Pro se petitioner Behrooz Kanani seeks a writ of habeas corpus from his March 30, 1998 conviction of twelve counts of first degree sodomy and sentence of twelve consecutive terms of 8-1/3 to 25 years imprisonment. (Dkt. No. 1: Pet. ¶¶ 1-4.) See also People v. Kanani, 272 A.D.2d 186, 187, 709 N.Y.S.2d 505, 506 (1st Dep't), leave to appeal denied, 95 N.Y.2d 935, 721 N.Y.S.2d 612 (2000).

Kanani's habeas petition raises five grounds: (a) he was denied due process due to an incorrect Frye ruling that excluded his "expert" witness (Pet. ¶ 12(A)); (b) he was denied due process by the prejudicial admission of uncharged crimes evidence (Pet. ¶ 12(B)); (c) the trial court erred by permitting the prosecution to bolster a witness' testimony with prior consistent statements (Pet. ¶ 12(C)); (d) he was denied due process when he received a severe and vindictive sentence after his retrial (Pet. ¶ 12(D)); and (e) he was denied effective assistance of trial counsel (Pet. ¶ 12(E)).

For the reasons set forth below, Kanani's habeas petition should be DENIED.

FACTS

Petitioner Behrooz Kanani was arrested on December 5, 1989 and charged with, inter alia, twelve counts of first degree sodomy, first degree sexual abuse, and two counts of endangering the welfare of a child, all relating to his conduct with his two daughters. (State Br. at 2.)

Kanani's First Trial and Direct Appeal

At the conclusion of Kanani's first trial, the jury convicted Kanani of twelve counts of sodomy, for which he was sentenced to thirty-three and one third to one hundred years in prison. (State Br. at 3.)

Kanani appealed on Rosario grounds, and the First Department reversed his conviction and ordered a new trial:

Judgment, Supreme Court, New York County (Harold Rothwax, J.), rendered June 19, 1991, convicting defendant, after a trial by jury, of 12 counts of sodomy in the first degree and sentencing him to an aggregate term of 33 1/3 to 100 years in prison, deemed a sentence of 25 to 50 years pursuant to Penal Law § 70.30 (1) (c) (iii), unanimously reversed, and the matter remanded for a new trial. . . .

Defense counsel specifically requested the production of the videotaped Grand Jury testimony of the prosecution's child witnesses as Rosario material. CPL 240.45 (1), which is recognized as a codification of the Rosario rule, explicitly states:

"After the jury has been sworn and before the prosecutor's opening address, . . . the prosecutor shall, . . . make available to the defendant:

(a) Any written or recorded statement, including any testimony before a grand jury and an examination videotaped pursuant to section 190.32 of this chapter" (emphasis supplied).

In view of the mandatory terms of CPL 240.45, coupled with the fact that we find defense counsel's specific objections concerning Rosario material sufficient to preserve the issue and to invoke the provisions of the foregoing section, we find that the court erred in failing to direct the prosecution to turn over the videotapes in question and that such violation is reversible error requiring a new trial.

People v. Kanani, 226 A.D.2d 226, 226, 641 N.Y.S.2d 26, 27 (1st Dep't 1996).

Kanani's Second Trial

Kanani's second trial began on March 9, 1998 and lasted ten days through March 19, 1998, spanning over 1300 pages of trial transcript. (See generally Trial Transcript.) Because Kanani's habeas claims do not raise issues as to the sufficiency of the evidence — suffice it to say that his two daughters graphically testified as to his conduct — the Court will only refer to such of the trial evidence as is relevant to Kanani's habeas claims. The Prosecutor's Opening Statement

For a more detailed summary of the trial evidence, see State Br. at 3-20; Danburg Aff. Ex. B: Kanani 1st Dep't Br. at 4-9; Danburg Aff. Ex. C: State 1st Dep't Br. at 1-24.

The prosecutor told the jury that "[t]he reason that we are all here today is because for about 2 years, as charged in the indictment, between June 26th, 1987 and June 26th, 1989 approximately, the defendant [Kanini] committed various sexual crimes against his 2 biological daughters." (State Opening: Trial Transcript ["Tr."] 16-17.) The prosecutor stated that the crimes occurred at 500 East 77th Street, at Kanani's apartment, where his two daughters visited him (they lived in Florida with their mother, who was divorced from Kanini). (State Opening: Tr. 17, 20-21.) At the time of the earliest charged sexual acts, his daughters were seven and nine years old; by the time of the (second) trial, they were eighteen and twenty years old. (State Opening: Tr. 17, 21, 23, 26.)

The prosecutor noted that during voir dire, defense counsel raised the issue of false allegations. (State Opening: Tr. 25.) The prosecutor conceded that false allegations of child sexual abuse happen, but that based on the children's testimony and medical evidence, the jury would determine that these were not false allegations. (State Opening: Tr. 25-26.)

Defense Opening Statement

In his opening statement, Kanani's attorney, Richard Verchick, made several arguments in defense of his client. Verchick argued that in the summer of 1989 Kanani wanted to regain custody of his daughters from his ex-wife and that the accusations of sexual misconduct came shortly thereafter. (Defense Opening: Tr. 27-29.) Verchick argued that the allegations against Kanani were either fabricated or inserted into the children's memory by police and medical interviews, and by the children's mother, Maite Gardner. (Defense Opening: Tr. 29-32.) Specifically, he asserted that interviews of the children-complainants were coercive, suggestive and "just the kind of interviews that are bound to lead to the[se] kind of accusations." (Defense Opening: Tr. 29-30.) He characterized Maite Gardner as a "domineering and dominating mother," and asserted that the children's accusations were placed into their heads as a means of their mother's revenge against Kanani. (Defense Opening: Tr. 30-32.)

He defended Kanani's background and character, stating that: "Behrooz Kanani is a man who has been in this country 25 years, he has no criminal record, he has never been arrested. . . ." (Defense Opening: Tr. 35.) The judge stopped the opening statement and the following colloquy took place at sidebar:

THE COURT: I want to ask one question. You as the defense attorney just got up and said this man was never arrested, that's not true.

[A.D.A.] BELGER: That is not true, he has a criminal record.

MR. VERCHICK: I didn't know that.

MS. BELGER: Damn right.

MR. VERCHICK: I didn't know that, I really didn't.

(Tr. 35; see also Tr. 36-39.) Verchick corrected his error in front of the jury, apologizing and explaining that there was an arrest and conviction for intoxication in 1986 and it had just "escaped" him. (Defense Opening: Tr. 39-40.) The Prosecution's Case In Brief

Although Kanani took the stand in his own defense (which he had not done at the first trial), the prosecutor's cross-examination was brief, and she never questioned him about his prior intoxication convictions. (Tr. 1184-86.) Indeed, the prosecutor told defense counsel and the judge right before Kanani took the stand that she would not ask him any questions about his prior record. (Tr. 993-94.)

The prosecution called ten witnesses, including both children, their mother and stepfather, an arresting officer, medical experts, and the examining nurse. (See generally Trial Transcript.) The two children testified that Kanani had sodomized and sexually abused them repeatedly when they were children. (Complainant 2: Tr. 340-404; Complainant 1: Tr. 560-612.) Dr. Gary Munk and nurse practitioner Leah Harrison both offered medical testimony for the prosecution. (Munk: Tr. 270-311; Harrison: Tr. 754-841.) Dr. Munk testified that Complainant 2's test for anal chlamydia came back positive, and that the only reasonable way this could have happened would have been through penetration of her anus with an infected penis. (Munk: Tr. 302-04; 309.) Nurse Harrison testified that both children showed physical signs of sexual abuse. (Harrison: Tr. 768-71, 796-97.)

To protect the victims' privacy, their names will not be used in this Report Recommendation, but they will instead be referred to as Complainant 1(the older daughter) and Complainant 2 (the younger daughter).

A series of letters written by Kanani were admitted into evidence through the children's mother and Kanani's ex-wife, Maite Gardner. (M. Gardner: Tr. 78-79, 111-143.) One of the letters written by Kanani to the two children, dated November 17, 1997, said:

"I am writing this letter with a broken heart, pleading to you for all your mercies and forgiveness. I have been full of shame and regrets for a very long time. I can no longer ignore or bear my increasing pain. You have a right to hate me and to distance yourself from me as west to the east. But I am humbly asking you to forgive me for what I had done, for what I have put you all through and for my madness and stupidity. I don't know if there is anything I can ever do to make up for my wrongdoings but at least I can stop pretending that there is no one left for me to pretend to."

. . .

"I have lived many years in sorrow, crying every night with a shocking grief, while in public I pretend to be strong and uncrushable, I pretend — I tried foolishly to hide the truth by blaming others. I tried desperately to avoid further humiliation with my denial, but today I am more humiliated and embarrassed that I can ever imagine."

. . .

"For a long time I had a dream that one day I can face you and try to explain my unexplainable behaviors but I come to realize that that day may never come. This is why I am writing this letter to you now even though it is long overdue."

. . .

"I have made many mistakes in the past. Yet my biggest mistake was drowning myself in alcohol and drugs which led me to carelessly destroy my life and yours like a mad man with unbelievable behaviors. I made more mistakes by not taking the blame for it when I had the chance —"

. . .

"I had no right to direct my angers towards you at anytime when it was me who I was really angry at. Please accept my shameful apologies for my abnormal behaviors and for betraying your trust in me. I pray to God for you all, and I ask him to forgive me too. God had said he would not forgive a wrongdoer unless first he asked for forgiveness from those who he has done wrong to, and God is my witness that I have done this today whole heartedly. With all my remorse, Behrooz Kanani."

(M. Gardner: Tr. 123-26.)

The Disputed Evidentiary Rulings: "Uncharged Crimes"

Kanani's attorney cross-examined all of the prosecution's witnesses.

In his cross-examination of the children's mother, Maite Gardner, defense counsel asked if she had ever noticed any blood-stained underwear from either of the girls in 1987 after they returned from visits to New York, to which she replied that she had not. (M. Gardner: Tr. 177.) Defense counsel was trying to show that the alleged sexual conduct had not occurred.

Later on in the trial, during the cross-examination of Complainant 2, defense counsel established that she had not reported Kanani's alleged sexual abuse to her relatives while she was in New York. (Complainant 2: Tr. 417.) During the subsequent direct examination of Complainant 1, the prosecutor asked her whether Kanani sexually abused her while he was still living in Queens, before the date of any of the alleged indicted offenses, and she responded "yes." (Complainant 1: Tr. 583.) Defense counsel objected. (Tr. 583.) At sidebar, defense counsel explained his objection to the testimony as "evidence of uncharged crimes." (Tr. 583.) The prosecutor responded that the evidence was relevant because "much has been made out of the fact that there was no bleeding from the rectum and no one ever found blood," and she planned to introduce medical evidence that "children who have been sodomized for a long period of time no long[er] bleed." (Tr. 583). The prosecutor further explained that this responded to defense questioning as to why the children did not tell relatives that they were being abused, since it "was a part of their reality for as long as they" could remember. (Tr. 587.) The trial judge found the evidence admissible (Tr. 588) and gave the jury a limiting instruction that the evidence was admitted "to complete the narrative of events leading up to and including defendant's arrest" and to show that Kanani "acted knowingly" with regards to the indicted offenses. (Tr. 591-92.)

The prosecution called Joan Banek, a former employee and girlfriend of Kanani, who testified that she had a sexual relationship with him when she was sixteen years old and Kanani was thirty-six at the time. (Banek: Tr. 722-23.) The prosecutor asked Banek if Kanani ever taped them having sex, and defense counsel objected, explaining at sidebar that it would be testimony about an uncharged crime. (Tr. 727-28.) The prosecution argued that the evidence was relevant because defense counsel had elicited that Kanani denied videotaping the children, and that no tape of the children was found by the police. (Tr. 729.) The trial judge found the evidence to be relevant, and reminded the jurors not to consider any charges other than those contained in the indictment. (Tr. 729-32.) On the defense's cross-examination, Banek testified that her sexual relationship with Kanani was consensual and that she had consented to being videotaped. (Banek: Tr. 739.)

During direct examination, both children testified (without objection) that Kanani blew marijuana smoke into their faces and made them smoke marijuana. (Complainant 2: Tr. 390; Complainant 1: Tr. 570.) On the prosecution's rebuttal case, when Sergeant Borman was testifying as to the contents of videotapes found in Kanani's apartment, he mentioned that Kanani appeared to be smoking marijuana. (Borman: Tr. 1188-89.) The trial judge allowed the testimony, but once again advised the jury that Kanani was not charged with smoking marijuana and that the evidence should be considered only towards the endangering the welfare of a child counts. (Tr. 1190-91.)

The Disputed Evidentiary Ruling: "Prior Consistent Statement"

Defense counsel cross-examined both children thoroughly. During his cross-examination of Complainant 2, he questioned her based on the Florida police records and interview with Leah Harrison, as well as the grand jury transcripts. (Complainant 2: Tr. 413-51, 457.) Specifically, defense counsel read Complainant 2 excerpts from the Florida police interview transcripts which seemed to contradict her direct testimony. (Complainant 2: Tr. 413-20; 429-30, 441-42.) The cross-examination was consistent with defense counsel's assertion in his opening statement that the childrens' allegations were either fabricated or inserted into their memories by the police and medical interviews. (Defense Opening: Tr. 29-32; see page 4 above.) In response, on redirect, the prosecutor elicited statements made by Complainant 2 about the sexual abuse before the Florida police interview had taken place. (Complainant 2: Tr. 464-70.) The prosecutor also read into evidence other portions of the Florida police interview and the grand jury transcript in which Complainant 2 had stated that Kanani had sexually abused her. (Complainant 2: Tr. 471-72, 474.) The Frye Hearing and Defense Case at Trial

The defense attempted to call Dr. Ralph Underwager to testify as to the suggestibility of children during interviews. (Tr. 920-21.) The prosecution objected and a hearing was held (during the trial, outside the jury's presence), at which Dr. Underwager testified, pursuant to Frye v. United States, to determine whether or not Dr. Underwager's theories had "standing and scientific recognition among physiological and psychological authorities as would justify the courts in admitting expert testimony" and whether "the question involved does not lie within the range of common experience or common knowledge." See Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923). (Tr. 933-75.)

At the conclusion of Dr. Underwager's testimony at the Frye hearing, the prosecutor argued that the defense had not met itsFrye burden of showing that this "area of expertise is one that is acknowledged within the scientific community." (Tr. 976.) The prosecutor noted that "[n]ot a single case was cited or submitted to the court showing that this is an area of scientific knowledge that is acceptable as an area of expert testimony, in any court in this country." (Tr. 976; see also Tr. 977.) The prosecutor also argued that "everything Dr. Underwager talked about is within the ken of the average normal person," i.e., that children are suggestible and it varies with age and the situation, and the jury heard the witnesses testify and heard extensive cross-examination on the interviewing techniques. (Tr. 977-79.) Defense counsel responded that an article that Dr. Underwager cited indicated that testimony about age, suggestibility and interviewer bias are areas that have "survived a Frye analysis." (Tr. 980.) Defense counsel also disagreed that the average person would be familiar with these issues, which Dr. Underwager had extensively studied. (Tr. 980-84.)

Justice Brandveen granted the prosecution's application to preclude Dr. Underwager from testifying (Tr. 985), noting that this issue was one about which state judges had received extensive training (Tr. 986-87) and further explaining:

This situation is within the knowledge of common people. By that I don't [now] mean common but I mean the jury and our jury is surprisingly alive [and] the chief judge had the wisdom to allow not only the non professional on these juries but now the professional individuals. And we have those people on this jury.

And additionally I don't think the defense has met its burden with respect to this.

(Tr. 987.)

The defense called Kanani to testify, who denied all allegations in the indictment and refuted the direct testimony of the prosecution's witnesses. (Kanani: Tr. 997-1173.)

Defense Summation

In summation, Kanani's defense counsel returned to the themes he had developed in his opening statement and reinforced through cross-examination of the prosecution's witnesses and Kanani's direct testimony.

Defense counsel repeated that "1989 was a watershed year in the Kanani family," because Kanani told his ex-wife that he wanted the children to live with him either in New York or Iran. (Defense Closing: Tr. 1210-12.) He also emphasized how the children's allegations were "ambiguous and vague in the beginning, [but] as the stories were repeated and repeated and repeated, became more complex, more dense with specificity . . . throughout the interviews." (Defense Closing: Tr. 1214-15; see also id. at 1219-25.)

He also referred to the evidence, and lack of evidence, about chlamydia, including that (1) there was no evidence that Kanani had chlamydia and (2) chlamydia would appear in non-abused, non-sexual girls, although the prosecution's objections to parts of this area of the closing were sustained. (Defense Closing: Tr. 1215-17.)

Defense counsel concluded by referring to Kanani's testimony and told the jury to judge his credibility about this "tragic" case. (Defense Closing: Tr. 1229-30.) Finally, he reminded the jury about the prosecution's burden of proving guilt beyond a reasonable doubt. (Defense Closing: Tr. 1230.)

Verdict and Sentence

On March 19, 1998, after less than four hours of deliberation (see 3/30/90 Sentencing Transcript ["S."] 2), the jury convicted Kanani of twelve counts of first degree sodomy. (Verdict: Tr. 1339-45.)

