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Waiters v. Lee

United States Court of Appeals, Second Circuit

May 22, 2017

General Waiters, Petitioner-Appellee,
William Lee, Superintendent of Greene Haven Correctional Facility, Respondent-Appellant.

          Argued: September 13, 2016

         Respondent-Appellant 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.

          For Petitioner-Appellee: Megan Wolfe Benett (Gary Farrell, on the brief), New York, NY

          For 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, Brooklyn, NY

          Before: Jacobs, Parker, Livingston, Circuit Judges.

          Debra Ann Livingston, Circuit Judge

         Petitioner-Appellee 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.

         Waiters 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.

         We 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.


         I. Factual Background[1]

         A. The Offense Conduct

         On the afternoon of Saturday, May 6, 2006, Warren threw Waiters a party at her apartment, in which Waiters also resided, to celebrate his 36th birthday.[2]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.

         Waiters 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 2:00 a.m.

         The 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 later.[3]

         Upon 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.

         Lorenzo 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."[4] 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.

         Derrick, 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.

         Waiters 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.

         Waiters 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.

         Police 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."[5] 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.

         B. The Trial

         Beginning on May 5, 2008, General Waiters stood trial in New York Supreme Court, Kings County.[6] 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[7]-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.

         During 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.

         For her 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.

         Warren 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 421.

         At the 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.[8] 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.

         The 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."[9]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."[10] 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.[11]Id. at 73.

         In his 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. at 607-08.

         In 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.

         The 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.

         Thereafter, 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.

         II. Post-Trial Proceedings

         Waiters 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.[12]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.

         Waiters 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).

         A year 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.[13]

         Dr. 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.[14] 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.

         Dr. 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.

         Based 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.[15]

         Simons, 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.[16] 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.[17] 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.

         Sometime 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 interest.

         Following 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."[18] Id. at 55. The Appellate Division again denied leave to appeal.

         Waiters 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.



         The 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."[19] 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. 2010).

         Under 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).[20] See Cavazos v. Smith, 565 U.S. 1, 9 (2011) (per curiam) (noting "the necessity of deference to state courts in § 2254(d) habeas cases").

         The 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 ...

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