15-2950
Frank W. Dearstyne v. William Mazzuca

                           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
Thurgood Marshall Courthouse, 40 Foley Square, in the City of New York, on the 13th day of
February, two thousand seventeen.

Present:
         ROBERT A. KATZMANN,
               Chief Judge,
         DEBRA ANN LIVINGSTON,
               Circuit Judge,
         MARGO K. BRODIE,
               District Judge.*
________________________________________________

FRANK W. DEARSTYNE,

           Petitioner-Appellant,

                      v.                                            No. 15-2950

WILLIAM MAZZUCA,
Superintendent, Fishkill Correctional Facility,

           Respondent-Appellee.

________________________________________________

*
 Judge Margo K. Brodie of the United States District Court for the Eastern District of New York,
sitting by designation.
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For Petitioner-Appellant:                            MARISA ANN LORENZO, Kelley Drye &
                                                     Warren LLP, New York, NY (James V.
                                                     O’Gara, III, Kelley Drye & Warren LLP,
                                                     New York, NY, and Lisa A. Peebles,
                                                     Federal Public Defender, Syracuse, NY, on
                                                     the brief).

For Respondent-Appellee:                             PAUL B. LYONS, Assistant Attorney General
                                                     (Barbara D. Underwood, Solicitor General,
                                                     and Nikki Kowalski, Deputy Solicitor
                                                     General, on the brief), for Eric T.
                                                     Schneiderman, Attorney General of the State
                                                     of New York, New York, NY.



        Appeal from the United States District Court for the Northern District of New York

(Scullin, J.).

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

DECREED that the judgment of the district court is AFFIRMED IN PART and REVERSED

IN PART.

        Petitioner Frank W. Dearstyne appeals from the judgment of the United States District

Court for the Northern District of New York (Scullin, J.) denying his petition for a writ of habeas

corpus. In 1991, Dearstyne was convicted, following a jury trial in New York state court, of

crimes related to the sexual abuse of two young girls who were in the care of Dearstyne’s mother

for babysitting. Dearstyne served twenty-two years in state prison and is now on parole

supervision.1 We assume the parties’ familiarity with the facts and procedural history of this

case.



1
 Because Dearstyne is on parole supervision, he is “in custody” for habeas purposes. See Jones
v. Cunningham, 371 U.S. 236, 243 (1963).
                                               2
       “We review a district court’s denial of a petition for a writ of habeas corpus de novo.”

Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016). Dearstyne argues that New York courts

unreasonably applied clearly established federal law, as determined by the U.S. Supreme Court,

in their response to Dearstyne’s claim that his alleged confession was involuntary and therefore

inadmissible at trial. In Jackson v. Denno, the Supreme Court held that pursuant to the Due

Process Clause of the Fourteenth Amendment, “[a] defendant objecting to the admission of a

confession is entitled to a fair hearing in which both the underlying factual issues and the

voluntariness of his confession are actually and reliably determined.” 378 U.S. 368, 380, 391

(1964). Accordingly, in Jackson, “[a] constitutional rule was laid down . . . that a jury is not to

hear a confession unless and until the trial judge has determined that it was freely and voluntarily

given.” Sims v. Georgia, 385 U.S. 538, 543-44 (1967); see also Pinto v. Pierce, 389 U.S. 31, 32

(1967) (per curiam) (“Jackson v. Denno . . . held that a defendant’s constitutional rights are

violated when his challenged confession is introduced without a determination by the trial judge

of its voluntariness after an adequate hearing.”).

       Dearstyne, before his trial, moved to suppress his alleged confession on the grounds that

the confession was involuntary. New York state trial judge M. Andrew Dwyer held an

evidentiary hearing on Dearstyne’s involuntariness claim. Following the hearing, Judge Dwyer

issued an order, dated July 8, 1991, stating as follows:

       During the taking of the testimony at the Suppression Hearing and in the
       arguments set forth in the memoranda a sharp question of fact has arisen. There
       are no clear cut legal issues without resolving the questions of fact. Accordingly,
       the motion to suppress is denied. A question of fact as to voluntariness has been
       presented for determination by the trial jury.




