# Dearstyne v. Mazzuca

> District Court, N.D. New York · March 3, 2011 · 48 F. Supp. 3d 222

URL: https://www.frixlaw.com/law-library/cases/7226783

## Case

- **Full name:** Frank W. DEARSTYNE v. William MAZZUCA, Superintendent, Fishkill Correctional Facility
- **Court:** District Court, N.D. New York
- **Decided:** March 3, 2011
- **Citations:** 48 F. Supp. 3d 222; 2011 U.S. Dist. LEXIS 158356; 2011 WL 12068204
- **Precedential status:** Published
- **Opinion:** Opinion of the court by Bianchini
- **Judges:** Bianchini
- **Cited by:** 8 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/7226783

## How later opinions describe it (automated extraction)

- explaining "a missing witness charge is appropriate when the missing witness would naturally be expected to provide noncumulative testimony favorable to the party who has not called him" and denying the petitioner's ineffective assistance of counsel claim based on trial counse…
- finding that the petitioner failed to offer direct evidence to suggest that the testimony was knowingly false or that the witness "might have had a motive or interest in presenting perjured testimony"

## Opinion text

REPORT AND RECOMMENDATION
BIANCHINI, United States Magistrate Judge.
Table of Contents
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I. INTRODUCTION
Petitioner Frank W. Dearstyne (“Dear-styne” or “Petitioner”) is an inmate at the Bare Hill Correctional Facility. In 1991, he was convicted in a New York State court of Attempted Rape in the First Degree, Aggravated Sexual Abuse in the First Degree, and two counts of Endangering the Welfare of a Child. Petitioner contends that his conviction was imposed in violation of his constitutional rights and should therefore be vacated.
The Honorable Norman A. Mordue, Chief United States District Judge, referred this matter to this Court for issuance of a report and recommendation pursuant to 28 U.S.C. § 636 (b)(1)(A) and (B) regarding the disposition of Dearstyne’s petition. (Docket No. 67). For the reasons that follow, it is recommended that the petition be granted in part and denied in part.
II. BACKGROUND
The factual and procedural history of this matter is lengthy and complex. The following is a brief summary. Further *226 details are set forth in the discussion of Petitioner’s claim's for relief.
A. Facts
On June 13, 1987, M.O. 1 discovered blood in the underwear of her three-year old daughter, T.O. (TT Vol. 2, at 252). 2 T.O. was examined later that day by her pediatrician, Dr. Theodore Close. (TT Vol. 2, at 258). Following his examination, Dr. Close referred T.O. to the Child Sexual Abuse Clinic at the Albany Medical Center in Albany, New York. (TT Vol. 2, at 391— 392). After examining T.O., the staff at the Albany Medical Center concluded that she had been sexually abused and contacted the Rensselaer Police Department. (TT Vol. 2, at 263).
Detective Frank Petrucci of the Rensse-laer Police Department was assigned to investigate the case. (TT Vol. 2, at 23-24). Based upon interviews with T.O. and her family, Detective Petrucci, working with Patricia Donovan, a New York State Trooper assigned to a special rape task force, concluded that Petitioner, the sixteen-year-old son of T.O.’s babysitter, was the prime suspect. (TT, Vol. 2 at 86).
On June 19, 1987, Detective Petrucci and Trooper Donovan made arrangements to interrogate Petitioner at the state police barracks in Loudonville, New York. (TT, Vol. 2 at 51-52, 88, 130). After speaking with Petitioner’s mother and obtaining her permission to speak with Petitioner, Pe-trucci and Donovan located Petitioner at the home of a family friend and transported him to the police barracks. (TT Vol. 2, at 34, 41).
Petitioner was interrogated at the Lou-donville barracks by Trooper Donovan and Investigator Edmond W. Girtler. As discussed in detail below, the participants offer dramatically different accounts concerning the nature and conduct of the interrogation.
However, it is undisputed that, at the conclusion of the interrogation, Petitioner signed a written confession, in which he made a series of statements admitting sexual contact with T.O. (TT, Vol. 2 at 145, 168). Petitioner was arrested and charged with various sexual crimes involving T.O. (TT, Vol. 2 at 88-91, 122-23, 158).
Subsequent investigations and interviews led the police to conclude that Petitioner had sexually abused two other girls whose parents also used Petitioner’s mother as a babysitter during the spring months of 1987 — C.C., who was two years-old at the time, and her four-year-old sister, E.C.
B. State Court Proceedings
1. Pre-Trial Proceedings
Petitioner was arrested following his interrogation on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten-count indictment, charging Petitioner with sex-related offenses against the three victims, who were identified in the indictment under their first names, but will be identified in this report and recommendation as “T.O.”, “C.C.” and “E.C.”. Petitioner was arraigned on November 24,1987.
On May 9, 1990, the Rensselaer County Court dismissed the indictment. As discussed in greater detail below, although *227 the grand jury proceedings included videotaped testimony from two of the alleged victims, the prosecution never had that testimony transcribed by a stenographer, as required under § 190.32(6) of the New York Criminal Procedural Law (“CPL”). The court dismissed the indictment due to the prosecution’s failure to comply with CPL § 190.32(6). 3
On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number C-8138, charging Petitioner with ten (10) crimes against the three (3) victims. With respect to T.O., Petitioner was charged with Rape in the First Degree, two (2) counts of Sexual Abuse in the First Degree, and three (3) counts of Endangering the Welfare of a Child. With respect to C.C., Petitioner was charged with Aggravated Sexual Abuse and Endangering the Welfare of a Child. With respect to E.C., Petitioner was charged with Sexual Abuse in the First Degree and Endangering the Welfare of a Child. Petitioner was arraigned on the second indictment on May 23,1990.
Prior to trial, Petitioner, through his trial attorney, Eugene Grimmick, Esq., moved to suppress the confession. On May 7, 1991, the Honorable M. Andrew Dwyer, Rensselaer County Court Judge, conducted a Huntley hearing, 4 at which both parties were permitted to call witnesses and introduce evidence. The hearing lasted three (3) days, with the prosecution calling Detective Petrucci, Investigator Donovan, and Investigator Girtler. Petitioner testified in his own behalf and • called both of his parents as witnesses. Following the hearing, both sides submitted lengthy memoranda to the court.
On July 8, 1991, Judge Dwyer issued a Decision and Order denying the suppression motion and finding that there was a “sharp issue of fact” with respect to the voluntariness of the confession, which issue was to be submitted to the jury. (Exhibit J to Petitioner’s Exhibits in Support of Motion to Vacate Judgment).
2. Trial Proceedings
Petitioner’s trial began on July 10, 1991, and lasted for eight (8) days. The prosecution presented testimony from the police investigators, all three of the alleged victims, members of the alleged victims’ families, and testimony from Dr. Close (T.O.’s pediatrician), Carole West (a nurse involved in T.O.’s treatment), and Dr. Richard D. Cimma (E.C.’s pediatrician). Petitioner testified in his own defense and also presented testimony from his parents, his sister, and a school administrator.
At the conclusion of the trial, the jury found Petitioner guilty of Attempted Rape in the First Degree, in violation of New York Penal Law (“PL”) § 110 and § 130.35, with respect to T.O.; Aggravated Sexual Abuse in the First Degree, in violation of PL § 130.70, with respect to C.C.; and two counts of Endangering the Welfare of a Child, in violation of PL § 260.20, with respect to both T.O. and C.C.
Petitioner was acquitted of the charge of Rape in the First Degree with respect to T.O. and was acquitted on all charges with *228 respect to the third victim, E.C. (TT Vol. 3, at 758-766).
On August 14, 1991, Petitioner was sentenced to consecutive, indeterminate terms of four (4) to twelve (12) years for the attempted rape of T.O.; six (6) to eighteen (18) years for the aggravated sexual abuse of C.C., to be served concurrently with a determinate one year term for each of the endangering convictions. (S at 10). 5 Therefore, Petitioner’s total aggregate sentence was ten (10) to thirty (30) years.
3. Appellate Proceedings
Petitioner, represented by Attorney Grimmick, appealed his conviction to the Appellate Division, Third Department, of the New York State Supreme Court. Petitioner asserted seven arguments before the Appellate Division: (1) the indictment should have been dismissed because his statutory speedy trial rights were violated; (2) the forty-nine month delay between Petitioner’s arrest and trial violated his constitutional right to a speedy trial; (3) Petitioner’s confession should have been suppressed; (4) the unsworn testimony of a child-victim was not sufficiently corroborated; (5) the trial court erroneously denied Petitioner’s mistrial motion based on the People’s withholding of Brady 6 material; (6) the prosecutor’s summation comments deprived Petitioner of a fair trial; and (7) Petitioner’s sentence was unduly harsh.
In a ruling issued on May 18, 1995, the Appellate Division withheld its decision on Petitioner’s appeal and remanded the matter to the County Court for a hearing with respect to Petitioner’s speedy trial claim. People v. Dearstyne, 215 A.D.2d 864 , 626 N.Y.S.2d 879 (3d Dep’t 1995) (“Dearstyne 7”). On remand, the Honorable Patrick J. McGrath, Rensselaer County Court Judge, conducted a hearing and issued a written Decision and Order, dated April 29, 1996, making detailed findings of fact and determining that Petitioner’s statutory and constitutional speedy trial rights had not been violated.
On appeal from that decision, the Appellate Division affirmed Petitioner’s conviction and sentence. People v. Dearstyne, 230 A.D.2d 953 , 646 N.Y.S.2d 1000 (3d Dep’t 1996) ("Dearstyne II”). Petitioner’s application for leave to appeal to the Court of Appeals was denied on December 20, 1996. People v. Dearstyne, 89 N.Y.2d 921 , 654 N.Y.S.2d 723 , 677 N.E.2d 295 (1996).
On November 26, 1997, Petitioner brought a motion pursuant to CPL § 440.10 and § 440.20 to vacate the judgment of conviction entered against him and to set aside the sentence imposed on the basis of (1) ineffective assistance of trial counsel, (2) prosecutorial misconduct, and (3) other errors of law. On October 13, 1999, Judge McGrath issued a lengthy written decision, denying Petitioner’s motion (the “CPL § 440.10 Order”). Petitioner was granted leave to appeal to the Appellate Division, Third Department.
On May 22, 2000, Petitioner, proceeding pro se, supplemented his previous § 440 motions with a motion for DNA testing in compliance with the procedural requirements of CPL § 440.30. This motion was denied by the County Court on September 22, 2000. Petitioner was also granted leave to appeal this decision.
On October 30, 2000, the Appellate Division granted Petitioner’s motion to consolidate his appeal from the denials of his various post-conviction motions, including *229 the state court’s denial of his CPL § 440 motion and including a denial of his motion for DNA testing. Petitioner was represented by Kevin J. Bauer, Esq. with respect to this consolidated appeal.
The Appellate Division, Third Department unanimously affirmed the denial of Petitioner’s post-conviction motions. People v. Dearstyne, 305 A.D.2d 850 , 761 N.Y.S.2d 118 (3d Dep’t 2003) (“Dearstyne III”). Leave to appeal to the New York Court of Appeals was denied on August 26, 2003. People v. Dearstyne, 100 N.Y.2d 593 , 766 N.Y.S.2d 169 , 798 N.E.2d 353 (N.Y.2003).
On November 26, 2003, Petitioner, proceeding pro se, filed a motion for a writ of error coram nobis, alleging ineffective assistance of appellate counsel. The Appellate Division, Third Department denied his application on January 16, 2004. The Court of Appeals denied leave to appeal on May 10, 2004. People v. Dearstyne, 2 N.Y.3d 798 , 781 N.Y.S.2d 297 , 814 N.E.2d 469 (N.Y.2004).
C. Federal Habeas Corpus Proceedings
Petitioner, proceeding pro se, commenced this action on May 26, 2004, by filing a Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 . (Docket No. 1).
