Argued: September 13, 2016
appeals from the judgment of the United States District Court
for the Eastern District of New York (Gleeson, J.)
granting Petitioner-Appellee's petition for a writ of
habeas corpus on the basis of ineffective assistance of
counsel. We conclude, in light of the deferential standard of
review, that the state trial court's determination that
trial counsel's conduct did not prejudice the defense was
not unreasonable. Accordingly, we VACATE the judgment of the
district court and REMAND the case for further proceedings
consistent with this opinion.
Petitioner-Appellee: Megan Wolfe Benett (Gary Farrell, on the
brief), New York, NY
Respondent-Appellant: Rhea A. Grob, Assistant District
Attorney (Leonard Joblove, Jodi L. Mandel, on the brief), for
Kenneth M. Thompson, District Attorney of Kings County,
Before: Jacobs, Parker, Livingston, Circuit Judges.
Ann Livingston, Circuit Judge
General Waiters ("Waiters") got into an argument at
the home of his then girlfriend, Jacqueline Warren
("Warren"), one Sunday morning in May 2006 which
began, as Warren testified, when she told Waiters that
he'd had "too much to drink." Trial Tr. at 399.
It ended when Waiters pulled out a revolver and fired
repeatedly at Lorenzo, Warren's adult son who had
intervened on his mother's behalf, injuring both Lorenzo
and Warren's 14-year old daughter, and killing
Warren's aunt and her aunt's three-year-old
grandchild. Following a jury trial, Waiters was convicted of
murder, attempted murder, and assault.
does not deny engaging in the conduct underlying these
crimes. Rather, he contends that his trial counsel was
ineffective for failing to call a medical expert both to
interpret-and thereby render admissible-the portion of his
medical records documenting his blood alcohol level
("BAC"), and to expound upon the effects of that
level of intoxication. With that evidence, Waiters contends,
it is reasonably likely that the jury would not have
concluded that he harbored the requisite intent to commit his
crimes. The state trial court judge who presided over
Waiters's four-day trial rejected this claim, concluding,
inter alia, that Waiters had presented nothing
"establishing that medical testimony regarding the
defendant's level of intoxication would have changed the
jury's finding." Appellant's App'x at 55.
The district court (Gleeson, J.), however, disagreed
and granted Waiters's petition for a writ of habeas
corpus on this basis.
vacate the district court's judgment and remand for
further proceedings consistent with this opinion. To
establish a Strickland claim, the likelihood of a
different result in the absence of the alleged deficiencies
in representation "must be substantial, not just
conceivable." Harrington v. Richter, 562 U.S.
86, 112 (2011); see also Strickland v. Washington,
466 U.S. 688, 693 (1984) ("It is not enough for the
defendant to show that the errors had some conceivable effect
on the outcome of the proceeding."). Here, we cannot say
with any assurance how the jury might have weighed the
proffered expert evidence of the effects of intoxication on
the average person's ability to form intent against
Waiters's own specific behavior and statements, including
his admission to Warren, about a year after the incident,
that he was "aiming after" Lorenzo (and
thus intending to shoot) because he felt that Lorenzo
"was trying to come between" them. Trial Tr. at 466
(emphasis added). We are therefore guided by the Supreme
Court's instruction that in cases like this one, governed
by § 2254(d) of the Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), the "state
court's determination that a claim lacks merit precludes
federal habeas relief so long as 'fairminded jurists
could disagree' on the correctness of the state
court's decision." Harrington, 562 U.S. at
101 (quoting Yarborough v. Alvarado, 541 U.S. 652,
664 (2004)). Here, the state trial court's determination
that Waiters failed to establish prejudice was not
unreasonable; it was not so lacking in justification as to be
"beyond any possibility for fairminded
disagreement." Id. at 103. The district court
accordingly erred in second-guessing that determination and
substituting its own judgment for that of the state court.
The Offense Conduct
afternoon of Saturday, May 6, 2006, Warren threw Waiters a
party at her apartment, in which Waiters also resided, to
celebrate his 36th birthday.The party was
attended by members of Warren's family, including her
teenage children Derrick and Shatashia, who lived with
Warren; her sister and sister's husband; and her aunt
Mary Lee Clark ("Clark") and Clark's five
grandchildren, who ranged in age from only a couple of months
old to about ten.
had begun drinking earlier in the day, and had additional
Bacardi Light and soda with Warren and Clark during the
party. According to Warren, she and Waiters drank every day;
sometimes a fifth of rum managed to last them two days.
