Abodalo v. Lilley

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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JALAL ABODALO,

Petitioner, MEMORANDUM AND ORDER

-v- 21-CV-1311 (JS)

LYNN LILLEY,

Respondent.

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APPEARANCES

For Petitioner: Donna Aldea, Esq.

Barket Marion Epstein & Kearon, LLP

666 Old Country Road

Garden City, New York 11530

For Respondent: Barbara Kornblau, Esq.

Nassau County District Attorney’s Office

262 Old Country Road

Mineola, New York 11501

SEYBERT, District Judge:

Following a jury trial in 2009,1 Petitioner Jalal Abodalo

(“Petitioner” or “Abodalo”) was convicted of: one count of Course

1 Petitioner’s jury trial took place from August 12 to August 24,

2009. Trial transcripts of the state court trial and related

proceedings are found in the Case Docket as follows:

Proceeding ECF No.

Jury Selection 8-2 at ECF pp. 193-450

Trial 8-2 at ECF pp. 451-508;

8-3 at ECF pp. 1-204;

8-4 at ECF pp. 7-446; and

8-5 at ECF pp. 1-496

Sentencing 8-5 at ECF pp. 497-539

Hereafter, the consecutively paginated trial and sentencing

transcripts will be referenced as “Trial Tr.” and “Sent’g Tr.”

followed by the transcript’s original page numbers.

of Sexual Conduct Against a Child in the First Degree (New York

Penal Law [“Penal Law”] § 130.75); two counts of Aggravated Sexual

Abuse in the Second Degree (Penal Law § 130.67); two counts of

Sexual Abuse in the First Degree (Penal Law § 130.65); two counts

of Sodomy in the First Degree (Penal Law § 130.50; and two counts

of Incest in the Third Degree (Penal Law § 255.25). (Trial Tr. at

1297-1301.)

Presently, before the Court is Abodalo’s petition for

writ of habeas corpus pursuant to 28 U.S.C. § 2254 (“§ 2254”)

raising ineffective assistance of trial counsel as the sole ground

for relief. (See Petition, ECF No. 2.2) Petitioner is presently

in state custody, having been sentenced in 2009 to an aggregate

term of seven-and-a-half to 15 years of imprisonment and five years

of supervised release supervision.3 Respondent, represented by

2 Hereafter, when pin-citing to the Petition, the Court will use

the page numbers generated by the Court’s Electronic Case Filing

(“ECF”) system.

3 The Court deems Petitioner to have satisfied the custody

requirement of the federal habeas corpus proceeding. See Hensley

v. Mun. Ct., San Jose Milipitas Jud. Dist., 411 U.S. 345, 351

(1973) (concluding a person is “in custody” for habeas purposes

when such person is “subject to restraints not shared by the public

generally”). The Court notes Petitioner was incarcerated and

serving his sentence on the conviction he is challenging in the

instant Petition when he filed the instant Petition in 2021. That

sentence, imposed in 2009, included a five-year term of post-

release supervision, which had not yet commenced because

Petitioner was serving an additional, consecutive sentence of

seven and one-half to 15 years of imprisonment, imposed on him

following his June 28, 2018 conviction in a separate criminal case.

(See Opp’n at ¶ 13.)

the Office of the District Attorney for Nassau County, opposes the

Petition. (See Opp’n, ECF No. 8.) For the reasons articulated

herein, the Petition is DENIED in its entirety, and the case is

dismissed.

BACKGROUND

I. The Offense and Petitioner’s Arrest

In 2008, Petitioner’s then-18-year-old nephew

(hereinafter, “J.A.”), disclosed to a girlfriend that he had

previously been sexually abused by Petitioner, his paternal uncle.

(Trial Tr. at 308-09, 313.) Subsequently, J.A. disclosed the abuse

to his parents and law enforcement. (Id. at 317-21, 327-28.)

Petitioner was arrested and charged by indictment in Nassau County,

New York. He stood accused of sexually and physically abusing

J.A., who was a minor at the time, over a period of seven years –

from 1994, when J.A. was six-years-old, to 2001, when he turned

twelve. (See State’s Resp. to Request for Bill of Particulars &

Discovery, ECF No. 8-2 at 138-142.) The charges were based upon

multiple instances of abuse, including oral and anal sexual acts.

(Id.)

From the time of his arraignment through the state court

trial, Petitioner was represented by Dennis M. Lemke, Esq.

(“Lemke”).

II. Petitioner’s Trial and Sentence

At the jury trial, the prosecution called seven

witnesses: J.A.; J.A.’s parents; Kevin Moore (“Moore”), an

attorney who spoke at J.A.’s high school about child sexual abuse;

Edwin Trujillo, a detective working in Special Victims Squad, who

interviewed J.A.; Dr. Bella Silecchia (“Dr. Silecchia”), a

pediatrician and Director of the Suspected Child Abuse and Neglect

Evaluation Program at the Nassau University Medical Center, who

conducted a sexual abuse forensic examination of J.A. when he was

19-years-old; and Barbara Burkhard, a clinical psychologist.

J.A. testified to the details of the abuse, providing

specifics of each of the instances in which Petitioner was charged

(see id. at 263-488.) J.A. also stated Moore’s presentation served

as a catalyst for him to disclose the abuse to law enforcement.

(Id. at 326-27.) Trial testimony also disclosed that, when he was

11-years-old, J.A.’s mother took him to see a pediatrician and a

pediatric gastroenterologist because he was experiencing rectal

bleeding. (Id. at 665.) Those medical records were admitted into

evidence, but neither of those doctors testified at trial. (Id.

at 75.) The medical records did contain any disclosure or

suspicion of sexual abuse. (Id. at 91-92.) Nor was any sexual

abuse forensic examination conducted at the time. (Id.)

The only medical evidence of the alleged abuse came

though Dr. Silecchia, who testified she conducted a sexual abuse

forensic examination of J.A. on November 7, 2008, when he was 19-

years-old, which was eight years after the alleged abuse. (Id. at

67-68.) For this exam, Dr. Silecchia utilized a colposcope, which

enabled her to magnify and photograph the areas which she was

examining. (Id. at 100-18.) Through this process, Dr. Silecchia

observed two skin tags and, in-between them, a greyish-pink

triangular-shaped accumulation of thick fibrous connective tissue

(id. at 117); she testified this tissue mass was a scar left by a

very deep tear, which she concluded was consistent with severe,

penetrating trauma. (Id. at 111-14.)

Petitioner and his wife, Reem Abodalo, testified for the

defense. (Id. at 788-909, 970-1112.) Their testimonies sought to

establish that, on some of the dates J.A. claimed Petitioner had

abused him, they were out of the country. In support of these

claims, defense counsel introduced Petitioner’s passports and a

chronologic chart of the passports’ stamps indicating when

Petitioner entered and left the United States during the relevant

timeframes. (See id. at 996, 998; see also Defense Trial Exs. L,

M, N, O.) However, Petitioner’s testimony also reflected he was

in the United States on some of the dates, which were not shown by

the stamps in any of his passports. (Trial Tr. at 1052-53.)

Petitioner also testified his relationship with his

brother--who is J.A.’s father--deteriorated in 1999, and they did

not speak again until August 2001; therefore, J.A. did not visit

Petitioner’s home in April or May 2001. (Id. at 1029-30.)