On March 30, 1998, Kanani was sentenced to twelve consecutive terms of imprisonment of eight and one third to twenty-five years. (S. 37-38.) At Kanani's sentencing, the judge made the following remarks:

At sentencing, defense counsel moved to set aside the verdict as against the weight of the evidence. (S. 2.) The trial judge denied the motion, agreeing with the prosecution that "[t]he evidence of the defendant's guilt was overwhelming." (S. 2-3.) Also at sentencing, Kanani made an oral, pro se C.P.L. § 440 motion to set aside the verdict based on ineffective assistance of counsel. (S. 16-20.) Both the prosecutor and the trial judge responded as to defense counsel's preparation and efforts. (S. 20-26.) As the prosecutor put it, "[t]he problem is that the defendant had no case because the defendant was guilty." (S. 22-23.)

With respect to this matter, Judge Rothwax several years ago stated, and I quote him from the transcript at that time:

"I don't believe in Mr. Kanani. Having sat through the trial, having heard the children testify, having learned about how the incident came to the attention of the authorities, I am satisfied that this incident, this case is not a product of a custody battle as from time to time you've indicated, or any other kind of personal revenge. It is just what it appears to be, and that is repeated acts of sodomy of two young children who are your daughters, who looked to you as a protector, and who were betrayed by you."

. . . .

[T]welve people voted you guilty. And that was overturned on a technicality with regard to the videotape evidence of the children testifying before the grand jury. And then a second jury found you guilty.

You sat in front of two judges. Unfortunately, the other judge is not here, but I'm sure where he is, he is looking down on all of us in terms of this.

I kind of think that the juries that spoke, the judge, the grand jury, they are all asking for what they had asked for all along, for fairness be done and justice be afforded to all.

. . . .

You know, I've listened to you on the witness stand You were on there for four hours, three on one day and one on the next. I listened to you in the court room and I listened to you just right now, just moments ago. I don't think anybody can tacitly condone anything you did: Your wife isn't, her husband isn't, and your daughters are not.

It takes more to be a father than donating sperm. What it takes is protection, nurturing and being there when they really need it.

Now, what did you do? I mean, did you do something to further their development into the world as young women? Or did you do something that has immeasurable impact upon them the rest of their natural lives?

It took a lot of courage [for your children] to take that stand And I think their mother speaks volumes when she says that the youngest daughter, it is very hard for her to take the stand And you could tell. Now, your other daughter, she is coming around.

But I sit here and wonder. I say, gee, you know, you talk about why they are doing this to you, but I think other people are asking, why did you do it to them?

. . . .

You stood up once again and say you don't have any remorse. I found that profound, especially when the judge is sitting here trying to listen to all of this, any contrition, any sorrow, any remorse.

These young women are wrecked and you did that. Not anybody else in the whole world, you did that.

You were afforded a fair trial. I truly believe there is no technical error involved in any of this because I have gone over it and reviewed it, especially since your attorney has already made the application, and we have all prepared with respect to the law. That is, the assistant district attorney, your attorney and myself.

I sit here and I say, what is he asking for? Because if you're not showing any mercy and if you're not showing any sorrow or any contrition and if you reach out and try to further destroy, who made these young women come back here? I had no involvement in this case. I was just a total stranger. I didn't even know this happened.

What kind of sentence would a judge pass out for a person like you? You know, the assistant district attorney over here is asking for the maximum sentence allowable by law. Why do you think she is doing that?

I have not in my time given out maximum sentences that often, and the reason why is they should be reserved for special situations in which a review of the evidence shows that there is really no other alternative than that.

And in this case there isn't one. Every single time that you did this deserves [the statutory maximum of] eight-and-a-third to twenty-five years in jail. All twelve of those counts deserve that. And to run it concurrently would be the height of condoning everything, and that wouldn't be right.

I've reviewed Judge Rothwax's sentence and I think it should be more. I think it should be consecutive.

I think the prosecutor is quite right, you should serve every single one of those one right after the other to remind you that you shouldn't do that and, hopefully, this will deter other people from doing this in the future, because this is the silent national crisis that's going on.

This is bad. This is really terrible. This is so bad that one cannot even think about the depth of harm that you've done to your own daughters.

So it is the sentence of this Court that you serve eight-and-a-third to twenty-five years in state prison on each and every one of the twelve counts that you have been convicted of; that you serve those sentences concurrently —

A.D.A. BELGER: Consecutively.

THE COURT: I'm sorry, consecutively, not concurrently. Consecutively. And that you pay a mandatory surcharge of $100.

(S. 29-38.) No objections were made to Kanani's sentence by his counsel or by Kanani himself. (See S. 38-40.) Kanani's Second Direct Appeal

Kanani again appealed his conviction, represented on this appeal by the Office of the Appellate Defender. (See Danburg Aff. Ex. B: Kanani 1st Dep't Br.) This time, the First Department affirmed his conviction and sentence, holding in full:

The court properly exercised its discretion in precluding defendant's expert from offering testimony on the susceptibility of young children to suggestion. The court conducted a thorough Frye hearing and received submissions from the People establishing that the expert's proffered theories were highly controversial and had been rejected by other courts and experts. The record supports the court's finding that defendant failed to meet his Frye burden of establishing the general scientific acceptance of the expert's theories. The court also properly concluded that this subject was within the knowledge of the jurors. In any event, defendant was afforded ample scope to attack any deficiencies in the memory of each of the child victims and the effects of any suggestibility. To the extent that defendant is raising a constitutional claim, such claim is unpreserved and we decline to review it in the interest of justice.

The court properly exercised its discretion in admitting various evidence characterized by defendant as implicating him in uncharged crimes. In each instance, the evidence was properly admitted for the purpose of explaining or refuting matters raised on cross-examination, and was more probative than prejudicial.

The court properly admitted a prior consistent statement to rehabilitate one of the victims, because it "preceded significant events which defense counsel contended had influenced [the victim] to fabricate [her] trial testimony." In order to be admissible, the statement was not required to predate all possible motives to falsify. The court also properly admitted portions of interviews that clarified other portions of the same interviews already elicited on cross-examination.

We perceive no abuse in sentencing discretion. Defendant's claim that he received a vindictive sentence upon retrial after this Court's reversal of his earlier conviction in this case is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that, in light of the deeming provisions of Penal Law § 70.30 (1) (e) (vi), defendant's present sentence is no more severe than the sentence he received after his first trial. People v. Kanani, 272 A.D.2d 186, 187-88, 709 N.Y.S.2d 505, 506-07 (1st Dep't 2000) (citations omitted).

The New York Court of Appeals denied leave to appeal on November 21, 2000. People v. Kanani, 95 N.Y.2d 935, 721 N.Y.S.2d 612 (2000).

Kanani's C.P.L. § 440 Motion

On November 21, 2001, Kanani submitted a C.P.L. § 440 motion alleging ineffective assistance of trial counsel. (Danburg Aff. Ex. H: Kanani § 440 Motion.) Specifically, he asserted that he was deprived of a fair trial because his counsel committed "[t]hree main errors . . . trial counsel's opening statement; failure to investigate and secure the assistance of experts in the fields of virology and the sexual abuse of children; and failure to object to the vindictive sentence imposed by this Court." (Id. at 3.)

On September 10, 2002, the trial judge, Justice Brandveen, denied Kanani's motion, finding that Kanani's "claims are belied by the meaningful defense he received by trial counsel." (Danburg Aff. Ex. J: 9/10/02 Justice Brandveen Order at 3.) Justice Brandveen pointed out that Kanani's trial counsel presented a defense expert in child sexual abuse and attempted to present another to testify about the power of suggestion upon child witnesses but that proffer was denied by the court. (Id. at 3.) Trial counsel also tendered another expert witness to review the medical evidence, but that witness chose not to testify for the defense. (Id. at 4.) Justice Brandveen added that defense counsel "vigorously challenged" the prosecution's expert witnesses and used expert material from the first trial in doing so. (Id. at 3-4.) Justice Brandveen also stated that defense counsel cross-examined the children with their grand jury testimony via transcript rather than the grand jury videotape, and kept out other pictures of them, as part of a trial strategy "that kept the trial jury from viewing the 17 and 19 year old youths giving videotape testimony as ten and 12 year olds." (Id. at 4.) Justice Brandveen noted that while Kanani now claimed he testified at the trial because of counsel's ineffectiveness, in a post-conviction motion after the first trial, Kanani had "complained he was denied an opportunity to testify by his [different first] trial counsel despite his wish to do so." (Id. at 5.) Finally, Justice Brandveen, citing the First Department's decision on direct appeal, found "trial counsel's alleged failure to object to the sentence [to be] without merit." (Id.)

On December 24, 2002, the First Department denied leave to appeal from the denial of Kanani's § 440 motion. (Danburg Aff. Ex. M: 1st Dep't Certificate Denying Leave.)

Kanani's Federal Habeas Petition

Kanani's federal habeas corpus petition raises five grounds: (a) he was denied due process due to an incorrect Frye ruling that excluded his "expert" witness (Dkt. No. 1: Pet. ¶ 12(A)); (b) he was denied due process by the prejudicial admission of uncharged crimes evidence (Pet. ¶ 12(B)); (c) the trial court erred by permitting the prosecution to bolster a witness' testimony with prior consistent statements (Pet. ¶ 12(C)); (d) he was denied due process when he received a severe and vindictive sentence after retrial (Pet. ¶ 12(D)); and (e) he was denied effective assistance of trial counsel (Pet. ¶ 12(E)).

ANALYSIS

I. THE AEDPA REVIEW STANDARD

Before the Court can determine whether Kanani is entitled to federal habeas relief, the Court must address the proper habeas corpus review standard under the Antiterrorism and Effective Death Penalty Act ("AEDPA").

In enacting the AEDPA, Congress significantly "modifie[d] the role of federal habeas courts in reviewing petitions filed by state prisoners." Williams v. Taylor, 529 U.S. 362, 403, 120 S. Ct. 1495, 1518 (2000). The AEDPA imposed a more stringent review standard, as follows:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless 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) . . . 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).

See also, e.g., Dallio v. Spitzer, 343 F.3d 553, 559-60 (2d Cir. 2003), cert. denied, 124 S. Ct. 1713 (2004);Eze v. Senkowski, 321 F.3d 110, 120 (2d Cir. 2003) ("AEDPA changed the landscape of federal habeas corpus review by 'significantly curtail[ing] the power of federal courts to grant the habeas petitions of state prisoners.'") (quoting Lainfiesta v. Artuz, 253 F.3d 151, 155 (2d Cir. 2001), cert. denied, 535 U.S. 1019, 122 S. Ct. 1611 (2002)); Christie v. Hollins, 01 Civ. 11605, 2003 WL 22299216 at *2 (S.D.N.Y. Oct. 7, 2003) (Mukasey, D.J.) ("As Magistrate Judge Peck explained, the 'unreasonable application' clause, and AEDPA more generally, imposes a heavy burden on habeas petitioners.").

The "contrary to" and "unreasonable application" clauses of § 2254(d)(1) have "independent meaning." Williams v. Taylor, 529 U.S. at 404-05, 120 S. Ct. at 1519. Both, however, "restrict the source of clearly established law to [the Supreme] Court's jurisprudence." Williams v. Taylor, 529 U.S. at 412, 120 S. Ct. at 1523. "That federal law, as defined by the Supreme Court, may either be a generalized standard enunciated in the [Supreme] Court's case law or a bright-line rule designed to effectuate such a standard in a particular context." Kennaugh v. Miller, 289 F.3d at 42. "A petitioner cannot win habeas relief solely by demonstrating that the state court unreasonably applied Second Circuit precedent." Yung v. Walker, 296 F.3d at 135; accord, e.g., DelValle v. Armstrong, 306 F.3d at 1200.

Accord, e.g., Parsad v. Greiner, 337 F.3d 175, 181 (2d Cir. 2003), cert. denied, 124 S. Ct. 962 (2003); Jones v.Stinson, 229 F.3d 112, 119 (2d Cir. 2000); Lurie v.Wittner, 228 F.3d 113, 125 (2d Cir. 2000), cert. denied, 532 U.S. 943, 121 S. Ct. 1404 (2001); Clark v. Stinson, 214 F.3d 315, 320 (2d Cir. 2000), cert. denied, 531 U.S. 1116, 121 S. Ct. 865 (2001).

Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. 2140, 2147 (U.S. 2004) ("We look for 'the governing legal principle or principles set forth by the Supreme Court at the time the state court renders its decision.'"); Wiggins v.Smith, 539 U.S. 510, 123 S. Ct. 2527, 2534 (2003); Lockyer v.Andrade, 538 U.S. 63, 72, 123 S. Ct. 1166, 1172 (2003) ("Section 2254(d)(1)'s 'clearly established' phrase 'refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision.'"); Tueros v. Greiner, 343 F.3d 587, 591 (2d Cir. 2003), cert. denied, 124 S. Ct. 2171 (2004); Parsad v.Greiner, 337 F.3d at 181; DelValle v. Armstrong, 306 F.3d 1197, 1200 (2d Cir. 2002); Yung v. Walker, 296 F.3d 129, 135 (2d Cir. 2002); Kennaugh v. Miller, 289 F.3d 36, 42 (2d Cir.), cert. denied, 537 U.S. 909, 123 S. Ct. 251 (2002);Loliscio v. Goord, 263 F.3d 178, 184 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 309 (2d Cir. 2001).

As to the "contrary to" clause:

A state-court decision will certainly be contrary to [Supreme Court] clearly established precedent if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases. . . . A state-court decision will also be contrary to [the Supreme] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent.

Williams v. Taylor, 529 U.S. at 405-06, 120 S. Ct. at 1519-20.

Accord, e.g., Price v. Vincent, 538 U.S. 634, 123 S. Ct. 1848, 1853 (2003); Lockyer v. Andrade, 123 S. Ct. at 1173-74; Tueros v. Greiner, 343 F.3d at 591; DelValle v.Armstrong, 306 F.3d at 1200; Yung v. Walker, 296 F.3d at 135; Kennaugh v. Miller, 289 F.3d at 42; Loliscio v.Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 127-28.

In Williams, the Supreme Court explained that "[u]nder the 'unreasonable application' clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 529 U.S. at 413, 120 S. Ct. at 1523. However, "[t]he term 'unreasonable' is . . . difficult to define." Williams v. Taylor, 529 U.S. at 410, 120 S. Ct. at 1522. The Supreme Court made clear that "anunreasonable application of federal law is different from anincorrect application of federal law." Id. Rather, the issue is "whether the state court's application of clearly established federal law was objectively unreasonable." Williams v. Taylor, 529 U.S. at 409, 120 S. Ct. at 1521. "Objectively unreasonable" is different from "clear error."Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1175 ("The gloss of clear error fails to give proper deference to state courts by conflating error (even clear error) with unreasonableness."). However, the Second Circuit has explained "that while '[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.'" Jones v. Stinson, 229 F.3d at 119 (quotingFrancis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)). "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule." Yarborough v.Alvarado, 124 S. Ct. at 2149.

Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2534-35; Parsad v. Greiner, 337 F.3d at 181.

See also, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853 ("As we have explained, 'a federal habeas court may not issue the writ simply because that court concludes that the state-court decision applied [a Supreme Court case] incorrectly.'") (quoting Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S. Ct. 357, 360 (2002)); Lockyer v.Andrade, 538 U.S. at 75, 123 S. Ct. at 1175; Eze v.Senkowski, 321 F.3d at 124-25; DelValle v. Armstrong, 306 F.3d at 1200 ("With regard to issues of law, therefore, if the state court's decision was not an unreasonable application of, or contrary to, clearly established federal law as defined by Section 2254(d), we may not grant habeas relief even if in our judgment its application was erroneous.").

Accord, e.g., Yarborough v. Alvarado, 124 S. Ct. at 2150; Wiggins v. Smith, 123 S. Ct. at 2535; Price v.Vincent, 123 S. Ct. at 1853; Lockyer v. Andrade, 538 U.S. at 75, 123 S. Ct. at 1174-75; Woodford v. Visciotti, 537 U.S. at 25-27, 123 S. Ct. at 360-61; Eze v. Senkowski, 321 F.3d at 125; Ryan v. Miller, 303 F.3d 231, 245 (2d Cir. 2002); Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Lurie v. Wittner, 228 F.3d at 128-29.

Accord, e.g., Eze v. Senkowski, 321 F.3d at 125;Ryan v. Miller, 303 F.3d at 245; Yung v. Walker, 296 F.3d at 135; Loliscio v. Goord, 263 F.3d at 184; Christie v.Hollins, 2003 WL 22299216 at *3.

The Supreme Court explained:

[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. If a legal rule is specific, the range may be narrow. Applications of the rule may be plainly correct or incorrect. Other rules are more general, and their meaning must emerge in application over the course of time. Applying a general standard to a specific case can demand a substantial element of judgment. As a result, evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations.

Yarborough v. Alvarado, 124 S. Ct. at 2149.

Moreover, the Second Circuit has held "that a state court determination is reviewable under AEDPA if the state decision unreasonably failed to extend a clearly established, Supreme Court defined, legal principle to situations which that principle should have, in reason, governed." Kennaugh v. Miller, 289 F.3d at 45.