On August 26, 2004, Petitioner filed an Amended Petition after an Order issued by the Honorable Frederick J. Scullin, Jr., United States District Judge, directed him to clarify the dates and dispositions of his state court motions and appellate proceedings. (Docket Nos. 6 & 9). The Amended Petition provides additional factual and procedural background information, but does not actually set forth Petitioner’s claims for habeas relief. It appears that Petitioner intended to incorporate the grounds raised in his Petition in the Amended Petition. Given his pro se status at the time of filing, this Court will deem the grounds raised in the Petition to have been raised in the Amended Petition. Thus, for the sake of clarity, this Court will simply refer to Petitioner’s claims as having been raised in his “Petition” for habeas relief.
Respondent filed a Memorandum of Law in opposition to the Petition on June 15, 2005. (Docket No. 23). Thereafter, on September 12, 2006, James V. O’Gara, Esq. filed a Notice of Appearance on behalf of Petitioner. (Docket No. 49). On November 6, 2006, Attorney O’Gara submitted a forty-five (45) page reply memorandum of law in support of the Petition. (Docket No. 51).
On January 24, 2008, the Honorable Norman A. Mordue, Chief United States District Judge, issued an Order referring the instant case to this Court for a Report and Recommendation. (Docket No. 67).
On July 3, 2008, this Court issued an Order directing the parties to submit supplemental memoranda of law concerning certain issues raised by the Petition. (Docket No. 68). Respondent filed a supplemental memorandum of law (Docket No. 71), affidavit (Docket No. 72), and reply brief (Docket No. 77) in response to this Court’s Order. Petitioner filed a reply memorandum of law in response to this Court’s Order and in further support of the Petition, (attached as Exhibit A to Docket No. 73).
On November 3, 2008, this Court issued an Order directing Respondent to submit a declaration from Dr. Close providing information regarding the disposition and location of certain potential DNA evidence. (Docket No. 78). Respondent complied with the Order and submitted a declaration from Dr. Close on November 26, 2008. (Docket No. 81).
*230 Petitioner moved for leave to submit supplemental briefing to respond to various issues raised by Dr. Close’s declaration. This Court permitted both parties to submit supplemental memoranda and letter briefs. (Docket Nos. 82, 83, 85).
Concerned with the ability of Petitioner to navigate his petition through the complexities of habeas processes, particularly with respect to appropriate choices regarding stays and abeyances, the Court appointed Alex Bunin, Esq., the Federal Defender for the Northern District of New York to represent Petitioner in this matter.
III. DISCUSSION
Federal habeas corpus review of a state court conviction' is governed by 28 U.S.C. § 2254 , as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”). Under AEDPA, federal courts must give substantial deference to a state court determination that has adjudicated a federal constitutional claim “on the merits.” 28 U.S.C. § 2254 (d); Sellan v. Kuhlman, 261 F.3d 303, 309-10 (2d Cir.2001). The Second Circuit has stated that an “adjudication on the merits” is a “substantive, rather than a procedural, resolution of a federal claim.” Sellan, 261 F.3d at 313 (quotation omitted). The Second Circuit has also held that even a one-word denial of a petitioner’s claim is sufficient to constitute an “adjudication on the merits” for purposes of AEDPA. Id. at 312-313 .
Specifically, AEDPA requires that where a state court has adjudicated the merits of a Petitioner’s federal claim, habe-as corpus relief may not be granted unless the state court’s adjudication:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d)(1), (2).
Both AEDPA and its predecessor statute recognize that a presumption of correctness shall apply to state court findings of fact, Whitaker v. Meachum, 123 F.3d 714 , 715 n. 1 (2d Cir.1997), and AEDPA requires a Petitioner to rebut that presumption by “clear and convincing evidence.” 28 U.S.C. § 2254 (e)(1); LanFranco v. Murray, 313 F.3d 112, 117 (2d Cir.2002). A presumption of correctness applies to findings by both state trial and appellate courts. Galarza v. Keane, 252 F.3d 630, 635 (2d Cir.2001); Whitaker, 123 F.3d at 715 n. 1.
In Williams v. Taylor, 529 U.S. 362, 413 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000), the Supreme Court defined the phrases “contrary to” and “unreasonable application of’ clearly established federal law. A state court decision is “contrary to clearly established federal law ... if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Court] has on a set of materially indistinguishable facts.” Id.
A state court decision involves “an unreasonable application of’ Supreme Court case law if it “identifies the correct governing legal principle from [the Court’s] decisions but unreasonably applies that principle to the particular facts of [a] prisoner’s case.” Id.
Under this standard, “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. *231 Rather, that application must also be unreasonable.” Id. at 411 , 120 S.Ct. 1495 . In order to grant the writ there must be “some increment of incorrectness beyond error,” although “the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence.” Matter of Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir.2000) (internal quotation marks omitted).
As noted above, Petitioner asserts sixteen (16) grounds in support of his request for habeas relief. Petitioner prepared his Petition pro se and many of the grounds contain multiple claims and arguments. Subsequent to filing this case, Petitioner obtained counsel, who filed a lengthy reply memorandum of law (in the nature of a Traverse), which addressed some, but not all, of the claims and arguments raised in the pro se Petition. This Court will discuss each ground for habeas relief in turn, along with the claims and arguments raised in connection with each ground.
A. Ground One — Speedy Trial
In his first claim for habeas relief, Petitioner argues that he was denied his constitutional right to a speedy trial by virtue of the forty-nine (49) month delay between his arrest and trial. During that 49-month period, he remained out of custody on bail. Petitioner further contends that his trial counsel was ineffective because he failed to invoke the New York State Due Process Clause in support of his motion to dismiss the indictment on speedy trial grounds.
1. State Court Proceedings
As noted above, Petitioner was arrested on June 19, 1987, and charged via felony complaint with Rape in the First Degree and two (2) counts of sexual abuse for crimes allegedly committed against T.O. On November 18, 1987, a Rensselaer County Grand Jury returned a ten (10) count indictment, charging Petitioner with sex-related offenses involving T.O., C.C., and E.C. Petitioner was arraigned on November 24, 1987, and the prosecution declared its readiness for trial.
On January 24, 1988, Petitioner, through counsel, filed an omnibus motion seeking, inter alia, an inspection of the grand jury minutes and dismissal of the indictment due to alleged evidentiary insufficiency. The prosecution agreed to allow the County Court to conduct an in camera inspection of the grand jury minutes and delivered the minutes to the County Court on or about March 9,1988.
Although the grand jury proceedings included videotaped testimony from C.C. and E.C., the prosecution did not provide the County Court with the videotape of that testimony for its in camera inspection, apparently in accordance with its standard practice at the time. In fact, the videotaped testimony, which had not been transcribed by the grand jury stenographer, was not provided to the County Court or to defense counsel until March of 1990, nearly two years later.
Petitioner’s counsel thereafter moved to dismiss the indictment pursuant to § 190.32(6) of the New York Criminal Procedure Law, which requires that “[wjhen a videotape is introduced into evidence and played in the grand jury, the grand jury stenographer shall record the examination in the same manner as if the witness had testified in person.” The County Court granted the motion in a decision dated May 4, 1990, and dismissed the indictment based on the prosecution’s failure to comply with CPL § 190.32(6).
On May 18, 1990, Petitioner was re-indicted when a Rensselaer County Grand Jury returned sealed Indictment Number *232 C-8138, charging ten (10) sexual abuse crimes involving the three alleged victims. Petitioner was arraigned on the second indictment on May 23,1990, and the prosecution declared its readiness for trial.
On July 18, 1990, Petitioner filed an omnibus motion, which included a request for dismissal of the indictment and in camera inspection of the grand jury minutes. The prosecution consented to such an inspection and provided the minutes to the ' court on September 27,1990. 7 On that same date, the County Court issued an Order denying Petitioner’s motion to dismiss the indictment.
On July 9, 1991, on the eve of jury selection, Petitioner, through counsel, moved for dismissal of the indictment on speedy trial grounds, citing violations of Petitioner’s statutory and constitutional rights to a speedy trial. The trial court denied the motion and the case proceeded to trial. As noted above, Petitioner was convicted with respect to the majority of the charges.
Petitioner raised several claims on direct appeal, including the claim that the forty-nine (49) month delay between the filing of the criminal complaints and start of the trial violated his statutory and constitutional right to a speedy trial.
Section 30.30 of the New York Criminal Procedure Law provides that the prosecution must be ready for trial within six (6) months of the “commencement of a criminal action wherein a defendant is accused of one or more offenses, at least one of which is a felony.” CPL § 30.30(l)(a).
In the present case, on direct appeal, the Appellate Division concluded that “the record [did] not provide an adequate basis to determine if, in view of all of the cireum-stances, the delay ... was unreasonable.” Dearstyne I, 626 N.Y.S.2d at 881 . Accordingly, the Appellate Division remanded the case to County Court for a hearing and reconsideration of Petitioner’s speedy trial motion.
On remand, the Honorable Patrick J. McGrath, Rensselaer County Court Judge, conducted an evidentiary hearing and issued a written Decision and Order, dated April 29, 1996, making detailed findings of fact and determining that Petitioner’s statutory and constitutional speedy trial rights had not been violated.
The matter was then considered again by the Appellate Division, which affirmed Judge McGrath. The Appellate Division held that because “the People’s pre-readiness delay did not exceed the statutory six-month period, the issue of whether defendant’s statutory right to a speedy trial was violated turns on whether any post-readiness delay is chargeable to the People.” Dearstyne II, 646 N.Y.S.2d at 1003 .
Petitioner argued, inter alia, that a post-readiness delay of twenty-seven (27) months should have been charged to the prosecution because of the delay in providing the videotapes of the victims’ testimony to the County Court. The Appellate Division rejected this argument, shifting primary responsibility for the delay to the County Court by noting that “County Court was aware of the existence of these videotapes on March 9, 1988 and that they were being retained by the District Attorney.” Id. The appeals court thus ruled that County Court’s failure to obtain the videotapes prior to March of 1990 “cannot be charged to the People since CPL 30.30 addresses prosecutorial readiness, not court readiness.” Id.
*233 The Appellate Division further concluded that, while certain pre- and post-readiness delays were attributable to the prosecution, the total delay chargeable to the People did not exceed six months and, as such, “County Court’s denial of defendant’s statutory speedy trial motion was proper.” Id. at 1004 .
With regard to Petitioner’s constitutional speedy trial claim, the Appellate Division held that the overall forty-nine (49) month delay was “presumptively prejudicial.” Id. However, the Appellate Division concluded that “the reason for the delay ... appears to be attributable to County Court’s inattentiveness to this matter despite the People’s repeated requests to set it down for trial.” Id.
The Appellate Division further noted that Petitioner did not assert his speedy trial right until April of 1990, nearly three years after his arrest, which signified that “he did not consider the deprivation of his right to be serious.” Id. In light of Petitioner’s delay in asserting his speedy trial claim and the fact that the delay could not “be attributed to the bad faith or negligence of the People,” the Appellate Division held that Petitioner’s “constitutional right to a speedy trial was not abridged.” Id.
Petitioner’s application for leave to appeal the Appellate Division’s decision to the Court of Appeals was denied on December 20,1996.
2. Habeas Review
a. State Law Claim
Section 30.30 of the CPL requires the prosecution to be ready for trial within a specified period of time. It is well-settled that a claimed violation of this state law provision does not raise a federal constitutional claim and is therefore not cognizable on habeas review. See, e.g., Gibrino v. Attorney Gen’l of the State of N.Y., 965 F.Supp. 489, 491-492 (S.D.N.Y.1997) (denying habeas relief and noting that “Section 30.30 [of the New York Criminal Procedure Law] is a statutory time in which the People of New York must be ready for trial; Section 30.30 is not, as such, a statutory embodiment of the constitutional guarantee to a speedy trial.”); Rodriguez v. Miller, No. 96 Civ. 4723(HB), 1997 WL 599388 , at *2 (S.D.N.Y. Sept. 29, 1997) (“[A] C.P.L. § 30.30 claim has been held not to raise the federal constitutional speedy trial claim for purposes of a federal habeas petition.”); Jackson v. McClellan, No. 92 Civ. 7217(JFK), 1994 WL 75042 , at *2 (S.D.N.Y. Mar. 4, 1994) (holding that petitioner failed to fairly present constitutional speedy trial issue to state court where petitioner argued “entirely in terms of New York Statutory law [C.P.L. § 30.30]”).
