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Jackson v. Conway

United States Court of Appeals, Second Circuit

August 14, 2014

SHAWN A. JACKSON, Petitioner-Appellee-Cross-Appellant,
JAMES T. CONWAY, Superintendent, Attica Correctional Facility, Respondent-Appellant-Cross-Appellee

Submitted May 21, 2012

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Appeals from the February 28, 2011 amended judgment of the United States District Court for the Western District of New York (Bianchini , M.J.) granting in part the petitioner's habeas corpus application. Respondent appeals from so much of the judgment as granted petitioner's application for a writ of habeas corpus and ordered his convictions conditionally vacated. Petitioner cross-appeals that portion of the judgment as denied his other grounds for habeas relief. We hold that although the district court correctly determined that the state court's rejection of Petitioner's Miranda claim was an " unreasonable application" of clearly established Supreme Court precedent, it failed to afford the state court's rejection of Petitioner's prosecutorial misconduct and ineffective assistance of counsel claims the proper deference it was entitled under the Antiterrorism and Effective Death Penalty Act.

BRIAN SHIFFRIN, Easton Thompson Kasperek Shiffrin, LLP, Rochester, NY, for Petitioner-Appellee-Cross-Appellant Shawn A. Jackson.

LESLIE SWIFT, Senior Assistant District Attorney, for Michael C. Green, Monroe County District Attorney, Rochester, NY, for Respondent-Appellant-Cross-Appellee James T. Conway.

Before: PARKER, HALL, and WALLACE,[*] Circuit Judges.


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Hall, Circuit Judge


In the pre-dawn hours of November 30, 2000, officers of the Town of Greece Police Department responded to a 911 call placed from Shawn A. Jackson's (" Jackson's" ) residence. Jackson's wife, Rebecca Jackson (" Rebecca" ), met the officers on arrival and, upon entering the house, the officers encountered Jackson's ex-wife, Karen Jackson (" Karen" ), and his fourteen-year-old

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daughter, " CJ." The three visibly upset women told the officers that Jackson had raped them each multiple times over the course of the evening and early morning. The officers woke Jackson, who was asleep on the living room couch, and transported him to police headquarters. Karen and CJ went to Rochester General Hospital for medical evaluations. From the house, the officers collected potential physical evidence, including sheets from the living room floor and from Jackson's bed.

At police headquarters, Sergeant Christopher Bittner interviewed Jackson at approximately 6:45 that morning. The sergeant initially told Jackson he was not under arrest but then formally arrested him when Jackson sought to leave the interview room. After being informed of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), Jackson invoked his right to remain silent and refused to speak with Sergeant Bittner or any other officer. The police placed him in a holding cell, where he remained until approximately 3:20 that afternoon.

At some point during the day, a member of the Town of Greece Police Department informed the Monroe County Department of Social Services, Child Protective Services (" CPS" ) about the incident. Kathy Bonisteel, a CPS caseworker, contacted Sergeant Bittner to request an interview with the victims as part of her parallel investigation into the sexual abuse allegations. Later that afternoon, Bonisteel and Town of Greece police officers interviewed Karen and CJ at police headquarters. When those interviews concluded, Bonisteel asked to speak with Jackson. Sergeant Bittner agreed and escorted Jackson from his holding cell to a table in the hallway at which Bonisteel sat. The sergeant retreated around a corner where he was out of sight of the table but within earshot of the ensuing conversation.

At the time she interviewed Jackson, Bonisteel knew that he was in custody and had refused to speak with the police. Bonisteel introduced herself as a CPS caseworker, explained her role, and asked Jackson if she could speak with him about the victims' allegations. She did not, however, inform him of his right to an attorney or give him any other warnings. Jackson agreed to speak with her.

During the interview, Jackson first detailed the nature of his relationship with Rebecca and Karen, explaining that he lived with both of them to keep all of his children together. Jackson described himself as the " alpha male" of the family. While he denied hitting either woman, he stated that both Rebecca and Karen knew " what to do" and that he was " in charge." He stated that he regularly engaged in sexual intercourse with each woman separately and, occasionally, all three had sex together. Jackson asserted that both women knew the " routine" on these latter occasions, which usually occurred in the early morning hours: Jackson would send Rebecca upstairs to wake Karen and bring her to the living room where, on a sheet spread on the floor, Jackson would engage in anal sex with Karen while she performed oral sex on Rebecca.