Accord, e.g., Tueros v. Greiner, 343 F.3d at 591;Yung v. Walker, 296 F.3d at 135; see Yarborough v.Alvarado, 124 S. Ct. at 2150-51 ("The petitioner contends that if a habeas court must extend a rationale before it can apply to the facts at hand then the rationale cannot be clearly established at the time of the state-court decision. There is force to this argument. Section 2254(d)(1) would be undermined if habeas courts introduced rules not clearly established under the guise of extensions to existing law. At the same time, the difference between applying a rule and extending it is not always clear. Certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.") (citations omitted).

Under the AEDPA, in short, the federal courts "must give the state court's adjudication a high degree of deference." Yung v.Walker, 296 F.3d at 134.

Even where the state court decision does not specifically refer to either the federal claim or to relevant federal case law, the deferential AEDPA review standard applies:

For the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.

Sellan v. Kuhlman, 261 F.3d at 312; accord Early v.Packer, 537 U.S. 3, 8, 123 S. Ct. 362, 365 (2002) (State court not required to cite Supreme Court cases, or even be aware of them, to be entitled to AEDPA deference, "so long as neither the reasoning nor the result of the state-court decision contradicts them."); Francolino v. Kuhlman, 365 F.3d 137, 141 (2d Cir. Apr. 20, 2004) (Where "the Appellate Division concluded its opinion by stating that it had 'considered and rejected defendants' remaining claims,'" AEDPA deference applies.);Jenkins v. Artuz, 294 F.3d 284, 291 (2d Cir. 2002) ("InSellan, we found that an even more concise Appellate Division disposition — the word 'denied' — triggered AEDPA deference."). "By its terms, § 2254(d) requires such deference only with respect to a state-court 'adjudication on the merits,' not to a disposition 'on a procedural, or other, ground.' Where it is 'impossible to discern the Appellate Division's conclusion on [the relevant] issue,' a federal court should not give AEDPA deference to the state appellate court's ruling." Miranda v.Bennett, 322 F.3d 171, 177-78 (2d Cir. 2003) (citations omitted). Of course, "[i]f there is no [state court] adjudication on the merits, then the pre-AEDPA, de novo standard of review applies." Cotto v.Herbert, 331 F.3d at 230.

Accord, e.g., Dallio v. Spitzer, 343 F.3d at 559-60; Parsad v. Greiner, 337 F.3d at 180-81; Cotto v.Herbert, 331 F.3d 217, 230 (2d Cir. 2003); Eze v.Senkowski, 321 F.3d at 121; Ryan v. Miller, 303 F.3d at 245; Aeid v. Bennett, 296 F.3d 58, 62 (2d Cir.), cert. denied, 537 U.S. 1093, 123 S. Ct. 694 (2002); Norde v.Keane, 294 F.3d 401, 410 (2d Cir. 2002); Aparicio v. Artuz, 269 F.3d 78, 93 (2d Cir. 2001).
The Second Circuit "recognize[d] that a state court's explanation of the reasoning underlying its decision would ease our burden in applying the 'unreasonable application' or 'contrary to' tests." Sellan v. Kuhlman, 261 F.3d at 312. Where the state court does not explain its reasoning, the Second Circuit articulated the analytic steps to be followed by a federal habeas court:

We adopt the Fifth Circuit's succinct articulation of the analytic steps that a federal habeas court should follow in determining whether a federal claim has been adjudicated "on the merits" by a state court. As the Fifth Circuit has explained, "[W]e determine whether a state court's disposition of a petitioner's claim is on the merits by considering: (1) what the state courts have done in similar cases; (2) whether the history of the case suggests that the state court was aware of any ground for not adjudicating the case on the merits; and (3) whether the state court's opinion suggests reliance upon procedural grounds rather than a determination on the merits." Mercadel v. Cain, 179 F.3d 271, 274 (5th Cir. 1999).

Sellan v. Kuhlman, 261 F.3d at 314; accord, e.g., Cotto v. Herbert, 331 F.3d at 230; Eze v. Senkowski, 321 F.3d at 121-22; Norde v. Keane, 294 F.3d at 410; Aparicio v.Artuz, 269 F.3d at 93; see also Dallio v. Spitzer, 343 F.3d at 560.

The Second Circuit in Miranda v. Bennett continued: "Generally, when the Appellate Division opinion states that a group of contentions is either without merit 'or' procedurally barred, the decision does not disclose which claim in the group has been rejected on which ground. If the record makes it clear, however, that a given claim had been properly preserved for appellate review, we will conclude that it fell into the 'without merit' part of the disjunct even if it was not expressly discussed by the Appellate Division." Id. at 178.

In addition to the standard of review of legal issues, the AEDPA provides a deferential review standard for state court factual determinations: "a determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). "The petitioner bears the burden of 'rebutting the presumption of correctness by clear and convincing evidence.'"Parsad v. Greiner, 337 F.3d at 181 (quoting § 2254(e)(1)).

II. KANANI WAS NOT DENIED HIS RIGHTS TO AN EXPERT UNDER NEW YORK'S FRYE TEST

The test for admissibility of scientific evidence in New York remains the Frye test of whether a particular procedure is generally accepted as reliable within the scientific community.Tyson v. Keane, 991 F. Supp. 314, 327-28 (S.D.N.Y.) (Scheindlin, D.J. Peck, M.J.) (citing New York cases), aff'd, 159 F.3d 732 (2d Cir. 1998), cert. denied, 526 U.S. 1027, 119 S. Ct. 1270 (1999); see, e.g., People v. Wernick, 89 N.Y.2d 111, 117, 651 N.Y.S.2d 392, 395 (1996) (recognizing the "need for a Frye . . . hearing in all instances when a party seeks to present novel scientific or psychiatric or medical evidence"); People v. Wesley, 83 N.Y.2d 417, 422 n. 2, 611 N.Y.S.2d 97, 100 n. 2 (1994) ("the test pursuant to Frye v.United States, 293 F. 1013, poses the elemental question of whether the accepted techniques, when properly performed, generate results accepted as reliable within the scientific community generally"; notes also that while the Daubert test is now used in federal trials, New York continues to use the Frye test); People v. Middleton, 54 N.Y.2d 42, 49, 444 N.Y.S.2d 581, 584 (1981) ("the test is whether a particular procedure . . . is generally acceptable as reliable"); McCarthy v. Handel, 297 A.D.2d 444, 448-49, 746 N.Y.S.2d 209, 213-14 (3d Dep't 2002) (Describing theFrye test, and not the Daubert test, as the "controlling general acceptance test."); People v. Johnston, 273 A.D.2d 514, 518, 709 N.Y.S.2d 230, 236 (3d Dep't 2000) ("Despite the U.S. Supreme Court's opinion in Daubert v. Merell Dow Pharms., we continue to apply the stricter 'general acceptance' test of Frye v. United States in cases where the reliability and admissibility of scientific evidence are in issue.") (citations omitted); People v. Green, 250 A.D.2d 143, 146, 683 N.Y.S.2d 597, 600 (3d Dep't 1998) ("While some Federal courts have permitted this type of testimony, they do not offer persuasive precedent since, instead of applying the Frye 'general acceptance test' that we apply, they followed the more liberal Daubert standard.") (citations omitted); People v.Hughes, 88 A.D.2d 17, 20, 452 N.Y.S.2d 929, 931 (4th Dep't 1982) ("New York has adopted a test identical to the Frye rule in considering the admissibility of evidence produced by various scientific procedures viz., whether the reliability of the results of a procedure is generally acknowledged in the scientific community."), aff'd, 59 N.Y.2d 523, 466 N.Y.S.2d 255 (1983); People v. Smith, 2 Misc. 3d 1007(A), 2004 Slip Op. 50172(U), 2004 WL 690321 at *3 (Sup.Ct. N.Y. Co. Mar. 26, 2004) ("[F]or assessing the admissibility of expert testimony . . . New York has adhered to the Frye test" although federal courts useDaubert); People v. Legrand, 196 Misc. 2d 179, 186, 747 N.Y.S.2d 733, 740 (Sup.Ct. N.Y. Co. Sept. 10, 2002) ("Once a pretrial hearing has been determined to be necessary, the trial judge must apply the fourfold test for the admissibility of scientific expert evidence, as set forth in Frye v. United States.").

As the proponent of the evidence, Kanani bore the burden of proof to demonstrate that the reliability of the subjects of Dr. Underwager's testimony is generally accepted within the scientific community. See, e.g., Tyson v. Keane, 991 F. Supp. at 328 (citing N.Y. cases); People v. Nieves, 143 Misc. 2d 734, 742, 541 N.Y.S.2d 1008, 1013 (Crim.Ct. N.Y. Co. 1989) (party offering scientific evidence bears the burden of proving its scientific reliability); see also, e.g., Luz P. v.Augusto P., 189 A.D.2d 274, 282, 595 N.Y.S.2d 541, 546 (2d Dep't 1993) (party seeking to have a "facilitator" appointed as an interpreter for a nonverbal child witness has the burden of establishing the facilitator's reliability); People v.Wilson, 133 A.D.2d 179, 183, 518 N.YS.2d 690, 693 (2d Dep't 1987) ("While the admissibility of expert testimony is generally a determination which rests in the sound discretion of the trial court, it is nevertheless incumbent upon the proponent of such testimony to lay a proper foundation establishing that the processes and methods employed by the expert in formulating his or her opinions adhere to accepted standards of reliability within the field.") (citations omitted); People v. Smith, 2004 WL 690321 at *3 ("The burden is on the party tendering the testimony to lay the proper foundation that the processes meet this test, by offering judicial opinions, scientific or legal writings, or expert opinion other than that of the proffered expert."); Zafran v. Zafran, 191 Misc. 2d 60, 63, 740 N.Y.S.2d 596, 598 (Sup.Ct. Nassau Co. 2002) ("The burden is upon the proponent to 'show the generally accepted reliability . . . of such procedure in the relevant scientific community though judicial opinions, scientific or legal writings, or expert opinion other than that of the proffered expert.'"); Cameron v.Knapp, 137 Misc. 2d 373, 375, 520 N.Y.S.2d 917, 918 (Sup.Ct. N.Y. Co. 1987) ("The proponent of such [scientific] evidence is required to show the generally accepted reliability of such procedure in the relevant scientific community through judicial opinions, scientific or legal writings, or expert opinion other than that of the proffered expert.").

The evidence that Kanani offered at trial to support the general reliability within the scientific community of Dr. Underwager's theories was wholly unconvincing to the trial judge. (See page 11 above.) Furthermore and perhaps more importantly, the trial judge found that the subject of the proffered testimony was within the general knowledge of the jury, a component of theFrye standard for admissibility of expert testimony. (See page 11 above.) The trial judge therefore found that for both reasons, Kanani did not carry his burden under New York's Frye standard for admitting expert testimony. The First Department affirmed on the merits. The state court decisions, therefoe, are entitled to review under the deferential AEDPA review standard.

Under the AEDPA review standard, this Court cannot say that the state court decisions were unreasonable or contrary to Supreme Court precedent. Dr. Underwager is a controversial figure whose testimony as an expert on the subject of implanted memory in children has been precluded by other courts. E.g., United States v. Rouse, 111 F.3d 561, 570-72 (8th Cir.) (affirming exclusion of Dr. Underwager's testimony regarding children's suggestibility and credibility), cert. denied, 522 U.S. 905, 118 S. Ct. 261 (1997); State v. Case, 4 Neb. App. 885, 904, 553 N.W.2d 173, 185 (1996) (Defendant "failed to establish . . . that Dr. Underwager was in any better position than the jury to make that determination" regarding voluntariness of statements made to police officers.); but see State v. Speers, No. 1 CA-CR 02-0578, ___ F.3d ___, 2004 WL 2158025 at *3-6 (Ariz.App. Div. Sept. 28, 2004) (trial court erred in excluding Dr. Underwagaer's testimony as to improper investigatory child interviews, finding that it was accepted by the scientific community and not necessarily familiar to jurors). In addition to these cases specifically excluding Dr. Underwager's "expert" testimony, New York courts have excluded proffered "expert" testimony about child suggestibility, either on unreliability grounds or because it was within jurors' general knowledge. See, e.g., Washington v. Schriver, 255 F.3d 45, 59-60 (2d Cir. 2001) (Upholding on habeas review state court exclusion of similar expert, on grounds that. inter alia, "we essentially agree with both the trial court and the Appellate Division that the basic idea that young children can be suggestible is 'not beyond the knowledge of the jurors,'" and because defense counsel on cross-examination and summation explored the potential suggestibility of the children); People v. Johnston, 273 A.D.2d 514, 518, 709 N.Y.S.2d 230, 236 (3d Dep't 2000) (Upholding trial court's preclusion of expert testimony on effects of suggestion on children because that subject matter was within jurors' common knowledge, "such opinions had not received general acceptance in the field of psychology," and defense counsel explored the suggestibility issue on cross-examination of the witness); People v. Washington, 238 A.D.2d 263, 264, 657 N.Y.S.2d 24, 25 (1st Dep't 1997) ("The [trial] court properly denied defendant's request to present the testimony of an expert on the susceptibility of young children to suggestion. This subject was not beyond the knowledge of the jurors . . . [A]ny deficiencies in her memory and the effects of any suggestibility were presented to the jury through cross-examination and summations and were the subject of proper jury instructions."). While other courts have allowed such testimony, see, e.g., People v. Michael M., 162 Misc. 2d 803, 809-10, 618 N.Y.S.2d 171, 177 (Sup.Ct. Kings Co. 1994) ("In recognition of a child's suggestibility, many courts have allowed the admission of expert testimony at trial on the effects of suggestive questioning.") (citing cases), in light of the split of opinions, the deference due a trial judge generally as to the admission or exclusion of expert testimony, and the deferential AEDPA review standard, the Court cannot say that the state court decisions here excluding Dr. Underwager's expert testimony were unreasonable, even if other courts might have reached a different result.

This Court cannot say that the state courts' decisions were unreasonable. Kanani's Frye expert habeas claim should be denied.

III. KANANI'S CLAIM THAT HE WAS DENIED DUE PROCESS BASED ON OTHER STATE EVIDENTIARY ERRORS (UNCHARGED CRIME EVIDENCE AND BOLSTERING) DOES NOT PROVIDE A BASIS FOR HABEAS RELIEF

Kanani's second and third habeas claims allege that he was denied due process by state evidentiary rulings allowing "uncharged crime" evidence and "bolstering" testimony. (Dkt. No. 2: Pet. ¶ 12(B) (C).)

A. The Habeas Corpus Review Standard for Claims of Error in State Evidentiary Rulings

For additional cases authored by this Judge discussing the habeas corpus review standard for claims of error in state evidentiary rulings, in language substantially similar to that in this entire section of this Report Recommendation, see Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *10-12 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); McPherson v. Greiner, 02 Civ. 2726, 2003 WL 22405449 at *19-21 (S.D.N.Y. Oct. 22, 2003) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *8-10 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Jamison v.Grier, 01 Civ. 6678, 2002 WL 100642 at *15-16 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.); Thomas v. Breslin, 01 Civ. 6657, 2002 WL 22015 at *5-6 (S.D.N.Y. Jan. 9, 2002) (Peck, M.J.).

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68, 112 S. Ct. 475, 480 (1991) ("We have stated many times that 'federal habeas corpus relief does not lie for errors of state law.'"). Thus, a habeas petitioner must demonstrate that the allegedly-erroneous state court evidentiary rulings violated an identifiable constitutional right. See, e.g., Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988) ("The [habeas] court must determine whether the exclusion [of testimony] was an error of constitutional dimension. . . ."); Taylor v. Curry, 708 F.2d 886, 890-91 (2d Cir.) ("Erroneous [state court] evidentiary rulings do not automatically rise to the level of constitutional error sufficient to warrant issuance of a writ of habeas corpus. Rather, the writ would issue only where petitioner can show that the error deprived her of a fundamentally fair trial.") (emphasis in original), cert. denied, 464 U.S. 1000, 104 S. Ct. 503 (1983). That is a "heavy burden, for 'generally, rulings by state trial courts on evidentiary issues, even if erroneous, do not rise to the level of a constitutional violation.'" Bonet v.McGinnis, 98 Civ. 6529, 2001 WL 849454 at *2 (S.D.N.Y. July 27, 2001).

See also, e.g., Ventura v. Artuz, 99 Civ. 12025, 2000 WL 995497 at *12 nn. 19-20 (S.D.N.Y. July 19, 2000) (Peck, M.J.) (citing cases); Roldan v. Artuz, 78 F. Supp. 2d 260, 276 (S.D.N.Y. 2000) (Batts, D.J. Peck, M.J.); Grant v.Demskie, 75 F. Supp. 2d 201, 209 (S.D.N.Y. 1999) (Sprizzo, D.J. Peck, M.J.), aff'd, 234 F.3d 1262 (2d Cir. 2000); Benitez v. Senkowski, 97 Civ. 7819, 1998 WL 668079 at *4-5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); James v.Senkowski, 97 Civ. 3327, 1998 WL 217903 at *5-6 (S.D.N.Y. Apr. 29, 1998) (Cote, D.J. Peck, M.J.).

See also, e.g., Roldan v. Artuz, 78 F. Supp. 2d at 276 (citing cases); Grant v. Demskie, 75 F. Supp. 2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v.Senkowski, 1998 WL 217903 at *5.

