Gueits v. Kirkpatrick

09-2335-pr
Gueits v. Kirkpatrick

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term 2009

4 (Argued: November 30, 2009 Decided: July 14, 2010)

5 Docket No. 09-2335-pr

6 -----------------------------------------------------x

7 JOHNNY GUEITS,

8 Petitioner-Appellee

9 -- v. --

10 ROBERT KIRKPATRICK,

11 Respondent-Appellant,

12 -----------------------------------------------------x

13 Before: WALKER, McLAUGHLIN, and RAGGI, Circuit Judges.

14 Respondent Robert Kirkpatrick, Superintendent of New York

15 State’s Wende Correctional Facility, appeals from the judgment of

16 the United States District Court for the Eastern District of New

17 York (Brian M. Cogan, Judge) granting Johnny Gueits’s petition

18 for a writ of habeas corpus. Exercising de novo review, we hold

19 that Gueits has failed to demonstrate that the New York Supreme

20 Court, Appellate Division, was unreasonable in its application of

21 the ineffective assistance of counsel standard set forth in

22 Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly,

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1 we REVERSE the district court’s judgment and REMAND with

2 instructions to dismiss the petition.

3 REVERSED and REMANDED.

4 LYNN W.L. FAHEY,
5 Appellate Advocates, New
6 York, N.Y., for
7 Petitioner-Appellee.
8
9 EDWARD D. SASLAW,
10 Assistant District
11 Attorney, Queens County
12 (Gary S. Fidel, Jill
13 Gross-Marks, on the
14 brief), for Richard A.
15 Brown, District Attorney,
16 Queens County, Kew
17 Gardens, N.Y., for
18 Respondent-Appellant.
19

20 JOHN M. WALKER, JR., Circuit Judge:

21 Respondent Robert Kirkpatrick, Superintendent of New York

22 State’s Wende Correctional Facility, appeals from the judgment of

23 the United States District Court for the Eastern District of New

24 York (Brian M. Cogan, Judge) granting Johnny Gueits’s petition

25 for a writ of habeas corpus. Exercising de novo review, we hold

26 that Gueits failed to demonstrate that the New York Supreme

27 Court, Appellate Division, was unreasonable in its application of

28 the ineffective assistance of counsel standard set forth in

29 Strickland v. Washington, 466 U.S. 668, 687 (1984). Accordingly,

30 we reverse the district court’s order granting Gueits’s petition

31 and remand with instructions that the petition be dismissed.

32

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1 BACKGROUND

2 In the early hours of July 4, 2001, a woman was assaulted in

3 the Harvard playground at 179th Place and Jamaica Avenue in

4 Queens County, New York. Police officers and emergency medical

5 personnel arrived at the scene at approximately 5:30 a.m. after

6 Sunnita Jagpal called 911, from her apartment overlooking the

7 playground, to report an ongoing assault. Police found the

8 victim lying on the ground, naked, and seriously injured. At

9 trial, an emergency medical technician testified that the victim

10 told him that she had been raped by the same man who had beaten

11 her; in a deposition, the arresting officer stated that the

12 victim said the same thing to the nurse who treated the victim

13 when she arrived at the hospital.1

14 Moments after finding the victim, police saw Gueits in

15 another part of the playground with blood – later determined to

16 be the victim’s – on his shoes. An officer brought Gueits to the

17 victim as she was awaiting transport to a hospital and asked her

18 if Gueits was the man who had attacked her. The victim responded

19 affirmatively by nodding her head. Gueits was arrested and taken

20 to a police precinct where he agreed to answer questions. Gueits

21 said that he had spent the evening of July 3 and the early

1
At trial, the victim denied having made these statements
and testified that she only indicated to the police that Gueits
“was there” during the attack. Trial Tr., 589:6-19, Apr. 2,
2002.

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1 morning of July 4 at a bar with a friend, and that he and his

2 friend went to the Harvard playground some time after 1:30 a.m.