Petitioner denied ever sexually abusing J.A. (Id. at 1030-34,

1040.)

Defense also presented testimony of Chris McClung

(“McClung”), a sexual assault forensic nurse examiner (“SANE”).

(Id. at 909-966.) McClung testified she reviewed Dr. Silecchia’s

photographic slides but, while she observed the same tear as Dr.

Silecchia, based on her review of J.A.’s full medical file, which

included his prior medical records, McClung concluded the tear was

caused by something other than sexual abuse, such as--possibly--

hemorrhoids or irritable bowel syndrome. (Id. at 925-32, 934,

952.) Coming to this conclusion, McClung pointed out that, in

2000, a gastroenterologist observed no tear but a hemorrhoid in

the same location where Dr. Silecchia later found a scar. (Id. at

926-27, 962.)

After defense rested, the prosecution called Deep Chopra

(“Chopra”), an officer with the U.S. Customs and Border Protection,

and introduced records of border crossings by Petitioner. (Id. at

1118-54.) Notably, according to Chopra, all entries prior to 2001

were incomplete; because of that, it was impossible to confirm

whether Petitioner was in the Country in December 1994, when, as

J.A. testified, the abuse had first occurred, but during which

time Petitioner insisted he was out of the Country. (Id. at 1124,

1127.)

The jury found Petitioner guilty on all counts, to wit:

Count One: Course of Sexual Conduct Against a

Child in the First Degree (Sept. 1997; July 4,

1998; in Aug. 1998; week or weekend before

Sept. 23, 1998; late winter/early spring

weekend in 1999; Feb. 14, 1999; June 1999);

Count Two: Aggravated Sexual Abuse in the

Second Degree (Dec. 31, 1994);

Count Three: Sexual Abuse in the First Degree

(Dec. 31, 1994);

Count Four: Aggravated Sexual Abuse in the

Second Degree (Summer 1996);

Count Five: Sexual Abuse in the First Degree

(Summer 1996);

Count Six: Sodomy in the First Degree (Summer

1996);

Count Seven: Sodomy in the First Degree

(Spring 2001);

Count Eight: Incest (Summer 1996); and

Count Nine: Incest (Spring 2001).

(Id. at 1297-1301.) On November 6, 2009, the court sentenced

Petitioner to multiple concurrent terms of imprisonment with the

longest sentence being seven-and-a-half to 15 years of

incarceration followed by five years of post-release supervision.

(Sent’g Tr. at 40-42.)

III. Direct Appeal

Petitioner appealed his conviction and sentence.

(Appellant Br., ECF No. 8-1.) On appeal, Petitioner argued his

trial counsel was ineffective for failing to: conduct pre-trial

discovery; challenge medical and psychological testimony; call

certain witnesses; and, introduce certain evidence. (Id. at 12-

65.) Most of these claims concerned matters outside the record;

recognizing this fact, Petitioner moved the Appellate Division,

Second Department, to hold his appeal in abeyance while he prepared

and filed a more appropriate collateral challenge pursuant to

Criminal Procedure Law (“C.P.L.”) § 440.10 in the lower state

court. (ECF No. 8-8.) The Appellate Division denied Petitioner’s

motion, (ECF No. 8-10), and affirmed his conviction, finding the

claims raised to have been “mixed”, i.e., addressing matters on

and outside the record, which was more suitable for a C.P.L.

§ 440.10 proceeding. People v. Abodalo, 100 A.D.3d 648, 952 N.Y.S.

2d 902 (App. Div. 2d Dept. 2012). Petitioner then sought leave to

appeal to the Court of Appeals, first, the denial of his motion to

hold the appeal in abeyance, and, second, the affirmance of the

judgment of his conviction. (See ECF No. 8-12.) The Court of

Appeals dismissed the first application and denied the second.

See People v. Abodalo, 20 N.Y.3d 1095 (2013).

IV. C.P.L § 440 Proceedings

After the rejection of his direct appeal, Petitioner

filed a C.P.L. § 440.10 motion seeking to vacate his judgment of

conviction. (§ 440.10 Mot., ECF No. 8-16.)4 Petitioner claimed

ineffective assistance of trial counsel and actual innocence. (Id.

at 19-136.) With respect to ineffective assistance, he argued

trial counsel: (1) failed to call certain alibi and fact witnesses,

as well as failed to introduce documentary evidence which

established Petitioner’s innocence; (2) failed to investigate and

conduct pre-trial discovery; (3) failed to (i) challenge medical

and psychological testimony presented by prosecution and (ii)

effectively cross-examine the prosecution’s experts; and (4)

failed to object to an impermissible outcry and bolstering

testimony. (Id.) In support of his § 440.10 Motion, Petitioner

submitted affidavits from multiple individuals claiming Petitioner

was out of the Country on the dates when J.A. stated sexual abuse

occurred. (Exs. 3-13, 16-18, ECF No. 8-17.) There were also

affidavits from medical doctors, Dr. Jocelyn Brown and Dr. Vincent

Palusci, submitted to dispute the findings presented at trial by

Dr. Silecchia. (Exs. 33, 34, ECF No. 8-22.) Petitioner also

presented an affidavit from McClung. (Ex. 35, ECF No. 8-23.)

On Respondent’s consent, the court ordered an

evidentiary hearing (hereafter, the “Section 440 Hearing”), over

which Justice Terese K. Corrigan presided (hereinafter, the

4 Petitioner’s § 440.10 motion included multiple exhibits, all of

which can be found in the Case Docket. (See ECF Nos. 8-17, 8-18,

8-19, 8-20, 8-21, 8-22, 8-23.)

“Section 440 Court”). The Section 440 Hearing lasted 39 days,

with the Section 440 Court sitting from April 14, 2015, to May 2,

2016.5 Petitioner presented 19 witnesses and 108 exhibits.

Multiple witnesses were purported alibi witnesses who, according

to Petitioner, trial counsel Lemke should have investigated and

called to testify at trial. However, at most, said alibi witnesses

could testify to three of the charged instances of sexual abuse.

At the Section 440 Hearing, Yousef Al Haddad,

Petitioner’s business partner and friend, and Haddad’s wife, Guity

Dormishian, testified (remotely) that Petitioner was in Saudi

Arabia on December 31, 1994, watching two of the Al Haddad children

while Yousef and Guity travelled to Germany for the medical

treatment of another of their children. (440 Hr’g Tr. at 633-34,

640, 647, 658.) This testimony contradicted J.A.’s trial testimony

that Petitioner had first abused him on that date. (See Trial Tr.

at 367, 735-36.)

Petitioner’s family friends, Said and Sima Tarzemi, also

testified during the Section 440 Hearing, stating that on July 4,

1998, they were in Long Beach, New York, with Petitioner and his

wife watching a firework show. (440 Hr’g Tr. at 1078.) This

testimony contradicted the trial testimony that Petitioner had

5 The consecutively paginated transcripts of the Section 440

Hearing are available in the Case Docket and will be referred to

hereinafter as the “440 Hr’g Tr.” (ECF Nos. 8-27, 8-28, 8-29,

8-30.)

sexually abused J.A. when he and his family visited Petitioner for

the holiday weekend. (See Trial Tr. at 463.) At trial, J.A. also

testified that when he told Petitioner he would tell his mother,

Petitioner held him to a lit stove and threatened to burn J.A. on

his rear end. (Id. at 248-49.)