The first step in this analysis is to determine whether the state court decision violated a state evidentiary rule, because the proper application of a presumptively constitutional state evidentiary rule could not be unconstitutional. See, e.g., Brooks v. Artuz, 97 Civ. 3300, 2000 WL 1532918 at *6, 9 (S.D.N.Y. Oct. 17, 2000) (petitioner did not demonstrate an error under state evidentiary law, "much less" an error of constitutional magnitude); Jones v. Stinson, 94 F. Supp. 2d at 391-92 (once the habeas court has found that the state court ruling was not erroneous under state law, there is no need to apply a constitutional analysis).

This assumes that the petitioner has not attacked the constitutionality of the state evidentiary rule itself. See Jones v. Stinson, 94 F. Supp. 2d 370, 387 n. 19 (E.D.N.Y.) (distinguishing between cases "where an evidentiary rule was correctly applied as a matter of state law, but is either unconstitutional on its face or violates a constitutional right as applied," and cases where the petitioner took no exception to the constitutionality of the state evidentiary rule, but asserted that the state court decision misapplied the state rule, resulting in a constitutional violation), rev'd on other grounds, 229 F.3d 112 (2d Cir. 2000).

See also, e.g., Williams v. Walker, No. 00-CV-5912, 2001 WL 1352105 at *3 (E.D.N.Y. Oct. 31, 2001) (habeas court must first determine if ruling was erroneous under state law, and then whether ruling was of a constitutional magnitude); Coleman v. Greiner, No. 97-CV-2409, 1999 WL 320812 at *5 (E.D.N.Y. May 19, 1999); Till v. Miller, 96 Civ. 4387, 1998 WL 397848 at *4 (S.D.N.Y. July 16, 1998); Mitchell v. Herbert, 97 Civ. 5128, 1998 WL 186766 at *5-6 (S.D.N.Y. Apr. 20, 1998); Copes v. Schriver, 97 Civ. 2284,1997 WL 659096 at *3 (S.D.N.Y. Oct. 22, 1997); Simmons v. Ross, 965 F. Supp. 473, 480 (S.D.N.Y. 1997); Dey v. Scully, 952 F. Supp. 957, 969 (E.D.N.Y. 1997) ("[T]he Court engages in a two part analysis, examining 1) whether the exclusion [of evidence] was error under state law, and 2) whether the error amounted to the denial of the constitutional right to a fundamentally fair trial."); see generally Davis v. Strack, 270 F.3d 111, 123-24 (2d Cir. 2001) (in determining whether failure to give state jury charge violated federal constitution, first question for habeas court is whether the charge was required under New York law, and only if so, was the failure to give the charge of constitutional dimension).

Second, the petitioner must allege that the state evidentiary error violated an identifiable constitutional right. This necessarily eliminates consideration of purely state evidentiary errors not cognizable in the federal system. Here, Kanani asserts that his Fifth and Fourteenth Amendment rights of due process were violated by the trial court's evidentiary rulings. (Pet. ¶¶ 12(B) (C).)

See, e.g., Landy v. Costello, No. 97-2433, 141 F.3d 1151 (table), 1998 WL 105768 at *1 (2d Cir. Mar. 9, 1998) ("To the extent that this claim is based on a Rosario violation, it must fail, because a habeas petition can only be granted to remedy some violation of federal law; the obligation to turn over Rosario material arises under state law. Thus, the only question is whether the prosecution violated Brady.") (emphasis in original); Arocho v. Walker, 01 Civ. 1367, 2001 WL 856608 at *3 (S.D.N.Y. July 27, 2001) ("Violation of the notice requirement of [N.Y.C.P.L.] § 710.30 is purely a matter of state law and raises no constitutional issues for a habeas court to review."); Ventura v. Artuz, 2000 WL 995497 at *12 (same);Roldan v. Artuz, 78 F. Supp. 2d at 276 (Molineux claim not cognizable as such on habeas); Benitez v. Senkowski, 1998 WL 668079 at *5 (bolstering claim does not state federal claim, citing cases); Ayala v. Hernandez, 712 F. Supp. 1069, 1074 (E.D.N.Y. 1989) (police "bolstering" of eyewitness identification testimony held to be, at most, violation of state rule, and thus not could not form basis for constitutional claim).
Indeed, courts have rejected habeas relief where the error violated state rules but comported with the presumptively constitutional Federal Rules of Evidence. See, e.g., Glenn v. Bartlett, 98 F.3d 721, 728 (2d Cir. 1996) ("even if admission of [out of court declarant's] statement violated New York law — which unlike federal law requires independent indicia of reliability for a co-conspirator's statement — the statement does not offend the federal Confrontation Clause if it falls within Rule 801(d)(2)'s co-conspirator exception"), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Ford v.Crinder, 97 Civ. 3031, 2001 WL 640807 at *5 (S.D.N.Y. June 8, 2001) ("Admission of evidence that satisfies [the Federal Rules of Evidence] will not violate a [state] criminal defendant's due process rights or provide the basis for habeas corpus relief.").

Third, an erroneous state evidentiary ruling that is asserted to be a constitutional violation will merit habeas relief only "'where [the] petitioner can show that the error deprived [him] of a fundamentally fair trial.'" Rosario v. Kuhlman, 839 F.2d at 925 (emphasis in original). The test for "fundamental fairness" is whether the excluded evidence, "'evaluated in the context of the entire record,'" "'create[d] a reasonable doubt [regarding petitioner's guilt] that did not otherwise exist.'" Taylor v. Curry, 708 F.2d at 891 (quoting the materiality standard defined in United States v. Agurs, 427 U.S. at 112-13, 96 S. Ct. at 2401-02).

See also, e.g., Jones v. Stinson, 229 F.3d at 120;Dunnigan v. Keane, 137 F.3d 117, 125 (2d Cir.) ("The introduction of improper evidence against a defendant does not amount to a violation of due process unless the evidence 'is so extremely unfair that its admission violates fundamental conceptions of justice.'"), cert. denied, 525 U.S. 840, 119 S. Ct. 101 (1998); Collins v. Scully, 755 F.2d 16, 18 (2d Cir. 1985) ("In order to prevail on a [habeas] claim that an evidentiary error deprived the defendant of due process under the Fourteenth Amendment he must show that the error was so pervasive as to have denied him a fundamentally fair trial. . . .").

"If there is no reasonable doubt about guilt whether or not the additional evidence is considered, there is no justification for a new trial. On the other hand, if the verdict is already of questionable validity, additional evidence of relatively minor importance might be sufficient to create a reasonable doubt." United States v. Agurs, 427 U.S. 97, 112-13, 96 S. Ct. 2392, 2402 (1976).

Accord, e.g., Jones v. Stinson, 229 F.3d at 120;Justice v. Hoke, 90 F.3d 43, 47 (2d Cir. 1996); Johnson v.Ross, 955 F.2d 178, 181 (2d Cir. 1992); Blissett v.Lefevre, 924 F.2d 434, 439 (2d Cir.), cert. denied, 502 U.S. 852, 112 S. Ct. 158 (1991); Collins v. Scully, 755 F.2d at 19; Rosario v. Kuhlman, 839 F.2d at 925; Roldan v. Artuz, 78 F. Supp. 2d at 276; Grant v. Demskie, 75 F. Supp. 2d at 209; Benitez v. Senkowski, 1998 WL 668079 at *5; James v.Senkowski, 1998 WL 217903 at *6; Dey v. Scully, 952 F. Supp. at 971.

The "fundamental fairness" standard applies to the erroneous exclusion or admission of evidence. See, e.g., Dunnigan v.Keane, 137 F.3d at 125 ("[f]or the erroneous admission of . . . unfairly prejudicial evidence to amount to a denial of due process, the item must have been 'sufficiently material to provide the basis for conviction or to remove a reasonable doubt that would have existed on the record without it.'") (quotingJohnson v. Ross, 955 F.2d at 181); Rodriguez v. O'Keefe, No. 96-2699, 122 F.3d 1057 (table), 1997 WL 557622 at *2 (2d Cir. Sept. 9, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1068 (1998); Collins v.Scully, 755 F.2d at 18-19; Roldan v. Artuz, 78 F. Supp. 2d at 276.

For the reasons stated by Judge Block in Dey v.Scully, "[h]armless error analysis is simply inapplicable to [trial] error that only attains constitutional significance when considered in the context of the entire trial because such analysis inheres in the initial finding that the error was constitutionally significant. A determination that such error was not harmless, after having already concluded that it denied the defendant a fundamentally fair trial, would be tautological."Dey v. Scully, 952 F. Supp. at 974; see also Kyles v.Whitley, 514 U.S. 419, 436, 115 S. Ct. 1555, 1567 (1995) ("Agurs . . . opted for its formulation of materiality . . . only after expressly noting that this standard would recognize reversible constitutional error only when the harm to the defendant was greater than the harm sufficient for reversal underKotteakos."); Washington v. Schriver, 255 F.3d 45, 56-57 (2d Cir. 2001) ("The creation of otherwise non-existent reasonable doubt [under Agurs] satisfies the 'substantial and injurious' standard" under Brecht.) (quoting Jones v.Stinson, 229 F.3d at 120); Coleman v. Greiner, 1999 WL 320812 at *4-5.

The final question is how to apply the AEDPA in the context of a fundamental fairness analysis, an issue addressed by the Second Circuit in Jones v. Stinson, 229 F.3d at 120-21. In Jones, the state appellate court decided that the trial court's evidentiary rulings had not denied the defendant a fair trial.Id. at 116. The Second Circuit held that, although it might have found, under the Agurs standard, that one of the trial court's rulings "create[d] a reasonable doubt that did not otherwise exist," the Second Circuit could not conclude that the excluded testimony "would so certainly have created new ground for reasonable doubt that the appellate division's decision [affirming the trial court's ruling] was objectively unreasonable." Id. at 120. The Second Circuit thus denied habeas relief based on the AEDPA's deferential review standard.Id. at 120-21.

In sum, for Kanani to succeed with his federal habeas corpus petition asserting state evidentiary errors, he must establish (1) that the trial court's evidentiary rulings were erroneous as a matter of state law, (2) under Agurs, that admission/exclusion of evidence deprived him of a fair trial, and (3) under the AEDPA, that the state court's ruling constituted an objectively unreasonable application of the Agurs standard.

B. Application of This Standard to Kanani's Uncharged Crimes Claim

Kanani asserts that evidence of uncharged crimes was improperly admitted at trial, namely, (1) alleged sexual abuse of his children that occurred before 1987 which was not included in the indictment; (2) consensual sex with a sixteen year old minor; and (3) testimony that a video tape found at his apartment contained images of Kanani smoking marijuana. (Pet. ¶ 12(B).) The First Department denied this claim, holding that in each instance the trial court properly admitted the evidence "for the purpose of explaining or refuting matters raised on cross-examination, and [the evidence] was more probative than prejudicial." People v.Kanani, 272 A.D.2d 186, 187, 709 N.Y.S.2d 505, 507 (1st Dep't 2000).

The evidence of sexual abuse of his children in Queens in the period before that covered by the indictment was offered to explain (1) why their mother did not see blood in their underwear in the period covered by the indictment, an issue raised by the defense, and (2) why the children did not complain to family in New York, an issue also raised by the defense. (See pages 7-8 above.) The testimony about sex with the sixteen year old was introduced as a predicate to her testimony that Kanani made videotapes of those sessions, to rebut the defense's arguments on cross-examination that no videotapes of Kanani and his children were found (despite their direct testimony that they were videotaped). (See page 8 above.) Thus, the defense had opened the door to the introduction of the so-called "uncharged crimes" evidence.

The children also testified on direct by the prosecution that Kanani made them smoke marijuana, without defense objection. (See page 9 above.) On redirect, a police officer testified that on a videotape found in Kanani's apartment, he appeared to be smoking marijuana. (See page 9 above.) While this was not a situation where the defense opened the door, the jury had already head about marijuana use without objection from the defense.

In New York, "where . . . the opposing party 'opens the door' on cross-examination to matters not touched upon during the direct examination, a party has the right on redirect 'to explain, clarify and fully elicit [the] question only partially examined' on cross-examination." People v. Melendez, 55 N.Y. 2d 445, 451, 449 N.Y.S.2d 946, 949-50 (1982); accord, e.g., Llaca v. Duncan, 01 Civ. 9367, 01 Civ. 9402, 02 Civ. 4807, 2004 WL 964113 at *24-25 (S.D.N.Y. May 4, 2004); Green v.Herbert, 01 Civ. 11881, 2002 WL 1587133 at *14 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (citing N.Y. cases); see, e.g., People v. Bolden, 58 N.Y.2d 741, 742, 459 N.Y.S.2d 22, 23 (1982); People v. Regina, 19 N.Y.2d 65, 78, 277 N.Y.S.2d 683, 693 (1966) ("[T]he prosecution's question on redirect examination was properly within the scope of matters gone into on cross-examination and did no more than to explain, clarify and fully elicit a question only partially examined by the defense."); People v. Buchanan, 145 N.Y. 1, 24, writ of error denied, 158 U.S. 31, 15 S. Ct. 723 (1895); People v.Fosmer, 293 A.D.2d 824, 825-86, 743 N.Y.S.2d 179, 181-82 (3d Dep't 2002) ("Also unpersuasive is defendant's claim that County Court erred in permitting the prosecutor to ask him on cross-examination whether he had been accused of sexual abuse in the past. . . . [W]hen a defendant's direct examination opens the door to otherwise improper or precluded evidence, the People are entitled to address any misleading impression given to the jury via cross-examination."); People v. Marrero, 156 A.D.2d 141, 142, 548 N.Y.S.2d 188, 189 (1st Dep't 1989) ("[T]he court below properly permitted the introduction of evidence and testimony concerning a prior negative lineup, where defense counsel had 'opened the door' to admission of that evidence by, on cross-examination, repeatedly challenging [a witness's] ability to accurately identify the defendant as the assailant."), appeal denied, 75 N.Y.2d 921, 555 N.Y.S.2d 40 (1990); see also, e.g., United States v.Rea, 958 F.2d 1206, 1225 (2d Cir. 1992) ("The concept of 'opening the door' . . . gives the trial court discretion to permit a party to introduce otherwise inadmissible evidence on an issue (a) when the opposing party has introduced inadmissible evidence on the same issue, and (b) when it is needed to rebut a false impression that may have resulted from the opposing party's evidence."); cases cited in fn.29 below. More specifically, the New York Court of Appeals has held:

The "opening of the door" theory has been recognized in a variety of situations. For example, apparent inconsistencies or contradictions in a witness' statements or acts brought out on cross-examination to discredit his testimony may be reconciled on redirect by relating to the jury the relevant surrounding circumstances.

People v. Melendez, 55 N.Y.2d at 451, 449 N.Y.S.2d at 950. The "opening the door" theory extends to evidence of a defendant's prior criminal activity or bad acts. Thus, it was not error for the trial judge to have allowed this evidence.

See, e.g., People v. Rodriguez, 85 N.Y.2d 586, 591-92, 627 N.Y.S.2d 292, 295-96 (1995) (defendant's testimony that he only sold fake crack vials opened the door to evidence of his prior conviction for selling crack); People v. Fosmer, 293 A.D.2d at 825-86, 743 N.Y.S.2d at 181-82; People v.Davila, 257 A.D.2d 485, 486, 685 N.Y.S.2d 5, 6 (1st Dep't) ("defense counsel opened the door to evidence of defendant's prior threats and intimidating conduct by questioning the complainant about his failure to identify defendant, whom he knew by a 'street name,' immediately after the assault"), appeal denied, 93 N.Y.2d 968, 695 N.Y.S.2d 54 (1999); People v.Smith, 219 A.D.2d 533, 534, 631 N.Y.S.2d 683, 684 (1st Dep't) ("By raising an agency defense during his testimony, defendant opened the door to cross-examination concerning his prior crimes in order to promote the jury's consideration of the issue whether he was a seller [of drugs] or merely doing a favor for a friend."), appeal denied, 87 N.Y.2d 907, 641 N.Y.S.2d 237 (1995); People v. Jackson, 214 A.D.2d 475, 476, 625 N.Y.S.2d 218, 219 (1st Dep't) ("Defendant argues that the court erred in admitting testimony that he used crack in the victim's apartment since it unfairly placed his prior criminality before the jury. Contrary to this contention, defense counsel's cross-examination of the victim with respect to whether he and defendant had ever spent time together, whether the victim had used drugs, and whether the victim had ever 'specifically' borrowed six dollars from defendant raised the issue of whether or not there was drug use in the victim's apartment, which gave the jury the unfavorable impression that the victim borrowed money from defendant to purchase crack, and thus opened the door to the prosecutor's redirect of the victim eliciting the testimony about which defendant complains."), appeal denied, 86 N.Y.2d 796, 632 N.Y.S.2d 509 (1995); People v. Castaneda, 173 A.D.2d 349, 349-50, 569 N.Y.S.2d 719, 720 (1st Dep't) (defendant opened the door to cross-examination "about his prior convictions of drug related offenses" by raising an agency defense on direct examination "that after . . . two undercover officers approached him and told him that they wanted to buy drugs, he directed them to a woman who sold drugs with the hope that the men would give him a tip"), appeal denied, 78 N.Y.2d 963, 574 N.Y.S.2d 943 (1991); see also, e.g., United States v. Vasquez, 267 F.3d 79, 83-85 (2d Cir. 2001) (defense's cross-examination regarding witness' possession of a gun "opened the door" for the prosecution's redirect eliciting testimony that witness armed himself because defendant had a "reputation" for killing people),cert. denied, 112 S. Ct. 1111 (2002); United States v.Diaz, 176 F.3d 52, 80 (2d Cir.) (upholding the admission of redirect testimony that witness received money from the government to flee because she feared defendant, because defendant "opened the door for the government's redirect by creating an impression that [the witness] was being paid for her testimony and that the government was subsidizing her alleged 'vacation'"), cert. denied, 528 U.S. 875, 120 S. Ct. 181, 314 (1999); United States v. Brennan, 798 F.2d 581, 589-90 (2d Cir. 1986) ("the district court . . . did not abuse its discretion in admitting 'other crimes' evidence" of previous bribery incidents, which "helped explain to the jury how the illegal relationship between [the defendant] and [the witness] developed." "Without this evidence the jury would have had a truncated and possibly confusing view of the respective roles played by [witness] and [defendant] and of the basis for the trust between [the defendant] and [the witness] and between [the defendant] and [the government informant]."), cert. denied, 490 U.S. 1022, 109 S. Ct. 1750 (1989); United States v. Harris, 733 F.2d 994, 1006-07 (2d Cir. 1984) ("a district judge has broad discretion in deciding whether to admit" evidence of prior "narcotics dealings," and "under the circumstances present here, we do not consider it to have been an abuse of discretion for the district judge to admit this testimony, which, if nothing else, tended to show the basis for [defendant's] trust of" the government's informant); Aziz v. Warden, 92 Civ. 0104, 1992 WL 249888 at *7-8 (S.D.N.Y. Sept. 23, 1992) (Token booth clerk who was robbed by petitioner "blurt[ed]" at trial that she recognized petitioner from "[a] previous robbery." Prosecutor "had not 'open[ed] this [area] up intentionally," and it was not error for trial judge to admit the witness' identification of petitioner because "[u]nder both the New York and federal rules of evidence, testimony regarding prior crimes is admissible when it goes to the issue of identity. . . . The judge must merely weigh the probative value of testimony regarding uncharged crimes against any undue prejudice it may engender. . . . A judge has broad discretion in making this determination. . . ."), aff'd, 993 F.2d 1533 (2d Cir.), cert. denied, 510 U.S. 888, 114 S. Ct. 241 (1993).