3 Gueits stated that, while he and his friend were there, an

4 Hispanic woman entered the playground with a black man. He

5 stated that the man attacked the woman. The woman then ran to

6 Gueits, but Gueits pushed her away. After making that statement,

7 Gueits provided the police with a sample of his DNA and his

8 clothing.

9 Gueits was originally charged with both rape and assault.

10 The prosecution later dropped the rape charge for lack of

11 evidence. In particular, the DNA from semen found on the victim

12 did not match Gueits’s DNA. Thus, the state tried Gueits solely

13 on the assault charge. He was convicted of first degree assault

14 and sentenced to fifteen years of incarceration.

15 Gueits appealed his conviction to the New York Supreme

16 Court, Appellate Division, claiming: insufficient evidence to

17 support his conviction, erroneous admission of impeachment

18 evidence, the use of impeachment evidence as evidence-in-chief,

19 prosecutorial misconduct, and ineffective assistance of counsel.

20 His ineffective assistance claim was based on the following

21 claims that his trial counsel: 1) failed to present evidence of

22 the DNA match between the semen found on the victim and that of a

23 black male wanted for the rape of a thirteen-year-old girl in

24 Maryland, notwithstanding trial counsel’s awareness of this

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1 evidence prior to trial; 2) failed to properly object to grand

2 jury testimony that the prosecution used to impeach Sunnita

3 Jagpal’s credibility; 3) failed to request a limiting instruction

4 with respect to the introduction of this impeachment evidence;

5 and 4) failed to object to alleged prosecutorial misconduct.2

6 The Appellate Division denied Gueits’s appeal in a brief order.

7 People v. Gueits, 781 N.Y.S.2d 916 (N.Y. App. Div. 2004).

8 Gueits then sought leave to appeal to the New York Court of

9 Appeals on two grounds. First, he argued that the prosecution

10 should not have been permitted to impeach Jagpal with her prior

11 grand jury testimony. Second, he argued that his trial counsel

12 had been ineffective in: 1) failing to present the DNA match

13 evidence; 2) failing to properly object to the introduction of

14 the grand jury impeachment evidence; and 3) acquiescing in the

15 jury’s consideration of that impeachment evidence as evidence-in-

16 chief. Leave to appeal was denied. People v. Gueits, 824 N.E.2d

17 58 (N.Y. 2004).

18 Gueits then filed a timely habeas corpus petition in the

2
With respect to prosecutorial misconduct, Gueits claimed
that the prosecutor 1) suggested that Jagpal had been threatened
by Gueits and his family; 2) knowingly advocated for a false
position, i.e., Gueits’s guilt; 3) suggested that Gueits was
obligated to testify in his defense; 4) interjected his personal
disbelief in Gueits’s version of events; 5) suggested that Gueits
was guilty of rape; 6) misrepresented the law to the jury in
suggesting that Gueits could be convicted for failing to
intervene in the attack on the victim; and 7) attempted to
inflame the jury.

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1 U.S. District Court for the Eastern District of New York, arguing

2 that the Appellate Division had unreasonably applied the

3 Strickland standard for determining ineffective assistance of

4 counsel. Reiterating his previous arguments, Gueits claimed that

5 his trial counsel was ineffective in failing to put forth

6 evidence of the DNA match, in failing to properly object to the

7 impeachment of Jagpal, and in failing to request a limiting

8 instruction with respect to the impeachment testimony.

9 Magistrate Judge Orenstein found that these grounds for relief

10 were properly exhausted and warranted habeas relief. Gueits also

11 claimed that his trial counsel was ineffective in failing to

12 object to the prosecutor’s injection of his personal views on

13 Jagpal’s credibility during Jagpal’s examination and in failing

14 to object to improper statements made by the prosecutor in

15 summation. The magistrate judge assumed that these last two

16 grounds were properly exhausted, but found that, standing alone,

17 they did not warrant the requested relief. The district court

18 adopted the magistrate judge’s report and recommendation in full,

19 issued the writ, and ordered the State to retry Gueits within

20 forty-five days or release him from custody. Gueits v.

