal
Law § 260.10(1) (1996). Byrd has completed his term of
incarceration and is currently under parole supervision.
"[A] petitioner under supervised release may be considered
in custody" for purposes of pursuing an application for a
writ of habeas corpus. Scanio v. United States, 37 F.3d
858, 860 (2d Cir. 1994) (internal quotation marks omitted).

     Byrd argues that his trial counsel was constitutionally
ineffective because she failed to consult an independent
expert to explore the finding of the New York City Office of
the Chief Medical Examiner that semen was found on swabs
taken from the victim, but not any genetic material. The
absence of genetic material meant that the sample could not
be matched to Byrd, although the presence of semen
corroborated the evidence of a sexual assault. We assume
the parties' familiarity with the underlying facts, the
procedural history, and the issues presented for review.


                             2
     Byrd first raised ineffectiveness in a motion to vacate
his judgment of conviction, brought pursuant to New York
Criminal Procedure Law § 440.10. The state court declined
to reach the merits of the claim because Byrd failed to
provide an affidavit from trial counsel. Byrd also moved
for an order permitting forensic re-testing of the swabs.
The district court granted this motion, in the interest of
justice. The re-testing showed "no evidence of semen or
male DNA." Consequently, Byrd renewed his § 440.10 motion.
The state court again declined to reach the merits of Byrd's
claim that his trial counsel was deficient, this time on the
ground that Byrd failed to assert the claim on direct
appeal. Addressing Byrd's "conclusion" that he would have
been acquitted if defense counsel had handled the forensic
evidence differently, the state court observed:

              This conclusion completely ignores
         the fact that the jury's verdict did not
         rest solely on the forensic testimony.
         The trial jury reached [its] conclusion
         after hearing the testimony of the
         complainant, the corroborating testimony
         of the complainant's sister who was in
         the same room at the time of the
         incident, independent witness testimony
         of the defendant's presence in the home
         on the date and time in question, and
         testimony of the defendant's own
         confession to the police that he had
         touched the complainant's buttocks and
         was moving up and down against her at one
         point.

     The threshold question is whether Byrd is procedurally
barred from seeking federal review of his ineffectiveness
claim on either of two grounds. First, Byrd failed to
provide an affidavit from trial counsel in the state court
proceedings. We conclude this failure does not bar our
review of the claim, as "New York courts do not inflexibly
require that defendants claiming ineffective assistance must
present a supporting affidavit from the challenged
attorney." Jenkins v. Greene, 630 F.3d 298, 303 (2d Cir.
2010). We decline to rely on this procedural issue as a
basis for our disposition of Byrd’s application for habeas
relief. See Lee v. Kemna, 534 U.S. 362, 376 (2002)
(observing that "violation of firmly established and
regularly followed state rules . . . will be adequate to

                             3
foreclose review of a federal claim" (internal quotation
marks omitted)).

     Second, on Byrd's renewed § 440.10 motion, the state
court declined to consider whether trial counsel's
performance was deficient because Byrd failed to raise the
argument on direct appeal. Likewise, this procedural
failure does not bar our reaching the merits. Respondents
do not argue that Byrd’s failure to raise his ineffective
assistance challenge on direct appeal bars our review of his
claim. Cf. Clark v. Perez, 510 F.3d 382, 392 (2d Cir. 2008)
(noting "that a motion to vacate based on facts visible on
the trial record must be dismissed where the defendant
unjustifiably failed to raise the issue on direct appeal").
Moreover, it is appropriate to "hurdl[e] the procedural
questions to reach the merits of [Byrd’s] habeas petition,"
Dunham v. Travis, 313 F.3d 724, 729 (2d Cir. 2002), because
his ineffective assistance challenge is "easily resolvable
against" him. Id. at 729-30.

     "In order to establish ineffective representation, the
defendant must prove both incompetence and prejudice."
Kimmelman v. Morrison, 477 U.S. 365, 381 (1986); see also
Strickland v. Washington, 466 U.S. 668, 687 (1984). Here,
we do not reach the first prong of the Strickland test.
Instead, we assume, without deciding, that trial counsel's
performance was deficient and we proceed to consider the
second prong: prejudice.

     Pursuant to the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA), 28 U.S.C. § 2254(d)(1), the
"pivotal question" is "whether the state court’s application
of the Strickland standard was unreasonable." Harrington v.
Richter, 131 S. Ct. 770, 785 (2011). "[A]n unreasonable
application of federal law is different from an incorrect
application of federal law." Id. (internal quotation marks
omitted). AEDPA mandates that federal courts grant state
courts "deference and latitude" that are not in play when
considering a stand alone Strickland claim. AEDPA's
standard was meant to be difficult. Id. at 786. Federal
courts may only grant habeas relief "in cases where there is
no possibility fairminded jurists could disagree that the
state court's decision conflicts . . . with precedents" of
the Supreme Court. Id.

     Because the state court concluded that Byrd's trial
counsel's efforts, whether competent or not, caused him no

                             4
prejudice, this conclusion is subject to AEDPA review.
Although this conclusion was reached in the context of a
renewed § 440.10 motion based on the re-testing, the state
court clearly rejected Byrd's argument that he would have
been acquitted if his counsel had not been ineffective.
Applying this deferential standard of review, we hold that
Byrd is not entitled to habeas relief.

     The record includes testimony from two direct
witnesses, two corroborating witnesses, and Byrd’s prior
statements, including his admissions that: he put his hand
on the young girl's back and buttocks, and pushed her up and
down for about 30 seconds; he "hump[ed]" her and had an
erection; and he touched her in a "sexual way."
Significantly, neither penetration nor ejaculation was
required for the crime of sodomy. N.Y. Penal Law §
130.50(3); See People v. May, 702 N.Y.S.2d 393, 397 (3d
Dep't 2000) (noting that "penetration is not an essential
element of forcible sodomy"). Thus, there was substantial
evidence on which the jury could have relied to convict
Byrd, even in the absence of semen, and the state court
reasonably concluded that trial counsel's purported failures
were not prejudicial. This conclusion did not involve an
unreasonable application of clearly established federal law.

     Having reviewed all of Byrd's arguments presented on
appeal, we hereby AFFIRM the judgment of the district court
denying his application for a writ of habeas corpus.


                           FOR THE COURT:
                           CATHERINE O’HAGAN WOLFE, CLERK




                             5