Kanani also alleges that the prejudicial value of this evidence outweighed its probative value. (Pet. ¶ 12(B).) The First Department, however, rejected that argument, holding that the evidence was "was more probative than prejudicial." People v.Kanani, 272 A.D.2d 186, 187-88, 709 N.Y.S.2d 505, 506-07 (1st Dep't 2000). The balancing under the prejudice vs. probative value test, state or federal, is left to the sound discretion of the trial judge. See, e.g., United States v.Carboni, 204 F.3d 39, 44 (2d Cir. 2000); United States v.Napoli, No. 98-1124, 173 F.3d 847 (table), 1999 WL 265024 at *3 (2d Cir. Apr. 28, 1999) ("Under the balancing test of Rule 403, a district court is granted broad discretion."), cert. denied, 528 U.S. 1162, 120 S. Ct. 1176 (2000); Green v. Herbert, 2002 WL 1587133 at *15 (citing cases); People v. Sandoval, 34 N.Y.2d 371, 375, 357 N.Y.S.2d 849, 853-54 (1974) ("The rules governing the admissibility of evidence of other crimes represent a balance between the probative value of such proof and the danger of prejudice which it presents to an accused. . . . The particular limitations of proof must always depend on the individual facts and circumstances of each case. Such determination will best be made by the trial court."); People v. Washington, 233 A.D.2d 684, 687-88, 650 N.Y.S.2d 334, 338 (3d Dep't 1996) (It "'is within the discretion of the Trial Judge to decide whether the probative worth of evidence of other crimes on the issue of defendant's credibility outweighs the risk of unfair prejudice to him.'") (citing cases),appeal denied, 89 N.Y.2d 1042, 659 N.Y.S.2d 873 (1997).

In federal court, the prejudice vs. probative value issue is governed by Rule 403 of the Federal Rules of Evidence, which provides:

Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. . . .

The trial court (and the First Department) here did not err in exercising that discretion, and hence did not violate a state evidentiary rule. See, e.g., Green v. Herbert, 2002 WL 1587133 at *15; Jamison v. Grier, 01 Civ. 6678, 2002 WL 100642 at *17 (S.D.N.Y. Jan. 25, 2002) (Peck, M.J.) (the state trial court's admission of certain demonstrative evidence was "not an abuse of discretion and thus not an error of state law, much less an error of constitutional magnitude."); Joyner v.Miller, 01 Civ. 2157, 2002 WL 1023141 at *8 (S.D.N.Y. Jan. 7, 2002) ("In this case petitioner has not even established that the trial court committed error, much less that any error was so prejudicial that it deprived him of due process."); Rashid v.Kuhlman, 97 Civ. 3037, 2000 WL 1855114 at *13 (S.D.N.Y. Dec. 19, 2000) (A "trial court's decision to admit evidence of uncharged crimes is a matter of discretion."); Rojas v.Senkowski, No. CV-95-1866, 1996 WL 449321 at *5 (E.D.N.Y. July 29, 1996) ("The [state] trial court was entirely justified in finding that the probative value [of the evidence] outweighed any prejudice, and the decision was well within the judge's discretion. Thus there was no error of constitutional magnitude in the trial court's ruling that would warrant granting petitioner's habeas corpus petition on this ground.") (citation omitted); Aziz v. Warden, 1992 WL 249888 at *8.

Nevertheless, even if permitting the testimony was erroneous as a matter of state law (which it was not), any such error did not deprive Kanani of a fundamentally fair trial, given the strong evidence against him. The prosecution presented two young women who both testified that Kanani had repeatedly sodomized them when they were younger. (See pages 5-6 above.) A medical examiner and expert on detecting physical signs of sexual abuse testified that the two girls showed signs of repeated anal penetration. (See pages 5-6 above.) Evidence was presented to show that one complainant had contracted anal chlamydia, a sexually transmitted disease. (See page 6 above.) An ex-girlfriend testified that Kanani would take one of his daughters up to his apartment during the day, which corroborated the children's testimony of when and where the abuse occurred. Finally, and perhaps most damning, letters written by Kanani were read into evidence which all but admitted his sexual abuse of his two children. (See pages 6-7 above.) Such strong evidence of Kanani's guilt renders it unlikely that the additional evidence which he disputes deprived him of a fundamentally fair trial. See, e.g., Oakley v.Artuz, No. 95 CV 2088, 1999 WL 325362 at *2 (E.D.N.Y. May 18, 1999) (Prior crime evidence did not warrant reversal where the "record contained overwhelming evidence of Petitioner's guilt.");Ayala v. Portuondo, 75 F. Supp. 2d 194, 196 (S.D.N.Y. 1999) (Parker, D.J.) ("In view of the overwhelming evidence of [petitioner]'s guilt, this [uncharged crimes] evidence cannot even if it had been erroneously admitted, be said to have denied [petitioner] a fair trial."); Diaz v. Garvin, 92 Civ. 4778, 1995 WL 459250 at *3 (S.D.N.Y. Aug. 3, 1995) (In case with overwhelming guilt against defendant, challenged uncharged crimes evidence "was not crucial, critical, or highly significant to petitioner's conviction, and therefore its admission did not deprive petitioner of a fair trial. . . ."); People v.Johnson, 280 A.D.2d 683, 684, 721 N.Y.2d 108, 109 (2d Dep't 2001) ("[I]n light of the overwhelming evidence of the defendant's guilt [in rape and sexual assault trial], any error in the admission of this [uncharged violent crime] evidence was harmless.").

Moreover, the trial judge gave a very specific limiting charge to the jury to ensure that jurors considered information about the uncharged crimes only for appropriate purposes, and not on Kanani's guilt or innocence of the crimes charged in the indictment. (See page 8 above.) Limiting instructions have been found to militate against a finding of constitutional error.See, e.g., Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *18 n. 29 (S.D.N.Y. June 16, 2004) ("The jury is presumed to obey a court's curative instruction."); Green v.Herbert, 2002 WL 1587133 at *16 (admission of prior crimes evidence did not deprive petitioner of a fair trial in light of,inter alia, judge's limiting instructions); Cruz v.Greiner, 98 Civ. 7839, 1999 WL 1043961 at *31 n. 26 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (rejecting petitioner's argument that "if you throw a skunk into the jury box, you can't instruct the jury not to smell it" and finding that the court's instruction to disregard inadmissible evidence rendered harmless any prosecutorial misconduct) ( cases cited therein).

The jury is presumed to obey a court's curative instruction. See, e.g., Greer v. Miller, 483 U.S. 756, 766 n. 8, 107 S. Ct. 3102, 3109 n. 8 (1987) ("We normally presume that a jury will follow an instruction to disregard inadmissible evidence . . ., unless there is an 'overwhelming probability' that the jury will be unable to follow the court's instructions."); Richardson v. Marsh, 481 U.S. 200, 211, 107 S. Ct. 1702, 1709 (1987) ("juries are presumed to follow . . . instructions"); Shotwell Mfg. Co. v. United States, 371 U.S. 341, 367, 83 S. Ct. 488, 463 (1962) (When a limiting instruction is clear, "[i]t must be presumed that the jury conscientiously observed it."); see also, e.g., United States v. Linwood, 142 F.3d 418, 426 (7th Cir.) ("Juries may not be familiar with the hearsay rule, but the law assumes that they can and do follow the limiting instructions issued to them."), cert. denied, 525 U.S. 897, 119 S. Ct. 224 (1998); Chalmers v. Mitchell, 73 F.3d 1262, 1267 (2d Cir.) (the court "assume[s] that a jury applies the instructions it is given"), cert. denied, 519 U.S. 834, 117 S. Ct. 106 (1996); United States v. Castano, 999 F.2d 615, 618 (2d Cir. 1993); Cruz v. Greiner, 1999 WL 1043961 at *31 n. 26.

The admission of the so-called "uncharged crime" evidence did not constitute state law error, nor deprive Kanani of a fundamentally fair trial. This claim in Kanani's habeas petition should be denied.

C. Application to Kanani's Bolstering Claim

In his petition, Kanani asserts that "[t]he state trial court allowed the prosecutor to bolster a witnesses' testimony with their prior consistent statements so as to infer to the jury that the witness was neither lying nor misleading the jury about the incidents of abuse." (Pet ¶ 12(C).) This claim has no merit and should be denied.

During opening statements, defense counsel postulated that the children's allegations against Kanani were due to suggestive interviewing techniques and suggestions of a domineering mother engaged in a custody battle with Kanani. (See page 4 above.) During cross-examination of the children, defense counsel read portions of a previous transcript to Complainant 2 in which she said that she did not know or did not remember certain instances of sexual abuse. (See page 9 above.) The prosecution rebutted this testimony and argument by admitting into evidence statements made by Complainant 2 prior to the allegedly suggestive interviews, as well as other portions of the same transcript from which defense counsel selectively read, in which the child stated that Kanani had abused her. (See page 9 above.) This method of rehabilitation is valid under New York law, to show that the children accused Kanani of sexual abuse before the allegedly suggestive interviews took place. See, e.g., Rosario v.Attorney General, 00 Civ. 6681, 2001 WL 267641 at *17 (S.D.N.Y. Mar. 19, 2001) (Peck, M.J.) (citing N.Y. cases), report rec. adopted, 2001 WL 521828 (S.D.N.Y. May 15, 2001); People v.Buie, 86 N.Y.2d 501, 510, 634 N.Y.S.2d 415, 421 (1995) (prior consistent statements can be offered to rebut claims of recent fabrication); People v. McDaniel, 81 N.Y.2d 10, 18, 595 N.Y.S.2d 364, 369 (1993) ("If upon cross-examination a witness' testimony is assailed — either directly or inferentially — as a recent fabrication, the witness may be rehabilitated with prior consistent statements".); People v. Wilson, 295 A.D.2d 545, 546, 744 N.Y.S.2d 692, 693 (2d Dep't 2002) ("[P]rior consistent statements are admissible as an exception to the hearsay rule to rehabilitate a witness whose testimony has been attacked as a recent fabrication."); People v. Borgia, 263 A.D.2d 553, 553, 692 N.Y.S.2d 780, 781 (3d Dep't 1999) ("It is now axiomatic that the fortification of a witness's testimony and credibility through the use of a prior consistent statement, commonly known as 'bolstering', is inadmissible hearsay, except to rebut a claim of recent fabrication."); People v. Cortijo, 254 A.D.2d 125, 126, 680 N.Y.S.2d 208, 210 (1st Dep't) ("The court properly permitted the People to elicit prior consistent statements to rebut defendant's claims of recent fabrication".), appeal denied, 92 N.Y.2d 1030, 684 N.Y.S.2d 495 (1998); People v.McMillian, 139 A.D.2d 674, 675, 527 N.Y.S.2d 305, 306 (2d Dep't) ("prior consistent statements may not be used to bolster a witness's testimony although such statements may be admissible to rebut a claim of recent fabrication or to explain or clarify an inconsistency"), appeal denied, 72 N.Y.2d 863, 532 N.Y.S.2d 513 (1988); People v. Violante, 144 A.D.2d 995, 996, 534 N.Y.S.2d 281, 282 (4th Dep't 1988) ("the People were entitled, on redirect examination, to rehabilitate their witness by showing that his trial testimony was consistent with a version of the facts he had previously given to the police"), appeal denied, 73 N.Y.2d 897, 538 N.Y.S.2d 810 (1989).

Another exception to the state rule against bolstering is that where only a portion of a witness' statement is introduced into evidence on cross-examination, the cross-examiner has "opened the door" to the other parts of the statement. See People v.Hernandez, 265 A.D.2d 161, 696 N.Y.S.2d 429 (1st Dep't 1999) ("The court properly permitted the People to introduce into evidence the balance of a statement made by the complainant to a police officer after defendant had introduced an excerpt from the same statement as a prior inconsistent statement. . . . The balance of the police report in question was not received as a prior consistent statement, but as part of the same statement.");People v. King, 194 A.D.2d 804, 805, 599 N.Y.S.2d 636, 637 (2d Dep't 1993) ("[S]ince in one case only a portion of the witness's statement was introduced during his cross-examination, the introduction of additional portions of the statement during redirect examination, for the purpose of clarification, was appropriate.").

Even if Kanani were correct (which he is not) that the prior consistent statements constituted improper bolstering, his argument fails on habeas corpus. The rule forbidding "bolstering" is a state law standard, and a claim that a witness's testimony constituted improper bolstering does not state a federal constitutional claim cognizable on habeas corpus. See, e.g., Peakes v. Spitzer, 04 Civ. 1342, 2004 WL 1366056 at *15 (S.D.N.Y. June 16, 2004) (Peck, M.J.); Hernandez v. Filion, 03 Civ. 6989, 2004 WL 286107 at *12 (S.D.N.Y. Feb. 13, 2004) (Peck, M.J.); Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *49 n. 77 (S.D.N.Y. June 3, 2003) (Peck, M.J.) ("Bolstering is generally not a cognizable federal claim.");Bailey v. People of State of New York, 01 Civ. 1179, 2001 WL 640803 at *8 (S.D.N.Y. June 8, 2001) (Peck, M.J.) ( cases cited therein); Diaz v. Greiner, 110 F. Supp. 2d 225, 235 (S.D.N.Y. 2000) ("Bolstering claims have been (expressly) held not to be cognizable on federal habeas review."); Mendez v. Artuz, 98 Civ. 2652, 2000 WL 722613 at *32 n. 23 (S.D.N.Y. June 6, 2000) (Peck, M.J.); Benitez v.Senkowski, 97 Civ. 7819, 1998 WL 668079 at *5 (S.D.N.Y. Sept. 17, 1998) (Cote, D.J. Peck, M.J.); Orr v. Schaeffer, 460 F. Supp. 964, 967 (E.D.N.Y. 1978) (Weinfeld, D.J.) ("This Circuit has never regarded the practice [of bolstering] as inimical to trial fairness."). In light of the strong evidence against Kanani, the allegedly "bolstering" evidence did not deprive him of a fundamentally fair trial.

Kanani's "bolstering" habeas claim should be denied.

IV. KANANI'S SENTENCING CLAIM IS BARRED BY AN INDEPENDENT AND ADEQUATE STATE GROUND, AND IN ANY EVENT LACKS MERIT

For additional decisions by this Judge discussing the adequate and independent state ground doctrine in language substantially similar to that in this entire section of this Report Recommendation, see, e.g., Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *18-21 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.) Roberts v. Batista, 01 Civ. 5264, 2003 WL 1900866 at *7-11 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.); Rosario v. Bennett, 01 Civ. 7142, 2002 WL 31852827 at *18-21 (S.D.N.Y. Dec. 20, 2002) (Peck, M.J.) (citing my prior cases); Larrea v.Bennett, 01 Civ. 5813, 2002 WL 1173564 at *8-9 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2002) (Scheindlin, D.J.); Mercado v.Portuondo, 99 Civ. 11234, 2000 WL 1663437 at *12 (S.D.N.Y. Nov. 3, 2000) (Peck, M.J.), report rec. adopted, 2001 WL 987926 (S.D.N.Y. Aug. 29, 2001) (Mukasey, D.J.), aff'd, No. 01-2701, 77 Fed. Appx. 546, 2003 WL 22134571 (2d Cir. Sept. 15, 2003);Owens v. Portuondo, 98 Civ. 6559, 1999 WL 378343 at *5 (S.D.N.Y. June 9, 1999) (Peck, M.J.), aff'd, No. 99-2416, 205 F.3d 1324 (table), 2000 WL 246226 (2d Cir. Feb. 22, 2000).