Accordingly, to the extent that Petitioner’s claim herein is based upon the assertion that the state courts misapplied CPL § 30.30, the claim fails to present a federal constitutional question and Petitioner is not entitled to habeas relief on that basis.
b. Federal Constitutional Claim
The Sixth Amendment to the U.S. Constitution provides, in pertinent part, that a criminal defendant is entitled to “a speedy and public trial.... ” When considering speedy trial claims under the Constitution, courts examine four factors: (1) the length of the delay, (2) the reason for the delay, (3) the timeliness of the defendant’s assertion of his right, and (4) the prejudice to the defendant caused by the delay. Barker v. Wingo, 407 U.S. 514, 530 , 92 S.Ct. 2182, 2192 , 33 L.Ed.2d 101 (1972).
The Supreme Court explained the first of the Barker factors, the length of the delay, serves as a “threshold inquiry.” By showing that the length of the delay is “presumptively prejudicial,” the defendant *234 triggers an analysis of the remaining factors. Doggett v. United States, 505 U.S. 647, 651-52 , 112 S.Ct. 2686, 2690-91 , 120 L.Ed.2d 520 (1992) (citing Barker, 407 U.S. at 530-31 , 92 S.Ct. 2182 ). The length of the delay may then be considered in connection with the remaining factors of the speedy trial inquiry. Id. at 652 , 112 S.Ct. 2686 .
The Second Circuit has noted that there is a “general consensus that a delay of over eight months meets this standard [of presumptive prejudice], while a delay of less than five months does not.” United States v. Vassell, 970 F.2d 1162 , 1164 (2d Cir.1992) (citing Gregory P.N. Joseph, Speedy Trial Rights in Application, 48 Fordham L.Rev. 611, 623 n. 71 (1980)), see also United States v. Solomon, No. 95 Cr. 154, 1996 WL 399814 , at *4 (S.D.N.Y. July 16, 1996) (concluding that a twenty-month delay between indictment and arrest is sufficient to trigger judicial review because it is presumptively prejudicial, but is not uncommonly long).
In the present case, this Court has no difficulty concluding that the forty-nine (49)-month delay is presumptively prejudicial. Accordingly, consideration of the remaining Barker factors is necessary.
i. Reason for the Delay
Under the Supreme Court’s decision in Doggett , when determining the reason for the delay the court asks “whether the government or the criminal defendant is more to blame for the delay.” 505 U.S. at 651 , 112 S.Ct. 2686 . “The court’s determination of whether the Government has made sufficient efforts to satisfy the ‘due diligence’ requirement is ‘fact-specific.’ ” United States v. Perez-Cestero, 737 F.Supp. 752, 763 (S.D.N.Y.1990) (citing Rayborn v. Scully, 858 F.2d 84, 90 (2d Cir.1988)).
In the present case, the state courts concluded, following an evidentiary hearing, that a significant portion of the delay was attributable to “inattentiveness” on the part of the County Court, rather than any bad faith or negligence on the part of the prosecution. Dearstyne II, 646 N.Y.S.2d at 1004 . In this regard, both Judge McGrath and the Appellate Division noted the prosecution’s repeated and documented efforts urging the trial court to set the matter down for trial, which were apparently unsuccessful because of the court’s apparent inattentiveness to the case. These factual findings by the state courts are entitled to a presumption of correctness on habeas review. 28 U.S.C. § 2254 (e)(1); Boyette v. Lefevre, 246 F.3d 76, 88 (2d Cir.2001).
In light of the presumption and given the absence of evidence to the contrary, this Court finds that the state court’s conclusion that the prosecution was not responsible for a large portion of the delay did not involve an unreasonable application of clearly established Federal law, as determined by the Supreme Court; nor did it result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
ii. Petitioner’s Delay in Asserting Claim
The fact that a defendant failed to demand a speedy trial does not per se bar the defendant from raising a speedy trial claim at a later date. See Rayborn, 858 F.2d at 92 (citing Barker, 407 U.S. at 528 , 92 S.Ct. 2182 ). However, “the Supreme Court recognized that although failure to assert the right does not act as a waiver, such failure will make it difficult for a defendant to assert his right successfully at some later point in time.” Rayborn, 858 F.2d at 92 .
*235 In Barker , the Supreme Court determined that the defendant’s speedy trial right had not been violated because the record established that the defendant “did not want a speedy trial.” See id. (quoting Barker, 407 U.S. at 534 , 92 S.Ct. 2182 ; see also United States v. Schreiber, 535 F.Supp. 1359, 1363 (S.D.N.Y.1982) (“The speedy trial requirements should not operate to reward a recalcitrant and reluctant defendant.”)).
“In criminal cases where a speedy trial claim is raised, both the conduct of the government and the conduct of the defendant are to be weighed, ... and when it is manifestly apparent that a defendant has no serious interest in the speedy prosecution of the charges against him, a court need not ignore the defendant’s fugitivity or recalcitrance in determining whether his sixth amendment rights have been violated.” Rayb orn, 858 F.2d at 92 . (emphasis in original) (citing Barker, 407 U.S. at 530 , 92 S.Ct. 2182 ).
There is no dispute that Petitioner waited a substantial period of time before asserting his speedy trial rights. This delay, while not dispositive, weighs significantly in favor of a finding that Petitioner’s speedy trial rights were not violated. United States v. Fasanaro, 471 F.2d 717, 718 (2d Cir.1973); see also United States v. Vasquez, 918 F.2d 329, 338 (2d Cir.1990) (finding that the third Barker factor “weighted] heavily” against petitioners where they “waited roughly 22 months before advancing their speedy trial claim,” which “hardly render[ed] plausible their contention that an expeditious resolution of their cases was a matter of pressing constitutional importance for them”); United States v. McGrath, 622 F.2d 36, 41 (2d Cir.1980) (finding that “third [Barker ] factor weigh[ed] against [petitioners who] waited until immediately before trial to file their motion to dismiss on speedy trial grounds”); United States v. Lane, 561 F.2d 1075 (2d Cir.1977) (finding that petitioner’s “eve of trial” speedy trial motion was “indicative of an interest in having the indictment dismissed, rather than of an interest in expediting the proceedings”); Burress v. Henderson, 814 F.Supp. 313, 322 (W.D.N.Y.1993) (holding that petitioner’s delay in assertion of right until commencement of trial was not “the type of ‘aggressive’ assertion of speedy trial rights necessary to warrant the relief sought”),
iii. Lack of Prejudice
Potential prejudice to the defendant is the last of the Barker factors. The presumption of prejudice that arises with a long delay must be analyzed in connection with the reason for the delay. See Doggett, 505 U.S. at 655 , 112 S.Ct. 2686 .
“[I]n the absence of particular prejudice, ‘presumptive prejudice cannot alone carry a Sixth Amendment claim without regard to the other Barker criteria ... it is part of the mix of relevant facts.’ ” United States v. Solomon, No. 95 Cr. 154(LAP), 1996 WL 399814 , at *5 (S.D.N.Y. July 16, 1996) (quoting Doggett, 505 U.S. at 655 , 112 S.Ct. 2686 ).
When analyzing the reason for delay, “Doggett noted that government negligence is less prejudicial than deliberate delay and explained that ‘the weight we assign to official negligence compounds over time as the presumption of evidentia-ry prejudice grows.’ ” United States v. Ramos, 420 F.Supp.2d 241, 245-248 (S.D.N.Y.2006) (quoting Doggett, 505 U.S. at 657 , 112 S.Ct. 2686 ). “In other words, the longer [the] period of delay that is attributable to the government, the more important the presumption of prejudice.” Ramos, 420 F.Supp.2d at 248 .
Furthermore, the Second Circuit has explained that “[a]lthough ‘a showing of prejudice is not a prerequisite to finding a *236 sixth amendment violation, courts generally have been reluctant to find a [constitutional] speedy trial violation in the absence of genuine prejudice.’ ” United States v. Jones, 129 F.3d 718, 724 (2d Cir.1997) (quoting Rayborn v. Scully, 858 F.2d 84, 94 (2d Cir.1988)).
Petitioner does not articulate any particular prejudice arising from the delay or explain how the delay even arguably affected his ability to present a defense. Cf. United States v. Blanco, 861 F.2d 773, 780 (2d Cir.1988) (“[Sjince delay can just as easily hurt the government’s case, [petitioner’s] general claim that the delay impaired her defense also lacks force.”); Rayborn, 858 F.2d at 94 (“[C]ourts generally have been reluctant to find a speedy trial violation in the absence of genuine prejudice.”); Dunavin v. Leonardo, No. 95-CV-296, 1997 WL 151771 , at *3 (N.D.N.Y. Mar. 31, 1997) (“In the absence of a showing of prejudice, courts generally will not find a speedy trial violation unless all of the remaining Barker factors weigh heavily in favor of the appellant.”).
The fact that the prosecution continually urged the court to set the matter down for trial, while Petitioner rested on his speedy trial rights, is the best evidence that both parties considered the passage of time and the concomitant fading of memories harmful to the prosecution’s case and helpful to the defense.
Moreover, there is no -allegation in the Petition that Petitioner was incarcerated during the period of delay and the record indicates that Petitioner was released on bail pending trial. (TT Vol. 1, Arraignment, at p. 6-7).
In addition, as noted above, the -fact that the bulk of the delay is not attributable to any bad faith on the part of the prosecution renders the presumption of prejudice less important. Cf. Lane, 561 F.2d at 1079 (finding no speedy trial violation because, inter alia, “[w]hile the record here contained] some rather long unexplained delays, there [wa]s no indication that these [we]re attributable either to deliberate procrastination or even negligent inaction on the part of the Government”).
Although this Court certainly shares the sentiment expressed by the Appellate Division that the approximately four (4) year delay cannot be “condone[d],” the mere fact of such a delay does not, under the circumstances, establish a violation of Petitioner’s constitutional speedy trial right. See Barker, 407 U.S. at 533-34 , 92 S.Ct. 2182 (holding that delay of over five years did not violate right to speedy trial); Rayborn, 858 F.2d 84, 89 (2d Cir.1988) (delay of over seven years); Lane, 561 F.2d at 1078 (delay of over four and one-half years).
In sum, this Court finds that Petitioner has failed to establish that the Appellate Division’s decision, which discussed and analyzed the Barker factors, was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
3. Ineffective Assistance of Trial Counsel
Petitioner also argues that his trial counsel was ineffective for failing to “utilize” the due process clause of the New York State Constitution in support of his speedy trial claim. This argument was originally advanced in Petitioner’s CPL § 440 motions, which were denied by Judge McGrath in a Decision and Order dated October 13, 1999. With regard to this particular ineffective assistance of counsel argument, Judge McGrath noted *237 that “both state and federal constitutional issues were considered at a hearing pursuant to CPL §§ 30.20 and 30.30, and in a decision by this court dated April 29, 1996.” (CPL § 440.10 Order, October 13, 1999, at p. 12).
When considering Petitioner’s ineffective assistance of counsel claims as part of a consolidated appeal, 8 the Appellate Division held that “even assuming that defendant’s claims of ineffective assistance of counsel are not based on facts appearing in the record and could not have been raised in a prior appeal, ... his claims are either moot, unsupported by sworn allegations of fact or meritless.” Dearstyne III, 761 N.Y.S.2d at 121 .
To prevail on a claim of ineffective assistance of counsel within the framework established by the Supreme Court in Strickland v. Washington, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984), a habeas petitioner must satisfy a two-part test. First, the petitioner must demonstrate that counsel’s performance was so deficient that counsel was not functioning as “counsel” within the meaning of the Sixth Amendment to the Constitution. Id. at 688 , 104 S.Ct. 2052 . In other words, a petitioner must show that his attorney’s performance “fell below an objective standard of reasonableness.” Id.