Abdul Al Akel, Petitioner’s brother-in-law (i.e., the

brother of Petitioner’s wife, Reem) and Abdul’s wife testified

(remotely) that, in September 1998, Petitioner attended their

wedding in Jordan. (440 Hr’g Tr. at 965-66.) This testimony

contradicted J.A.’s trial testimony that Petitioner forced him to

perform oral sex about a week before his ninth birthday, which was

on September 23, 1998. (See Trial Tr. at 256.)

Petitioner’s other fact witnesses included: Joumana

Abodalo, his sister; Inaya and Kanaan Shaath, family friends;

Lisandra Estrada, a former tenant in Petitioner’s house; and

Gaetana Lorusso, a former health aide to Petitioner’s mother.

These witnesses provided testimony seeking to rebut some of the

facts to which J.A. testified, such as whether there was a shed in

the backyard of Petitioner’s home and a counter in a downstairs

bathroom, both locations where J.A. stated the sexual abuse took

place. Similarly, in an attempt to rebut J.A.’s account that

Petitioner’s mother washed bloody sheets after one of the assaults,

Petitioner proffered Lorusso, who opined as to whether

Petitioner’s mother was capable of doing laundry. (440 Hr’g Tr.

at 708; see Trial Tr. at 266.)

At the Section 440 Hearing, Petitioner called two

medical expert witnesses: Dr. Jocelyn Brown and Dr. Vincent

Palusci, pediatricians with certifications in child sex abuse.

(440 Hr’g Tr. at 571, 777.) Their criticism of Dr. Silecchia

included her failure to: conduct a peer review of her findings;

consider a differential diagnosis to explain the abnormal

findings, such as Crohn’s disease; and palpate or conduct a biopsy

of the abnormal tissue to confirm that it was indeed a scar. (See,

e.g., id. at 826, 1112-13, 1115.) Yet, both experts admitted: Dr.

Silecchia did palpate the tissue; and, neither of them would have

conducted a biopsy--an invasive procedure--to determine whether a

tissue is simply a scar. (Id. at 826, 1124.) Further, on cross-

examinations, both experts conceded Dr. Silecchia’s slides

reflected abnormal findings, which findings did not exclude--and

could be consistent with--the sexual abuse. (Id. at 879-80, 1124.)

Petitioner also presented testimony from the two

doctors, Dr. Moffitt and Dr. Kelly, who had examined J.A. in 2000,

but did not notice any abnormalities such as the presence of any

anal tears. (Id. at 2034-35, 2063.) Both doctors confirmed there

was no disclosure of sexual abuse, and they had not examined J.A.

in a chest-prone position with a colposcope, as Dr. Silecchia had.

Petitioner called McClung to testify at the Section 440

Hearing, i.e., the same SANE nurse who testified as an expert for

Petitioner at trial. (Id. at 340-568.) At the said Hearing,

McClung testified to feeling she had not been properly prepared by

Petitioner before his trial, but that she had not advised

Petitioner’s trial counsel of that fact; yet, she also stated

defense counsel provided her with the medical records and

colposcopy slides from Dr. Silecchia, and she discussed her

testimony with defense counsel in person and via telephone. (Id.

at 360,385, 491-94, 501-03, 559-60.) McClung further testified

about having testified as an expert on 60 prior occasions,

including for Petitioner’s trial counsel in an unrelated case.

(Id. at 560-61.) Additionally, McClung stated she was trained,

experienced, and capable of reviewing Dr. Silecchia’s slides and

testifying as to the findings. (Id. at 560.) Lastly, McClung

disclosed, since Petitioner’s trial, she had had seven surgeries

and chemotherapy, which may have affected her memory. (Id. at

564.)

Finally, Petitioner called Dr. John Yuille, a forensic

psychologist, who opined the police had not follow established

guidelines when interviewing J.A. (Id. at 2403-50.) Dr. Yuille

testified child victims of sexual assault have so-called “script

memory”, remembering the general way sexual abuse occurs, but not

individual episodes unless those episodes would not be part of a

pattern. (Id.) Dr. Yuille did not partake in the police’s

interview of J.A.; nor is there any trial testimony regarding the

manner in which said interview was conducted, which was not

recorded.

Respondent presented testimony from three witnesses: (1)

Michael Tangney, the Long Beach Commissioner of Police; (2) Carla

Abodalo, J.A.’s mother; and, (3) trial counsel Lemke. First,

Commissioner Tangney testified there was no firework display in

Long Beach on July 4, 1998; this testimony contradicted the

testimony of Said and Sima Tarzami that Petitioner was with them

on that date in Long Beach watching the fireworks show. (Id. at

3353-93.) Second, Carla Abodalo testified J.A. never suffered

from the Crohn’s disease or any inflammatory or irritable bowel

syndrome, all possible differential diagnoses Petitioner’s experts

opined could have explained the abnormal findings by Dr. Silecchia.

(Id. at 3023-24.)

Finally, Petitioner’s trial counsel, Lemke, testified

extensively regarding his representation of Petitioner in

Petitioner’s underlying criminal case. Lemke explained he became

involved in the case after receiving a call from Petitioner’s wife,

following Petitioner’s arrest in October 2008. (Id. at 2456.)

Lemke met with the wife before Petitioner’s arraignment and bail

hearing, after which he encouraged her to bring more family members

to the courtroom as a show of support for Petitioner. (Id. at 2458-

59.) However, Petitioner’s wife came to court alone and was

adamant about not wanting anyone to know about the charges. (Id.

at 2459.) After securing Petitioner’s release on bail, Lemke

recounted, he then regularly met and conversed about the case with

Petitioner and his wife. (Id. at 2489.) Lemke testified

Petitioner was also adamant that neither family members nor his

friends learn about the charges, even if Petitioner would not then

be able to call these people as witnesses to substantiate his

claims of having been out of the Country on the dates of alleged

abuse. (Id. at 2567.) Lemke further testified of his repeatedly

and strongly advising Petitioner against this approach and telling

Petitioner it was “foolish” to not provide Lemke with the names

and contact information of these possible defense witnesses. (Id.)

And, upon cross-examination, Lemke again explained he was not

provided any additional names of individuals to whom he could speak

about the allegations; he elucidated:

The conversations that I had with Jalal . . .

and Reem regarding these allegations and as

much as I impressed upon him the seriousness

of these allegations and that the more

witnesses that would be relevant which would

be helpful to this defense was not readily

accepted by Jalal and Reem because they wanted

it very limited as to who would find out or

who would know about not only these

allegations but that a brother would bring

this laundry, as they referred to it, in the

open.

(440 Hr’g Tr. at 3278.)