21 Kirkpatrick, 618 F. Supp. 2d 193, 198 (E.D.N.Y. 2009).

22 The respondent appealed.

23

24

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1 DISCUSSION

2 Our review of the district court’s decision to grant

3 Gueits’s petition for habeas relief is de novo. Palacios v.

4 Burge, 589 F.3d 556, 560-61 (2d Cir. 2009). Under the

5 Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”),

6 28 U.S.C. § 2254(d)(1), a federal court may not grant a state

7 prisoner's habeas application unless the relevant state-court

8 decision “was contrary to, or involved an unreasonable

9 application of, clearly established Federal law, as determined by

10 the Supreme Court of the United States.” See Knowles v.

11 Mirzayance, 129 S. Ct. 1411, 1418 (2009). Where, as here, “a

12 state court fails to articulate the rationale underlying its

13 rejection of a petitioner’s claim, and when that rejection is on

14 the merits, the federal court will focus its review on whether

15 the state court’s ultimate decision was an unreasonable

16 application of clearly established Supreme Court precedent.” Eze

17 v. Senkowski, 321 F.3d 110, 125 (2d Cir. 2003) (internal

18 quotation marks omitted).

19 The respondent argues that the district court, in deciding

20 whether state appellate review of the ineffective assistance of

21 counsel claims was reasonable, failed to accord sufficient

22 deference to the Appellate Division. Under the ineffective

23 assistance of counsel standard set forth in Strickland, 466 U.S.

24 668, a petitioner must demonstrate both that counsel’s

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1 performance was deficient and that prejudice resulted from the

2 deficient performance. Id. at 687. To establish the former, the

3 petitioner must show that “counsel’s representation fell below an

4 objective standard of reasonableness.” Id. at 668. We have

5 recognized, however, that “[u]nder Strickland, there is a ‘strong

6 presumption that counsel's conduct falls within the wide range of

7 reasonable professional assistance.’” Palacios, 589 F.3d at 561

8 (quoting Strickland, 466 U.S. at 689). To establish prejudice,

9 the petitioner “must show that there is a reasonable probability

10 that, but for counsel's unprofessional errors, the result of the

11 proceeding would have been different.” Strickland, 466 U.S. at

12 694. “Furthermore, on habeas appeal it is not enough for

13 [Gueits] to show a constitutional violation. He must also show

14 that the state court's application of Strickland was not merely

15 incorrect, but objectively unreasonable.” Palacios, 589 F.3d at

16 561-62 (internal quotation marks omitted); see also Brisco v.

17 Ercole, 565 F.3d 80, 87-88 (2d Cir. 2009) (“A federal habeas

18 court cannot issue the writ simply because that court concludes,

19 in its independent judgment, that the state court applied clearly

20 established federal law erroneously or incorrectly; conflating

21 ‘unreasonableness’ with ‘clear error’ is improper because [t]he

22 gloss of clear error fails to give proper deference to state

23 courts.” (internal quotation marks and citations omitted,

24 alteration in original)).

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1 For the reasons that follow, we find that the Appellate

2 Division’s denial of Gueits’s ineffective assistance claims did

3 not constitute an unreasonable application of the Strickland

4 standard for each of his trial counsel’s alleged failures.

5

6 I. Trial Counsel’s Failure to Object to the Use of Impeachment
7 Evidence
8
9 The respondent argues that the Appellate Division reasonably

10 applied Strickland with respect to Gueits’s claim that his trial

11 counsel failed to properly object to the introduction of grand

12 jury testimony used to impeach the prosecution’s witness, Sunnita

13 Jagpal. The district court determined that Jagpal’s grand jury

14 testimony prejudiced Gueits’s defense by undermining her trial

15 testimony that she was unable to identify Gueits as the victim’s

16 attacker.