Waiters regularly became verbally abusive when he drank,
though he did not so behave that afternoon. The party lasted
until about 11:00 p.m., when Warren's sister and
brother-in-law left. Clark and her grandchildren stayed the
night. Warren's 23-year-old son, Lorenzo, a letter
carrier with the Postal Service who lived at the apartment
but did not attend the birthday party, returned home at about
next day, Waiters was up before 9:30 and went out to purchase
cereal and milk for the crowd. Then, before 11:00 a.m., he
resumed drinking with Warren and Clark for about half an
hour. Shortly thereafter, Warren took the bottle from
Waiters, telling him he'd had "too much to
drink." Suppl. App'x at 43. Waiters resisted,
exclaiming loudly, "Fuck you, bitch, " after which
an argument ensued. Id. at 44. According to Warren,
the pair feuded for a period, until Waiters abruptly left the
apartment, only to return about 10 minutes
his return, Waiters proceeded directly to the couple's
bedroom. He remained there for 15 to 20 minutes before
reappearing in the living room, now wearing a jacket. By this
point, he was "screaming[, ]. . . yelling[, ] and . . .
calling [Warren] names." Id. at 46. Clark
implored him to calm down. Waiters and Warren exchanged
curses before Warren demanded that he leave.
Warren testified that he heard the arguing and came out from
his bedroom to the living room to intervene, telling Waiters
to "step away from [his] mother" and to not
"get in [her] face." Id. at 19. Waiters told
Lorenzo that the argument did not "concern" him.
Id. at 20. Lorenzo then moved closer to Waiters, at
which point Warren and Clark pushed the two men to opposite
ends of the room.
then 17, and his younger sister Shatashia, 14, by this time
drawn to the living room by the commotion, heard,
respectively, Waiters tell Lorenzo, "I got something for
you, " Trial Tr. at 483, and "you don't want me
to pull what I got out of my jacket, " id. at
309. Lorenzo nonetheless openly doubted that Waiters had
anything in his jacket. Waiters then pulled out a revolver
and pointed it at Lorenzo, who, according to his trial
testimony, continued to taunt Waiters, saying, "That gun
isn't loaded. You don't have any bullets in that
gun." Suppl. App'x at 32.
thereafter rapidly fired multiple shots. Derrick observed
Waiters aim "[s]traight" at his brother, Trial. Tr.
at 504, from a distance of about seven or eight feet. Warren
saw Waiters shoot at Lorenzo as "he started going toward
where Lorenzo was standing." Id. at 414.
Waiters's first shot hit Lorenzo in the thigh, and the
remainder hit Shatashia in the thigh; Clark in the head,
abdomen, and leg; and three-year-old Tajmere Clark, who had
run out to her grandmother during the tumult, in the head and
chest. Clark was rendered comatose and succumbed to her
injuries after trial; Tajmere died at the scene.
thereafter attempted to leave. According to Derrick, who
stood between Waiters and the front door, Waiters pointed the
gun, a .357 revolver, point-blank at Derrick's face.
Waiters then "pulled the trigger." Id. at
508. When the gun "clicked, " id. at 508,
indicating to Derrick that it was out of ammunition, Waiters
moved toward the exit but Derrick tackled him to the ground
and began punching. Lorenzo, though injured, then got on top
of Waiters and instructed his brother to leave, all while
Waiters continued squeezing the trigger of his gun and
"pointing it wildly." Id. at 248. Lorenzo
began punching Waiters, but Waiters indicated that Lorenzo
"wasn't strong enough" and "wasn't
causing him any harm, " id. at 181, asking him,
"Is that all you got?, " id. at 420.
Waiters ultimately sustained a concussion after Lorenzo hit
him with a fish tank and Derrick hit him with a vase at
Lorenzo's instruction, around which time Waiters yelled
to Warren for help.
and paramedics responded to the scene and transported both
Waiters and his victims to the hospital. Medical records
introduced at trial noted that Waiters was intoxicated when
he arrived at Kings County Hospital Center, and that his
"CNS" could not be "assess[ed] due to [his]
intoxicated state." Suppl. App'x at 94. Records not
before the trial jury but part of the record on appeal
indicate that as of 12:33 p.m., approximately an hour after
the events in question, Waiters registered an ethyl alcohol
level of 386.24, the equivalent of a 0.39 BAC, which the
hospital marked as "critical." Appellant's
App'x at 76. Waiters was alert on admission, but confused
and unaware of the time or where he was. He experienced
continued disorientation and reported hallucinations in the
days thereafter; hospital staff documented his delirium and
history of "alcohol abuse and dependence." Suppl.