Additionally, Lemke testified that, from Petitioner he

knew, from November 1994 through March 1995, Petitioner and his

wife were in Saudi Arabia watching over Al Haddad’s children while

the latter and his wife travelled to Germany with one of their

children for medical treatment. (Id. at 2574-77.) Lemke asked

Petitioner to contact Al Haddad, which Petitioner said he did, but

then Petitioner told Lemke that Al Haddad did not recall whether

Petitioner left Saudi Arabia and returned to the United States

within the timeframe when Petitioner and his wife were watching

over Al Haddad’s children. (Id.; see also id. at 2581.) Lemke

stated that it was “mostly” Petitioner who decided not to call Al

Haddad as a witness. (Id. at 2577-78.)

With respect to Petitioner’s medical expert, McClung,

Lemke testified he retained P.J. West and Associates (“P.J. West”),

whose services he previously utilized, to aid in interpreting the

medical findings of the case. (Id. at 2513-2516.) He explained

he consulted with P.J. West, reviewing the medical records and the

slides, to assist him in developing a strategy for challenging the

evidence and cross-examining Dr. Silecchia. (Id.) Also, it was

through P.J. West that Lemke was introduced to McClung, who had

successfully testified for Lemke in an unrelated previous trial,

and who the defense called on behalf of Petitioner. (Id. at 2514.)

Lemke testified that upon the review of the slides with McClung,

he developed a two-fold strategy: first, he would seek to establish

that, if the colposcopic findings were related to the sexual abuse,

those findings would have been observed by the doctors who examined

J.A. in 2000; and second, he would seek to establish that there

was other explanations other than sexual abuse for the abnormal

findings, such as irritable or inflammatory bowel disease. (Id.

at 2533.)

After the conclusion of the Section 440 Hearing and upon

receipt of the parties’ post-hearing memoranda of law (ECF Nos. 8-

31, 8-32), the Section 440 Court issued its decision partially

vacating Petitioner’s conviction on the grounds of established

actual innocence, but denying all ineffective assistance claims.

(See July 28, 2016 Section 440 Court Order (“440 Court Order”),

ECF No. 8-33.) Specifically, with respect to Petitioner’s

ineffective assistance claims, the Section 440 Court credited

Lemke’s testimony in its entirety (id. at 3); it found Lemke’s

performance in the underlying trial was not ineffective, and his

representation of Petitioner was “both objectively reasonable and

meaningful.” (Id. at 8, 12.)

The Section 440 Court’s finding that Petitioner’s trial

counsel was not ineffective was supported by many findings of fact.

For example, the Section 440 Court found Petitioner played a

substantial role in preparing his potential alibi defense, even

though “he was reluctant to provide Mr. Lemke the names and contact

information of individuals who could provide alibi information as

[Petitioner] did not want anyone outside of his immediate family

to know of the charges against him.” (Id. at 5.) Indeed, the

Section 440 Court noted: “Numerous witnesses testified at this

hearing that they were not made aware of the charges against

[Petitioner] until after he was convicted and only in relation to

this current motion before the Court.” (Id. at 5 n.10.) Moreover,

with Petitioner’s accent, because Al Haddad could not confirm

Petitioner did not leave for the United States in December 1994,

Lemke decided to rely upon documentary proof that Petitioner did

not enter the Country. (Id. at 5.) Instead of calling Al Haddad,

a chronologic overview of the stamps in Petitioner’s passports was

created and presented to the jury. (Id.) The Section 440 Court

also found Lemke made a strategic choice, agreed to by Petitioner,

not to call any U.S. Customs and Border Protection witnesses

regarding Petitioner’s presence, or not, in the Country after being

“advised that prior to September 11, 2001, record keeping was

sub-par and thus it would not be beneficial to the defense to have

a witness cast doubt on the travel information already received by

defense.” (Id.)

Continuing, the Section 440 Court found Lemke presented

documentary proof of Petitioner’s absence from the United States

where it was available, but it was Petitioner himself who prevented

Lemke from contacting and calling witnesses who would be able to

corroborate this timeline. (Id. at 6.) It reiterated it was

Petitioner who “continued to insist that no-one be called as

[Petitioner] did not want the allegations shared with others.”

(Id.) Relatedly, Lemke discussed the possibility of calling

Petitioner’s father (who was also J.A.’s grandfather) to testify;

ultimately, because of the father’s anger of the allegations

against Petitioner having been shared outside of the family, which

was “a position that was not advantageous to” Petitioner, it was

determined the father would not be called. (Id.)

The Section 440 Court discussed Lemke’s defense strategy

of putting forth “a motive related to family embarrassment over

Petitioner paying off a debt for J.A.’s father,” which was

considered “a significant slight in [Petitioner’s] culture.”

Lemke sought to present a defense that J.A. made false allegations

of sexual abuse “in retaliation for this slight.” (Id. at 6-7.)

He would use Petitioner’s travel documents to both show

Petitioner’s alibi and call in question J.A.’s credibility. (Id.

at 7.) Overall, the Section 440 Court stated:

Mr. Lemke sought an opportunity to call alibi

witnesses; [Petitioner] hampered Mr. Lemke’s

ability to do so and was told by Mr. Lemke

that such actions were “foolish.” That Mr.

Lemke’s words proved true does not now mean

that [Petitioner] can say he was ineffective.

(Id. at 10 (citation omitted).)

As to medical records and experts, the Section 440 Court

found Lemke pursued the exact strategy Petitioner claimed Lemke

should have pursued, i.e., he sought to cast doubt on Dr.

Silecchia’s findings supporting J.A.’s sexual abuse allegations

and to provide an alternative explanation for the presence of the

anal scarring. (Id. at 9.) Because both of Petitioner’s experts

provided equivocal testimony about the possible origins of the

anal scar, the Section 440 Court found such testimony “d[id] not

equate with the finding of ineffectiveness in the manner in which

Mr. Lemke handled the situation,” namely relying on his chosen

expert whose credentials and qualifications he had no reason to

question. (Id.)

Nonetheless, based upon clear and convincing documentary

evidence and certain witness testimony, the Section 440 Court also

found Petitioner was “actually innocent of certain charges against

him as he was not in the United States on the dates as outlined by

the prosecution”, i.e., the week/weekend before September 23, 1998

(as relevant to the Count One), and December 31, 1994 (as relevant

to Counts Two and Three). (Id. at 12-13.) Because charges in

Counts Two and Three were based solely upon allegations of the

sexual abuse occurring on December 31, 1994, the Section 440 Court

ordered them dismissed. (Id. at 18.) Having found Petitioner

innocent of one of the allegations underlying the charges in the

Count One, the Section 440 Court nevertheless let the conviction

on Count One stand as September 1998 was only one of many instances

charged under that Count. (Id.) The Section 440 Court stated:

[M]uch of the testimony received at the [] 440

Hearing casts some doubt on [Petitioner]’s

guilt on those counts for which the Court has

not found him actually innocent. However,

such doubt, or even a preponderance of

conflicting evidence as to [Petitioner]’s

guilt, is insufficient for the Court to make

a finding of actual innocence. In fact, this

Court does not believe [Petitioner] is

completely innocent of the charges against

him. The child complainant, who was a

teenager at the time he revealed the abuse,

initially discussed the many instances of

sexual abuse based on his best recollection,

the events surrounding the abuse and his

general age. After meeting with the District

Attorney’s office, specific dates were

connected to specific acts of abuse. It is

clear from the evidence at this [440 H]earing

that certain of those dates correspond to the

time when [Petitioner] was not in the United

States. The Court does not find that this

issue is one of credibility as it relates to

the complainant.

