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March 28, 2000


The opinion of the court was delivered by: Buchwald, District Judge.


Petitioner, Jeffrey Washington ("Washington") brings this habeas petition pursuant to 28 U.S.C. § 2254 seeking to overturn his 1993 conviction in Bronx County Supreme Court for one count of rape in the first degree, N.Y. Penal Law § 130.35(3); one count of sodomy in the first degree, N.Y. Penal Law § 230.50(3); and two counts of sexual abuse in the first degree, N.Y. Penal Law § 130.65(3). In brief, petitioner was convicted of raping his then five-year-old daughter, largely on the basis of his daughter's testimony. Petitioner contends that the judge that presided over his trial denied him his federal constitutional right to call witnesses and present a defense by excluding the testimony of petitioner's proposed expert witness, who would have testified to the suggestibility of child witnesses, such as petitioner's daughter.

The Court, having received the Report and Recommendation ("Report") of United States Magistrate Judge Henry B. Pitman, dated January 27, 2000; the objections filed by petitioner ("Obj."), dated February 9, 2000; and the submission of respondent ("Resp.") dated February 25, 2000; having heard oral argument on March 10, 2000; and having conducted a de novo review of the record, accepts and adopts the Magistrate's Report, except with respect to the issuance of a certificate of appealability pursuant to 28 U.S.C. § 2253. We write to respond to petitioner's objections and to supplement the challenged portions of Judge Pitman's analysis. Familiarity with the facts described in the Report is assumed. See, generally, Report at 2-8.


Petitioner objects to Judge Pitman's Report on two grounds. First, petitioner argues that Judge Pitman incorrectly applied a deferential standard of review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Second, petitioner argues that Judge Pitman did not apply the correct constitutional analysis. Neither argument is availing.

A. Standard of Review

First, petitioner contends that because the state court did not rule on the evidence issue raised in this case in constitutional terms, it did not decide the issue on the "merits," and thus that the decision should be reviewed de novo to determine whether it is "contrary to" clearly established federal law, instead of being reviewed under the more deferential "reasonable application" standard. Obj. at 2-3. See also Smalls v. Batista, 191 F.3d 272, 278 (2d Cir. 1999) (noting the differing applications of the two standards). In the final analysis, federal habeas review must be governed by the holding of the state court — not the form of its articulation. See, e.g., Arizona v. Evans, 514 U.S. 1, 7-8, 115 S.Ct. 1185, 131 L.Ed.2d 34 (1995) (warning against the "unsatisfactory and intrusive practice of requiring state courts to clarify their decisions" by citing to federal precedents).*fn1

In any event, as Judge Pitman correctly noted, the Second Circuit has not yet determined under what circumstances each standard applies and, moreover, correctly observed that it is unnecessary to weigh in on the issue, which is pending before the Supreme Court, because "petitioner has not shown constitutional error under either standard." Report at 8-9 (citing Smalls, 191 F.3d at 278).*fn2

B. Constitutional Analysis

Petitioner challenges Judge Pitman's constitutional analysis in two respects. First, he argues that Judge Pitman "ignored overwhelming precedent throughout the country requiring admission of expert testimony on the suggestibility of childhood memory" and the "well-developed body of academic literature" documenting the phenomenon. Obj. at 6-9. Second, petitioner argues that Judge Pitman "made the very same error the state courts made" in reaching the conclusion that exclusion of the testimony did not deprive petitioner of a fair trial. Obj. at 10-12. We will address each of these objections in turn.

We are mindful that the role federal courts in habeas review is limited to determining whether a conviction violates the Constitution, laws, or treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 88, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991). Where the trial court's purported error centers around excluded evidence, petitioner must establish that the "omitted evidence creates a reasonable doubt that did not otherwise exist." United States v. Agurs, 427 U.S. 97, 112-113, 96 S.Ct. 2392, 49 L.Ed.2d 342 (1976). The reviewing federal "court's duty on a petition for habeas corpus is to determine whether the excluded testimony was material to the presentation of the defense so as to deprive the defendant of fundamental fairness." Rosario v. Kuhlman, 839 F.2d 918, 924 (2d Cir. 1988).*fn3 See also McCray v. Artuz, No. 93 Civ. 5757, 1994 WL 603057, at *2 (S.D.N.Y. Nov.3, 1994). Generally, however, an evidentiary ruling is "not a matter of federal constitutional law." Gantt v. Artuz, No. 97 Civ. 3031, 1999 WL 1206733, at *3 (S.D.N.Y. Dec.16, 1999) (citing Colon v. Johnson, 19 F. Supp.2d 112, 118 (S.D.N.Y. 1998)).

1. Constitutional Requirements

Petitioner cites an array of cases in which expert testimony comparable to his proposed expert's was found to be admissible, as well as a litany of academic literature in support of it admissibility. Obj. at 6-9. In spite of all the cases petitioner cites finding childhood suggestibility testimony to be admissible, he is unable to point to any that find a failure to do so to be constitutional error.*fn5 Moreover, in oral argument before this Court, petitioner's counsel was again unable to cite federal precedent supporting the proposition that an exclusion of this kind of testimony is constitutional error. Tr.*fn6 at 8-9. Thus, petitioner simply fails to refute Judge Pitman's conclusion that "[n]either my research, nor the parties', has disclosed any case in which the exclusion of expert testimony similar to the testimony in issue here has been found to rise to the level of constitutional error." Report at 12. In addition, it must be recalled that a defendant's right to present "expert testimony is limited by the requirements of relevancy and by the ...

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