App'x at 103.
on May 5, 2008, General Waiters stood trial in New York
Supreme Court, Kings County. In its opening statement, the
prosecution explained that it would prove that Waiters, in an
alcohol-fueled rage, attempted to shoot and kill Lorenzo
Warren, and that he was therefore responsible for all of the
resulting injuries-and, at that time, the single
fatality-under a theory of transferred intent.
Waiters's attorney, Calvin Simons ("Simons"),
did not articulate a particular defense in his opening, but
he stressed to the jury that Waiters was not charged with
intending to kill or injure anyone but Lorenzo: "The
issue which you will focus on, as the People have stated,
will be Lorenzo Warren." Id. at 9.
the prosecution's case in chief, Lorenzo testified that
Waiters appeared drunk during their altercation because his
"speech . . . was a little bit slurred."
Id. at 30. Lorenzo indicated, however, that he had
previously seen Waiters intoxicated "around maybe
ten" times, id. at 27, and that he had been
"way worse" on those occasions, id. at 30.
Derrick testified that Waiters drank during the party the
previous evening, as did the other adults, while Shatashia
testified that she did not notice whether the adults were
drinking, as she "was in a room with the kids."
Id. at 37.
part, Warren testified that Waiters drank on a daily basis,
and that it caused him to become verbally abusive. She did
not recall, however, how much Waiters had to drink on the day
of his party or the next morning, although she testified that
she drank with him and with Clark for about half an hour that
morning before taking the bottle of Bacardi away.
further testified that about a year after the shootings, in
Spring 2007, Waiters telephoned her. During the conversation,
Warren asked Waiters why he had done what he did. Waiters
explained that "he was aiming after [Lorenzo] . . .
[b]ecause he was coming between [them]." Trial Tr. at
conclusion of the prosecution's case, Simons indicated
that the defense would decide over the weekend whether to
call Dr. Sanford Drob as part of the defense case. Dr. Drob
was a forensic psychologist engaged by the defense to explore
a possible affirmative defense of extreme emotional
disturbance. During the pretrial period, Waiters was
evaluated by both Dr. Drob and Dr. Alexander Sasha Bardey-a
prosecution expert-in connection with this defense, for which
Simons had served notice. The prosecution responded by noting
that Dr. Drob's testimony might open the door to the
admission of a statement made by Waiters to police in the
aftermath of the shootings. The trial court advised Simons to
"make Doctor Drob aware of the fact that certainly if he
opens the door, and maybe opening a door to a can of worms,
that would not be helpful to your client." Id.
at 524. It then recessed for the weekend.
following Monday, Simons informed the trial court that
Waiters did not want Dr. Drob to testify. Waiters confirmed
that proposition, and further indicated that he did not wish
to testify on his own behalf. Simons thereafter sought to
introduce certified medical records of Waiters's hospital
visit in support of the argument that Waiters was intoxicated
and unable to form intent. The prosecution objected, arguing
primarily that the evidence already indicated that Waiters
was drinking, intoxicated, and suffered a head injury; that
the hospital records would invite speculation absent an
explanation of the terms contained therein; and that
introducing them might open the door to evidence that General
Waiters, "in talking to both Doctor Drob and Doctor
Bardey, said that he hadn't been drinking that morning,
was not intoxicated, and was able to give a coherent version,
his coherent version about what had
happened."Suppl. App'x at 66. The trial court
ultimately admitted two redacted pages of the medical records
which together indicated, as previously stated, that Waiters
arrived at the hospital in an intoxicated state and that
hospital staff could not evaluate his "CNS" as a
result. The trial court found that all other parts of the
medical record "would not be [relevant] without an
explanation by medical personnel." Id.
at 73. Simons took exception to the redaction, but rather
than seek an adjournment to obtain a medical expert, he
indicated that the defense was "prepared to go
forward" without the full medical records being
admitted.Id. at 73.
summation, Simons argued that Waiters was so intoxicated that
he did not intend to kill Lorenzo, but rather was merely
reckless. He attempted to cast doubt on the testimony of
Warren and her family suggesting the contrary by emphasizing
discrepancies and omissions in the various witness accounts.
