16-3220
Gross v. Graham

                        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 United States Courthouse, 40 Foley Square, in the City of New York, on the
11th day of February, two thousand twenty.

PRESENT:    RALPH K. WINTER,
            PETER W. HALL,
            RICHARD J. SULLIVAN,
                        Circuit Judges.
_____________________________________

Gordon B. Gross,

                      Petitioner–Appellant,

                      v.                                           No. 16-3220

Harold Graham, Superintendent, Auburn Correctional Facility,

                  Respondent–Appellee.
_____________________________________

For Appellant:                                RICHARD M. LANGONE, Langone & Associates,
                                              Mineola, NY

For Appellee:                                 MICHELLE MAEROV, Assistant Attorney General
                                              (Nikki Kowalski, Deputy Solicitor General for
                                              Criminal Matters, on the brief), for Letitia James,
                                              Attorney General for the State of New York, New
                                              York, NY
       Appeal from a judgment of the United States District Court for the Northern District of

New York (Singleton, J.).

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

DECREED that the judgment of the district court is AFFIRMED.

       Petitioner–Appellant Gordon B. Gross appeals from the district court’s judgment denying

his petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Gross contends that he

received constitutionally ineffective assistance of counsel and that he is innocent. We assume the

parties’ familiarity with the underlying facts, procedural history, and issues on appeal.

         “Federal courts considering habeas corpus petitions are generally barred from reviewing

the decisions of state courts insofar as those decisions are predicated on adequate and independent

state procedural grounds.” Messiah v. Duncan, 435 F.3d 186, 195 (2d Cir. 2006). Here, the state

court reviewing Gross’s motion to vacate his conviction under New York Criminal Procedure Law

§ 440.10 held that Gross failed to properly raise his claims on direct appeal even though the issues

regarding the performance of defense counsel were “readily apparent on the face of the record.”

App’x 189. In addition, the state court noted that “[e]ven if [it] were to address defendant’s

contentions, it would not find in his favor.” App’x 190. Now, on appeal the government concedes

that there is not an independent and adequate state law ground for denying Gross’s claim because

New York courts do not consistently deny § 440.10 claims when the same counsel represented the

defendant at trial and on appeal. See e.g., People v. Hoffler, 74 A.D.3d 1632, 1634 (N.Y. App.

Div. 2010). We agree that there was no adequate state law ground and, therefore, our habeas review

is not barred. Lewis v. Conn. Comm’r of Corr., 790 F.3d 109, 119–20 (2d Cir. 2015) (finding

federal habeas review is not precluded when the procedural bar is not a firmly established and



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regularly followed practice).

       Having determined that there is no procedural bar to our review, we now turn to Gross’s

ineffective assistance of counsel claim.1 “We review a district court’s legal conclusions in denying

a habeas petition de novo and its factual findings for clear error.” Drake v. Portuondo, 553 F.3d

230, 239 (2d Cir. 2009). “Under the Antiterrorism and Effective Death Penalty Act of 1996

(‘AEDPA’), a federal habeas court must apply a deferential standard of review to ‘any claim that

was adjudicated on the merits in State court.’” Drake v. Portuondo, 321 F.3d 338, 343 (2d Cir.

2003) (quoting 28 U.S.C. § 2254(d)). AEDPA provides for federal habeas relief when the state

adjudication:

       (1) 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; or
       (2) resulted in a decision that was based on an unreasonable determination of the
       facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d)(1)–(2)

       “In a petition for habeas relief alleging ineffective counsel, the question as to whether the

matter is governed by existing Supreme Court precedent ‘is easily answered because the merits of

such claims are squarely governed by the Supreme Court’s holding in Strickland v. Washington.’”

Lindstadt v. Keane, 239 F.3d 191, 198 (2d Cir. 2001) (alterations omitted) (quoting Williams v.

Taylor, 529 U.S. 362, 1511 (2000)). Under Strickland, “[a]n ineffective assistance claim has two

components: A petitioner must show that counsel’s performance was deficient, and that the

deficiency prejudiced the defense.” Wiggins v. Smith, 539 U.S. 510, 521 (2003) (citations omitted).



1
  Because we find that there is no procedural bar to federal habeas review, we need not reach the
ineffective assistance of appellate counsel and innocence claims that Gross raises to cure any
procedural bar.

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“To establish deficient performance, a petitioner must demonstrate that counsel’s representation

‘fell below an objective standard of reasonableness.’” Id. (quoting Strickland v. Washington, 466

U.S. 668, 688 (1984)). “[T]he record must demonstrate that counsel made errors so serious that

counsel was not functioning as the ‘counsel’ guaranteed by the Sixth Amendment.” Cornell v.

Kirkpatrick, 665 F.3d 369, 377 (2d Cir. 2011) (internal quotation marks and ellipses omitted). To

establish prejudice, “[t]he defendant must show that there is a reasonable probability that, but for

counsel’s unprofessional errors, the result of the proceeding would have been different. A

reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694. In assessing prejudice, we consider the cumulative effect of the errors

committed by counsel. Lindstadt, 239 F.3d at 199.