At his first trial, the judge sentenced Kanani to an aggregate of 33-1/3 to one hundred years. (See page 2 above.) After reversal on appeal, the jury at his second trial again found him guilty, and Kanani was sentenced by a different judge to twelve consecutive terms of imprisonment of eight and one third to twenty-five years, thus (theoretically) totaling one hundred to three hundred years. (See page 15 above.)

On direct appeal, the First Department held that Kanani's sentencing claim was unpreserved but nevertheless lacked merit:

We perceive no abuse in sentencing discretion. Defendant's claim that he received a vindictive sentence upon retrial after this Court's reversal of his earlier conviction in this case is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that, in light of the deeming provisions of Penal Law § 70.30 (1) (e) (vi), defendant's present sentence is no more severe than the sentence he received after his first trial.

People v. Kanani, 272 A.D.2d 186, 187-88, 709 N.Y.S.2d 505, 506-07 (1st Dep't 2000) (citations omitted). Since the First Department's decision — that the sentencing claim was unpreserved — was based on adequate and independent state law grounds, Kanani's judicial abuse of discretion sentencing claim is barred from federal habeas review.

The Supreme Court has made clear that the "adequate and independent state ground doctrine applies on federal habeas," such that "an adequate and independent finding of procedural default will bar federal habeas review of the federal claim, unless the habeas petitioner can show cause for the default and prejudice attributable thereto, or demonstrate that failure to consider the federal claim will result in a fundamental miscarriage of justice." Harris v. Reed, 489 U.S. 255, 262, 109 S. Ct. 1038, 1043 (1989) (citations internal quotations omitted).

See also, e.g., Schlup v. Delo, 513 U.S. 298, 314-16, 115 S. Ct. 851, 860-61 (1995); Coleman v. Thompson, 501 U.S. 722, 735, 111 S. Ct. 2546, 2557 (1991); Murray v.Carrier, 477 U.S. 478, 485-88, 496, 106 S. Ct. 2639, 2644-45, 2649-50 (1986); Jones v. Vacco, 126 F.3d 408, 415 (2d Cir. 1997); Garcia v. Lewis, 188 F.3d 71, 76-77 (2d Cir. 1999);Reyes v. Keane, 118 F.3d 136, 138-40 (2d Cir. 1997); Glenn v. Bartlett, 98 F.3d 721, 724 (2d Cir. 1996), cert. denied, 520 U.S. 1108, 117 S. Ct. 1116 (1997); Velasquez v. Leonardo, 898 F.2d 7, 9 (2d Cir. 1990).

"[I]n order to preclude federal review [under the adequate and independent doctrine], the last state court to render judgment must 'clearly and expressly state that its judgment rest[ed] on a state procedural bar.'" Jones v. Vacco, 126 F.3d at 415 (quoting Glenn v. Bartlett, 98 F.3d at 724). The Second Circuit has made clear that "federal habeas review is foreclosed when a state court has expressly relied on a procedural default as an independent and adequate state ground, even where the state court has also ruled in the alternative on the merits of the federal claim." Velasquez v. Leonardo, 898 F.2d at 9;accord, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10 ("[A] state court need not fear reaching the merits of a federal claim in an alternative holding. By its very definition, the adequate and independent state ground doctrine requires the federal court to honor a state holding that is a sufficient basis for the state court's judgment, even when the state court also relies on federal law."); Garcia v.Lewis, 188 F.3d at 77-82; Glenn v. Bartlett, 98 F.3d at 724-25; see also, e.g., Santiago v. People of the State of New York, 97 Civ. 5076, 1998 WL 803414 at *4 (S.D.N.Y. Oct. 13, 1998) ("When the state court rejects a claim both on the merits and because it was waived under the state's procedural law, review of the claim on a federal habeas corpus petition is barred."). Thus, "as long as the state court explicitly invokes a state procedural bar rule as a separate basis for decision," the adequate and independent doctrine "curtails reconsideration of the federal issue on federal habeas." Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10.

With respect to Kanani's abuse of judicial discretion in sentencing claim, the First Department held:

We perceive no abuse in sentencing discretion. Defendant's claim that he received a vindictive sentence upon retrial after this Court's reversal of his earlier conviction in this case is unpreserved and we decline to review it in the interest of justice. Were we to review this claim, we would find that, in light of the deeming provisions of Penal Law § 70.30 (1) (e) (vi), defendant's present sentence is no more severe than the sentence he received after his first trial.

People v. Kanani, 272 A.D.2d at 187-88, 709 N.Y.S.2d at 506-07 (citations omitted).

State courts are not required to use any particular language:

We encourage state courts to express plainly, in every decision potentially subject to federal review, the grounds upon which their judgments rest, but we will not impose on state courts the responsibility for using particular language in every case in which a state prisoner presents a federal claim — every state appeal, every denial of state collateral review — in order that federal courts might not be bothered with reviewing state law and the record in the case.

Coleman v. Thompson, 501 U.S. at 739, 111 S. Ct. at 2559.

Furthermore, unlike the situation where the state court holds that claims were either unpreserved or without merit, which the Second Circuit has found is usually too ambiguous to preclude habeas review, here the First Department explicitly stated that it found Kanani's claim to be unpreserved, People v. Kanani, 272 A.D.2d at 187-88, 709 N.Y.S.2d at 506-07, and the fact that the First Department also stated the conclusion it would reach "[w]ere [it] to review" the claim does not change the result. See, e.g., Fama v. Commissioner of Corr. Servs., 235 F.3d 804, 810-11 n. 4 (2d Cir. 2000) ("where a state court says that a claim is 'not preserved for appellate review' and then ruled 'in any event' on the merits, such a claim is not preserved"); Glenn v. Bartlett, 98 F.3d at 724-25 n. 3 (state decision which denied prosecutorial misconduct claim as not preserved for appellate review represented an independent and adequate state procedural ground even though court addressed merits of claim "in the interests of justice"); Velasquez v. Leonardo, 898 F.2d at 9 (state decision which denied claims as procedurally barred but then alternatively addressed merits rested on adequate and independent state grounds); Campos v. Portuondo, 193 F. Supp. 2d 735, 744 n. 4 (S.D.N.Y. 2002) ("The language used by the Appellate Division in Campos' case is in contrast with the language used in those cases where the state court found a claim to be 'either meritless or unpreserved.' Unlike the conjunctive 'and,' the use of the disjunctive 'or' in such cases obviously does not clarify whether the court's ruling rests on a procedural bar."), aff'd, 320 F.3d 185 (2d Cir.), cert. denied, 124 S. Ct. 415 (2003); Jones v. Duncan, 162 F. Supp. 2d at 211 ("The First Department's use of the conjunctive 'and' rather than the disjunctive 'or' clearly shows that the First Department found these claims to be unpreserved."). Thus, the First Department's decision unambiguously rested on a state procedural ground.

See, e.g., Galarza v. Keane, 252 F.3d 630, 637 (2d Cir. 2001) ("We have found a state court's reliance on a state procedural bar to be ambiguous, and thus refused to invoke a procedural bar, where . . . the state court rejected defendant's claims on appeal as 'either meritless or unpreserved.'");Tankleff v. Senkowski, 135 F.3d 235, 247 (2d Cir. 1998);Reid v. Senkowski, 961 F.2d 374, 377 (2d Cir. 1992).

See also, e.g., Harris v. Reed, 489 U.S. at 264 n. 10, 109 S. Ct. at 1044 n. 10; Figueroa v. Greiner, 02 Civ. 2126, 2002 WL 31356512 at *10 (S.D.N.Y. Oct. 18, 2002) (Peck, M.J.) (decision that claim is unpreserved but were it to be reviewed is without merit, sufficient for procedural bar);Velasquez v. Murray, 02 Civ. 2564, 2002 WL 1788022 at *8 (S.D.N.Y. Aug. 2, 2002) (Peck, M.J.); Soto v. Greiner, 02 Civ. 2129, 2002 WL 1678641 at *12 (S.D.N.Y. July 24, 2002) (Peck, M.J.); Larrea v. Bennett, 01 Civ. 5813, 2002 WL 1173564 at *9 n. 8 (S.D.N.Y. May 31, 2002) (Peck, M.J.), report rec. adopted, 2002 WL 1808211 (S.D.N.Y. Aug. 6, 2000) (Scheindlin, D.J.); Martinez v. Greiner, 01 Civ. 2911, 2001 WL 910772 at *9 n. 9 (S.D.N.Y. Aug. 13, 2001) (Peck, M.J.), report rec. adopted, 2003 WL 1936191 (S.D.N.Y. Apr. 23, 2003) (Mukasey, D.J.); Ferguson v. Walker, 00 Civ. 1356, 2001 WL 869615 at *8 n. 19 (S.D.N.Y. Aug. 2, 2001) (Peck, M.J.), report rec. adopted, 2002 WL 31246533 (S.D.N.Y. Oct. 7, 2002) (Swain, D.J.);Simpson v. Portuondo, 01 Civ. 1379, 2001 WL 830946 at *10 (S.D.N.Y. July 12, 2001) (Peck, M.J.); Simmons v. Mazzuca, 00 Civ. 8174, 2001 WL 537086 at *10 (S.D.N.Y. May 21, 2001) (Peck, M.J.) (adequate and independent state ground even though First Department stated its conclusion as to merits of claims "were we to review" them); Yeung v. Artuz, 97 Civ. 3288, 2000 WL 145103 at *10 (S.D.N.Y. Feb. 3, 2000) (Peck, M.J.) (same); Cruz v. Greiner, 98 Civ. 7939, 1999 WL 1043961 at *12-13 (S.D.N.Y. Nov. 17, 1999) (Peck, M.J.) (claims First Department held to be "unpreserved and without merit" not cognizable on habeas review);Chisolm v. Headley, 58 F. Supp. 2d 281, 287 (S.D.N.Y. 1999) (Mukasey, D.J. Peck, M.J.); Torres v. Irvin, 33 F. Supp. 2d 257, 274 (S.D.N.Y. 1998) (Cote, D.J. Peck, M.J.) (adequate and independent ground even though First Department "went on to dismiss the [judicial misconduct] claim on the merits");Williams v. Bennet, 97 Civ. 1628, 1998 WL 236222 at *6 (S.D.N.Y. Apr. 20, 1998); Vera v. Hanslmaier, 928 F. Supp. 278, 285 (S.D.N.Y. 1996) (Jones, D.J. Peck, M.J.); Liner v.Keane, 95 Civ. 2738, 1996 WL 33990 at *7 (S.D.N.Y. Jan. 3, 1996) (Wood, D.J. Peck, M.J.).

The New York Court of Appeals denied Kanani's application for leave to appeal. People v. Kanani, 95 N.Y.2d 935, 721 N.Y.S.2d 612 (2000). The Supreme Court held in Ylst v.Nunnemaker, 501 U.S. 797, 111 S. Ct. 2590 (1991), with respect to unexplained orders, that federal habeas courts should presume that "[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Id. at 803, 111 S. Ct. at 2594. Roberts has presented no facts to rebut that presumption here.

Under New York Law, "[a]s a general rule points which were not raised at trial may not be considered for the first time on appeal." People v. Thomas, 50 N.Y.2d 467, 471, 429 N.Y.S.2d 584 (1980) (citing C.P.L. § 470.05(2)). In order to preserve his judicial vindictiveness in sentencing claim for appellate review, Kanani was required to object at the time of his sentence. See, e.g, Figueroa v. Greiner, 2002 WL 31356512 at *10 ("In order to preserve challenges to a sentence, defense counsel is required to object at the time sentence is imposed.") Kanani's counsel, however, did not make any objection at sentencing. Decisions in this Circuit have found the requirement of objecting to the sentence at the time of sentencing to be an adequate and independent state ground. Figueroa v. Greiner, 2002 WL 31356512 at *11 ("Specifically, the Second Circuit and district courts within the Circuit have held that failure to object at the time of sentencing is an adequate and independent state ground sufficient to bar habeas relief of a sentencing-related claim."); see also, e.g., Quirama v. Michele, 983 F.2d 12, 14 (2d Cir. 1993) (Where defendant did not raise his sentencing claim in trial court and the First Department affirmed without opinion, the affirmance was held to be based on adequate and independent state procedural grounds, for there was "no 'good reason' to believe that the Appellate Division's silence reflect[ed] a decision on the merits"); Green v. Herbert, 01 Civ. 11881, 2002 WL 1587133 at *18-19 (S.D.N.Y. July 18, 2002) (Peck, M.J.) (First Department's holding that Green's "constitutional challenge to the procedure under which he was sentenced as a persistent felony offender [was] unpreserved for appellate review and, in any event [was] without merit[,]" was "based on an adequate and independent state law ground"); El v.Artuz, 105 F. Supp. 2d 242, 250 (S.D.N.Y. 2000) ("The Appellate Division's finding that [petitioner's sentencing] claim was unpreserved constitutes an independent and adequate state ground that precludes federal habeas review. . . ."). Thus, Kanani's sentencing claim is barred from habeas review by an adequate and independent state ground.

C.P.L. § 470.05(2) provides, in relevant part:

For purposes of appeal, a question of law with respect to a ruling or instruction of a criminal court during a trial or proceeding is presented when a protest thereto was registered, by the party claiming error, at the time of such ruling or instruction or at any subsequent time when the court had an opportunity of effectively changing the same.

C.P.L. § 470.05(2) (emphasis added).

See also, e.g., People v. Hurley, 75 N.Y.2d 887, 888, 554 N.Y.S.2d 469, 470 (1990) (sentence claim unpreserved for review because neither the defendant nor his attorney objected to the sentence at the time the sentence was imposed); People v.Ruz, 70 N.Y.2d 942, 943, 524 N.Y.S.2d 668, 668 (1988) ("By not bringing this [sentencing challenge] to the attention of the court at the time of sentence, defendant failed to preserve it for our review."); People v. Ingram, 67 N.Y.2d 897, 899, 501 N.Y.S.2d 804, 805 (1986) (where "defendant failed to challenge his sentence before the trial court," sentencing claim "is not properly before us"); People v. Lemon, 62 N.Y.2d 745, 746, 476 N.Y.S.2d 824, 825 (1984) (Defendant did not alert the court about his sentencing claim "at the time of sentence, or by way of a motion for resentence, and thus no error of law has been preserved for our review."); People v. Wilson, 289 A.D.2d 1088, 1088, 735 N.Y.S.2d 463, 464 (4th Dep't 2001) ("By failing . . . to object to the sentence imposed on the ground that it was not the sentence promised pursuant to the terms of the plea bargain, defendant failed to preserve for our review her present contention that the imposition of consecutive rather than concurrent sentences violated Supreme Court's sentencing promise."), appeal denied, 98 N.Y.2d 656, 745 N.Y.S.2d 516, 772 N.E.2d 619 (2002); People v. Marshall, 276 A.D.2d 308, 308, 714 N.Y.S.2d 33, 34 (1st Dep't 2000) ("Defendant's challenge to the constitutionality of his mandatory minimum sentence requires preservation . . ., and we decline to review this unpreserved claim in the interest of justice."), appeal denied, 96 N.Y.2d 761, 725 N.Y.S.2d 287, 748 N.E.2d 1083 (2001).

Since Kanani raises counsel's failure to object to the sentence in his ineffective assistance of trial counsel habeas claim, the Court also will review the claim on the merits for that purpose.

Ineffective assistance of counsel, if found, also can represent "cause" for a procedural default under the "cause and prejudice" standard. See, e.g., Montalvo v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.) ( cases cited therein).

Kanani asserts that Justice Brandveen's sentence aggregating 100 to 300 years was vindictive for Kanani's successful appeal of his prior conviction and sentence by Justice Rothwax that aggregated thirty-three and one-third to one hundred years. (Pet. ¶¶ 12(d); see also Kanani 1st Dep't Br. at 35; Kanani Traverse Br. at 30.) The fact is, however, that while consecutive sentences adding up to multiple lifetimes in jail may sound good to the victims during sentencing (or, in some cases, to the press), they are legal fictions. The effective legal length of Kanani's second sentence is exactly the same as his reversed first sentence.

As the First Department noted in reviewing his first conviction, his first sentence "to an aggregate term of 33-1/2 to 100 years in prison, [is] deemed a sentence of 25 to 50 years pursuant to Penal Law § 70.30(1)(c)(iii) . . ." People v.Kanani, 226 A.D.2d 226, 226, 641 N.Y.S.2d 26, 27 (1st Dep't 1996).

Justice Brandveen sentenced Kanani after his second trial to twelve consecutive terms of 8-1/3 to 25 years imprisonment (S. 37-38) for the twelve counts of first degree sodomy. First degree sodomy is a Class B felony. Penal Law § 130.50. Those consecutive sentences, however, are reduced by Penal Law § 70.30, which provides in relevant part:

1. Indeterminate or determinate sentences. An indeterminate or determinate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the state department of correctional services. Where a person is under more than one indeterminate or determinate sentence, the sentences shall be calculated as follows:

. . .