He noted, among other things, that Waiters started drinking
again that morning; that the medical records indicated that
he was intoxicated; that multiple witnesses testified that
Waiters changed when he drank; and that Waiters continued to
pull the trigger on his revolver even after he had discharged
all of its bullets. Simons also attacked the credibility of
Warren's testimony about Waiters's phone call in
Spring 2007, noting that she did not immediately mention the
call to the prosecutor, even though she had "already
talked to the District Attorney in the case." Trial Tr.
response, the prosecution also focused on Waiters's
intent, noting that Waiters was able to perform the physical
acts necessary to commit his crimes, and that his use of the
gun-and specifically the fact that he targeted and
successfully shot Lorenzo, "track[ing] over to"
follow him as Lorenzo moved across the apartment-suggested
that he was able to intend, and did intend, to kill.
Id. at 629.
prosecution likewise argued that, while Waiters "drank
seriously every day, " id. at 633, and was
voluntarily intoxicated that morning, the witness testimony
suggested he was not so severely intoxicated that he was
unable to form intent. Indeed, the prosecution explained that
Waiters bought cereal and milk that morning; argued with
Warren about his drinking; obtained a revolver and hid it in
his jacket; argued with and ultimately shot Lorenzo; and
attempted to escape the apartment after exhausting his
ammunition. Moreover, Waiters's phone call to Warren, the
prosecution contended, clearly demonstrated that he formed
the requisite intent to commit his crimes: "[I]f
he's so blown out, if he is so, so soused that he
can't form intent . . . when Jackie asked him 'Why
did you do it?' he would have said, 'Honey, I
don't know.' But he doesn't." Id.
at 642. Instead, the prosecution maintained, General Waiters
admitted that he intended to shoot Lorenzo "to
eliminate him for coming between" Waiters and Warren.
Id. at 642.
at Simons's request, the state trial court: (a)
instructed the jury on the relevance of intoxication
evidence, describing how it can serve to negate the intent
element of the crimes with which Waiters was charged, and (b)
instructed the jury on manslaughter in the first degree, as a
lesser-included charge of second degree murder. Thereafter,
on May 13, 2008-the same day on which deliberations began-the
jury found Waiters guilty of one count of murder in the
second degree, in violation of New York Penal Law §
125.25(1); one count of attempted murder in the second
degree, in violation of New York Penal Law §§
110.00 and 125.25(1); and two counts of assault in the first
degree, in violation of New York Penal Law § 120.10(1).
The trial court ultimately sentenced Waiters to consecutive
sentences of 25 years to life for second-degree murder, 10
years for second-degree attempted murder, 25 years and five
years for each of the assault counts, respectively, and five
years of post-release supervision.
filed both a pro se motion to vacate his conviction
under New York Criminal Procedure Law § 440.10(1)(h)
(the "440.10 motion") and, with the assistance of
counsel, a direct appeal. In his 440.10 motion, Waiters
maintained that Simons was constitutionally ineffective for
failing to call an expert witness to interpret his hospital
records and testify about his intoxication, and for not
requesting that the trial court charge the jury on
second-degree manslaughter.On January 26, 2011, the state
trial court denied Waiters's 440.10 motion as
procedurally barred, concluding that sufficient facts
appeared on the face of the record to permit review of his
claims on direct appeal. The New York Supreme Court Appellate
Division - Second Judicial Department ("Appellate
Division") denied leave to appeal.
thereafter filed a pro se supplemental brief in his
direct appeal, dated February 4, 2011, alleging ineffective
assistance of counsel for the same reasons as those
identified in his 440.10 motion. On May 8, 2012, the
Appellate Division modified Waiters's sentence by
directing that portions of it run concurrently, but otherwise
rejected Waiters's appeal. See People v.
Waiters, 95 A.D.3d 1043, 1044-45 (2d Dep't 2012).