(Id. at 17 (internal citation omitted; emphasis added).) The

Section 440 Court explicitly stated it made its findings of actual

innocence “[i]rrespective of [its] finding regarding Mr. Lemke’s

representation.” (Id. at 12.)

V. Resentencing and Appeal

Since the Section 440 Court dismissed two counts of

Petitioner’s conviction and made a finding of actual innocence in

relation to one instance charged in a third count, Petitioner was

resentenced, and a new judgment of conviction was issued.

(Resent’g Tr., ECF No. 8-34.) At resentencing, the state court

vacated Counts Two and Three and the related sentences; the

sentence on all remaining counts, including Count One, remained in

place. (Id. at 4.) Since it was Count One that carried the

longest prison sentence of seven-and-one-half to 15 years, and

with all imposed sentences having been concurrent, the vacated

counts had no effect on Petitioner’s total term of imprisonment.

Petitioner then sought, and was granted, leave to appeal

the Section 440 Court’s denial of his claims of ineffective

assistance of counsel and the denial to vacate the judgment.

(Leave Appl., ECF Nos. 8-35, 8-36, 8-37, 8-38, 8-39.) On appeal,

Petitioner argued the Section 440 Court should have applied a lower

standard, i.e., preponderance of the evidence, to the remaining

counts of the indictment, once it had made a determination by clear

and convincing evidence with regards to the instances charged under

Counts One, Two, and Three. (Appellant § 440 Appeal Br., ECF No.

8-42, at 130-35.) He also claimed the Section 440 Court misapplied

and/or misapprehended the law when it found trial counsel Lemke

not ineffective. (Id. at 17-129.) Respondent opposed Petitioner’s

argument. (Respondent § 440 Appeal Opp’n, ECF Nos. 8-43, 8-44).

The Appellate Division affirmed the Section 440 Court ruling,

agreeing that Petitioner failed to establish he was denied

effective assistance of counsel because:

[he] did not demonstrate the absence of

strategic or other legitimate explanations

for, inter alia, certain individuals not being

called as witnesses, not obtaining certain

documentary evidence, and the manner in which

trial counsel rebutted the People’s medical

evidence. The record showed that certain

witnesses were unwilling to testify or, in any

event, were unable to confirm that

[Petitioner] was not in the United States at

the time that some of the incidents occurred

(see People v. Stewart, 248 A.D.2d 414, 414),

while the identities of others were unknown to

trial counsel since [Petitioner] did not want

anyone beyond a very small group of

individuals to know of the allegations which

he deemed to be embarrassing for him and his

family (see People v. Hamilton, 272 A.D.2d

553, 554). In addition, [Petitioner] failed

to demonstrate that his trial counsel was

ineffective for not introducing certain

documentation into evidence at trial.

Moreover, [Petitioner] did not demonstrate

that trial counsel’s decision to rebut the

People’s medical evidence through testimony

from a sexual assault nurse examiner and to

present an alternative theory for the

existence of the medical findings was anything

more than a disagreement with trial tactics

and strategies (see People v. Guay, 72 A.D.3d

1201, 1204, aff’d 18 N.Y.3d 16).

People v. Abodalo, 189 A.D. 3d 1607, 1608-09, 138 N.Y.S.3d 149

(App. Div. 2d Dept. 2020). The Appellate Division ruled

Petitioner’s remaining contention was unpreserved and meritless.

See id. at 1609. Petitioner then unsuccessfully sought leave to

appeal to the Court of Appeals, raising the same arguments as

before the Appellate Division. (ECF Nos. 8-46, 8-47.) See People

v. Adodalo, 36 N.Y.3d 1094 (2021).

VI. Procedural History

Petitioner timely filed the instant Petition seeking

federal habeas corpus relief based upon his claims of ineffective

assistance of counsel. (Pet., ECF No. 2.) Respondent opposed the

Petition. (Opp’n, ECF No. 8.) Petitioner filed a Reply, in which

he elaborated on his claims of ineffective assistance of counsel.

(Reply, ECF No. 10.)

DISCUSSION

I. The Applicable Law

A. Section 2254 Standard of Review

“It is well established that a federal habeas court does

not sit to correct a misapplication of state law, unless such

misapplication violates the Constitution, laws, or treaties of the

United States.” Ponnapula v. Spitzer, 297 F.3d 172, 182 (2d Cir.

2002). Pursuant to 28 U.S.C. § 2254, as amended by the

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

a habeas court, when considering a claim that was decided on the

merits in a state court proceeding, may grant relief only if the

state court’s decision was (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as

determined by the Supreme Court of the United States; or” (2)

“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).

The AEDPA establishes a deferential standard of review:

“a federal habeas court may not issue the writ simply because that

court concludes in its independent judgment that the relevant

state-court decision applied clearly established federal law

erroneously or incorrectly. Rather, that application must also be

unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000); see

also McBride v. Perez, No. 13-CV-4792, 2015 WL 5245072, at *8

(S.D.N.Y. June 25, 2015) (“‘[I]t is not the province of a federal

habeas court to reexamine state-court determinations on state-law

questions. In conducting habeas review, a federal court is limited

to deciding whether a conviction violated the Constitution, laws

or treaties of the United States.’”) (quoting Estelle v. McGuire,

502 U.S. 62, 67-68 (1991)). The requirements set forth by the

AEDPA are strictly construed and, by design, establish a barrier

to federal habeas relief founded upon the principle that “[s]tate

courts are adequate forums for the vindication of federal rights”

and are “presumptively competent[] to adjudicate claims arising

under the laws of the United States.” Burt v. Titlow, 571 U.S.

12, 19 (2013) (internal quotation marks and citation omitted).

Under § 2254(d)(1), a state court decision is considered

“contrary to” federal law if it either “applies a rule that

contradicts the governing law set forth in [the Supreme Court]

cases” or “confronts a set of facts that are materially

indistinguishable from a decision of [the Supreme Court] and

nevertheless arrives at a result different from [the Supreme Court]

precedent.” Williams, 529 U.S. at 405-06. “‘Clearly established

Federal law’ means ‘the holdings, as opposed to the dicta, of [the

Supreme] Court's decisions as of the time of the relevant state-

court decision.’” Green v. Travis, 414 F.3d 288, 296 (2d Cir.

2005) (quoting Williams, 529 U.S. at 412 (alteration in original)).

By contrast, an “unreasonable application” of federal law occurs

where the state court “correctly identifies the governing legal

rule but applies it unreasonably to the facts of a particular

prisoner’s case.” Williams, 529 U.S. at 407-08. “The critical

point is that relief is available under § 2254(d)(1)’s

unreasonable application clause if, and only if, it is so obvious

that a clearly established rule applies to a given set of facts

that there could be no fairminded disagreement on the question.”

White v. Woodall, 572 U.S. 415, 427 (2014) (internal quotation

marks and citations omitted).

Furthermore, a state court’s determinations of factual

matters are “presumed to be correct,” and the petitioner has “the

burden of rebutting the presumption of correctness by clear and

convincing evidence.” 28 U.S.C. § 2254(e)(1); see also Lynn v.

