    16-2471-pr
    Schouenborg v. Superintendent Auburn Corr. 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
“SUMMARY ORDER”). A PARTY CITING TO 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 31st day of August, two
    thousand seventeen.

    PRESENT:
                   PETER W. HALL,
                   CHRISTOPHER F. DRONEY,
                             Circuit Judges,
                   LAURA TAYLOR SWAIN,*
                             District Judge.

    _____________________________________

    TERRENCE P. SCHOUENBORG,

                          Petitioner-Appellant,

                   v.                                                           16-2471-pr

    SUPERINTENDENT AUBURN CORRECTIONAL FACILITY,

                      Respondent-Appellee.
    _____________________________________

    *
     Judge Laura Taylor Swain, of the United States District Court for the Southern District of New
    York, sitting by designation.
For Appellant:                                   RICHARD LEVITT, Levitt & Kaizer, New
                                                 York, NY.

For Appellee:                                    GUY ARCIDIACONO, Assistant District
                                                 Attorney, for Thomas J. Spota,
                                                 District Attorney of Suffolk County,
                                                 Riverhead, NY.

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

District of New York (Seybert, J.).

       UPON      DUE      CONSIDERATION,            IT    IS    HEREBY        ORDERED,

ADJUDGED, AND DECREED that the judgment of the district court is

AFFIRMED.

       Petitioner-Appellant Terrence Paul Schouenborg (“Schouenborg”) was

convicted by a New York state jury of multiple counts of sodomy, sexual abuse, and

endangering the welfare of a child in violation of various New York Penal Laws. He

was subsequently sentenced to a term of 22 years to life. Following the denial of his

direct appeal and motion to vacate his conviction in state court, Schouenborg filed a

petition for habeas corpus under 28 U.S.C. § 2254(d) in the United States District

Court for the Eastern District of New York, which was ultimately denied. This

Court granted a certificate of appealability as to the following issue: “whether

Schouenborg’s trial counsel was ineffective under the standard set forth in

Strickland v. Washington, 466 U.S. 668 (1984), for failing to move to reopen the

Wade hearing after [the victim] testified that, prior to identifying Schouenborg in a

lineup, a police detective told her to ‘pick . . . out’ and ‘recognize’ one of the lineup


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participants.” We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal.

      Under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

a federal court may only grant a writ of habeas corpus for a claim that has been

adjudicated on the merits by a state court if the adjudication of the claim:

             (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). We review de novo a district court’s denial of a habeas corpus

petition. Jones v. West, 555 F.3d 90, 95 (2d Cir. 2009).

      “To succeed on a claim of ineffective assistance of counsel in violation of the

Sixth Amendment . . . a defendant must demonstrate (1) that his attorney’s

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

is a reasonable probability that, but for counsel’s unprofessional errors, the result of

the proceeding would have been different.’ ” Wilson v. Mazzuca, 570 F.3d 490, 502

(2d Cir. 2009) (citations omitted) (quoting Strickland v. Washington, 466 U.S. 668,

688, 694 (1984)). “The standards created by Strickland and § 2254(d) are both

highly deferential, and when the two apply in tandem, review is doubly so.” Fischer

v. Smith, 780 F.3d 556, 561 (2d Cir. 2015).

      When a federal court reviews a state court decision under § 2254, “[t]he

question is not whether a federal court believes the state court’s determination
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under the Strickland standard was incorrect but whether that determination was

unreasonable—a substantially higher threshold.” Knowles v. Mirzayance, 556 U.S.

111, 123 (2009) (internal quotation marks omitted); see also Henry v. Poole, 409

F.3d 48, 67 (2d Cir. 2005) (“[A] state prisoner seeking a federal writ of habeas

corpus on the ground that he was denied effective assistance of counsel must show

more than simply that he meets the Strickland standard. . . . [T]he state court’s

decision rejecting his claim is to be reviewed under a more deferential standard

than simply whether that decision was correct.”). Because the application of

Strickland requires “a substantial element of judgment” on the part of the state

court, Yarborough v. Alvarado, 541 U.S. 652, 664 (2004), state courts are allowed

“even more latitude to reasonably determine that a defendant has not satisfied that

standard.” Knowles, 556 U.S. at 123. “In order to prevail [on a §2254 petition], a

petitioner must overcome that substantial deference and establish that the state

court’s decision on ineffective assistance was contrary to, or an unreasonable

application of, Strickland.” Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir. 2010).

      Schouenborg asserts that, because the state court applied the New York

“meaningful representation” standard for ineffective assistance of counsel, People v.

Benevento, 697 N.E.2d 584, 587 (N.Y. 1998), rather than the federal standard

articulated in Strickland, we should not afford the state court’s decision any

deference. [Reply Br. at 1.] Our precedent is clear, however, that “the New York

state standard for ineffective assistance of counsel is not contrary to Strickland.”

Rosario, 601 F.3d at 126. Thus, to obtain habeas relief, Schouenborg must

                                           4
demonstrate that the state court unreasonably applied Strickland. “A state court

‘unreasonably applies’ clearly established law when it identifies the correct legal

principle from Supreme Court jurisprudence, but unreasonably applies the principle

to the case before it.” Id. (quoting Williams v. Taylor, 529 U.S. 362, 412–13 (2000)).

       Here, the state court’s application of Strickland—albeit in terms of the New

York standard—was not an unreasonable application of the federal standard. The

state court rejected Schouenborg’s ineffective assistance of trial counsel claim

because it found that, under the circumstances, Schouenborg had not demonstrated

that trial counsel’s “strategy” not to move to reopen the Wade hearing deprived him

of “meaningful representation.” App’x at 39. Schouenborg contends that trial

counsel was ineffective in not moving to reopen the Wade hearing because the

victim’s trial testimony as to the instructions she was given prior to the lineups

indicates that the lineups might have been unduly suggestive.1 Even if the

testimony indicated sufficient reason to reopen the Wade hearing, there is

nonetheless a reasonable probability that evidence of the lineups would not have

been suppressed on the basis of independent reliability. See Raheem v. Kelly, 257

F.3d 122, 135 (2d Cir. 2001) (noting that the court must “weigh the corrupting effect

of the suggestive[ness] against other factors indicating that the identification may


1S.V. testified at trial that Detective Brittelli instructed her that “[t]here’s going to be five men
standing. And you’re going to have to pick one. And why do you recognize him.” App’x at 80. When
asked “did the detective tell you you’re going to have to pick one?” she relied “Yes. No.” App’x at 80.
These statements certainly implicate the potential suggestiveness of the proceeding, but concerns
may have been somewhat mitigated by S.V.’s apparent understanding that she would have to
recognize of the men in order to identify him, as well as her hesitation about the exact phrasing of
Detective Brittelli’s instruction.

                                                   5
be independently reliable.”). Given the exceedingly deferential standard under

which we review state court decisions in considering habeas petitions, we cannot

conclude that the state court here unreasonably applied Strickland. See Lynn v.

Bliden, 443 F.3d 238, 250 (2d Cir. 2006) (holding that state court’s determination

that counsel was not ineffective in failing to move to reopen Wade hearing was not

objectively unreasonable).

      We have considered all of Schouenborg’s remaining arguments on appeal and

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

district court is AFFIRMED.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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