The Appellate Division determined that Waiters's
ineffective assistance of counsel claim could not be resolved
"without reference to matter outside the record, "
such that it was, in fact, appropriately raised in a 440.10
motion. Id. at 1044-45. The New York Court of
Appeals denied leave to appeal. People v. Waiters,
19 N.Y.3d 1002 (2012).
later, on June 26, 2013, Waiters filed a pro se
habeas petition in the United States District Court for the
Eastern District of New York under 28 U.S.C. § 2254(d),
alleging, once again, that Simons was constitutionally
ineffective for the same reasons as those identified in his
440.10 motion. On November 5, 2013, the district court
(Gleeson, J.) appointed counsel and stayed the case
to permit Waiters to exhaust his claims through a renewed
440.10 motion. The state trial court thereafter held an
evidentiary hearing on Waiters's renewed 440.10 motion on
May 28 and 29, 2014-six years after Waiters's trial-at
which Waiters called Dr. Richard Stripp, a forensic
toxicologist, and Simons, his trial attorney.
Stripp testified that Waiters's BAC of 0.39 was
"significantly elevated, " Appellant's
App'x at 75, and that it meant that Waiters had consumed
sixteen alcoholic drinks that morning, or even more if his
drinking was spread over a longer period of
time. Dr. Stripp further opined that an
average person with such a high BAC would suffer "motor
impairment" and "significant cognitive impairment,
" id. at 81, including compromised judgment and
emotional instability, blackouts, and amnesia.
Stripp also recognized, however, that there is "very
significant individual variation" in how individuals
are affected by alcohol, such that tolerance is "one of
the most important considerations when interpreting a blood
alcohol concentration." Id. at 68. Accordingly,
he explained that a "very tolerant drinker [can] have
some level of functioning" when intoxicated,
id. at 82, such that the effects of intoxication-be
they physical or mental, which Dr. Stripp explained do not
always manifest in tandem-may be reduced by as much as half.
In fact, Dr. Stripp indicated that he had seen individuals
with very high BACs who were, despite exhibiting poor
judgment, still able to form intent.
on the medical records, Dr. Stripp noted that while
hospitalized in the aftermath of the shootings, Waiters
suffered from delirium and hallucinations caused by alcohol
withdrawal which, together with abnormal liver function,
suggested that Waiters had a long-term alcohol problem and
consumed large quantities on a daily basis. Therefore, and
given the aforementioned "significant variation" in
individuals' alcohol tolerance, id. at 89, Dr.
Stripp concluded that while Waiters's
"[d]efinite" drunkenness affected his
"functioning and judgment, " id. at 95,
102, Dr. Stripp could not opine on how tolerant Waiters was,
or on what effect his intoxication may have had on his
ability to form intent.
in his testimony, explained that he sought and obtained a
subpoena for Waiters's hospital records within two weeks
of his first appearance in the case. Simons and his client
initially planned on pursuing an extreme emotional
disturbance defense and calling both Dr. Drob and Waiters to
support it, but Simons became concerned about the
defense's viability before trial, and it was ultimately
not pursued. Simons further represented that Waiters,
on the day of his scheduled testimony, decided not to take
the stand, despite Simons advising him to do so.
after the close of the prosecution's case, the defense
settled on an intoxication-based theory and, to that end,
Simons sought to introduce Waiters's full hospital
records. Simons indicated that he discussed the significance
of Waiters's blood alcohol level with his client "a
lot, " but that the "problem" was that when he
asked Waiters about his 0.39 BAC, Waiters told him-consistent
with his statements to Dr. Drob and Dr. Bardey-that he was
not drunk, and that while he "drank the night before,
" on the morning of the shootings he "did not feel
drunk at all." Id. at 132. Further, according
to Simons, Waiters consistently represented that he fired at
Lorenzo to "scare him or . . . hit him in the leg,
" id. at 182, the same explanation he had
provided to the experts. Simons ultimately did not offer a
strategic reason for not calling a medical expert, claiming
he could no longer remember what he was thinking, though he
affirmed he was pursuing a strategy in Waiters's best
the hearing, on October 14, 2014, the state trial court
denied Waiters's renewed 440.10 motion, finding that
Simons's failure to call a medical expert to explain
Waiters's medical records and BAC amounted to a
permissible "mere tactical decision" under
Strickland. Id. at 55. The trial court
explained that "[t]he defendant's intoxicated state
was explored before the jury, " and that, more
generally, "the defendant's expert, Dr. Stripp . . .
could not establish that the defendant's blood alcohol
level was such that his intent to commit the crime was
negated." Id. at 55. The trial court
accordingly determined that while Simons could have called an
expert to explain the medical records, "[p]articularly
in light of the defendant's claims that he was not
intoxicated at the time of this incident, " the failure
to do so "under the particular facts and circumstances
of [the] case" did not constitute ineffective
assistance. Id. at 55. Simons, the trial court also
noted, was placed "in the untenable position of setting
forth a theory which was not consistent with the
defendant's own position, " namely that he was not
intoxicated. Id. at 55. Thus, for each
ineffectiveness contention "there [were] equally
plausible explanations why trial counsel proceeded in the
manner which he did at the time of the trial."