17 At trial, Jagpal testified that she did not know the

18 defendant or his family. She testified that, on July 4, 2001,

19 she saw a woman and two men sitting in the playground when she

20 arrived home around 4:00 a.m. Jagpal testified that around 5:00

21 a.m. she heard screaming from the playground, and that from her

22 apartment window she saw “someone there . . . kicking” the

23 victim. Trial Tr., 433:5-6, Apr. 2, 2002. She testified that

24 there was one person kicking the victim, that she could no longer

25 see a second man, and that she saw the attacker kick the victim

26 four or five times, but was unable to describe the attacker

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1 because the playground was dark.

2 After eliciting that testimony, the prosecution attempted,

3 over objections by Gueits’s counsel, to contradict portions of

4 Jagpal’s trial testimony with statements she made to the grand

5 jury. Specifically, while Jagpal testified at trial that she had

6 not known anyone named John Gueits, before the grand jury she

7 indicated that she did know someone by that name. The

8 prosecution then read to Jagpal a portion of her grand jury

9 testimony in which, contrary to her trial testimony, she stated

10 that she saw “John Gueits” kick the victim about “7, 10 times.”

11 Id., 445:12-16. Finally, Jagpal’s trial testimony that she was

12 unsure if the man she saw sitting on a park bench in the

13 playground was the same man that had attacked the victim was

14 contradicted by grand jury testimony in which she stated that she

15 had told the 911 dispatcher that she was observing the police

16 speaking to the attacker as he sat on a park bench.

17 New York Criminal Procedure Law § 60.35(1) states:

18 When, upon examination by the party who called him, a
19 witness in a criminal proceeding gives testimony upon a
20 material issue of the case which tends to disprove the
21 position of such party, such party may introduce
22 evidence that such witness has previously made either a
23 written statement signed by him or an oral statement
24 under oath contradictory to such testimony.
25
26 Gueits’s counsel, after having reviewed the language of that

27 statute with the trial court, objected to the introduction of

28 Jagpal’s grand jury testimony on the ground that there was no

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1 “contradiction to her testimony.” Trial Tr., 440:15, Apr. 2,

2 2002. The trial court disagreed, stating that “[i]f she now

3 gives testimony [that] she doesn’t know whatever, can’t see, that

4 is material testimony which tends to disprove the People’s

5 position . . . that the defendant was the person [who attacked

6 the victim].” Id., 441:6-9. Gueits’s counsel argued that the

7 witness’s reluctance to testify was insufficient to establish a

8 basis for impeachment under § 60.35(1), but the trial court

9 rejected this argument. Id., 441:22-442:7.

10 Gueits argues that his trial counsel failed to lodge the

11 proper objection to Jagpal’s impeachment, namely that Jagpal’s

12 trial testimony did not “tend to disprove” the prosecution’s

13 position. As Gueits asserts, § 60.35(1) only permits impeachment

14 where the trial testimony of a witness “affirmatively damage[s]”

15 the case of the party calling that witness. Gueits Br. at 45

16 (citing People v. Fitzpatrick, 40 N.Y.2d 44, 52 (1976) (holding

17 that the testimony of a witness who states that he cannot recall

18 the events in question does not “tend to disprove” the

19 prosecution’s case)).

20 The propriety of the trial court’s decision to admit

21 Jagpal’s grand jury testimony is not the issue before us on

22 habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

23 (“[I]t is not the province of a federal habeas court to reexamine

24 state-court determinations on state-law questions.”); Hawkins v.

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1 Costello, 460 F.3d 238, 244 (2d Cir. 2006). Our inquiry is

2 limited to 1) whether Gueits’s trial counsel failed to raise a

3 proper objection on the basis of applicable state law; 2) if so,

4 whether that failure was objectively unreasonable and prejudicial

5 to Gueits’s defense; and 3) whether the Appellate Division

6 unreasonably applied Strickland in answering those questions in

7 the negative.