Second, the petitioner must show that counsel’s deficient performance prejudiced him. Id. at 694 , 104 S.Ct. 2052 . To establish the “prejudice” prong of the Strickland test, a petitioner must show that a “reasonable probability” exists that, but for counsel’s error, the outcome of the trial would have been different. Id. at 694 , 104 S.Ct. 2052 . The issue of prejudice need not be addressed, however, if a petitioner is unable to demonstrate first that his counsel’s performance was inadequate. “[TJhere is no reason for a court deciding an ineffective assistance claim to ... address both components of the inquiry if the defendant makes an insufficient showing on one.” Id. at 697 , 104 S.Ct. 2052 .
In the present case, Petitioner has failed to show that the Appellate Division’s decision with regard to this ineffective assistance of counsel claim was contrary to, or involved an unreasonable application of the Strickland standard; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings.
First, it appears that Attorney Grim-mick did, in fact, assert Petitioner’s state constitutional speedy trial right. In his oral application before the trial court, Attorney Grimmick argued that the delay raised “constitutional speedy trial concerns.” (Transcript of July 9, 1991 proceedings, at p. 2). Although he did not specifically reference the New York State Constitution, Attorney Grimmick never expressly limited his argument to the federal constitution. Further, the record indicates that Grimmick’s written motion to dismiss the indictment noted that Petitioner’s right to a speedy trial was “guaranteed by statute ... [and] by state doctrines of due process.” 9
*238 Second, even assuming arguendo that Attorney Grimmick either failed to raise the New York State Due Process Clause or failed to properly emphasize that clause in support of his speedy trial arguments, Petitioner has failed to satisfy the prejudice prong under Strickland because he has not established any reasonable likelihood that the motion would have been granted if the New York Due Process claim had been raised and/or more strongly emphasized.
Although the New York State Constitution does not contain a specific “speedy trial” clause, Article 1, § 6 of the State Constitution provides that “[n]o person shall be deprived of life, liberty or property without due process of law.” The New York Court of Appeals has held that an “unreasonable delay” in commencing the prosecution of a defendant may constitute a violation of due process under Article 1, § 6. See People v. Singer, 44 N.Y.2d 241 , 405 N.Y.S.2d 17 , 376 N.E.2d 179 (N.Y.1978).
However, Petitioner has not provided any support for the suggestion that a motion to dismiss based primarily upon state due process grounds would have succeeded. The Singer line of cases relates to delays occurring prior to the commencement of the criminal action. The delays in the present case occurred after the filing of an accusatory instrument, ie., the indictment. See generally Erdheim v. Greiner, 22 F.Supp.2d 291, 296 (S.D.N.Y.1998) (discussing Singer and related cases). There was no issue in this case concerning pre-indictment delay. Indeed, the police arrested Petitioner almost immediately following his written confession.
Accordingly, given the lack of unreasonable pre-commencement delay and the findings of the state courts regarding the reasons for the post-commencement delay, no reasonable probability exists that a motion to dismiss the indictment based upon state constitutional due process ground would have succeeded. This Court recommends finding that Petitioner is not entitled to habeas relief on this basis.
B. Ground Two — Admission of Petitioner’s Statement to Police
Petitioner contends that his constitutional rights were violated by the trial court’s denial of a motion to suppress his written statement to the police. Petitioner argues that the statement was procured in violation of his constitutional rights and should accordingly have been suppressed.
1. Factual Background
In early June 1987, Detective Petrucci of the Rensselaer Police Department, working with New York State Trooper Patricia Donovan, identified Petitioner as the prime suspect in the sexual abuse of T.O. (TT Vol. 2, at 23-24, 86).
On June 19, 1987, Petrucci and Donovan made arrangements to interrogate Petitioner at the state police barracks in Lou-donville, New York. (TT Vol. 2, at 51-52, 88, 130). They traveled in plain clothes and unmarked cars to Petitioner’s home. (TT Vol. 2, at 32). After identifying themselves to Petitioner’s mother, Detective Petrucci asked for permission to speak with Petitioner, telling Mrs. Dearstyne that she had nothing to worry about and that her son was not in trouble. (TT Vol. 2, at 51, 122, 123). Mrs. Dearstyne said that the police could speak with her son, but explained that he was at the home of a friend (the “Blauers”). (TT Vol. 2, at 34). Petrucci and Donovan did not tell Mrs. Dearstyne that they intended to take her son to the state police barracks in Loudon-ville for interrogation and did not explain that he was the target of their investigation. (TT Vol. 2, at 51, 58).
*239 Detective Petrucei and Investigator Donovan traveled to the Blauers’ residence, where Petitioner was swimming with Mends. (TT Vol. 2, at 36-37). At the request of the officers, Petitioner was summoned and approached Petrucei and Donovan still wet and dripping from the pool. (TT Vol. 2, at 37). The officers explained that they were conducting an investigation and wanted to speak with Petitioner, who agreed to be interviewed. (TT Vol. 2, at 38). Petitioner changed his clothes and rode with Detective Petrucei to the state police barracks in Loudonville, while Donovan followed in another vehicle. (TT Vol. 2, at 41).
The officers brought Petitioner into the barracks through a back entrance that was typically reserved for state troopers. (TT Vol. 2, at 41, 60). Although troopers were required to place the name of any non-trooper visiting the barracks on a “blotter,” Donovan did not follow this procedure when Petitioner was brought in for questioning. (TT Vol. 2, at 107).
Petitioner was interrogated by Trooper Donovan and Investigator Edmond W. Girtler. The testimony of the witnesses differed sharply regarding the nature and conduct of the interrogation. The following is a summary of the testimony given by the prosecution witnesses:
Investigator Girtler advised Petitioner of his Miranda rights and Petitioner signed a written acknowledgment indicating that he understood his rights. (TT Vol. 2, at 100-102, 142-43). Girtler told Petitioner that one of the children that his mother provided day care for had made an allegation against him. (TT Vol. 2, at 141). For approximately thirty (30) minutes, Girtler engaged in general conversation with Petitioner about sexual intercourse, masturbation, and sexual fantasies, until he asked Petitioner if he had ever engaged in sexual conduct with the children for whom his mother babysat. (TT Vol. 2, at 168, 177). Petitioner shrugged and after further questioning made a series of statements admitting sexual contact with a three-year girl named T.O. (TT Vol. 2, at 145, 168). Investigator Girtler then took a written statement from Petitioner. (TT Vol. 2, at 180). The statement was signed by Petitioner and Investigator Girtler and notarized by Trooper Donovan. (TT Vol. 2, at 161).
Petitioner’s account of the interrogation was dramatically different and may be summarized as follows:
Detective Petrucei and Investigator Donovan took Petitioner into an interrogation room and told him he was being charged with rape. (H at 189). 10 Petitioner denied committing any crime. (H at 189-190). Petrucei told Petitioner that they had evidence of the crime and that a rape “specialist” was being brought in. (H at 190). Investigator Girtler arrived shortly thereafter, holding a large yellow envelope. (H at 191). Girtler told Petitioner that the envelope contained “all the evidence to put you away for 25 years.” (H at 191). Petitioner continued to deny committing any crime, which angered Girt-ler, who slammed his fist onto the desk. (H at 191). Petitioner asked to make a telephone call and was told to “shut up” and sit down. (H at 191). Investigator Girtler continued to press the issue and Petitioner continued denying any criminal conduct, until Investigator Girtler left the room in anger, leaving Petitioner alone with Detective Petrucei. (H at 192).
Petitioner was Mghtened and began to cry. (H at 192). Petrucei told him that he would receive only probation if he confessed. (H at 192). Detective Petrucei then *240 told Petitioner: “When you are in jail, you are going to have big guys who are going to come make you his [sic] baby. Bring a supply of vasoline [sic], and everything.” (H at 192). Investigator Girtler then reentered the room and continued to question Petitioner, who repeatedly denied any wrongdoing. After a time, Petitioner indicated that he did not commit the crime but told Investigator Girtler that “out of your satisfaction [sic], I will say ‘yes’ to it.” (H at 194-95). Investigator Girtler then read several allegations to Petitioner from a written statement. When Petitioner denied the allegations, Investigator Girtler told him they could prove that he had done it. Petitioner eventually relented and signed the statement, believing he would receive probation by doing so. (H at 195-97).
There is no dispute that after signing the statement, Petitioner was arrested and charged with various sexual crimes involving T.O. (TT at 88-91,122-23,158). •
2. State Court Proceedings
Prior to trial, Petitioner moved to suppress his statement. The trial court conducted a Huntley hearing, at which both parties were permitted to call witnesses and introduce evidence. The hearing lasted three days, with the prosecution calling Detective Petrucci, Investigator Donovan, and Investigator Girtler. Petitioner testified in his own behalf and called both of his parents as witnesses.
On July 8, 1991, the trial court issued a Decision and Order denying the suppression motion and finding simply that there was a “sharp issue of fact” with respect to the voluntariness of the statement. The trial judge declined to rule on whether the statement was voluntary, directing that the statement was to be submitted to the jury to determine voluntariness in the first instance. (Exhibit J to Petitioner’s Exhibits in Support of Motion to Vacate Judgment).
At trial, the prosecution called Detective Petrucci, Investigator Donovan, and Investigator Girtler as witnesses. The signed statement was introduced into evidence and read into the record. (TT, Vol. 2 at 157-161). As noted above, the statement indicated that Petitioner understood his constitutional rights, but wanted to waive those rights and make a statement. The written statement contained several explicit admissions regarding sexual contact between Petitioner and T.O.
During the defense case, Petitioner called his parents and sister, Cindy Dear-styne, to testify in support of his claim that the police investigators deliberately isolated him from his family to coerce him into making a false confession. Petitioner also denied the admissions set forth in the statement, repeating his claim from the Huntley hearing that he confessed as a result of coercion.
Following his conviction, Petitioner challenged the trial court’s refusal to suppress the statement on direct appeal. The Appellate Division discussed the facts surrounding the interrogation, as established through the Huntley hearing and trial testimony, and concluded that “these facts do not warrant suppression of defendant’s statement for they do not establish that his isolation resulted from official deception or trickery.” Dearstyne II, 646 N.Y.S.2d at 1005 .
Specifically, the appeals court noted that “because the defendant was legally an adult, there was no requirement that his family be present during the questioning.” Id. (This Court notes that at the time of the interrogation, Dearstyne was only sixteen-years-old.) In addition, the appeals court found that suppression was not warranted because “the police had obtained *241 the consent of defendant’s mother to speak to him and there is no indication that his father made any effort to contact an attorney to represent him.” Id} 11 The Court of Appeals denied Petitioner’s request for leave to appeal.
Petitioner raised several challenges concerning the admission of his statement in support of his pro se CPL § 440 motions. Specifically, Petitioner argued that the statement was . taken in violation of his Miranda rights, that the trial court’s Huntley decision failed to comply with CPL § 710.60(6), and that the statement was involuntary, unreliable, and uncorroborated.
As noted above, Judge McGrath denied Petitioner’s § 440 motion in a Decision and Order dated October 13, 1999. Judge McGrath rejected Petitioner’s arguments concerning the admission of his statement on several procedural grounds. First, he found that Petitioner’s claim that he was deliberately isolated from his parents had been decided by the Appellate Division and was thus barred by CPL § 440.10(2)(a), which provides for the denial of claims previously decided on the merits on direct appeal.
Second, to the extent that Petitioner was raising claims regarding his statement that were not raised on direct appeal, Judge McGrath denied those claims pursuant to CPL § 440.10(2)(c), which provides for the denial of claims that could reasonably have been raised on direct appeal, but were not. Lastly, Judge McGrath stated that even if consideration of Petitioner’s claims was not otherwise procedurally barred, he would exercise his discretion to deny the claims under CPL § 440.10(3)(b), which provides for the discretionary denial of claims “previously determined on the merits upon a prior motion or proceeding ..., other than an appeal from the judgment.” CPL § 440 Order, October 13, 1999, at p. 6.