(e) (i) Except as provided in subparagraph (ii), (iii), (iv), (v), (vi) or (vii) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are indeterminate sentences or all of which are determinate sentences, imposed for two or more crimes, other than two or more crimes that include a class A felony, committed prior to the time the person was imprisoned under any of such sentences shall, if it exceeds twenty years, be deemed to be twenty years, unless one of the sentences was imposed for a class B felony, in which case the aggregate maximum term shall, if it exceeds thirty years, be deemed to be thirty years. Where the aggregate maximum term of two or more indeterminate consecutive sentences is reduced by calculation made pursuant to this paragraph, the aggregate minimum period of imprisonment, if it exceeds one-half of the aggregate maximum term as so reduced, shall be deemed to be one-half of the aggregate maximum term as so reduced;

. . .

(vi) Notwithstanding subparagraphs (i) and (iv) of this paragraph, the aggregate maximum term of consecutive sentences, all of which are indeterminate or all of which are determinate sentences, imposed for the conviction of three or more violent felony offenses committed prior to the time the person was imprisoned under any of such sentences and one of which is a class B violent felony offense, shall, if it exceeds fifty years, be deemed to be fifty years;

Penal Law § 70.30.

Thus, pursuant to Penal Law § 70.30, Kanani's first sentence and his second sentence both are reduced to the same term of twenty-five to fifty years imprisonment, making the effective sentences identical. Indeed, Kanani concedes they are identical (Kanani Traverse Br. t 19), but asserts that counsel nevertheless "abandoned" him at sentencing (id.). Because the two sentences effectively are identical, however, Kanani's vindictiveness claim is without merit — he has not shown prejudice, and thus his direct claim and his indirect, ineffective assistance re sentencing claim both fail. See, e.g., Naranjo v. Filion, 02 Civ. 5449, 2003 WL 1900867 at *9-10 n. 17 (S.D.N.Y. Apr. 16, 2003) (Peck, M.J.) (citing cases); People v. Carroll, 300 A.D.2d 911, 917, 753 N.Y.S.2d 148, 155 (3d Dep't 2002). V. KANANI'S INEFFECTIVE ASSISTANCE OFTRIAL COUNSEL CLAIMS SHOULD BE DENIED A. The Strickland v. Washington Standard On Ineffective Assistance of Counsel 1. Strickland and Trial Counsel

The Court also notes that Justice Brandveen gave a lengthy explanation of why he felt Kanani's behavior justified the maximum sentence. (See pages 13-15 above.) Thus, even if the sentences were different, Kanani has not proven vindictiveness.See, e.g., Best v. Superintendent of Clinton Corr. Facility, No. CV-89-3407, 1990 WL 164673 at *4 (E.D.N.Y. Oct. 19, 1990) ("[T]he presumption [of vindictiveness] does not exist in cases where the second sentence is imposed by someone other than the original sentencer, so long as 'the second sentencer provides an on-the-record, wholly logical nonvindictive reason for the sentence.'") (quoting Texas v. McCullough, 475 U.S. 134, 140, 106 S. Ct. 976, 980 (1985)); see also, e.g., United States v. Atehortva, 69 F.3d 679, 683-84 (2d Cir. 1995), cert. denied, 517 U.S. 1249, 116 S. Ct. 2510 (1996);Alvarez v. Keane, 92 F. Supp. 2d 137, 141 (E.D.N.Y. 2000) ("[W]hen different sentencers impose the varying sentences, a defendant must prove actual vindictiveness on the part of the second sentencer."); Meurer v. Barkley, No. 97-CV-0396, 1998 WL 543756 at *2 (W.D.N.Y. Aug. 14, 1998) (Petitioner "may not rely solely upon a heightened sentence after re-trial to demonstrate vindictiveness when, as happened here, the re-trial was conducted in front of and the second sentence was imposed by a different judge than had conducted the first trial and had imposed the first and subsequently-vacated sentence. In these circumstances, 'the burden remains upon the defendant to prove actual vindictiveness.'") (citations omitted).

For additional decisions authored by this Judge discussing the Strickland v. Washington standard for ineffective assistance of counsel in language substantially similar to this section of this Report Recommendation, see, e.g., Medina v. McGinnis, 04 Civ. 2515, 2004 WL 2088578 at *20-21 (S.D.N.Y. Sept. 20, 2004) (Peck, M.J.); Smalls v. McGinnis, 04 Civ. 0301, 2004 WL 1774578 at *13-15 (S.D.N.Y. Aug. 10, 2004) (Peck, M.J.); Gillespie v. Miller, 04 Civ. 0295, 2004 WL 1689735 at *14-16 (S.D.N.Y. July 29, 2004) (Peck, M.J.); Rodriguez v.Senkowski, 03 Civ. 3314, 2004 WL 503451 at *39 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *27 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.);Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *22-24 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Maldonado v. Greiner, 01 Civ. 799, 2003 WL 22435713 at *26-28 (S.D.N.Y. Oct. 28, 2003) (Peck, M.J.); Besser v. Walsh, 02 Civ. 6775, 2003 WL 22093477 at *32-34 (S.D.N.Y. Sept. 10, 2003) (Peck, M.J.); Guzman v.Fischer, 02 Civ. 7448, 2003 WL 21744086 at *9-12 (S.D.N.Y. July 29, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *33-35 (S.D.N.Y. June 17, 2003) (Peck, M.J.);Quinones v. Miller, 01 Civ. 10752, 2003 WL 21276429 at *18-19 (S.D.N.Y. June 3, 2003) (Peck, M.J.) (citing my prior opinions);Fluellen v. Walker, 97 Civ. 3189, 2000 WL 684275 at *11 (S.D.N.Y. May 25, 2000) (Peck, M.J.), aff'd, No. 01-2474, 41 Fed. Appx. 497, 2002 WL 1448474 (2d Cir. June 28, 2002), cert. denied, 123 S. Ct. 1787 (2003).

In Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052 (1984), the Supreme Court announced a two-part test to determine if counsel's assistance was ineffective: "First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the 'counsel' guaranteed the defendant by the Sixth Amendment." Id. at 687, 104 S. Ct. at 2064; accord, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003). This performance is to be judged by an objective standard of reasonableness. Strickland v. Washington, 466 U.S. at 688, 104 S. Ct. at 2064.

Judicial scrutiny of counsel's performance must be highly deferential. It is all too tempting for a defendant to second-guess counsel's assistance after conviction. . . . A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time. . . . [A] court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstances, the challenged action "might be considered sound trial strategy."

Strickland v. Washington, 466 U.S. at 689, 104 S. Ct. at 2065 (citation omitted).

Accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2535; Bell v. Cone, 535 U.S. 685, 695, 122 S. Ct. 1843, 1850 (2002).

Accord, e.g., Bell v. Cone, 535 U.S. at 698, 122 S. Ct. at 1852; Aparicio v. Artuz, 269 F.3d 78, 95 (2d Cir. 2001); Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001).

Second, the defendant must show prejudice from counsel's performance. Strickland v. Washington, 466 U.S. at 687, 104 S. Ct. at 2064. The "question is whether there is a reasonable probability that, absent the errors, the fact finder would have had a reasonable doubt respecting guilt." Id. at 695, 104 S. Ct. at 2068-69. Put another way, the "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." Id. at 694, 104 S. Ct. at 2068.

See also, e.g., Wiggins v. Smith, 123 S. Ct. at 2542; Bell v. Cone, 535 U.S. at 695, 122 S. Ct. at 1850;Aparicio v. Artuz, 269 F.3d at 95; Sellan v. Kuhlman, 261 F.3d at 315; DeLuca v. Lord, 77 F.3d 578, 584 (2d Cir.),cert. denied, 519 U.S. 824, 117 S. Ct. 83 (1996).

"[A] reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068; accord, e.g., Wiggins v. Smith, 123 S. Ct. at 2542. The phrase "reasonable probability," despite its language, should not be confused with "probable" or "more likely than not." Strickler v. Greene, 527 U.S. 263, 289-91, 119 S. Ct. 1936, 1952-53 (1999); Kyles v. Whitley, 514 U.S. 419, 434, 115 S. Ct. 1555, 1565-66 (1995); Nix v. Whiteside, 475 U.S. 157, 175, 106 S. Ct. 988, 998 (1986) ("a defendant need not establish that the attorney's deficient performance more likely than not altered the outcome in order to establish prejudice under Strickland"); Strickland v. Washington, 466 U.S. at 694, 104 S. Ct. at 2068 ("The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome."). Rather, the phrase "reasonable probability" seems to describe a fairly low standard of probability, albeit somewhat more likely than a "reasonable possibility." Strickler v. Greene, 527 U.S. at 291, 119 S. Ct. at 1953; cf. id. at 297-301, 119 S. Ct. at 1955-58 (Souter, J., concurring dissenting) (arguing that any difference between "reasonable probability" and "reasonable possibility" is "slight").

The Supreme Court has counseled that these principles "do not establish mechanical rules." Strickland v. Washington, 466 U.S. at 696, 104 S. Ct. at 2069. The focus of the inquiry should be on the fundamental fairness of the trial and whether, despite the strong presumption of reliability, the result is unreliable because of a breakdown of the adversarial process. Id.

Any counsel errors must be considered in the "aggregate" rather than in isolation, as the Supreme Court has directed courts "to look at the 'totality of the evidence before the judge or jury.'"Lindstadt v. Keane, 239 F.3d 191, 199 (2d Cir. 2001) (quotingStrickland v. Washington, 466 U.S. at 695-96, 104 S. Ct. at 2069); accord, e.g., Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991).

The Supreme Court also made clear that "there is no reason for a court deciding an ineffective assistance claim . . . to address both components of the inquiry if the defendant makes an insufficient showing on one." Strickland v. Washington, 466 U.S. at 697, 104 S. Ct. at 2069.

Accord, e.g., Smith v. Robbins, 528 U.S. 259, 286 n. 14, 120 S. Ct. 746, 764 n. 14 (2000).

In addition, the Supreme Court has counseled that "strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. . . . In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland v. Washington, 466 U.S. at 690-91, 104 S. Ct. at 2066.

See also, e.g., Yarborough v. Gentry, 124 S. Ct. 1, 5-6 (2003); Engle v. Isaac, 456 U.S. 107, 134, 102 S. Ct. 1558, 1575 (1982) ("We have long recognized . . . that the Constitution guarantees criminal defendants only a fair trial and a competent attorney. It does not insure that defense counsel will recognize and raise every conceivable constitutional claim."); Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998) ("In reviewing Strickland claims, courts are instructed to 'indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance' and that counsel's conduct was not the result of error but derived instead from trial strategy. We are also instructed, when reviewing decisions by counsel, not to 'second-guess reasonable professional judgments and impose on . . . counsel a duty to raise every "colorable" claim' on appeal.") (citations omitted);Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir.) (a reviewing court "may not use hindsight to second-guess [counsel's] strategy choices"), cert. denied, 513 U.S. 820, 115 S. Ct. 81 (1994).

As the Second Circuit noted: "The Strickland standard is rigorous, and the great majority of habeas petitions that allege constitutionally ineffective counsel founder on that standard."Lindstadt v. Keane, 239 F.3d at 199.

2. Strickland and the AEDPA Review Standard

For purposes of this Court's AEDPA analysis, "the Strickland standard . . . is the relevant 'clearly established Federal law, as determined by the Supreme Court of the United States.'" Aparicio v. Artuz, 269 F.3d at 95 n. 8 (quoting 28 U.S.C. § 2254(d)(1)). "For AEDPA purposes, a petitioner is not required to further demonstrate that his particular theory of ineffective assistance of counsel is also 'clearly established.'"Aparicio v. Artuz, 269 F.3d at 95 n. 8. "For [petitioner] to succeed, however, he must do more than show that he would have satisfied Strickland's test if his claim were being analyzed in the first instance, because under § 2254(d)(1), it is not enough to convince a federal habeas court that, in its independent judgment, the state-court decision applied Strickland incorrectly. . . . Rather, he must show that the [First Department] applied Strickland to the facts of his case in an objectively unreasonable manner." Bell v. Cone, 535 U.S. at 698-99, 122 S. Ct. at 1852; see also Yarborough v. Gentry, 124 S. Ct. 1, 4 (2003).

See also, e.g., Wiggins v. Smith, 123 S. Ct. 2527, 2535 (2003); Bell v. Cone, 535 U.S. 685, 698, 122 S. Ct. 1843, 1852 (2002); Sellan v. Kuhlman, 261 F.3d at 315.

B. Kanani's Claims of Ineffective Trial Counsel Should Be Denied

In his habeas petition, Kanani alleges that his trial counsel was ineffective for failing to find an appropriate expert, failing to protest Kanani's allegedly vindictive sentence which consequently barred appellate review, making an erroneous statement in his opening, and failing to mount a defense due to an overall unfamiliarity with the case. (Pet. ¶ 12(E); see also Kanani Traverse Aff. at 2; Kanani Traverse Br. at 11-12.) These claims should be denied.

For the analysis of Kanani's ineffective assistance of trial counsel claim with regard to failure to object to his sentence, see Point IV above. Furthermore, while the First Department found Kanani's vindictive sentence claim to have been procedurally barred for failure to object, it also found that were it to review the claim, it would have found that the trial judge properly exercised his discretion. (See page 16 above.) Thus, even if trial counsels' performance in this regard was deficient, Kanani could not show prejudice, thus failing the second Strickland prong. See, e.g., Waters v.McGuiness, No. 99-CV-0615, 2003 WL 21508318 at *3 (E.D.N.Y. June 16, 2003) (Weinstein, D.J.) ("The Appellate Division reached the merits of the claim on direct appeal and held that the verdict was legally sufficient to establish guilt beyond a reasonable doubt and that it was not against the weight of the evidence. Even if counsel was ineffective for failing to preserve the claim, therefore, petitioner was not prejudiced because the Appellate Division entertained the claim and rejected it on the merits."). aff'd, No. 03-2463, 99 Fed. Appx. 318, 2004 WL 1157732 (2d Cir. May 25, 2004); Perez v. Keane, 95 Civ. 2640, 1996 WL 599695 at *10 n. 5 (S.D.N.Y. Oct. 17, 1996) ("Perez claims that trial counsel was ineffective for having failed to preserve certain issues for appeal. However, the Appellate Division may review unpreserved errors in the interest of justice, and indeed did so. Thus, Perez was not prejudiced by the lack of objections.") (citations omitted).

As noted above (see page 5 n. 2), counsel quickly corrected his error in opening and, in light of the strong case against Kanani, that error clearly did not prejudice him. As to Kanani's argument that to cure his opening statement error defense counsel promised that Kanani would testify, the Court notes that Kanani was not examined about his convictions or arrests (see page 5 n. 2 above), nor has he shown how he was prejudiced by testifying. Moreover, defense counsel made this promise (Tr. 42) only after consultation with Kanani, who previously had complained after his first trial that he wanted to testify but prior counsel had not let him. As Justice Brandveen noted, Kanani seems to playhis testifying as a heads I win, tails you lose scenario: after his first trial where hd did not testify, he claimed that he wanted to testify; after he testified at his second trial and still was convicted, he claims counsel's ineffectiveness forced him to testify.

1. Counsel's Alleged Failure to Call Expert Witnesses

Courts in this Circuit have made clear that "[t]he decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial." United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 958, 108 S. Ct. 357 (1987); see, e.g., United States v. DeJesus, No. 01-1479, 57 Fed. Appx. 474, 478, 2003 WL 193736 at *3 (2d Cir. Jan. 28, 2003) ("A trial counsel's 'decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial.' United States v.Smith, 198 F.3d 377, 386 (2d Cir. 1999). Because of this inherently tactical nature, the decision not to call a particular witness generally should not be disturbed." Counsel's decision not to call a character witness was grounded in strategy and not deficient, "even though [defendant] requested that she do so and provided her with contact information for potential witnesses."),cert. denied, 123 S. Ct. 2110 (2003).

Accord, e.g., Rodriguez v. Senkowski, 03 Civ. 3314, 2004 WL 503451 at *41 (S.D.N.Y. Mar. 15, 2004) (Peck, M.J.); Gomez v. Duncan, 02 Civ. 0846, 2004 WL 119360 at *31 (S.D.N.Y. Jan. 27, 2004) (Peck, M.J.); Montalvo v. Annetts, 02 Civ. 1056, 2003 WL 22962504 at *25 (S.D.N.Y. Dec. 17, 2003) (Peck, M.J.); Skinner v. Duncan, 01 Civ. 6656, 2003 WL 21386032 at *37 (S.D.N.Y. June 17, 2003) (Peck, M.J.).

See also, e.g., United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002) ("A failure to call a witness for tactical reasons of trial strategy does not satisfy the standard for ineffective assistance of counsel."), cert. denied, 123 S. Ct. 1949 (2003); United States v. Luciano, 158 F.3d 655, 660 (2d Cir. 1998), cert. denied, 526 U.S. 1164, 119 S. Ct. 2059 (1999); United States v. Schmidt, 105 F.3d 82, 90 (2d Cir.),cert. denied, 522 U.S. 846, 118 S. Ct. 130 (1997); Nieves v.Kelly, 990 F. Supp. 255, 263-64 (S.D.N.Y. 1997) (Cote, D.J. Peck, M.J.); Rodriguez v. Mitchell, 92 Civ. 2083, 1993 WL 229013 at *3, 5 (S.D.N.Y. June 24, 1993) ("Counsel's decision not to call a witness, if supported by valid tactical considerations, does not constitute ineffective assistance of counsel.").