Bliden, 443 F.3d 238, 246 (2d Cir. 2006). A state court’s findings

of fact will be upheld “unless objectively unreasonable in light

of the evidence presented in the state court proceeding.” Lynn,

443 F.3d at 246–47 (quoting Miller-El v. Cockrell, 537 U.S. 322,

340 (2003)). Thus, a federal court may overrule the state court’s

judgment only if “after the closest examination of the state-court

judgment, a federal court is firmly convinced that a federal

constitutional right has been violated.” Williams, 529 U.S. at

389.

While a habeas petition will not be reviewed by the

district court unless “the applicant has exhausted the remedies

available in the courts of the State,” 28 U.S.C. § 2254(b)(1)(A),

since all claims in the instant Petition were previously fully

presented to the state courts and rejected by them on the merits,

Petitioner’s claims are fully exhausted. Therefore, in this

instance, the Court need not discuss the procedural bar standards

in the federal habeas review context.

B. Ineffective Assistance of Counsel Standard

Strickland v. Washington sets forth the relevant federal

law governing claims of ineffective assistance of counsel. 466

U.S. 668 (1984). To prevail, a petition must establish (1) the

“counsel’s performance was deficient” and (2) “that deficient

performance prejudiced the defense.” Id. at 687. To make out a

successful claim, both Strickland factors must be satisfied; a

reviewing court is not required to “even address both components

of the inquiry if the [petitioner] makes an insufficient showing

on one.” Id. at 697.

As to the Deficient Performance Factor: “To establish

deficient performance, a person challenging a conviction must show

that ‘counsel’s representation fell below an objective standard of

reasonableness.’” Harrington v. Richter, 562 U.S. 86, 104 (2011)

(quoting Strickland, 466 U.S. at 688). In evaluating this prong,

“the court must make ‘every effort . . . to eliminate the

distorting effects of hindsight, to reconstruct the circumstances

of counsel’s challenged conduct, and to evaluate the conduct from

counsel’s perspective at the time,’ and ‘must indulge a strong

presumption that counsel’s conduct falls within the wide range of

reasonable professional assistance.’” Henry v. Poole, 409 F.3d

48, 63 (2d Cir. 2005) (quoting Strickland, 466 U.S. at 689).

Furthermore, “‘[t]he failure of a lawyer to invoke meritless

objections cannot constitute constitutionally deficient

performance.’” Parks v. Sheahan, 104 F. Supp. 3d 271, 285

(E.D.N.Y. 2015) (quoting Hicks v. Ercole, No. 09-CV-2531, 2015 WL

1266800, at *23 (S.D.N.Y. Mar. 18, 2015)).

As to the Prejudice Factor: To make a sufficient showing of

prejudice, a petitioner:

must show that there is a reasonable

probability that, but for counsel’s

unprofessional errors, the result of the

proceeding would have been different. A

reasonable probability is a probability

sufficient to undermine confidence in the

outcome. In making the determination whether

the specified errors resulted in the required

prejudice, a court should presume, absent

challenge to the judgment on grounds of

evidentiary insufficiency, that the judge or

jury acted according to law.

Strickland, 466 U.S. at 694.

Furthermore, the “highly deferential Strickland standard

is made doubly so on habeas review, as AEDPA requires deference to

the state court’s ruling.” Bogan v. Brandt, No. 11-CV-1550, 2017

WL 2913465, at *9 (E.D.N.Y. July 6, 2017) (internal quotation marks

and citations omitted). “Bearing this deferential standard in

mind, it is unsurprising that ‘the great majority of habeas

petitions that allege constitutionally ineffective counsel’ fail.”

Miller v. LeClair, No. 20-CV-1546, 2024 WL 1797341, at *12

(E.D.N.Y. Apr. 25, 2024) (quoting Lindstadt v. Keane, 239 F.3d

191, 199 (2d Cir. 2001)).

II. Application

Petitioner challenges his state court conviction and

sentence on a sole ground that he received ineffective assistance

of counsel. (Pet. at 5.) Specifically, he raises three claims of

ineffective assistance, to wit, that counsel failed to: (1)

investigate and present alibi witnesses and supporting evidence

“to demonstrate the implausibility, if not impossibility, of

virtually all of complainant’s accusations”; (2) prepare for and

challenge the prosecution’s medical evidence; (3) investigate or

elicit evidence to challenge J.A.’s credibility and provide

another explanation for any physical findings presented to the

jury. (Id.) Petitioner argued all of these claims earlier, twice,

in state court, i.e., on direct appeal and via his Section 440

Motion. And, Petitioner’s Section 440 Motion was the subject of

an extensive evidentiary hearing, during which the 440 Court heard

from the array of Petitioner’s witnesses, as well as his former

trial counsel, Lemke. The 440 Court denied all of Petitioner’s

ineffective assistance claims, explicitly finding Lemke was not

ineffective under both New York and Strickland standards.

In opposition, Respondent argues Petitioner’s

ineffective assistance claims, advanced in the state courts and

rejected on the merits, do not pass the double deferential AEDPA

standard and do not present an unreasonable application of the

Strickland standard. (Opp’n at 3-21.) The Court addresses each

claim in order.

A. Alleged Failure to Investigate and Call Witnesses

Petitioner claims Lemke failed to investigate and call

witnesses at trial. (Pet. at 5; Reply at 5-8.) He further argues

Lemke should have called the witnesses who testified for Petitioner

at the 440 Hearing and, at that Hearing, provided information about

his alibi. (Reply at 5-8.) Respondent counters that the 440 Court

reasonably determined Lemke could not have called witnesses of

whose existence he was unaware because his client, Petitioner,

refused to divulge their names and contact information to him.

(Opp’n at 5-11.) In reply, Petitioner contends, “based on the

record, the state courts’ findings that Lemke was hamstrung by his

client from calling alibi witnesses was ‘an unreasonable

determination of facts.’” (Reply at 6 (citing 28 U.S.C §

2254(e)(1); Wood v. Allen, 558 U.S. 290, 297 (2010)).)

Petitioner’s argument is unavailing. The record

demonstrates Lemke had numerous conversations with Petitioner

about alibi witnesses. While Petitioner identified some of these

witnesses, he did not provide Lemke with the contact for any of

them besides his father, who, as both Petitioner and Lemke decided,

would not have been an effective defense witness. (See 440 Hr’g

Tr. at 2618-20, 3261.) Moreover, as to Al Haddad, who Petitioner

identified as a potential alibi witness, Lemke reasonably

questioned his value as a defense witness because Petitioner told

Lemke that Al Haddad could not confirm with certainty Petitioner

had not returned to the United States in December 1994, as would

have been relevant to establish an alibi for December 31, 1994.

That questionable value led to a decision to put in documentary

evidence, as well as Petitioner’s and his wife’s testimonies,

instead. (Id. at 2575-81.)

While Petitioner’s argument is that “everyone was

talking about the allegations” prior to trial, as one of

Petitioner’s family friends testified (id. at 1699-1700; see also

Reply at 6), this does not contradict Lemke’s testimony that

Petitioner refused to divulge names of possible witnesses to him

and wanted to keep the circle of those involved in the trial small.

Indeed, no contrary evidence was offered during the 440 Hearing to

undermine Lemke’s testimony regarding Petitioner’s insistence of

not divulging names of possible witnesses other than Al Haddad and

Petitioner’s father and sister.