       When applying AEDPA deference to ineffective assistance of counsel claims, “[t]he

question is not whether a federal court believes the state court’s determination under the Strickland

standard was incorrect but whether that determination was unreasonable—a substantially higher

threshold.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010) (internal citation omitted). “[I]t is

not enough for [the prisoner] to show a constitutional violation. He must also show that the state

court’s application of Strickland was not merely incorrect, but objectively unreasonable.” Palacios

v. Burge, 589 F.3d 556, 561–62 (2d Cir. 2009) (internal quotation marks omitted).

       Here, the Second Circuit granted a certificate of appealability for the following ineffective

assistance of trial counsel claims: failing to object to the admission and improper use of the prior

consistent statement testimony of several witnesses, failing to seek limiting instructions as to how

such evidence may be considered, and failing to object to the use of such testimony in the

prosecutor’s opening and closing statements. Upon review of the record, we do not think that Gross



                                                 4
has met the high standard established by AEDPA for habeas relief on the basis of ineffective

assistance of counsel.

       In the last reasoned state court decision, the court examined Gross’s claims under New

York’s constitutional standard for ineffective assistance. As we have explained, “[t]he first prong

of the New York test is the same as the federal test; a defendant must show that his attorney’s

performance fell below an objective standard of reasonableness.” See Rosario v. Ercole, 601 F.3d

118, 124 (2d Cir. 2010) (citing People v. Turner, 5 N.Y.3d 476, 480 (2005)).2 The state court held

that Gross failed to meet the New York test––and therefore the first prong of Strickland––for

ineffective assistance. Specifically, the court held that, “defendant’s trial counsel was thoroughly

familiar with the underlying facts of the case, made sufficient pretrial motions, delivered

appropriate opening and closing statements, raised appropriate objections, cross-examined the

prosecution witnesses, and effectively presented a defense in furtherance of a reasonable trial

strategy in the face of strong opposing evidence.” App’x 192. We do not think that this conclusion

is unreasonable.

       Gross raises additional arguments regarding defense counsel’s failure to object to the

admission or use of prior consistent statements of various witnesses, but much of this testimony

was in fact admissible under New York law. See People v. Honghirun, 29 N.Y.3d 284, 290 (2017)

(“While it is generally improper to introduce testimony that the witness had previously made prior

consistent statements to bolster the witness’s credibility, the use of prior consistent statements is

permitted to . . . rebut a charge of recent fabrication, or to assist in explaining the investigative



2
  New York courts do not apply the second prong of Strickland, and “need not find that counsel’s
inadequate efforts resulted in a reasonable probability that, but for counsel’s unprofessional errors,
the result of the proceeding would have been different.” Rosario, 601 F.3d at 123–24.

                                                  5
process and completing the narrative of events leading to the defendant’s arrest.” (internal

quotation marks and citations omitted)). Moreover, as the district court noted, the trial court struck

the prior consistent statements of two witnesses after defense counsel objected and instructed the

jury to disregard them. Gross v. Graham, No. 9:14-CV-00768-JKS, 2016 WL 11621787, at *7

(N.D.N.Y. Aug. 26, 2016) (“[C]ontrary to Gross’s contentions in his Petition, defense counsel was

successful in having the statements struck from the record.”). For these reasons, we find that Gross

is not entitled to relief on his ineffective assistance of counsel claim.

       Next, we turn to Gross’s freestanding innocence claim. “The Supreme Court has not finally

resolved the issue of whether there is a federal Constitutional right to be released upon proof of

actual innocence.” Friedman v. Rehal, 618 F.3d 142, 159 (2d Cir. 2010). Assuming for the sake

of argument that there is a freestanding innocence claim, “the threshold showing for such an

assumed right would necessarily be extraordinarily high.” Herrera v. Collins, 506 U.S. 390, 417

(1993). While the Supreme Court has not articulated the standard for a freestanding innocence

claim, it has suggested that it would require more convincing proof of innocence than the standard

articulated in Schlup v. Delo, which requires a movant to demonstrate that, “in light of new

evidence, ‘it is more likely than not that no reasonable juror would have found petitioner guilty

beyond a reasonable doubt.’” House v. Bell, 547 U.S. 518, 536–37, 555 (2006) (quoting Schlup v.

Delo, 513 U.S. 298, 327 (1995)).

       Here, Gross’s new evidence offers additional support for his claim at trial that S.W.’s

description of the location or timing of the sexual assault in 2003 was inaccurate. Gross also offers

telephone records that further support his claim at trial that J.S.’s visit, and her sexual assault,

could not have occurred before her thirteenth birthday as required for conviction under N.Y. Penal



                                                   6
Law § 130.96. After reviewing the evidence as a whole, we conclude that Gross has not

demonstrated that the newly discovered evidence would be sufficient to satisfy the high standard

for a freestanding innocence claim contemplated in Herrera. See Herrera, 506 U.S. at 417 (finding

affidavits from eyewitnesses to the crime and witnesses to a confession that implicated another

suspect did not meet the high standard for a freestanding innocence claim); House, 547 U.S. at

555 (finding evidence that discredited the trial’s blood evidence and witness testimony that another

suspect confessed did not satisfy “whatever burden a hypothetical freestanding innocence claim

would require”).

       We have reviewed Gross’s remaining arguments and conclude that they either fall outside

the scope of this court’s certificate of appealability, which we decline to expand, or are without

merit. The judgment of the district court is AFFIRMED.

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




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