As part of the consolidated appeal, the Appellate Division did not discuss the claims regarding Petitioner’s statement specifically, but summarily rejected many of Petitioner’s claims, including (presumably) his arguments concerning the failure to suppress his statement, finding them “unpersuasive.” Dearstyne III, 761 N.Y.S.2d at 121 . This determination constitutes a denial on the merits and Petitioner’s claims regarding the suppression of his statement are therefore subject to AEDPA review. See Sellan, 261 F.3d at 312-13 (holding that one word denial is sufficient to constitute an “adjudication on the merits” for purposes of AEDPA).
3. Habeas Review
a. Voluntariness of the Confession
As the Supreme Court explained in Jackson v. Denno,
It is now axiomatic that a defendant in a criminal case is deprived of due process of law if his conviction is founded, in whole or in part, upon an involuntary confession, without regard for the truth or falsity of the confession, Rogers v. Richmond, 365 U.S. 534 , 81 S.Ct. 735 , 5 L.Ed.2d 760 [ (1961) ], and even though there is ample evidence aside from the confession to support the conviction. Malinski v. New York, 324 U.S. 401 , 65 S.Ct. 781 , 89 L.Ed. 1029 [ (1945) ]; Stroble v. California, 343 U.S. 181 , 72 S.Ct. 599 , 96 L.Ed. 872 [ (1952) ]; Payne v. Arkansas, 356 U.S. 560 , 78 S.Ct. 844 , 2 L.Ed.2d 975 [ (1958) ]. Equally clear is *242 the defendant’s constitutional right at some stage in the proceedings to object to the use of the confession and to have a fair hearing and a reliable determination on the issue of voluntariness, a determination uninfluenced by the truth or falsity of the confession. Rogers v. Richmond, supra.
Jackson v. Denno, 378 U.S. 368, 377 , 84 S.Ct. 1774 , 12 L.Ed.2d 908 (1964). In Dickerson v. United States, 530 U.S. 428, 434 , 120 S.Ct. 2326 , 147 L.Ed.2d 405 (2000), the Supreme Court held that to determine whether a statement was voluntary, the trial court must decide whether a defendant’s will was overborne by the circumstances of the interrogation.
“No single criterion controls whether an accused’s confession is voluntary: whether a confession was obtained by coercion is determined only after careful evaluation of the totality of the surrounding circumstances.” Nelson v. Walker, 121 F.3d 828, 833 (2d Cir.1997). Voluntariness is a question is a mixed question of law and fact. “Without exception, the [Supreme] Court’s confession cases hold that the ultimate issue of “voluntariness” is a legal question requiring independent federal determination.” Miller v. Fenton, 474 U.S. 104 , 106 S.Ct. 445 , 88 L.Ed.2d 405 (1985) (citing Haynes v. Washington, 373 U.S. 503, 515-516 , 83 S.Ct. 1336 , 10 L.Ed.2d 513 (1963); Ashcraft v. Tennessee, 322 U.S. 143, 147-148 , 64 S.Ct. 921 , 88 L.Ed. 1192 (1944)). The Supreme Court explained, “In short, an unbroken line of eases, coming to this Court both on direct appeal and on review of applications to lower federal courts for a writ of habeas corpus, forecloses the Court of Appeals’ conclusion that the ‘voluntariness’ of a confession merits something less than independent federal consideration.” Miller, 474 U.S. at 112 , 106 S.Ct. 445 . The Miller court reiterated that subsidiary factual questions, such as whether a drug has the properties of a truth serum, or whether in fact the police engaged in the intimidation tactics alleged by the defendant, are entitled to an evidentiary presumption of correctness set forth in former 28 U.S.C. § 2254 (d), now 28 U.S.C. § 2254 (e)(1). Id. (citing, inter alia, LaVallee v. Delle Rose, 410 U.S. 690, 693-95 , 93 S.Ct. 1203 , 35 L.Ed.2d 637 (1973) (per curiam)). However, the Supreme Court reaffirmed in Miller, “the ultimate question whether, under the totality of the circumstances, the challenged confession was obtained in a manner compatible with the requirements of the Constitution is a matter for independent federal determination.” 474 U.S. at 112 , 106 S.Ct. 445 .
Although the Supreme Court has not established any per se rules concerning the admissibility of statements made by adolescent defendants, it has stated that “[t]he totality approach permits — indeed, it mandates — inquiry into all the circumstances surrounding the interrogation. This includes evaluation of the juvenile’s age, experience, education, background, and intelligence, and into whether he has the capacity to understand the warnings given him, the nature of his Fifth Amendment rights, and the consequences of waiving those rights.” Fare v. Michael C., 442 U.S. 707, 725 , 99 S.Ct. 2560 , 61 L.Ed.2d 197 (1979).
Petitioner asserts the following arguments in support of his claim that his statement was admitted into evidence in violation of his constitutional rights. First, Petitioner contends that his statement was involuntary because the police investigators deliberately and intentionally isolated him, placing him beyond the reach and assistance of his parents. Second, Petitioner argues that he signed the statement due to fear and fatigue and, thus, it should have been suppressed as involuntary. Third, Petitioner argues that the police *243 investigators used “coercive techniques,” including false promises and trickery, that resulted in an involuntary confession.
Numerous courts have observed that the “petitioner’s age is a factor that may enter into a court’s determination of whether a confession was coerced.” Dowtin v. Cohen, No. 99-CV-0323, 2003 WL 21912681 , at *2 (E.D.N.Y. June 10, 2003); see also Hemingway v. Henderson, 754 F.Supp. 296, 304 (E.D.N.Y.1991) (noting that “[c]lose scrutiny is always required of any confession that has been given by a 16-year old during custodial interrogation”) (citing Haley v. Ohio, 332 U.S. 596, 599 , 68 S.Ct. 302 , 92 L.Ed. 224 (1948) (holding that murder confession by 15-year-old African-American boy after five hours of interrogation, starting at midnight, by police officers working in relays; without warning him regarding his rights; and without his having had benefit of the advice of friends, family or counsel, should have been excluded because it was involuntary and was extracted by methods violative of due process requirements of Fourteenth Amendment; “when, as here, a mere child — an easy victim of the law — is before us, special care in scrutinizing the record must be used”)). The Supreme Court has described the need to exercise “special caution” when assessing the voluntariness of a juvenile confession, particularly where there is prolonged or repeated questioning or where the accused in interrogated without having a parent, lawyer, or other friendly adult present. See In re Gault, 387 U.S. 1, 45 , 87 S.Ct. 1428 , 18 L.Ed.2d 527 (1967); Gallegos v. Colorado, 370 U.S. 49, 53-55 , 82 S.Ct. 1209 , 8 L.Ed.2d 325 (1962) (holding that “The youth of the petitioner, the long [five-day] detention, the failure to send for his parents, the failure immediately to bring him before the judge of the Juvenile Court, the failure to see to it that he had the advice of a lawyer or a friend-all these combine to make us conclude that the formal confession on which this conviction may have rested (see Payne v. Arkansas, 356 U.S. 560, 568 , 78 S.Ct. 844, 850 , 2 L.Ed.2d 975 (1958)) was obtained in violation of due process.”)
The question before this Court on habe-as review is whether the Appellate Division’s conclusion that the statement was not coerced was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. For the reasons that follow, this Court finds that Petitioner has established that the Appellate Division’s ruling was an unreasonable application of clearly established Supreme Court law.
In the present case, Petitioner was sixteen-years-old at the time of the interrogation and there is no dispute concerning the fact that his parents were not present. Further, it is undisputed that Petitioner’s parents did not know where Petitioner was during the interrogation. The testimony established that, although the investigators did request and obtain her permission to speak with Petitioner, they employed a subterfuge to obtain the consent of Petitioner’s mother without providing her with all of the details concerning the investigation. Indeed, they falsified their true intentions concerning their focus on Petitioner as a perpetrator, telling Petitioner’s mother that she had nothing to worry about and that her son was not in trouble, even though at the time of their representations to her he was the target of the troopers’ criminal investigation. (TT Vol. 2, at 51, 122, 123). The troopers did not inform Petitioner’s mother that they intended to take her son to the state police barracks to conduct the interrogation. *244 Thus, Petitioner’s mother did not know where her son was during the time he was in police custody. The troopers continued their deceptive practices when they arrived at the barracks, essentially “sneaking” Petitioner- into the building through a back entrance reserved for officers. (TT Vol. 2, at 41, 60). Furthermore, police regulations required that the name of anyone visiting the barracks who was not a state trooper be placed on a “blotter.” However, Trooper Donovan admitted in his sworn trial testimony that he did not follow this procedure when Petitioner was brought in for questioning. (TT Vol. 2, at 107). In this Court’s opinion, the state troopers clearly used deceptive means to conceal Petitioner’s location and to isolate him from his parents. See Gallegos, 370 U.S. at 51 , 82 S.Ct. 1209 (“Confessions obtained by ‘secret inquisitorial processes’ (Chambers v. Florida, 309 U.S. 227, 237 , 60 S.Ct. 472, 477 , 84 L.Ed. 716 (1940)) are suspect, since such procedures are conducive to the use of physical and psychological pressures.”)
Petitioner admitted that he received a preprinted form describing his Miranda rights, that he read the form, and understood his rights. (TT Vol. 3, at p. 617-620). Petitioner also acknowledged that he never asked for an attorney during the course of the interrogation. (TT Vol. 3, at p. 619-620). The Court recognizes that Petitioner was sixteen-years-old, and under New York law an individual who passes that age-threshold is considered to be legally an adult for purposes of being charged with a crime, understanding the panoply of constitutional rights involved in a Miranda warning, and the ramifications of waiving those rights. However, this Court cannot avoid noting the incongruity that Petitioner, at age sixteen, nevertheless was still not legally able to vote, drink alcohol, or drive a car by himself at night, and is viewed at that age by the great majority of jurisdictions as lacking the maturity, judgment and experience to be considered an adult for almost any purpose. Notably, Petitioner had no previous experience with the police or the criminal justice system and though there is no indication that he was not of normal intelligence, he was not “street smart”. See Gallegos, 370 U.S. at 54 , 82 S.Ct. 1209 (“But a 14-year-old boy, no matter how sophisticated, is unlikely to have any conception of what will confront him when he is made accessible only to the police. That is to say, we deal with a person who is not equal to the police in knowledge and understanding of the consequences of the questions and answers being recorded and who is unable to know how to protest his own interests or how to get the benefits of his constitutional rights.”). That Petitioner admitted to being read his Miranda warnings and signed the card is not, in this Court’s opinion, sufficient to alleviate the concern that Petitioner was taken advantage of by the police, given Petitioner’s young age and lack of experience with criminal justice system.