Jackson told Bonisteel that he began to drink around 8:00 the night of the incident, visiting several bars over the course of the evening. He also snorted several lines of cocaine. Jackson did not recall the time he arrived home, but remembered pulling into the driveway and " feeling happy that he . . . made it home safe." Jackson entered in the house where he found Rebecca sleeping on the couch. He woke her up " to get a little loving" and, the next he knew, the police were in the house. In response to Bonisteel's questions, Jackson

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repeatedly denied hurting CJ, but acknowledged the " possibility" that he may have been " so drunk that he wouldn't have remembered if he raped [her]."

Eventually, a grand jury in Monroe County, New York, charged Jackson in a 48-count indictment with numerous counts of first- and third-degree rape, first- and third-degree sodomy, first-degree attempted sodomy, third-degree assault, first-degree sexual abuse, incest, endangering the welfare of a child, and coercion. The indictment alleged that on the night of November 29-30, 2000, Jackson committed multiple acts of oral and anal sodomy against Rebecca and Karen, raped and sexually abused CJ a number of times, and committed multiple acts of incest, oral sex, and anal sodomy against CJ. It also alleged that Jackson (1) assaulted, sexually abused, and committed acts of anal sodomy against Karen in June 1999 and November 2000; (2) coerced, raped, assaulted, and committed acts of oral and anal sodomy against Rebecca in June 1999, June 2000, and November 2000; and (3) assaulted his son, " GJ," in June 1999 and January 2000.

I. Pretrial Proceedings

On March 23, 2001, County Court Judge Stephen R. Sirkin held a suppression hearing to determine the admissibility of Jackson's statements to CPS Caseworker Bonisteel. Jackson, then represented by the Monroe County Public Defender's Office, argued that Bonisteel acted as an agent of the police when she interviewed him on the day of his arrest. The trial court disagreed, concluding that Bonisteel interviewed Jackson " as part of a completely separate civil proceeding" and " did not act as a law enforcement officer or an agent of a law enforcement officer." The court held that, as a " child protective worker," Bonisteel was not required to give Jackson Miranda warnings and, therefore, his statements to her were admissible at trial.

One week before the scheduled trial date, the State notified Jackson of its intent to call Tony Arnold--a jailhouse informant also represented by the Public Defender's Office. This resulted in a conflict that disqualified the Public Defender's Office from the case and necessitated the appointment of a new defense attorney, Joseph D'Amelio. Upon his appointment, D'Amelio informed the court at an April 23, 2001 conference that he needed one month to prepare for trial. After the court suggested a start date of June 18, D'Amelio instead proposed May 29 and the court scheduled trial accordingly. At some point before trial, the State furnished the defense with a letter stating that it would not call an expert medical witness at trial.

On the date of trial, County Court Judge Peter E. Corning--the third judge assigned to the case--ruled on the State's intended introduction of Jackson's various prior acts and threats of violence against his family members that occurred between 1983 and 2000. Over defense counsel's objection, the court held that such evidence could be admitted to prove the element of forcible compulsion as to the charged rapes, but ruled that the State would be limited to acts that occurred " subsequent to 1994," because any acts before then were " too remote."

II. Trial

A. Opening Statements

Assistant District Attorney (" ADA" ) Cara M. Briggs theorized in her opening statement that Jackson used physical violence and threats of violence to exert control over his family and to force Rebecca and Karen to satisfy his sexual proclivities. Briggs alluded to the testimony the jury would hear from Karen, Rebecca, and CJ

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about the sexual and physical abuse they suffered at the hands of Jackson on the night of November 29-30, 2000, as well as on a number of previous occasions. The witnesses' testimony, Briggs asserted, would expose Jackson " as a twisted, sadistic man who delighted in controlling the members of his very own family to the point that he abused them constantly."

The defense theory of the case was straightforward: the State would not present any physical evidence of the alleged sexual and physical abuse, and the witnesses fabricated their testimony. Defense counsel highlighted that although the police collected several sheets and the victims' clothing for testing, the jury would not hear the results of those tests.

B. State's Trial Evidence

The trial evidence is extensively described in the district court's opinion, see Jackson v. Conway, 765 F.Supp.2d 192, 205-29 (W.D.N.Y. 2011), and we reproduce it here only as necessary for our decision.

