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Schroo v. Lavalley

United States District Court, W.D. New York

January 7, 2015

JEREMY J. SCHROO, Petitioner,
v.
THOMAS LAVALLEY, SUPERINTENDANT, CLINTON CORRECTIONAL FACILITY, Respondent.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

INTRODUCTION

Petitioner Jeremy J. Schroo ("Petitioner"), an inmate confined at the Clinton Correctional Facility in Dannemora, New York, has timely petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Dkt. 1). On October 26, 2009, Petitioner was convicted in Yates County Court of two counts of sexual abuse in the first degree, two counts of endangering the welfare of a child, and one count of course of sexual conduct against a child in the first degree, and sentenced to 25 years incarceration. ( Id. at 2). Petitioner seeks a writ of habeas corpus on the ground that his appellate counsel provided ineffective legal assistance. ( Id. at 6). For the reasons set forth below, habeas relief is denied and the petition is dismissed.

BACKGROUND AND PROCEDURAL HISTORY

On March 10, 2006, indictment no. 08-65 was filed in Yates County Court, charging Petitioner with two counts of sexual abuse in the first degree, two counts of endangering the welfare of a child, and one count of course of sexual conduct against a child in the first degree. (Dkt. 5-2 at 14). These charges stemmed from a report made on August 27, 2008, by the mother of "Child 1"[1] ( Id. at 62). Child 1 was born on June 30, 2002, and was friends with Petitioner's daughter "Child 2", who was nine years old in August 2008. ( Id. at 64). Child 1 and her sister visited Child 2 and spent the night at Petitioner's house on both August 25, 2008, and August 26, 2008. ( Id. ). Child 1 reported to her mother, and then to the Yates County Sheriff's department, that while she was at Petitioner's house, Petitioner laid down on a couch with her, removed her clothing and his pants, and put his penis between her legs and touched her genitals. ( Id. ). Child 2 also subsequently alleged that her father, Petitioner, had sexually abused her. (Dkt. 1-4 at 4-7).

Petitioner was tried in Yates County Court, beginning on July 27, 2009. (Dkt. 1-2 at 2). For purposes of this Decision and Order, the Court need not recount all the testimony that was presented at trial. Instead, the Court summarizes those portions of the testimony that are relevant to the claims raised in the petition.

Child 2 was the prosecution's second witness. (Dkt. 1-3 at 42). Child 2 testified that during the final period of time she spent at Petitioner's house, Child 1 and Child 1's sister came to stay for two nights. ( Id. at 46-47). Child 2 testified, over defense counsel's objection, that she and Child 1's sister were outside playing while Child 1 was inside with Petitioner, and that when they returned to the house, Child 1 joined them in Child 2's bedroom and told them that Petitioner had put his penis by her vagina. (Dkt. 1-3 at 47-50, Dkt. 1-4 at 1-3). Child 2 also testified that she stayed some nights at Petitioner's house while Child 1 and her sister were not there, that she slept in her father's bed, and that he put his hands down her pants and touched her vagina. (Dkt. 1-4 at 4-5). Child 2 testified that she was in the first grade the first time Petitioner sexually abused her and that he continued to do so while she was in the second grade. ( Id. at 4). Child 2 also testified that Petitioner had licked her vagina while she was in the second grade. ( Id. at 4-5). Child 2 did not reveal this abuse when she was asked about it by Yates County Sheriff's Investigator Michael Christensen. ( Id. at 6-7). Instead, Child 2 disclosed the abuse to her mother after her mother read her a book called "My Body is Mine." ( Id. at 7). Child 2 testified that she did not initially reveal the abuse because Petitioner had told her that if she ever told anyone about it, he would go to jail. ( Id. at 8).

On cross-examination, Child 2 testified that on the night Child 1 told her about Petitioner's sexual abuse, she slept on the living room floor with Child 1 and her sister. (Dkt. 1-4 at 45). Child 2 further testified that she got up in the middle of the night and went into Petitioner's room. ( Id. at 46).

After Child 2 testified, the prosecution called Edith Mann as an expert witness. (Dkt. 1-5 at 9). Defense counsel objected and asked the court to preclude the testimony on the basis that he had not been given notice that the prosecution was going to call an expert witness to testify about child sexual abuse accommodation syndrome ("CSAAS"). ( Id. at 10). Defense counsel alternatively requested an open-ended adjournment so that he could "get [his] own expert and notify the government of that expert's testimonies and qualifications so that [he] could contradict or at least challenge the testimony of this particular expert." ( Id. at 11). When the prosecutor explained that no notice was required under New York law because Ms. Mann had never examined or treated the victims and was not going to testify to a diagnosis or a diagnostic finding, defense counsel raised an additional objection on the basis of relevancy. ( Id. at 12-13). The court denied defense counsel's objections. ( Id. at 13-14). Defense counsel then informed the trial court that he "would be prepared to cross-examine" Ms. Mann "now that [he'd] received notice that this witness is going to testify to the syndrome specifically." ( Id. at 14). The trial court granted defense counsel's request to adjourn the cross-examination of Ms. Mann to the following day to permit counsel to review his materials and prepare his cross-examination. ( Id. at 15).