Although Petitioner testified that he reviewed the statement and initialed corrections on certain portions thereof, (TT Vol. 3, at 621), the written statement was transcribed by Investigator Girtler. That the statement was not in Petitioner’s own writing tends to support Petitioner’s version of events of the interrogation. According to Petitioner, he eventually relented after being told repeatedly by Girtler that they knew he had done it. Petitioner told Investigator Girtler that though he did not commit the crime he would “say ‘yes’ to it” to satisfy Girtler. At that point, Girtler read several allegations to Petitioner from a written statement. When Petitioner denied the allegations, Girtler told him they could prove that he had done it. Earlier in the interrogation, according to Petitioner, the police had lied *245 to Petitioner about all the evidence of his guilt that they possessed. Detective Pe-trueci told Petitioner that they had evidence of the crime and that they had a so-called “rape specialist” working on the case. (H at 190). When Investigator Girt-ler arrived, he was brandishing a large yellow envelope, (H at 191), which he said contained “all the evidence to put [Petitioner] away for 25 years.” After Girtler left the interrogation room, angered by Petitioner’s denials, Petitioner states that he was frightened and began to cry. Detective Petrucci promised him that he would not receive any jail time if he confessed, and then proceeded to paint a graphic picture of the rapes to which Petitioner would be subjected to by the older inmates if he did go to prison. Although he was never subjected to any physical force, the interrogation was fairly lengthy (it lasted between three to four hours) and not free from coercive tactics. If Petitioner’s testimony is credited, Petitioner was subjected to psychological pressure, lies, and manipulation, to which he was more vulnerable given his relative youth and inexperience. Indeed, the troopers’ deceptive practices in making sure that Petitioner’s whereabouts were a secret lends credence to Petitioner’s version of the interrogation. Petitioner testified that he eventually relented and signed the statement, believing he would receive probation by doing so. (H at 195-97). (TT Vol. 3, at 628-629). Cf. Fare v. Michael C., 442 U.S. at 725 , 99 S.Ct. 2560 (the Supreme Court concluded that a confession was voluntary where the 16-year-old suspect had a prior criminal record, had no signs of insufficient intelligence and had not been subjected to threats, intimidation or trickery). 12
In light of these undisputed facts, this Court finds that Petitioner has established that the Appellate Division’s conclusion that Petitioner’s statement did not result from intentional isolation designed to overbear Petitioner’s will was an unreasonable determination of the facts, in light of the evidence presented in the State court proceeding. As discussed above, the police intentionally isolated petitioner from his mother by not informing her where they were bringing him and then deliberately bringing him into the barracks by means of an entrance not used by the public, and contravening established police procedure by not signing him in on the sign-in log at the barracks, so there was no record that he was in the building.
*246 b. Failure to Comply with CPL § 710.60(6)
In his habeas petition, Petitioner argues that the trial court’s suppression decision failed to comply with CPL § 710.60(6), which requires that the court, upon determining a suppression motion, “set forth on the record its findings of fact, its conclusions of law and the reasons for its determination.” N.Y. Crim. Proc. Law § 710.60 (6). The trial court’s Decision and Order denying the motion to suppress Petitioner’s statement was limited to a brief recitation of the procedural history and the following findings:
During the taking of testimony at the Suppression Hearing and in the arguments set forth in the memoranda a sharp question of fact has arisen. There are no clear cut legal issues without resolving the questions of fact. Accordingly, the motion to suppress is denied. A question of fact as to voluntariness has been presented for determination by the trial jury.
County Court Decision and Order, dated July 8, 1991, attached as Exhibit J to Petitioner’s Exhibits in Support of the CPL § 440.10 Motion to Vacate the Judgment.
i. State Court Proceedings and Rulings
Prior to trial, Dearstyne’s counsel moved to suppress the statement made at the state police barracks and requested a suppression hearing pursuant to People v. Huntley. 13 The trial court conducted a *247 Huntley hearing and, on July 8, 1991, the trial court issued a cursory Decision and Order denying the suppression motion. As noted above, the trial court, finding that there was a “sharp issue of fact,” decided that it accordingly could not resolve the legal issue of voluntariness. It therefore ordered that the confession be admitted into evidence at trial and that the voluntariness issue be left for the jury to decide in the first instance. See Exhibit J to Petitioner’s Exhibits in Support of CPL § 440.10 Motion to Vacate the Judgment.
On direct appeal, Petitioner’s trial counsel (Attorney Grimmick) also acted as appellate counsel. Attorney Grimmick raised two arguments relative to the suppression of the statement in his appellate brief: (1) that Petitioner was improperly isolated from his family and (2) that the statement was obtained during an impermissible delay in Petitioner’s arraignment. See Exhibit 31 to Docket No. 72.
After discussing the factual circumstances of the interrogation, as presented at the Huntley hearing and trial, the Appellate Division concluded that “these facts do not warrant suppression of defendant’s statement, for they do not establish that his isolation resulted from official deception or trickery.” Dearstyne II, 646 N.Y.S.2d at 1005 . The Appellate Division held that “because the defendant was legally an adult, there was no requirement that his family be present during the questioning.” Id. In addition, the Appellate Division found, suppression was not warranted because “the police had obtained the consent of defendant’s mother to speak to him and there is no indication that his father made any effort to contact an attorney to represent him.” Id. The court also rejected the “impermissible delay argument.” Id. The New York Court of Appeals denied Petitioner’s request for leave to appeal.
In his subsequent pro se CPL § 440.10 motion, Petitioner raised several challenges concerning the admission of his statement to the police. One of these arguments was that the trial court failed to comply with the requirements of CPL § 710.60(6), which requires a hearing court to set forth its fact-findings, legal conclusions, and reasons for its determination regarding the voluntariness of a defendant’s confession “regardless of whether a hearing was conducted,” N.Y. Crim. Proc. Law § 710.60 (6); accord, e.g., People v. Jeffreys, 284 A.D.2d 550 , 727 N.Y.S.2d 626, 627 (App.Div.2d Dept.2001).
In his CPL § 440 motion, Dearstyne asserted that the trial court failed to comply with the requirements of CPL § 710.60(6), rendering trial court’s decision “fundamentally flawed” because the court “never set forth ... his reasons for allowing the involuntary and false confession into the trial.” (Petitioner’s Memorandum of Law in Support of the CPL § 440.10 Motion to Vacate the Judgment (“Pet’r CPL § 440.10 Mem.”), at p. 141). In his discussion of that argument, Petitioner cited Jackson v. Denno, 378 U.S. 368, 386, n. 13 , 84 S.Ct. 1774, 1785, n. 13 , 12 L.Ed.2d 908 (1964), in support of his claim that the trial court should not have allowed the jury to decide the issue of voluntariness without making a threshold voluntariness finding. See Pet’r CPL § 440.10 Mem., at p. 142. Jackson struck down as unconstitutional New York’s prior procedure of allowing the jury, in the first instance, to determine the voluntariness defendant’s confession, at the same time it determined its reliability. Dearstyne also cited Crane v. Kentucky, 476 U.S. 683 , 106 S.Ct. 2142 , 90 L.Ed.2d 636 (1986), in which the Supreme Court the state courts “erred in foreclosing petitioner’s efforts to introduce testimony about the environment in which the police secured his confession,” especially where the “[pjetitioner’s entire defense *248 was that there was no physical evidence to link him to the crime and that, for a variety of reasons, his earlier admission of guilt was not to be believed.” Id. at 691 , 106 S.Ct. 2142 . See Petitioner’s Memo of Law in support of his CPL § 440.10 motion, at p. 142 (citing Crane and Jackson).
In his decision denying Petitioner’s 440 motion, Judge McGrath specifically rejected the foregoing argument pursuant to CPL § 440.10(2)(c) on the grounds that it could have been raised on direct appeal, but was not. Judge McGrath stated that “sufficient facts appear on the record for all issues related to defendant’s confession to have been addressed on appeal” and, as such, the claim was required to be dismissed pursuant to CPL § 440.10(2)(c).
Represented by new counsel, Attorney Bauer, Petitioner appealed the decision denying CPL § 440.10 relief, along with other related orders, as part of a consolidated appeal to the Appellate Division. The Appellate Division did not specifically address the issue concerning the trial court’s failure to decide whether Petitioner’s statement to the police was voluntary or not. Notably, the Appellate Division did not refer at all to Judge McGrath’s invocation of CPL § 440.10(2)(c) as grounds for dismissal of the claims pertaining to Petitioner’s statement. At the conclusion of its decision, the Appellate Division denied the balance of Petitioner’s arguments as “unpersuasive.” Dearstyne III, 761 N.Y.S.2d at 121 .
In his habeas petition, Petitioner argues that the “[t]rial Court allowed the confession to go to the jury, without first determining these matters as required by law.” In his opposition brief, Respondent states that the Appellate Division’s summary denial of Petitioner’s remaining claims as “unpersuasive” constituted a denial on the merits with respect to Petitioner’s claims regarding suppression of his statement. See Respondent’s Memorandum of Law (“Resp’t Mem.”), at p. 43. The Second Circuit clearly has stated that where, as here, “ ‘there is no basis either in the history of the case or the opinion of the Appellate Division for believing’ that the claim at issue ‘was denied on procedural or any other nonsubstantive grounds,’ a terse statement that ‘remaining contentions are without merit’ suffices to trigger AEDPA’s heightened standard of review.” Dallio v. Spitzer, 343 F.3d 553, 560 (2d Cir.2003) (quoting Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir.2001)). “AEDPA deference is no less due to unexplained rulings than to explained rulings.” Jimenez v. Walker, 458 F.3d 130 , 143 n. 12 (2d Cir.2006) (citing Sellan v. Kuhlman, 261 F.3d 303, 311-14 (2d Cir.2001)). The Appellate Division’s summary denial of Dearstyne’s claim as “unpersuasive” thus constitutes an “adjudication on the merits” for purposes of AEDPA.
ii. The Trial Court’s Failure to Adjudicate the Voluntariness Issue Was an Unreasonable Application of Clearly Established Supreme Court Law, Jackson v. Denno
The issue is whether it was proper for Judge McGrath to decline'to make a final adjudication regarding the voluntariness issue after the suppression hearing, instead leaving it as a factual question for the jury to resolve at Dearstyne’s trial. This very same issue was discussed in the seminal case of Jackson v. Denno, in which the Supreme Court explained the old, pre- Huntley New York rule as follows:
Under the New York rule, the trial judge must make a preliminary determination regarding a confession offered by the prosecution and exclude it if in no circumstances could the confession be deemed voluntary. But if the evidence presents a fair question as to its volun-tariness, as where certain facts bearing *249 on the issue are in dispute or where reasonable men could differ over the inferences to be drawn from undisputed facts, the judge “must receive the confession and leave to the jury, under proper instructions, the ultimate determination of its voluntary character and also its truthfulness.” Stein v. New York, 346 U.S. 156, 172 , 73 S.Ct. 1077, 1086 , 97 L.Ed. 1522 [(1953)]. If an issue of coercion is presented, the judge may not resolve conflicting evidence or arrive at his independent appraisal of the voluntariness of the confession, one way or the other. These matters he must leave to the jury.
Jackson, 378 U.S. at 378 , 84 S.Ct. 1774 (footnotes omitted); see also Owens v. Treder, 873 F.2d 604, 609 (2d Cir.1989) (“New York law [prior to Jackson v. Denno ] originally permitted the jury to decide the voluntariness issue whenever the trial court made a preliminary determination that the evidence on involuntariness presented a factual conflict.”). The Supreme Court explained, “Under the New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of volun-tariness. Indeed the jury is told to determine the truthfulness of the confession in assessing its probative value.” Jackson, 378 U.S. at 386 , 84 S.Ct. 1774 .
Jackson thus repudiated the same procedure employed by Judge McGrath in Dearstyne’s case, because it “did not afford a rehable determination of the vol-untariness of the confession offered in evidence at the trial, did not adequately protect Jackson’s right to be free of a conviction based upon a coerced confession and therefore cannot withstand constitutional attack under the Due Process Clause of the Fourteenth Amendment.”
The Supreme Court explained in Jackson that New York’s old procedure had “a significant impact upon the defendant’s Fourteenth Amendment rights” since a “New York jury returns only a general verdict upon the ultimate question of guilt or innocence[,]” and “[i]t is impossible to discover whether the jury found the confession voluntary and relied upon it, or involuntary and supposedly ignored it.” Id. Significantly, the New York procedure gave no “indication of how the jury resolved disputes in the evidence concerning the critical facts underlying the coercion issue” and in fact there was “nothing to show that these matters were resolved at all, one way or the other.” Id. at 380, 84 S.Ct. 1774 ; see also id. (“A defendant objecting to the admission of a confession is entitled to a fair hearing in which both the underlying factual issues and the vol-untariness of his confession are actually and reliably determined. But did the jury in Jackson’s case make these critical determinations, and if it did, what were these determinations?”).