Id. at 55. As to prejudice, the state trial court
first observed that Waiters's intoxicated state and its
impact on the defendant's capacity to form intent had
been considered and rejected by the jury, and that expert
evidence would not likely have influenced this result given
that "Dr. Stripp established [that while] the defendant
had a particularly high blood alcohol level . . . the effects
of [that level] could vary greatly depending on the
defendant's tolerance." Id. at 55. There
was otherwise "no testimony presented which established
that medical testimony regarding the defendant's level of
intoxication would have changed the jury's finding."
Id. at 55. Accordingly, the trial court concluded
that while Simons could have called an expert, "his
failure to do so [did] not rise to the level of a course of
conduct which was inexplicably
prejudicial." Id. at 55. The Appellate
Division again denied leave to appeal.
thereafter returned to district court. The district court
lifted the stay, ordered additional briefing, and held oral
argument on Waiters's habeas petition on July 24, 2015.
On September 25, 2015, the district court granted
Waiters's petition for a writ of habeas corpus, finding
the state court's rejection of his 440.10 motion to be
"an unreasonable application of the Strickland
standard, " id. at 24, and ordering
Waiters's release within 45 days. The district court also
denied the State's application for a stay pending the
appeal. The State thereafter filed an application for a stay
in this Court, and on April 5, 2016, we granted the
application and stayed Waiters's release indefinitely
pending this panel's resolution of the appeal.
Supreme Court in Strickland set forth a two-part
test for evaluating claims of ineffective assistance of
counsel. To warrant relief, a defendant must demonstrate both
"that counsel's performance was deficient" and
"that the deficient performance prejudiced the
defense." Strickland, 466 U.S. at 687;
accord Fischer v. Smith, 780 F.3d 556, 559 (2d Cir.
2015). "Without proof of both deficient performance and
prejudice to the defense, " the Supreme Court has said,
it cannot be shown that the conviction "'resulted
from a breakdown in the adversary process that rendered the
result of the proceeding unreliable, '" and the
conviction "should [therefore] stand." Bell v.
Cone, 535 U.S. 685, 695 (2002) (quoting
Strickland, 466 U.S. at 687). We review the district
court's grant of a petition for habeas corpus de
novo, and its underlying findings of fact for clear
error. Ramchair v. Conway, 601 F.3d 66, 72 (2d Cir.
AEDPA, when a state court adjudicates a petitioner's
habeas claim on the merits, a district court may only grant
relief where the state court's decision was
"contrary to, or involved an unreasonable application
of, clearly established Federal law, " or was
"based on an unreasonable determination of the facts in
light of the evidence presented." 28 U.S.C. §
2254(d). AEDPA by its terms requires substantial deference to
the state court's decision in all cases governed, as
here, by § 2254(d). See Cavazos v. Smith, 565
U.S. 1, 9 (2011) (per curiam) (noting "the necessity of
deference to state courts in § 2254(d) habeas
operative question in reviewing a state court's
Strickland ruling is thus "not whether a
federal court believes the state court's determination
was incorrect[, ] but [rather] whether that determination was
[objectively] unreasonable-a substantially higher
threshold." Schriro v. Landrigan, 550 U.S. 465,
473 (2006); accord Yarborough v. Alvarado, 541 U.S.
652, 665 (2004); see also Jones v. Stinson, 229 F.3d
112, 119 (2d Cir. 2000) (explaining that, for application of
a clearly established federal law to be unreasonable, the
state court must not merely have erred, but rather its
actions must be "somewhere between 'merely erroneous
and unreasonable to all reasonable jurists'"
(quoting Francis S. v. Stone, 221 F.3d 100, 109 (2d
Cir. 2000))). Accordingly, to justify relief, Waiters was
required to establish "that the state court's ruling
. . . was so lacking in ...