8 Assuming that Gueits’s counsel in fact failed to properly

9 object on the grounds that Jagpal’s trial testimony had not

10 tended to disprove the prosecution’s position, the Appellate

11 Division reasonably concluded that such a failure did not

12 prejudice Gueits’s defense. This is so because it was reasonable

13 to conclude that any such objection would have been overruled by

14 the trial court in this case. The trial court, after reading

15 § 60.35(1) aloud to Gueits’s trial counsel at sidebar, concluded

16 that Jagpal’s trial testimony met the standard provided in that

17 statute. Specifically, the trial court noted that Jagpal’s trial

18 testimony that she was unable to see into the playground and did

19 not know whether Gueits was the attacker was contradicted by her

20 grand jury testimony. Trial Tr., 441:6-11, Apr. 2, 2002. It is

21 clear from the trial record that the trial court understood the

22 requirements of § 60.35(1), and, specifically, its prerequisite

23 of trial testimony tending to disprove the case of the party

24 attempting the impeachment. Thus, although Gueits’s counsel

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1 never voiced the specific objection on which Gueits now relies,

2 it is apparent that had such an objection been made, it would

3 have been overruled. Assessing the propriety of such a ruling is

4 a task left to the state courts, see Hawkins, 460 F.3d at 244,

5 and for that reason we cannot conclude that the Appellate

6 Division unreasonably applied Strickland’s prejudice prong with

7 respect to any failure by counsel to object to the admission of

8 Jagpal’s grand jury testimony.

9

10 II. Gueits’s Counsel’s Failure to Request a Limiting Instruction
11 With Respect to Impeachment Evidence
12
13 Gueits was entitled to a limiting instruction that Jagpal’s

14 grand jury testimony was to be considered by the jury only with

15 respect to its impeachment value and not as direct evidence of

16 Gueits’s guilt. See N.Y. Crim. Proc. Law, § 60.35(2).3 Gueits’s

17 counsel, however, did not request such an instruction at the time

18 of the introduction of Jagpal’s grand jury testimony or prior to

19 the trial court’s final jury charge. The district court

20 determined that the Appellate Division unreasonably failed to

21 conclude that this lapse by trial counsel – in not requesting a

3
“Evidence concerning a prior contradictory statement
introduced pursuant to [§ 60.35(1)]may be received only for the
purpose of impeaching the credibility of the witness with respect
to his testimony upon the subject, and does not constitute
evidence in chief. Upon receiving such evidence at a jury trial,
the court must so instruct the jury.” N.Y. Crim. Proc. Law, §
60.35(2).

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1 limiting instruction – constituted ineffective assistance under

2 Strickland.

3 Although Gueits was entitled to a limiting instruction under

4 state law, we cannot conclude that the Appellate Division

5 unreasonably applied Strickland’s prejudice prong with respect to

6 trial counsel’s failure to request such an instruction, either at

7 the time of the testimony’s presentation or prior to the final

8 jury charge. Considerable direct evidence inculpated Gueits in

9 the charged crime. Specifically, police responding to the 911

10 call testified that Gueits was the only other person in the

11 playground when the body of the beaten victim was found. At that

12 time, the victim’s blood was on Gueits’s shoes. Before leaving

13 the playground, the victim identified Gueits as her assailant.4

14 Further, in a post-arrest statement, Gueits admitted knowledge of

15 the beating and interacting with the victim in the playground,

16 though his exculpatory account of his own actions and explanation

17 for how he came to have the victim’s blood on him did not comport

18 even with Jagpal’s trial testimony, much less with her grand jury

19 testimony. In light of this record strongly signaling Gueits’s

20 guilt, it was not unreasonable for the Appellate Division to

21 conclude that failure to give a limiting instruction about the

22 proposed use of Jagpal’s grand jury testimony was not a

4
The reliability of this identification was challenged at
trial, but not the fact that it was made.

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1 sufficiently serious omission “as to deprive the defendant of a

2 fair trial, a trial whose result is reliable.” Strickland, 466

3 U.S. at 687.

4 Although, as Gueits argues, New York law recognizes that

5 jurors can understand the importance of distinguishing

6 impeachment evidence from evidence in chief, see § 60.35(2), we

7 reiterate that our review is not focused on the proper

8 application of New York law. Our task is limited to assessing

9 whether the Appellate Division unreasonably applied Strickland in

10 determining that the absence of a limiting instruction was not

11 prejudicial, even assuming that the state courts erroneously

12 applied state law. See Hawkins, 460 F.3d at 244; see also

13 Brisco, 565 F.3d at 87-88. We believe the Appellate Division’s

14 application of Strickland to trial counsel’s failure to request

15 this limiting instruction was reasonable.