As such, upon its independent review of the evidence

presented below, this Court finds the state court’s findings of

facts were not unreasonable with respect to the possible alibi

witnesses and Petitioner’s own shortcomings in not disclosing

those witnesses’ identities to his counsel. Lemke’s testimony

that he was hamstrung by his client’s “foolish” decision not to

disclose the identities of potential witnesses is not contradicted

by the fact that some of the 440 Hearing witnesses had found out

independently about the charges. And, despite some witnesses

having testified to knowing about the charges and being available

to testify if called, that does not negate Lemke’s decision to

pursue a strategy to discredit J.A. without involving individuals

outside of the family, i.e., the strategy upon which Petitioner

insisted and which he was very involved in developing. (See id.

2553, 2566-67.)

To the extent Petitioner also argues Lemke was deficient

in his performance by failing to call, not only the Arabic-speaking

witnesses from out-of-Country, but also those who were in-Country,

spoke English, possessed information relevant to the allegations,

and were available to testify, upon the record presented, said

argument is without merit. (Reply at 7-9.) Testimony given at

the 440 Hearing by these potential witnesses undergirds Lemke’s

assertion that Petitioner never provided him with the names of

said potential witnesses. Several witnesses were asked whether

they were aware of charges against Petitioner before the trial

and/or contacted by Lemke, to which they responded in the negative.

(See, e.g., 440 Hr’g Tr. at 132-33 (Lisandra Estrada), 155-56

(David Said Tarzami), and 256 (Sima Tarzami).) Lemke himself

confirmed that neither Petitioner nor his wife had made Lemke aware

that these persons were potential witnesses. (See id. at 2622,

2626, 2629, 2631.) Furthermore, Petitioner’s representation to

Lemke that his sister would not agree to testify so as to avoid

taking sides of one brother over another (see id. at 2634), and

that Al Haddad was unable to confirm Petitioner was in Saudi Arabia

and did not leave for the United States at a relevant time, (see

id. at 2576), further supports the 440 Court’s reasonable finding

that Lemke did not fail to investigate or call them but was

prevented from doing so by Petitioner. See, e.g., Strickland, 466

U.S. at 691 (“[W]hen a defendant has given counsel reason to

believe that pursuing certain investigations would be fruitless or

even harmful, counsel’s failure to pursue those investigations may

not later be challenged as unreasonable.”); cf. Garcia v.

Portuondo, 459 F. Supp. 2d 267, 286 (S.D.N.Y. 2006) (finding

counsel’s performance deficient where counsel was in possession of

alibi documents, knew of witnesses ready to testify, but failed to

undertake any investigation).

In sum, as he failed before the 440 Court, here, in the

absence of clear and convincing evidence, Petitioner fails to show

Lemke’s performance was deficient for failing to call witnesses of

whom he was unaware given Petitioner’s own representations and

actions; therefore, this Court finds the 440 Court was not

unreasonable in finding Petitioner’s ineffective claim failed

under Strickland. Cf. Caballero v. Miller, No. 18-CV-5108, 2024

WL 4231760, at 27-28 (E.D.N.Y Sept. 19, 2024) (finding ineffective

assistance established under Strickland where the record

established petitioner’s trial counsel did not interview any

witnesses despite knowing their identities and the potential

importance of their testimonies). Because Lemke’s performance

here was not constitutionally deficient, the Court need not make

a prejudice determination.

B. Alleged Failure to Prepare and Challenge Medical Evidence

Petitioner claims Lemke failed to adequately prepare and

lodge a challenge to the medical evidence presented in this case.

(Pet. at 5.) More specifically, he argues Lemke was deficient in

his performance for failing to consult with a qualified medical

expert to understand the science and challenge the prosecution’s

evidence and expert witness. (Reply at 10-17.) Petitioner’s

position is that Lemke improperly utilized the services of a SANE

nurse, instead of a medical doctor, to rebut Dr. Silecchia’s

testimony regarding a scar J.A. had, i.e., that it was a

consequence of sexual abuse by anal penetration. (Id. at 11-12.)

Respondent argues that Lemke made an effective and diligent

challenge to the medical findings. (Opp’n at 12-20.) That is

precisely what the 440 Court found:

[Lemke] consistently argued that the medical

findings were NOT the result of sexual abuse

by [Petitioner]. There is nothing in the

record that shows that Mr. Lemke would have

been more successful at trial by calling a

medical doctor to contradict the findings of

Dr. Silecchia. There is nothing in the record

that shows that this decision was so egregious

and prejudicial as to deny [Petitioner] a fair

trial.

(440 Court Order at 9.)

In support of his position that Lemke’s performance was

deficient under the first prong of Strickland, Petitioner cites

Gersten v. Senkowski, 299 F. Supp. 2d 84 (E.D.N.Y. 2004), which

was affirmed by the Circuit Court, see 426 F.3d 588 (2d Cir. 2005).

(See Reply at 10-13). In Gersten, Lemke was the trial counsel

whose ineffectiveness was challenged by a habeas petitioner. See

Gersten, 299 F. Supp. at 96. In that sexual assault case, the

district court found Lemke to be ineffective because he failed to

consult with, and call to testify, a medical expert to challenge

the prosecution’s presentation of medical expert testimony from

Dr. Silecchia, who--like here--testified to finding, among other

things, anal tearing through the use of a colposcope. See id. at

102-104. In affirming the district court, the Second Circuit

underscored, “defense counsel failed to call a witness, or even to

consult in preparation for trial and cross-examination of the

prosecution’s witnesses, any medical expert on child sexual

abuse.” Id. at 608.

Petitioner’s reliance upon Gersten is misplaced; here,

“[u]pon receipt of medical records and other medical evidence, Mr.

Lemke reached out to a medical consulting firm that he previously

utilized to obtain an understanding of that evidence.” (440 Court

Order at 8 (stating further “[n]o information existed that called

into question the abilities and services” of the medical consulting

firm).) Hence, Petitioner’s contention that Gerstein’s facts and

holding squarely apply here is inaccurate. Contrary to Gersten,

where the Circuit Court found it “particularly troubling” that

Lemke failed to examine the colposcopic files, or even request

them, in this instance, Lemke requested and received Dr.

Silecchia’s findings and colposcopic slides, as well as consulted

with a medical consulting firm and retained an expert to challenge

those findings and slides at trial. The fault the Gersten courts

found with Lemke, warranting a finding of ineffectiveness, is

simply not present in this case.6 (See 440 Court Order at 9.)

6 Petitioner also claims Lemke was ineffective by not disclosing

the “conflict of interest” that prevented Lemke from effectively

Moreover, while it is true McClung, the defense medical

expert in this case, was a SANE nurse and not a medical doctor,

Lemke presented her testimony at trial in pursuit of the same

strategy Petitioner asserts Lemke should have been pursuing all

along, i.e., challenging the prosecution’s medical evidence.

(Compare 440 H’g Tr. at 2649-50, with Reply at 15.) Acknowledging

some abnormal findings in the slides, McClung opined that, based

upon a full review of J.A.’s medical file and history, as well as

that no troubling findings were made during the 2000 examinations,

the abnormalities seen in Dr. Silecchia’s slides were likely a

result of hemorrhoids or inflammatory or irritable bowel syndrome.