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Dearstyne contends that Judge Dwyer’s order violated Jackson by failing to adjudicate the

voluntariness of Dearstyne’s allegedly inadmissible confession prior to submitting the

voluntariness issue to the jury. The state, on the instant appeal, counters that Judge Dwyer, in the

July 8, 1991 order, did adjudicate Dearstyne’s voluntariness claim, namely by finding that

Dearstyne’s confession was voluntary. However, to the extent the state has not waived this

argument through its prior representations in this case, and after a careful review of the entire

record, we cannot conclude that the trial judge’s resolution of the issue of voluntariness as a

matter of federal law “appear[s] from the record with unmistakable clarity.” Sims, 385 U.S. at

544. Consequently, we find that the state trial court’s procedure did not comport with Jackson v.

Denno and its progeny. See Jackson, 378 U.S. at 391; Sims, 385 U.S. at 543-44; Pinto, 389 U.S.

at 32.

         In determining the proper remedy for the Jackson violation, we are mindful of the

Supreme Court’s statement that a determination of voluntariness is to be made based on the

“totality of all the surrounding circumstances.” Dickerson v. United States, 530 U.S. 428, 434

(2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226 (1973)). Accordingly, we direct

that the case be remanded to state court to adjudicate Dearstyne’s voluntariness claim in its

entirety. This adjudication is to include consideration of Dearstyne’s claim that his confession

was involuntary because the police intentionally isolated him from his parents and of

Dearstyne’s claim that his confession was involuntary because the police used coercive

interrogation techniques.

         Dearstyne also argues that New York courts unreasonably applied clearly established

federal law, as determined by the Supreme Court, in rejecting his claim that his trial counsel,


                                                  4
Eugene Grimmick, provided ineffective assistance in violation of Dearstyne’s Sixth Amendment

rights. Specifically, Dearstyne contends that Grimmick provided ineffective assistance of counsel

by not calling at trial, or consulting with, experts in the medical or behavioral and psychological

fields. Dearstyne’s ineffective assistance claim was denied by the state trial court (McGrath, J.)

that adjudicated Dearstyne’s state-law motion to vacate his conviction. The New York Appellate

Division affirmed, and the New York Court of Appeals denied leave to appeal. People v.

Dearstyne, 761 N.Y.S.2d 118 (3d Dep’t 2003), lv. denied, 798 N.E.2d 353 (N.Y. 2003).

       To establish ineffective assistance of counsel, Dearstyne “must show 1) that his

attorney’s performance ‘fell below an objective standard of reasonableness,’ and 2) that there

was prejudice, meaning a ‘reasonable probability that, but for counsel’s unprofessional errors,

the result of the proceeding would have been different.’” Tavarez, 814 F.3d at 648 (internal

citation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694 (1984)). Further, “to

obtain habeas relief on his ineffective-assistance claim, [a petitioner] must establish that the state

court’s rejection of the claim was an unreasonable application of clearly established federal law.”

Id. at 648-49. Here, we cannot find that the New York state courts unreasonably applied

Strickland v. Washington in determining that Dearstyne’s trial counsel’s performance did not fall

“below an objective standard of reasonableness.” Strickland, 466 U.S. at 688. In particular,

Judge McGrath reasoned that Dearstyne’s trial counsel had pursued a “clear strategic pattern” of

“point[ing] out the ambiguities of the People’s case in every area, emphasizing to the jury that

there were no experts to interpret the evidence, and challeng[ing] them to find sexual abuse

‘beyond a reasonable doubt.’” Respondent’s App. at 30. The state courts’ adjudication of

Dearstyne’s ineffective assistance allegations did not run afoul of the “doubly” deferential


                                                  5
“standards created by Strickland and § 2254(d).” Harrington v. Richter, 562 U.S. 86, 105 (2011).

Accordingly, we deny Dearstyne’s ineffective assistance of counsel claim.

       We have considered all of the parties’ remaining arguments and have found in them no

basis for altering our decision. Accordingly, the judgment of the district court is AFFIRMED

IN PART and REVERSED IN PART. We remand for the entry of judgment conditionally

granting the writ of habeas corpus and ordering Dearstyne’s release from parole unless a New

York court adjudicates the voluntariness of Dearstyne’s confession within ninety days after

issuance of the mandate to the federal district court. If that adjudication results in the

determination that Dearstyne is entitled to a new trial, then a new trial must be held within 180

days of the issuance of the mandate to the federal district court.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




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