16

17 III. Trial Counsel’s Alleged Failure to Present DNA Match
18 Evidence
19
20 The respondent challenges the district court’s holding that

21 the Appellate Division unreasonably failed to find that his trial

22 counsel was constitutionally ineffective in failing to present

23 evidence that the DNA recovered from the victim matched that of

24 an unknown black male suspected of having committed a rape in

25 Maryland. Gueits argues that this evidence would have been

26 exculpatory in that Sunnita Jagpal had testified that she saw

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1 only one man attacking the victim,5 and that the victim had made

2 two statements indicating that the same person who had assaulted

3 her had also raped her. Gueits also argues that this evidence

4 would have corroborated his initial statement to the police that

5 he had seen the victim enter the Harvard playground accompanied

6 by a black male.

7 Prior to trial, Gueits’s counsel learned from the

8 prosecution that the DNA in the semen recovered from the victim

9 matched that of a man wanted for rape in Maryland. Counsel for

10 each side thereafter agreed to a stipulation that “the result [of

11 the DNA test] is that the semen that is recovered does not match

12 [Gueits’s DNA].” Trial Tr., 354:16-21, March 25-27, 2002. The

13 prosecution, during a conference regarding the instructions and

14 stipulations to be read to the jury, reaffirmed this stipulation

15 when it further stipulated that Gueits’s friend with whom he

16 spent the morning of July 4, 2001 was not the source of the DNA.

17 The prosecution, however, refused to stipulate that the DNA was

18 that of a black male wanted for rape in Maryland despite

19 information from Maryland investigators that the DNA matched that

20 of such a person. Trial Tr., 676-77, Apr. 2, 2002. Despite

21 having knowledge of the existence of this evidence, Gueits’s

5
As explained above, supra Part I, Jagpal was impeached on
the stand through the use of her prior grand jury testimony, but
that impeachment did not contradict her statement that only one
person attacked the victim. Trial Tr., 444-50, Apr. 2, 2002.

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1 counsel made no attempt to contact the Maryland authorities and

2 made no preparations to present that evidence in the event the

3 prosecution refused to stipulate to the DNA match.

4 Even assuming that unjustified reliance on the possibility

5 of a stipulation as to the DNA evidence, coupled with the absence

6 of any attempt to independently present such evidence,

7 constitutes a constitutionally deficient performance by trial

8 counsel, we hold that the Appellate Division reasonably applied

9 Strickland’s prejudice prong with respect to the DNA match

10 evidence. In order for Gueits’s trial counsel’s deficient

11 performance to have prejudiced Gueits, the DNA match evidence

12 would have to have been admissible under New York’s evidentiary

13 rules. Hawkins, 460 F.3d at 243-44. Under New York law, the

14 admissibility of evidence of third-party culpability is reviewed

15 “under the general balancing analysis that governs the

16 admissibility of all evidence,” which takes into account risks of

17 “prejudice, delay and confusion,” People v. Primo, 753 N.E.2d

18 164, 168 (N.Y. 2001); see also id. at 169 (“The admission of

19 evidence of third-party culpability may not rest on mere

20 suspicion or surmise.”), and lies within the discretion of the

21 trial judge, id. at 167.

22 The Appellate Division could have reasonably concluded that

23 the DNA match evidence would not have been admitted under this

24 balancing test. Initially, any advantage to Gueits of presenting

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1 the fact of the DNA match would have been incremental in light of

2 the stipulation actually presented to the jury that the DNA

3 recovered from the victim belonged to someone other than Gueits.

4 This factual overlap consequently lowers the probative value of

5 an independent introduction of the DNA match evidence.