The problem with New York’s old procedure, as the Supreme Court put it, was that
“[t]he New York jury is at once given both the evidence going to voluntariness and all of the corroborating evidence • showing that the confession is true and that the defendant committed the crime. The jury may therefore believe the confession and believe that the defendant has committed the very act with which he is charged, a circumstance which may seriously distort judgment of the credibility of the accused and assessment of the testimony concerning the critical facts surrounding his confession.
In those cases where without the confession the evidence is insufficient, the defendant should not be convicted if the jury believes the confession but finds it *250 to be involuntary. The jury, however, may find it difficult to understand the policy forbidding reliance upon a coerced, but true, confession, a policy which has divided this Court in the past, see Stein v. New York, supra, and an issue which may be reargued in the jury room. That a trustworthy confession must also be voluntary if it is to be used at all, generates natural and potent pressure to find it voluntary. Otherwise the guilty defendant goes free. Objective consideration of the conflicting evidence concerning the circumstances of the confession becomes difficult and the implicit findings become suspect.
Jackson, 378 U.S. at 381-82 , 84 S.Ct. 1774 . In sum, the Supreme Court found, “[u]n-der the [former] New York procedure, the evidence given the jury inevitably injects irrelevant and impermissible considerations of truthfulness of the confession into the assessment of voluntariness. Indeed the jury is told to determine the truthfulness of the confession in assessing its probative value. As a consequence, it cannot be assumed, as the Stein Court assumed, that the jury reliably found the facts against the accused.” 378 U.S. at 387 , 84 S.Ct. 1774 .
Thus, in Jackson, “the Supreme Court held that [New York’s former] procedure to be constitutionally flawed because it allowed the jury to determine the issue of voluntariness in the first instance, despite the danger that the jury might be improperly swayed by the reliability or truthfulness of the confession. To avoid this danger, the Supreme Court required that decisions on voluntariness must be made by the trial court alone.” Owens, 873 F.2d at 609 .
“In response to Jackson v. Denno, the New York Court of Appeals, in People v. Huntley, 15 N.Y.2d 72, 78 , 255 N.Y.S.2d 838, 843 , 204 N.E.2d 179, 183 (1965), adopted the so-called ‘Massachusetts procedure’ under which the trial judge alone must first find voluntariness beyond a reasonable doubt before the confession may even be submitted to the jury, but the issue of voluntariness may thereafter again be tried to the jury.” Owens, 873 F.2d at 610 . As the Second Circuit noted, “[t]he decision to adopt this two-tiered approach to determining the voluntariness of a confession was based, in part, on the fact that art. I, § 2 of the New York state constitution mandates a jury trial on the issue of voluntariness.” Id. (citing People v. Huntley, 15 N.Y.2d at 78 , 255 N.Y.S.2d at 843 , 204 N.E.2d at 183 ; People v. Hamlin, 71 N.Y.2d 750, 761 , 530 N.Y.S.2d 74, 78 , 525 N.E.2d 719, 723 (1988)).
In this Court’s opinion, the Jackson v. Denno error was significant and obvious. The trial judge in this case followed the old, unconstitutional, pre-Huntley procedure in Dearstyne’s case, whereby the trial court submitted to jury, along with other issues in case, the question as to voluntariness of the defendant’s confession on which evidence was in conflict, telling the jury that if the confession was involuntary it was to disregard it entirely and to determine question of guilt from other evidence and that, alternatively, if it found confession voluntary, to determine truth and reliability and to afford it weight accordingly. This procedure was unequivocally rejected by the Supreme Court in Jackson v. Denno — decided decades before Dearstyne’s trial — because it did not afford a reliable determination of voluntariness, did not adequately protect the defendant’s right to be free of conviction based on a coerced confession, and could not withstand constitutional attack under the due process clause of Fourteenth Amendment. Plainly, the trial court’s suppression ruling was contrary to clearly established Supreme Court precedent. After confronting a ma *251 terially indistinguishable set of facts, the suppression court ruled in a manner contrary to Jackson v. Denno. The Court believes that 28 U.S.C. § 2254 (d)(l)’s “contrary to” clause applies; but, at the very least, the trial court’s ruling unreasonably applied Jackson v. Denno for purposes of Section 2254(d)(l)’s “unreasonable application” clause.
The Appellate Division found that Dear-styne’s confession was voluntarily, essentially finding that the suppression court’s error was harmless. The Court finds that is was objectively erroneous for the Appellate Division to make a credibility determination that the trial court was unwilling to make after hearing the witnesses give live testimony. The Appellate Division, Second Department, in People v. Dallio, 671 N.Y.S.2d 985 (App.Div.2d Dept.1998), ordered a second Huntley hearing after it found that the trial judge had failed to comply with CPL § 710.60(6):
The court did not adequately follow the statutory mandate of CPL 710.60(6), which requires it to set forth on the record its findings of fact, its conclusions of law, and the reasons for its determination. Although the court, at the Huntley hearing, made some findings of fact and conclusions of law, they were incomplete and not specific enough for this court to review the nature and basis of the court’s determinations as to the defendant’s arguments concerning his alleged invocation of his right to counsel, his right to remain silent, and the issues of credibility in connection therewith.
People v. Dallio, 671 N.Y.S.2d at 985 (emphasis supplied). The Second Department remitted the matter to the trial court (Supreme Court, Queens County) for the “court to make the appropriate findings of fact and conclusions of law.” Id. In the interim, however, the trial judge who had conducted the first Huntley hearing, retired. Dallio v. Spitzer, 170 F.Supp.2d 327 , 335 n. 4 (E.D.N.Y.2001). Upon learning of the trial judge’s retirement, “the appellate court decided that it was in the best position to make credibility findings” and therefore “it vacated its previous order and proceeded to the merits.” Id. It bears emphasizing that the Appellate Division in Dallio did not, in the first instance, proceed to review the claim even though it had before it a transcript of a complete Huntley hearing because it could not determine the credibility issues from a cold record. Similarly, here, when Judge McGrath noted that there were “sharp issues of fact,” what he really meant was that there were sharp issues of credibility.
The Court recognizes the most relief on this claim it could grant Dearstyne would be a new Huntley hearing in state court. See Jackson, 378 U.S. at 394 , 84 S.Ct. 1774 . Under Jackson v. Denno, a new trial becomes a- possibility only after an evidentiary hearing has a resulted in a finding of involuntariness. Here, the Court believes that a new Huntley hearing is required even though Dearstyne did have an evidentiary hearing prior to trial at which was voluntariness of the statement was litigated — although not finally resolved by the judge prior to trial, as Jackson v. Denno requires. This is because the critical credibility determination cannot be made upon a cold appellate record.
Key v. Artuz, No. 99-CV-161JG, 2002 WL 31102627 , at *7 (E.D.N.Y. Sept. 16, 2002), provides an illustrative contrast. There, the habeas court reviewed a Jackson claim with the following facts: the suppression motion was denied without any findings of fact by the trial court; the Appellate Division thereafter affirmed the trial court, and in so doing made findings of fact concerning the statement based upon the trial record. The habeas court in *252 Key rejected the petitioner’s Jackson claim for two reasons: first, waiver (which is not the case with Dearstyne) and second, because any error by the trial court in failing to make a finding as to voluntariness was rendered harmless by the Appellate Division’s subsequent finding that the statement was, in fact, voluntary. Id. at *7 In Key , however, there were two confessions,' one of which was videotaped; that was the one for which there was no Jackson v. Denno finding. The Key court stated, (“Moreover, any error in the failure to make a finding on the voluntariness of the videotaped confession [under Jackson v. Denno ] was vitiated by the finding of voluntariness on the first confession to the police officer. That finding was made explicitly, by the Appellate Division and implicitly by Judge Lombardo after the Huntley hearing.”). This is not the case where the “relevant facts are already before the court from the trial or other proceedings.” United States v. Kaba, 999 F.2d 47, 50-51 (2d Cir.1993); United States v. Oliver, 626 F.2d 254, 260 (2d Cir.1980). The critical, relevant facts cannot determined without first determining each witness’ demeanor and credibility. Unlike Key , there is no audiotaped or videotaped memorialization of the confession from which a reviewing court could glean the necessary information to make a reliable credibility determination. Unlike Key , there is only the one confession, the voluntariness of which is hotly disputed, highly questionable and far from clear. Thus, the Court finds that the Jackson v. Denno error did have a “substantial and injurious effect” on the verdict, therefore, it was not harmless or rendered so by the Appellate Divisions after-the-fact, uninformed credibility determination. I find that Dearstyne’s due process rights suffered actual prejudice by the trial court’s failure to comply with Jackson v. Denno.
Accordingly, I recommend that Dear-styne should be granted a new Huntley hearing before a different trial judge.
C. Ground Three — DNA Evidence
Petitioner argues that his constitutional rights were violated in several respects by the prosecution’s alleged withholding of DNA evidence, his trial counsel’s failure to object to testimony and argument concerning the alleged presence of sperm in T.O.’s vagina, and the state courts’ repeated denials of his requests for DNA testing.
1. Factual Background
At trial, the prosecution offered the testimony of Dr. Theodore Close, T.O.’s pediatrician. On June 13, 1987, T.O.’s parents brought her to see Dr. Close after discovering blood in her underwear. Declaration of Theodore Close, M.D. (“Close Deck”), ¶ 4 (Docket No 81). Dr. Close testified that he examined T.O. and noted “drainage” in her vagina. (TT Vol. 2, at p. 389); Close Deck, ¶ 8. He took a swab of the drainage and examined it under a microscope and “saw what appeared to be sperm.” (TT Yol. 2, at p. 391); Close Deck, ¶ 8. After completing his examination, Dr. Close referred T.O. to the Albany Medical Center. Immediately after his examination, he disposed of all physical samples that he had taken from T.O., including swabs and microscopic slides, by placing them in a waste depository. Close Deck, ¶ 10. Dr. Close averred that he “saw no need at that time to preserve the samples because T.O. was immediately being taken to Albany Medical Center, which would preserve any relevant evidence via a ‘rape kit.’ ” Close Deck ¶ ll. 14
*253 To rebut Dr. Close’s testimony, Petitioner’s trial counsel introduced the results of a “Johnson rape kit” test performed at Albany Medical, which indicated that a slide taken from T.O.’s vaginal wall was negative for sperm. T.O.’s underwear was also tested by the New York State Police Headquarters Crime Laboratory and the test was negative for sperm. (TT Vol. 3, at 481 (admission of the rape kit results); Petitioner’s Appendix Vol. 2, at A583-584 (copy of the exhibit)).
During his summation, Petitioner’s trial counsel attacked Dr. Close’s credibility, noting that the doctor believed he had observed sperm in T.O.’s vagina, even though the forensic tests indicated that there was no sperm present. (TT Vol. 3, at 683). The prosecutor responded to this argument by noting that the rape kit sample was “taken a few hours after Dr. Close’s examination” and was based upon a “vaginal wall slide.” (TT Vol. 3, at 705-706). In contrast, the prosecution argued, “Dr. Close examined the sample of drainage found inside the panties of [T.O.].” (TT Vol. 3, at p. 706). In sum, the prosecutor suggested that the negative rape kit results and Dr. Close’s conclusion that the drainage was sperm were not mutually exclusive, as the two determinations were based upon different samples. The prosecutor thus argued that the evidence showed that sperm was, in fact, present in T.O.’s vaginal region. (TT Vol. 3 at p. 707).