1. Testimony of Karen, Rebecca, and CJ

Karen and Rebecca told the jury about the nature of their relationship with Jackson, described previous instances of physical and sexual abuse, and gave their accounts of the events of the night of November 29-30, 2000. Karen married Jackson in 1983 and divorced him in 1990, although she continued a relationship with him thereafter. Jackson left Karen's house after the divorce but moved back several months later with Rebecca, whom he married in 1991. From at least 1995 onwards, the three regularly participated in sexual activity together. The State elicited from Rebecca that, shortly after the three began living together, Jackson raped Karen, causing her to become pregnant with a daughter.[1]

Both women described Jackson as controlling and physically abusive. He routinely threatened to kill Karen or injure members of her family if she left him and he hit Rebecca when she disobeyed his orders. In June 1999, Jackson beat and strangled Karen until she lost consciousness. When she woke, he proceeded to engage in oral and anal sex with her.[2] That same month, Jackson became angry with Rebecca, cut her shorts, removed her underwear, and forced her to walk down several city streets in that condition while calling her a " prostitute." [3] Approximately one year later, in June 2000, Jackson punched Rebecca in the mouth, knocking out one of her teeth.[4] Jackson hit Rebecca again several days later when she complained about her tooth and then had oral, anal, and vaginal sex with her multiple times.[5] Two days before the events that led to his arrest, Jackson forced Rebecca and Karen to perform numerous sexual acts.[6] In the process, Jackson squeezed

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Rebecca's throat, nearly causing her to lose consciousness.[7]

The women testified that on the night of November 29-30, 2000, Jackson returned home drunk and told Rebecca, who was on the couch, to retrieve Karen from the upstairs bedroom she shared with CJ. When the women returned to the living room, Jackson had them disrobe and spread a sheet on the floor. After directing each woman to perform oral sex on him, Jackson had anal sex with Karen. Several minutes later, Jackson left the living room and went upstairs. CJ testified that she had been sleeping in her upstairs bedroom when Jackson woke her and took her to his bedroom. There, he placed her onto the bed, touched her breasts, and had both vaginal and anal sex with her.[8] He then returned to the living room, where he again made Rebecca perform oral sex on him before attempting to have anal sex with Karen.

Jackson repeated this cycle of going upstairs to CJ and then returning to Karen and Rebecca in the living room two additional times. The three women testified that, over the course of the entire evening, Jackson made Rebecca perform oral sex on him three times, had anal sex with Karen once and attempted to have anal sex with her twice, and had vaginal sex with CJ " [a]t least twice" and anal sex with her two times.[9] According to Karen, Jackson had difficulty maintaining an erection--while he was " [s]omewhat" erect the first time he had anal sex with her, he was not able to fully penetrate her on the latter two occasions. CJ did not know whether Jackson ejaculated that night. The women complied with Jackson's demands because they were frightened he would become violent if they refused. When Jackson finally fell asleep, Rebecca called the police.

Later, at Rochester General Hospital, medical personnel examined Karen and CJ, taking samples of their pubic hair and swabs of their vaginal and anal areas that they placed into sexual assault kits. Neither Karen nor CJ complained of any injuries to their vaginal or anal areas, although Karen " always felt like there were cuts" around her anus. At the time of the incident, CJ was menstruating--she put on a sanitary napkin before she went to bed and wore the same one to the hospital. The State introduced two of CJ's medical reports prepared at Rochester General Hospital on November 30, 2000. The first, prepared by Dr. Everett, indicated that a gynecological examination " reportedly" showed the presence of an " irritation at the introitus," or vaginal opening. The second, a sexual assault form prepared by Dr. Thompson, indicated that CJ had no bruises on her body or lacerations in her vaginal area. Dr. Thompson noted, however, the existence of an " abrasion" on CJ's " introitus" and the presence of " old blood in vault."

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2. Dr. Ann Lenane

Dr. Ann Lenane was an emergency physician at the University of Rochester who worked in the Child Abuse Program. Defense counsel objected as she took the stand, explaining that he believed the State was about to breach its pretrial written representation that it would not elicit expert testimony. ADA Briggs conceded that she had made such a representation, but argued that the defense had subpoenaed the relevant medical records and, as a result, should have been on notice that the State would likely introduce the testimony of a " doctor or a sexual assault nurse examiner." The court stated that Dr. Lenane was entitled to testify about her findings and conclusions made " as a treating physician," but that, due to the lack of notice, the State could not allow her testimony to " escalate" into expert opinion. After ADA Briggs assured the court that she would not elicit from Dr. Lenane any " hypothetical[s]" or " theories," the court permitted the doctor to testify " [a]s a treating physician."

Upon retaking the stand, Dr. Lenane described the findings contained in CJ's medical report:

The relevant physical findings that [CJ] had when she was examined were mainly an abrasion, on the written notes they said [it] was at the introitus, and when they circled on the diagram where that was, it is in the area of the genitalia that is just below the hymen and above the rectal area . . . . The other finding that ...

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