6 Gueits also suggests that the match of the DNA with that of

7 a suspected rapist makes more likely his claim that another man

8 raped the victim. The DNA match evidence, however, implicated a

9 person who, while suspected of rape, had not been convicted,

10 again lowering its probative value. In addition, the parties

11 presented conflicting evidence as to whether the victim here was

12 raped and assaulted by the same man: police reports and emergency

13 medical technician testimony indicating that the victim stated

14 that she was raped by the same person who assaulted her; the

15 victim’s trial testimony that she did not make those statements

16 and that she had meant to indicate only that Gueits was present

17 when she was raped; and, finally, the victim’s trial testimony

18 that she had no memory of having been raped.

19 Lastly, the admissibility of the Maryland evidence was

20 reasonably in doubt on the basis of jury confusion, particularly

21 when coupled with its questionable probative value in a case that

22 charged only assault. The evidence could have exculpated Gueits

23 only if he established that a single person had both assaulted

24 and raped the victim. As indicated above, however, the evidence

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1 was nowhere conclusive on this point.

2 Jagpal testified to hearing screams while the victim was

3 with two men, and, while the victim’s blood was on Gueits’s

4 shoes, it was stipulated that semen recovered from the victim was

5 not Gueits’s. In this situation, the trial court faced a

6 significant possibility of jury confusion as to the facts

7 necessary for a conviction of the assault. Specifically, the

8 jury could have been confused as to whether it needed to find

9 that Gueits was implicated in a contemporaneous rape of the

10 victim, even though the prosecution was under no obligation to

11 establish that such a rape occurred and the evidence at trial

12 admitted to the possibility, indeed the probability, of Gueits

13 having assaulted the victim and another having had intercourse

14 with her, forcibly or otherwise. Additional confusion could

15 reasonably have arisen from the fact that the DNA match was to a

16 person who was only accused of rape; admission of that evidence

17 would have invited an argument in rebuttal that in fact there had

18 been no rape in Maryland, leading to a confusing and cumbersome

19 de facto trial of that issue within this case.

20 Given the broad discretion available to a trial court in

21 properly balancing the probative value of proffered evidence

22 against the risks of confusion and prejudice, there is no basis

23 to conclude that the DNA match evidence necessarily would have

24 been admissible at trial. See Hawkins, 460 F.3d at 243 (“[T]he

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1 range of judgments that can be deemed reasonable may vary with

2 the nature of the rule in question. The more general the rule,

3 the more leeway courts have in reaching outcomes in case by case

4 determinations.” (internal quotation marks and citations

5 omitted)). In light of the considerable leeway inherent in

6 assessing a state court’s balancing determination, viewed through

7 the prism of the deference appropriately accorded to state courts

8 on federal habeas review, we cannot conclude that the Appellate

9 Division’s application of Strickland was unreasonable with

10 respect to trial counsel’s failure to present independent

11 evidence of the DNA match.

12

13 IV. Gueits’s Remaining Challenges

14 Gueits’s habeas petition further claims that his trial

15 counsel was ineffective in failing to object to the prosecutor’s

16 statement of his personal views of the evidence during his

17 examination of Jagpal and to improper statements made by the

18 prosecutor during summation. Neither ground for relief was

19 presented in Gueits’s letter seeking review by the New York Court

20 of Appeals, and, therefore, each is procedurally defaulted. See

21 28 U.S.C. § 2254(b)(1); Jimenez v. Walker, 458 F.3d 130, 148-49

22 (2d Cir. 2006). A petitioner may overcome procedural default

23 only with a demonstration of “cause and prejudice” or a

24 “fundamental miscarriage of justice,” see Murray v. Carrier, 477

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1 U.S. 478, 495-97 (1986), neither of which is met in this case.

2

3 CONCLUSION

4 For the foregoing reasons, we REVERSE the district court’s

5 judgment granting Gueits’s petition for a writ of habeas corpus

6 and REMAND with instructions to dismiss the petition.

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