More importantly, "[g]enerally, the decision whether to pursue a particular defense is a tactical choice which does not rise to the level of a constitutional violation. . . . [T]he habeas court 'will not second-guess trial strategy simply because the chosen strategy has failed . . .,' especially where the petitioner has failed to identify any specific evidence or testimony that would have helped his case if presented at trial." Jones v.Hollins, 884 F. Supp. 758, 765-66 (W.D.N.Y. 1995) (citations omitted), aff'd, No. 95-2279, 89 F.3d 826 (table), 1995 WL 722215 (2d Cir. Nov. 30, 1995); accord, e.g., Gomez v.Duncan, 2004 WL 119360 at *31; Montalvo v. Annetts, 2003 WL 22962504 at *26 ( cases cited therein); Skinner v. Duncan, 2003 WL 21386032 at *37; see, e.g., United States v. Vegas, 27 F.3d 773, 777-78 (2d Cir.), cert. denied, 513 U.S. 911, 115 S. Ct. 284 (1994);Lawson v. Caspari, 963 F.2d 1094, 1096 (8th Cir. 1992) (counsel not ineffective for failing to call alibi witnesses he did not believe were credible, especially where counsel "presented a theory of the case by pointing out the 'weaknesses in the state's case and rais[ing] serious questions about the credibility of the state's sole eyewitness.'"); Harris v.Hollins, 95 Civ. 4376, 1997 WL 633440 at *6 (S.D.N.Y. Oct. 14, 1997) (counsel not ineffective for not securing alibi witnesses where counsel presented a vigorous defense).

See also, e.g., LaFrance v. Mitchell, 93 Civ. 0804, 1996 WL 741601 at *2 (S.D.N.Y. Dec. 27, 1996) ("It is quite evident that the decision to omit this [alibi] defense was a sound one and that the basis for an effective alibi defense simply did not exist."); Johnson v. Mann, 92 Civ. 1909, 1993 WL 127954 at *1 (S.D.N.Y. Apr. 20, 1993) (counsel not ineffective for strategic decision to attack identification of petitioner rather than to rely on an "inherently suspect" alibi defense);Munoz v. Keane, 777 F. Supp. 282, 288-89 (S.D.N.Y. 1991) ("Given the overwhelming evidence that [petitioner] participated in the drug transaction at issue, it was reasonable for defense counsel to conclude, as a strategic matter, that presenting testimony of the alleged alibi witnesses would be damaging to [petitioner's] case."), aff'd sub nom. Linares v.Senkowski, 964 F.2d 1295 (2d Cir.), cert. denied, 506 U.S. 986, 113 S. Ct. 494 (1992); Minor v. Henderson, 754 F. Supp. 1010, 1017-18 (S.D.N.Y. 1991) (counsel not ineffective for tactical choice not to present alibi defense where evidence petitioner believed supported such defense did not exist);Buitrago v. Scully, 705 F. Supp. 952, 954 (S.D.N.Y. 1989) (counsel not ineffective for failing to present alibi witness where petitioner fails to show witness would provide alibi).

Kanani's trial counsel did, in fact, attempt to call an expert witness in the area of sexual abuse, Dr. Underwager. However, the trial judge granted the prosecution's motion to bar Dr. Underwager from testifying, holding, inter alia, that any such testimony would have been within the knowledge of the jury. (See page 11 above.) Defense counsel can hardly be faulted for the lack of an expert witness who was precluded from testifying by the court.

Kanani also asserts that counsel was constitutionally ineffective for failing to call an expert in virology, and present expert evidence that Kanani tested negative for chlamydia. (Kanani Traverse Br. at 15-16.) Kanani argues that the testimony of the prosecution's virology expert, Dr. Munk, was "extremely damaging" and that his counsel "made no effort to contradict this expert or his opinion; neither by calling another expert in virology for the defense, nor by introducing an undisputable evidence that [Kanani] was never infected with Chlamydia." (Id. at 15.) Kanani bolsters this argument with the fact that he tested negative for chlamydia (id. Ex. A thereto) and that counsel failed to submit the test into evidence, and that during his first trial Dr. Munk had previously testified that "once a person [is] infected with the virus, s/he will always test positive." (Kanani Traverse Br. at 16.) Kanani adds that the defense expert in virology from his first trial had a "totally different finding" from Dr. Munk, and therefore his attorney had a duty at least to recall the expert from the first trial. (Id. at 17.)

The three Second Circuit opinions on point demonstrate that effective assistance of counsel in child sexual abuse cases is perhaps even more demanding than defending other claims. In Eze v. Senkowski, 321 F.3d 110 (2d Cir. 2003), Judge Katzmann stressed the importance of a strong defense in child sexual abuse cases:

The sexual abuse of children is heinous beyond words. It is intolerable as it is reprehensible. For that reason, justice demands that the perpetrators of such conduct be prosecuted to the fullest extent of the law, and that the penalties be appropriately severe for those whose actions are so destructive of young lives.

The prosecution of child sexual abuse cases is challenging. With third-party witnesses often unavailable, these cases frequently hinge on judgments about credibility in which jurors must choose between contradictory stories proffered by the defendant and the complainants. Just as the complainants are entitled to effective advocacy, so too are those charged, especially given the consequences of conviction. Thus, we have underscored the importance of effective representation for defendants in child sexual abuse prosecutions. See generally Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001). The teaching of the law in this Circuit is that defense counsel is obliged, wherever possible, to elucidate any inconsistencies in the complainant's testimony, protect the defendant's credibility, and attack vigorously the reliability of any physical evidence of sexual contact between the defendant and the complainant.

Eze v. Senkowski, 321 F.3d at 112 (emphasis added). The Second Circuit vacated and remanded that district court's denial of the habeas petition on ineffective assistance of counsel grounds, finding that (1) it was undisputed that defense counsel did not question the basis of the prosecution's expert's conclusions; and (2) there was no indication that defense counsel called a medical expert to testify. Id. at 128.

In Pavel v. Hollins, 261 F.3d 210 (2d Cir. 2001), the defendant, also charged with sexually abusing his children, was found to have ineffective assistance of counsel because his attorney did not even prepare a defense, but "planned to move to dismiss the charges against [petitioner] at the close of the prosecution's presentation of its evidence, and was confident that the trial judge would grant the motion." Id. at 211-12. The Second Circuit stated that defense counsel's failure to call a medical expert added to his deficiencies, and that where cases become "credibility contests," medical evidence is crucial:

This case is substantially similar to Lindstadt [v. Keane, 239 F.3d 191 (2d Cir. 2001)]. Both cases were essentially "credibility contests": In both cases, the only witnesses to the alleged abuse were its victims and the defendant, and there was no substantial circumstantial evidence of abuse. When a sex abuse case boils down to such a "credibility contest," physical evidence will often be important. Indeed, "many" sex abuse cases are "close . . . on the evidence," and when a case hinges all-but-entirely on whom to believe, an expert's interpretation of relevant physical evidence (or the lack of it) is the sort of "neutral, disinterested" testimony that may well tip the scales and sway the fact-finder. Because of the importance of physical evidence in "credibility contest" sex abuse cases, in such cases physical evidence should be a focal point of defense counsel's pre-trial investigation and analysis of the matter. And because of the "vagaries of abuse indicia," such pre-trial investigation and analysis will generally require some consultation with an expert.

Pavel v. Hollins, 261 F.3d at 224 (citations omitted).

See also, e.g., Gersten v. Senkowski, 299 F. Supp. 2d 84, 105 (E.D.N.Y. 2004) (Weinstein, D.J.) (Counsel found constitutionally ineffective for failing to "consult a medical expert or otherwise educate himself about the physical indicia of sexual abuse;" petitioner presented doctor's affidavit in connection with habeas petition.); Miller v. Senkowski, 268 F. Supp. 2d 296, 311-12 (E.D.N.Y. 2003) (Petition granted where counsel never retained expert services and cross-examination of prosecution's medical expert not enough to "cure the error of failing to seek a competing expert opinion."); Spencer v.Donnelly, 193 F. Supp. 2d 718, 734 (W.D.N.Y. 2002) (Where petitioner's criminal trial was a case of "underwhelming evidence," trial counsel was ineffective because there was "no evidence that trial counsel contacted an expert either to testify or at least to educate her on the vagaries of abuse indicia.");Sparman v. Edwards, 26 F. Supp. 2d 450, 453 (E.D.N.Y. 1997) (Trial counsel ineffective for failing to introduce medical evidence and testimony that could have exonerated petitioner.),aff'd, 154 F.3d 51 (2d Cir. 1998); but cf. Williams v.Goord, 277 F. Supp. 2d 309, 320 (S.D.N.Y. 2003) (Habeas petition denied where "trial counsel's decision not to call as witnesses these experts [doctors who had examined the witness] does not constitute ineffective assistance because the decision was part of counsel's trial strategy."); Hobot v. McGuiness, No. 96-CV-4324, 1998 WL 642705 at *4-6 (E.D.N.Y. Sept. 16, 1998) (Trial counsel's failure to use medical report of general practitioner who examined child sexual abuse victims did not constitute ineffective assistance where petitioner could not show prejudice.).

While a close call, several factors lead the Court to uphold the state court's decision that Kanani's trial counsel was not ineffective. First, the record shows that trial counsel did in fact seek out a virology expert to testify on behalf of Kanani: "The trial counsel tendered a third expert witness to review the medical evidence, but that witness chose not to testify for the defense." (Danburg Aff. Ex. J: 9/10/02 Justice Brandveen Order at 4; see also S. 21: "There was a defense expert Robert Faye, F-A-Y-E, who is a rather prominent New York medical expert who did come and examine the physical evidence in this case. . . ."; Kanani Traverse Br. Exs. D E: Letters referring to "Dr. Robert Faye, hired by [Kanani's] attorney to evaluate the medical evidence in [Kanani's] case.) Secondly, during the direct examination of Dr. Munk, the prosecution elicited questions about a negative chlamydia result:

Q. [A] person who tested negative for chlamydia, who was a suspect for having infected [Complainant 2], the fact that that person tested negative for chlamydia is would not rule that person out as a suspect?

A. I would like to say I don't use the term negative. I use the term failed to reveal the presence of and a lot of laboratory tests fail to reveal the presence of an organism, even if they do the best job they can for all the reasons we discussed, so that nobody is eliminated from doubt or suspicion based on a non finding.

(Munk: Tr. 307-08.) Kanani's trial attorney extensively cross-examined Dr. Munk based on, among other things, studies conducted by Margaret Hammerschlag, the defense's medical expert in Kanani's first trial. (Tr. 320-30.) Review of the transcript demonstrates that counsel's strategy in regards to Kanani's chlamydia status was to show that Dr. Munk never tested Kanani:

Q. And in connection with this particular case, Doctor Munk, you never did any kind of test whatsoever for Behrooz Kanani, would that be fair to say?

A. I don't know the name.

Q. Who would be the father of the children involved in this case.

A. If that's the case, I don't — I'm not recalling that name.

(Munk: Tr. 320.) Defense counsel also established through Dr. Monk that only one of the two children tested positive for chlamydia (Monk: Tr. 319-20) — despite the prosecution case that both children were sexually abused by Kanani. Kanani's trial counsel continued by asking Dr. Monk about positive versus negative findings in chlamydia testing.

The trial judge, who was in he best position to judge defense counsel's performance, noted that counsel was prepared to cross-examine the prosecution's expert:

It is apparent that trial counsel was prepared to challenge the prosecution's expert witnesses. During the first trial, [prior] trial counsel had Dr. Margaret Hammerschlag, [a] local expert in chlamydia. At the second trial, the trial counsel often referred to Dr. Hammerschlag's writings and studies while cross-examining the prosecution's medical expert.

(Danburg Aff. Ex. J: 9/10/02 Justice Brandveen Order at 4.) Thus, in this case, unlike the Eze line of cases, while defense counsel did not call a virology expert, he had done his homework and was prepared to and did effectively cross-examine the prosecution's expert.

Based upon Dr. Monk's testimony, the additional evidence Kanani believes to be exculpatory — his negative test result for chlamydia — would not likely have altered the outcome of the case. Indeed, Kanani was found guilty of all charges in his first trial, where a virology expert testified on his behalf.

Defense counsel's (unsuccessful) efforts to obtain an expert combined with his knowledgeable cross-examination of the prosecution's expert, taken together with all the other evidence presented against Kanani (including testimony from his two now adult daughters, letters he wrote that admitted his guilt, testimony from Kanani's past girlfriend that corroborated the children's testimony), in light of the highly deferential AEDPA review standard and Strickland standard of deference to trial counsel's strategy, lead the Court to conclude that Kanani's habeas claim that trial counsel was ineffective for not calling expert witnesses should be denied. 2. Counsel's Alleged Failure to Mount a Defense

Kanani asserts in his petition that his trial counsel "was so unfamiliar with the facts of the case, that no defense is mounted in this case." (Pet. ¶ 12(E).) This claim is unclear to this Court, but appears in context to be the introduction to Kanani's claim that counsel failed to call an expert witness, which claim was addressed immediately above.

If Kanani's claim goes beyond investigating those supposed expert witnesses, it still fails. In Strickland, the Supreme Court specifically addresses the issue of investigations: "In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments." Strickland, 466 U.S. at 691, 104 S. Ct. at 2066. Kanani does not set forth what trial counsel failed to investigate and in what way this amounted to less than reasonable assistance of counsel. "Because this claim is merely a conclusory allegation, [Kanani] has failed to establish that his counsel's performance was deficient. [Kanani's] bald assertion that counsel should have conducted a more thorough pretrial investigation fails to overcome the presumption that counsel acted reasonably."Matura v. United States, 875 F. Supp. 235, 237 (S.D.N.Y. 1995); accord, e.g., Boyd v. Hawk, 965 F. Supp. 443, 452 (S.D.N.Y. 1997) (Batts, D.J. Peck, M.J.).

Moreover, the record indicates that defense counsel did investigate and talk to witnesses before trial. The prosecutor represented as much, based on what the witnesses told the prosecutor:

Your Honor, Mr. Verchick as the defendant's attorney made long efforts and valiant efforts to get people to cooperate with him on the defendant's behalf. He interviewed and contacted members of the victims' families, he interviewed and contacted members of the defendant's families. And I know this because these people have come back and told me this.

(S. 21.)

Furthermore, due to the overwhelming evidence of Kanani's guilt, it is unlikely that additional investigation would have affected the outcome of the trial. See, e.g., Boyd v.Hawk, 965 F. Supp. at 452; Stubbs v. Thomas, 590 F. Supp. 94, 101 (S.D.N.Y. 1984) (although court-appointed investigator's performance was sub-standard, due to overwhelming evidence of guilt there was no "reasonable probability that absent the investigative errors, the fact finder would have had a reasonable doubt respecting guilt."); see also, e.g., Jones v.Hollins, 884 F. Supp. 758, 766 (W.D.N.Y.) (ineffective assistance of counsel not proven where petitioner fails to show that result of trial would have been different if counsel had further investigated defendant's claim of self-defense), aff'd mem., No. 95-2279, 1995 WL 722215 (2d Cir. Nov. 30, 1995).

The Court notes that defense counsel was admonished at least twice by Justice Brandveen for not being as prepared as he should have. Nevertheless, Justice Brandveen unequivocally stated that he "kept observing the defense counsel throughout the entire course of this trial, and at no time was this defense counsel ever ineffective. . . . [H]e zealously advocated on behalf of the defendant in every aspect of this case." (S. 24.) On the whole, therefore, the Court finds that defense counsel was not ineffective. More importantly, this Court cannot say that the state court's decision denying Kanani's ineffective assistance claim constituted an unreasonable application of the Supreme Court's Strickland standard.

CONCLUSION

For the reasons set forth above, Kanani's habeas petition should be DENIED. Because of the Eze line of cases, a certificate of appealability should be issued limited to the issue of ineffective assistance of counsel for failure to call a virology expert. In all other respects, a certificate of appealability should be denied.

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections (and any responses to objections) shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable P. Kevin Castel, 500 Pearl Street, Room 2260, and to my chambers, 500 Pearl Street, Room 1370. Any requests for an extension of time for filing objections must be directed to Judge Castel. Failure to file objections will result in a waiver of those objections for purposes of appeal. Thomas v. Arn, 474 U.S. 140, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v.Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 115 S. Ct. 86 (1994); Roldan v. Racette, 984 F.2d 85, 89 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 113 S. Ct. 825 (1992);Small v. Secretary of Health Human Servs., 892 F.2d 15, 16 (2d Cir. 1989); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983); 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72, 6(a), 6(e).

Kanani v. Phillips

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

ANALYSIS

CONCLUSION

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Kanani v. Phillips

Kanani v. Phillips

Case Details

Citations

Citing Cases

Kanani v. Phillips

Summary

Opinion

REPORT AND RECOMMENDATION

FACTS

ANALYSIS

CONCLUSION

FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION

Kanani v. Phillips

Kanani v. Phillips

Case Details

CitationsCopy Citation

Citing Cases

Citations