Ms. Mann testified that she was the executive director of Safe Harbors of the Finger Lakes, Inc., and a licensed clinical social worker. ( Id. at 16). She then testified about the history of CSAAS, explained that it was a tool for understanding child victims of sexual abuse, and described the categories of CSAAS. ( See id. at 20-39). On cross-examination, defense counsel discussed the history, uses, and misuse of CSAAS evidence and elicited from Ms. Mann that the individual who originally identified CSASS had "indicated quite clearly in [a 1992] article that the syndrome he created had, in fact, been misused, not only by law, in the courts, but also by practitioners in the... counseling field" and that CSAAS "had absolutely no scientific instrumentation involved whatsoever." (Dkt. 1-6 at 12-26).

The prosecution also called Child 1 as a witness after the trial court conducted voir dire to determine if she was competent to testify. ( See Dkt. 1-7 at 33-43). Child 1 testified that she had stayed overnight at Petitioner's house, that she was lying on the couch with Petitioner watching television while her sister and Child 2 played hide-and-go-seek, and that Petitioner pulled down her underwear, pulled down his own pants, put his penis between her legs and touched her genitals. ( Id. at 47-50). Child 1 further testified that after the sexual abuse, she got up, went into the bedroom where her sister and Child 2 were located, and told them what had happened. ( Id. at 50). Child 1 also testified that she told her mother what Petitioner had done the next day. (Dkt. 1-8 at 1). On cross-examination, Child 1 testified that Petitioner fell asleep after he touched her sexually and that she finished watching the television program and left the living room. ( Id. at 14-18).

Count 3 of the indictment originally alleged Petitioner sexually abused Child 2 "on or about one day during the period August 27 through August 31, 2008...." (Dkt. 5-2 at 37). At the close of proof, the prosecution moved, pursuant to New York Criminal Procedure Law § 200.70, to amend Count 3 to conform to the proof and to include August 26, 2008. ( See Dkt. 1-9 at 40-41). Defense counsel conceded that the prosecution had the right to amend, but objected on the basis that all trial decisions had been made based on the information in the indictment and the bill of particulars. ( Id. at 41-42). The trial court granted the prosecution's motion and allowed the amendment. ( Id. at 42).

Petitioner was convicted on all counts in the indictment and was sentenced to 25 years incarceration. (Dkt. 1 at 2). Petitioner appealed his conviction to the New York State Supreme Court, Appellate Division, Fourth Department. ( Id. at 3). His conviction was affirmed on direct appeal on September 30, 2011. ( Id. ). Petitioner sought review by the New York State Court of Appeals, which denied his request for leave to appeal on July 30, 2012. ( Id. ).

Petitioner filed a petition for a writ of error corim nobis with the New York State Supreme Court, Appellate Division, Fourth Department, on July 27, 2013. ( Id. at 4). In his petition, Petitioner argued that his appellate counsel had provided him with ineffective legal assistance. ( Id. ). The state appellate court denied Petitioner's petition on November 8, 2013. ( Id. ). Petitioner requested leave to appeal the denial of his petition for a writ of error coram nobis from the New York State Court of Appeals, which denied the request on January 17, 2014. ( Id. at 5).

Petitioner filed the instant petition on March 19, 2014. (Dkt. 1). Respondent filed his answer and memorandum of law on May 27, 2014, and Petitioner filed a reply memorandum on June 16, 2014. (Dkt. 5, 6).

DISCUSSION

I. Legal Standard

28 U.S.C. § 2254 "authorizes a federal court to grant a writ only where a state holds a petitioner in its custody in violation of the Constitution or laws or treaties of the United States.'" Word v. Lord, 648 F.3d 129, 131 (2d Cir. 2011) (quoting 28 U.S.C. § 2254(a)). Following the enactment of the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214 ("AEDPA"), a prisoner seeking habeas corpus relief with respect to a state court's denial of a claim can succeed only if the state court's decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States, " or "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 Burt v. Titlow, 134 S.Ct. 10, 15 (2013). "The prisoner bears the burden of rebutting the state court's factual findings by clear and convincing evidence.'" Burt, 134 S.Ct. at 15 (quoting 28 U.S.C. § 2254(e)(1)).

"AEDPA erects a formidable barrier to federal habeas relief for prisoners whose claims have been adjudicated in state court." Id. at 16. "As a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law ...


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