(See Trial Tr. at 964.) There is “nothing in the record that shows

that Mr. Lemke would have been more successful at trial by calling

a medical doctor to contradict the findings of Dr. Silecchia.”

(440 Court Order at 9.) Moreover, the Supreme Court has made clear

Strickland does not require that “for every prosecution expert an

cross-examining Dr. Silecchia with respect to her adjudicated lack

of expertise in Gersten. However, Petitioner does not cite any

authority to support this proposition. Further, it does not appear

such perceived conflict required either disclosure of such to his

client, the court, or rendered Lemke incapable of diligently

representing Petitioner and vigorously challenging Dr. Silecchia

on cross-examination. Cf. Arevalo v. Lee, No. 19-CV-6962, 2024 WL

4694005, at *1-2 (E.D.N.Y. Nov. 6, 2024) (finding conflict of

interest affected counsel’s representation, thereby sufficiently

implicating Strickland, where counsel failed to disclose to his

client and the court that, at the time of client’s criminal

proceedings, counsel himself was being investigated and prosecuted

by the same District Attorney’s office).

equal and opposite expert from the defense” be presented.

Harrington, 562 U.S. at 111.

In that vein, like the Section 440 Court, this Court

finds the testimony of Drs. Brown and Palusci also fails to

establish Lemke’s ineffectiveness as it pertains to Petitioner’s

medical-evidence-based claim; neither doctor was unequivocal that

the observed abnormality in the colposcopic slides was not a scar

and could not be indicative of the sexual abuse to which J.A.

alleged the Petitioner subjected him. (440 Court Order at 9.)

Like McClung’s testimony, the testimony of Drs. Brown and Palusci

at the Section 440 Hearing can be said to call into doubt that of

Dr. Silecchia; but, it did not “completely refute[] the

prosecution’s physical evidence purportedly showing forced sexual

penetration of the child-victim.” Englert v. Lowerre, 115 F.4th

69, 87 (2d Cir. 2024) (citing Gersten, 426 F.3d at 611-12.)

Therefore, the state court’s determination that Lemke’s pursuit of

medical evidence was not “so egregious and prejudicial as to deny

[Petitioner] a fair trial” (440 Court Order at 9) was not

unreasonable. See, e.g., Englert, 115 F.4th at 87. And,

Petitioner falls “short of establishing the substantial likelihood

of a different result necessary to demonstrate prejudice.”

Harrington, 562 U.S. at 112.

In sum, upon close examination of the present record,

this Court finds the 440 Court’s findings of fact were reasonable;

Petitioner has not presented clear and convincing evidence to rebut

this presumption. The Court does not find that Petitioner’s trial

counsel was ineffective in his challenge of the medical evidence

in this case. As is required under AEDPA, deferring to the state

court’s determination, including its assessment of counsel’s

testimony at the Section 440 Hearing, the Court finds, pursuant to

Strickland, Lemke’s performance was neither constitutionally

deficient nor caused Petitioner to be prejudiced.

C. Alleged Failure to Investigate and Elicit Evidence

Challenging the Complainant’s Credibility

Finally, Petitioner claims Lemke was ineffective because

he did not seek to investigate and properly challenge J.A.’s

credibility and provide any alternative explanation to relevant

physical findings. (Pet. at 5.) Petitioner asserts the state

court failed to address Lemke’s shortcomings, which he contends

constituted deficient performance, when Lemke allegedly failed to

conduct an investigation in J.A.’s sexual history, including

whether J.A. had engaged in homosexual acts. (Reply at 16-17.)

While Respondent did not address this claim, the Section 440 Court

made a finding of fact that Lemke “did not question [J.A.] about

engaging in homosexual acts as he had no reason to believe he had

and would not alienate the jury by raising an issue that had little

support in evidence.” (440 Court Order at 7.)

Indeed, the only evidence suggesting J.A. could have

been homosexual and sexually active in that manner came from

Facebook photographs presented by Petitioner as part of § 440

proceedings. (See Ex. 37, ECF No. 8-23, at 21-47.) At the Section

440 Hearing, Petitioner did not present any other witnesses that

would have supported a theory that J.A. was homosexual or engaging

in homosexual relations. In fact, Carla Abodalo, J.A.’s mother,

testified to the opposite: J.A. was known to be a “Casanova” and

had a girlfriend. (See 440 Hr’g Tr. at 3182.) Nor did the medical

records, including the examination by Dr. Silecchia, provide any

information J.A. was engaging in homosexual acts; instead, Dr.

Silecchia noted J.A. represented to her that he was sexually active

with women. (-Se-e- -id-.- at 2820-21.) Furthermore, when asked whether

Petitioner or his wife ever represented to him that J.A. was

homosexual, Lemke denied having received such information. (Id. at

2818-19.)

Petitioner’s conclusory assertion that Lemke did not

investigate J.A.’s sexual history is contradicted by Lemke’s

testimony that he attempted to contact J.A.’s ex-girlfriend, to

whom J.A. initially disclosed the abuse, but she refused to talk

to Lemke or his representative. (Id. at 2823.) Lemke also

testified he believed there was information from Facebook that

Petitioner and his wife provided to him, but that Lemke did not

inquire whether J.A. was homosexual because he did not have a good

faith basis to believe that. (Id. at 2817-19.)

Based upon the record presented, Petitioner’s assertion

Lemke did not conduct an inquiry into J.A.’s sexual history is

unsupported by anything other than speculation. Moreover, there

is no indication that, had Lemke confronted J.A. regarding his

alleged homosexuality, such strategy would have been effective,

resulting in a different verdict. Rather, pursuing that approach

could have had negative impacts, e.g., been perceived as biased or

homophobic; appearing to engage in victim-blaming; and/or

alienating the jury. Therefore, Lemke’s strategic choice on this

issue, especially given his testimony regarding same, cannot be

said to fall outside the wide range of reasonableness a court is

to presume within which an attorney practices. As such, Petitioner

is unable to show Lemke’s representation offended Strickland, and

this claim fails.

***

To the extent not explicitly articulated herein, the

Court has considered Petitioner’s remaining arguments in support

of habeas relief, but finds them to be without merit.

[Remainder of page intentionally left blank.]

CONCLUSION

Accordingly, for all the foregoing reasons, IT IS HEREBY

ORDERED that the Petition (ECF No. 2) is DENIED. The Clerk of the

Court is directed to: dismiss the Petition; close the case; and,

mail a copy of this Order to Petitioner; and

IT IS FURTHER ORDERED that the Court:

I. Declines to issue a certificate of appealability because

Petitioner has not “made a substantial showing of the

denial of a constitutional right,” 28 U.S.C. § 2253(c)(2);

and

II. Pursuant to 28 U.S.C. § 1915(a)(3), certifies that any

appeal from this Order would not be taken in good faith,

and, therefore, in forma pauperis status is denied for the

purpose of any appeal. See Coppedge v. United States, 369

U.S. 438, 444-45 (1962).

SO ORDERED.

_/s/_JOANNA SEYBERT_____

Joanna Seybert, U.S.D.J.

Dated: March 21, 2025

Central Islip, New York