2. Habeas Review
Petitioner raises several claims with regard to the physical evidence described above, which he characterizes as exculpatory DNA evidence. Each claim will be addressed in turn.
a. Brady Violation
Petitioner contends that the prosecution failed to disclose the fluid sample examined and discarded by Dr. Close, in violation of his constitutional rights as set forth in Brady v. Maryland, 373 U.S. 83, 87 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 (1963).
i. Exhaustion and Procedural Default
Although Petitioner raised a Brady claim on direct appeal, the claim did not relate to the fluid sample examined by Dr. Close. (Petitioner’s Brief on Direct Appeal, attached as Exhibit 31 to Docket No. 72, at p. 74-80). While Petitioner referenced the allegedly withheld samples in support of one of his pro se post-conviction motions seeking DNA testing pursuant to CPL § 440.30, Respondent argues that this was insufficient to fairly present the Brady claim to the state courts for purposes of habeas review. In addition, while Petitioner argued the prosecution was vio-' lating Brady by opposing his post-conviction efforts to obtain DNA testing, Respondent contends that Petitioner failed to fairly present his claim that the prosecution offended Brady by failing to disclose the fluid sample at trial.
Exhaustion requires that a petitioner “fairly present[ ]” his federal claims to the highest state court available. Weaver v. Thompson, 197 F.3d 359, 365 (9th Cir.1999); O’Sullivan v. Boerckel, 526 U.S. 838, 844-45 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999) (“Section 2254(c) requires only that state prisoners give state courts a fair opportunity to act on their claims.”) (emphasis in original). Fair presentation requires that the petitioner “describe in the state proceedings both the operative facts and the federal legal theory on which his claim is based so that the state courts have a ‘fair opportunity’ to apply controlling legal principles to the facts bearing upon *254 his constitutional claim.” Kelly v. Small, 315 F.3d 1063, 1066 (9th Cir.2003), overruled on other grounds by Robbins v. Carey, 481 F.3d 1143, 1149 (9th Cir.2007). Thus, “for purposes of exhausting state remedies, a claim for relief in habeas corpus must include reference to a specific federal constitutional guarantee, as well as a statement of the facts that entitle the petitioner to relief.” Gray v. Netherland, 518 U.S. 152, 162-63 , 116 S.Ct. 2074 , 135 L.Ed.2d 457 (1996).
In response to Respondent’s failure-to-exhaust argument, Petitioner contends that, given his pro se status at the time, his passing references to Brady should be deemed sufficient for exhaustion purposes and that the claim should therefore be reviewed. See Edkin v. Travis, 969 F.Supp. 139, 142 (W.D.N.Y.1997) (Larimer, D.J.) (finding that “mere mention of the term Brady , ... a pertinent federal case employing constitutional analysis[,] was sufficient to alert the state court to the federal constitutional nature of this claim”). This Court agrees with the district court in Edkin that a passing reference to Brady is sufficient to fairly apprise the state court of the legal basis for a claim that favorable evidence was suppressed; however, the question here is whether Dearstyne also fairly apprised the state courts of the factual bases for the claim. See Davis v. Silva, 511 F.3d 1005, 1009 (9th Cir.2008) (“The State concedes that Davis fairly presented the legal basis of his claim, in that Davis’ petition included a reference to a specific federal constitutional guarantee, but it contends, and the district court agreed, that Davis failed to exhaust the factual basis of his claim.”).
The exhaustion requirement is not supposed to be a trap for the unwary pro se litigant, and Respondent’s construction of it with regard to this claim would do exactly that. The alleged Brady violation here involved the fluid sample taken by Dr. Close from T.O. prior to trial. The fan-import of Dearstyne’s allegations is that the unlawful failure to disclose commenced at the time of Dr. Close’s examination and continued throughout the entire time the prosecution failed to disclose the fluid sample (which, as noted above, had been destroyed by Dr. Close at the time of his examination). It cannot be seriously argued that the state court considering the CPL § 440.30 motion was not put on notice that alleged Brady violation concerning the fluid sample was of a continuing nature — beginning at the time .of trial and lasting throughout the criminal proceeding.
Furthermore, the claim that the prosecutor improperly failed to disclose the fluid sample at the time of trial versus after trial does not contain new factual allegations that “fundamentally alter the legal claim already considered by the state courts.” Vasquez v. Hillery, 474 U.S. 254, 260 , 106 S.Ct. 617 , 88 L.Ed.2d 598 (1986). The exhaustion doctrine “does not require that a habeas petitioner ... present to the state courts every piece of evidence supporting his federal claims in order to satisfy the exhaustion requirement.” Davis v. Silva, 511 F.3d at 1009 (emphasis in original). Rather, the allegation of a new fact does not render a claim unexhausted unless the fact “substantially improves the [claim’s] evidentiary basis.” Aiken v. Spalding, 841 F.2d 881, 883 (9th Cir.1988). The timing of the non-disclosure — prior to trial or after trial — -is not an allegation that “fundamentally alters” the Brady claim; nor does it “substantially improve[]” the claim’s evidentiary basis. Therefore, I conclude that the Brady claim concerning the failure to disclose the fluid sample at the time of trial is not unexhausted. See Vasquez, 474 U.S. at 260 , 106 S.Ct. 617 ; Aiken, 841 F.2d at 883 .
*255 ii. Merits Analysis
The Supreme Court has held that it is a violation of the accused’s constitutional right to due process for the Government, in good faith or in bad faith, to withhold any material, exculpatory evidence regardless of whether the defendant explicitly requests such evidence. See Brady v. Maryland, 373 U.S. at 87, 83 S.Ct. 1194 (holding that the prosecution’s suppression of requested evidence favorable to the defendant violates due process, notwithstanding the prosecution’s good faith); United States v. Agurs, 427 U.S. 97, 106 , 96 S.Ct. 2392 , 49 L.Ed.2d 342 (1976) (holding that prosecution’s failure to disclose material, exculpatory evidence, even if it is not requested by the defendant, constitutes a due process violation); United States v. Bagley, 473 U.S. 667, 682, 684 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985) (holding that the prosecution’s failure to disclose evidence, which, if admitted, would have had a reasonable probability of resulting in a different verdict, is grounds for granting a petition under 28 U.S.C. § 2255 ).
The Supreme Court has explained that “[t]here are three components to a true Brady violation: The evidence at issue must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued.” Strickler v. Greene, 527 U.S. 263, 281-82 , 119 S.Ct. 1936 , 144 L.Ed.2d 286 (1999).
Although Petitioner “cast[s] this case as one of failure to disclose exculpatory material, like Brady and United States v. Bagley, 473 U.S. 667 , 105 S.Ct. 3375 , 87 L.Ed.2d 481 (1985), it really involves the loss or destruction of evidence,” United States v. Bakhtiar, 994 F.2d 970, 975 (2d Cir.1993), and therefore “poses problems slightly different from Brady and Bagley,” id. First, any due process error cannot be cured by ordering a new trial that includes the missing or destroyed evidence as the evidence in question is, of course, unavailable. Bakhtiar, 994 F.2d at 975 . Second, because the evidence is, for some reason, unavailable, it is more difficult to determine whether it was “material” to the case. Id.
“To address the problem of the loss or destruction of evidence by the prosecution, ‘the Supreme Court has developed a framework to analyze ‘what might loosely be called the area of constitutionally guaranteed access to evidence.’ ’ ” Olszewski v. Spencer, 466 F.3d 47, 55 (3d Cir.2006) (quoting United States v. Femia, 9 F.3d 990, 993 (1st Cir.1993) (quoting California v. Trombetta, 467 U.S. 479, 485 , 104 S.Ct. 2528 , 81 L.Ed.2d 413 (1984) and Arizona v. Youngblood, 488 U.S. 51, 55 , 109 S.Ct. 333 , 102 L.Ed.2d 281 (1988))). The Supreme Court’s decisions in Trombetta and Young-blood govern the analysis in due process challenges based on prosecutorial non-disclosure of evidence in cases wherein the government “ ‘no longer possesses the disputed evidence.’ ” Olszewski, 466 F.3d at 55 (quoting Femia, 9 F.3d at 993 ); see also Bakhtiar, 994 F.2d at 975 .
In California v. Trombetta, the defendants were stopped in unrelated incidents on the suspicion of driving while intoxicated; each defendant submitted to a breath-analysis test and registered a blood-alcohol concentration high enough to be presumed to be intoxicated under California law. Although it was technically feasible to preserve samples of the defendants’ breath, the arresting officers, as was their ordinary practice, did not do so. The defendants were then charged with driving while intoxicated and, prior to trial, the state court denied each defendant’s motion to suppress the breathanalysis test results on the ground that because the arresting *256 officers had failed to preserve samples of defendants’ breath samples, their right to present a defense was impaired because they could not conduct their own tests on the samples so as to impeach the incriminating test results. Ultimately, in consolidated proceedings, the California Court of Appeal ruled in defendants’ favor, concluding that due process demanded that the arresting officers preserve the breath samples.
The Supreme Court reversed, holding that although the due process clause of the Fourteenth Amendment guaranteed the defendants a meaningful opportunity to present a complete defense, Trombetta, 467 U.S. at 485 , 104 S.Ct. 2528 , it did not require that law enforcement agencies preserve breath samples in order to introduce the results of breath-analysis tests at trial. Thus, the State’s failure to preserve breath samples for defendants did not constitute a violation of the Federal Constitution.
First, the Trombetta court found, there was no “bad faith” on the part of the State — that is, the California police authorities “did not destroy the breath samples in a calculated effort to circumvent the due process requirement of Brady v. Maryland, 373 U.S. 83 , 83 S.Ct. 1194 , 10 L.Ed.2d 215 and its progeny.” Trombetta, 467 U.S. at 488 , 104 S.Ct. 2528 . To the contrary, in failing to preserve the breath samples, the police acted “in good faith and in accord with their normal practice”; in particular, the record contained “no allegation of official animus towards [defendants] or of a conscious effort to suppress exculpatory evidence” such as to demonstrate bad faith. Id.
More importantly, the Trombetta court stated, the police department’s policy of not preserving breath samples was not constitutionally defective. Id. The Supreme Court declined to specify the contours of the prosecution’s duty to preserve evidence, id. at 488 , 104 S.Ct. 2528 , but held that whatever constitutional duty the Constitution imposed on the States to preserve evidence, it was limited to evidence that might be expected to play a role in the suspect’s defense, id. In other words, the missing evidence had to meet a threshold standard of “constitutional materiality”. Id. (citing United States v. Agurs, 427 U.S. at 109-10 , 96 S.Ct. 2392 ). This was described by the Trombetta court as follows: the evidence must possess an exculpatory value that was apparent before it was destroyed, and must also be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means. Id. at 488-89 , 104 S.Ct. 2528 (citing Agurs, 427 U.S. at 109-11 , 96 S.Ct. 2392 ) & id. at 489 n. 8, 104 S.Ct. 2528 .
The Trombetta court found that defendants could not meet either of these conditions. First, the samples were not “apparently exculpatory” because “the chances [were] extremely low that preserved samples would have been exculpatory.” 467 U.S. at 489 , 104 S.Ct. 2528 . The second condition of materiality — what some courts have called the “irreplaceability” requirement, Olszewski , 466 F.3d at 55—was not met because the defendants had “alternative means of demonstrating their innocence,” such as by inspecting the calibration of the breath-analysis machine or cross-examining the officer who administered the test. Trombetta, 467 U.S. at 490 , 104 S.Ct. 2528 .
Four years later, in Arizona v. Youngblood, 488 U.S. 51 , 109 S.Ct. 333 , the Supreme Court was presented with a due process challenge to a sexual assault conviction entered in a case in which the State had failed to collect and preserve enough evidence of sexual assault for serological testing. The young victim was molested and sodomized by his assailant for Yh *257 hours. After the assault, the victim was taken to a hospital where a physician used a swab from a “sexual assault kit” to collect semen samples from his rectum. A police criminologist later performed some tests on the rectal swab and the clothing, but he was unable to obtain information about the' identity of the assailant. The police also collected the victim’s clothing, which they failed to refrigerate. Because the state failed to preserve the samples by refrigeration, the defendant could not conduct his own tests. At trial, expert witnesses testified that defendant might have been completely exonerated by timely performance of tests on properly preserved semen samples. The jury, although instructed that they could draw an evidentia-ry inference adverse to the prosecution, convicted Youngblood of child molestation, sexual assault, and kidnaping.
The Arizona Court of Appeals reversed the conviction on the ground that the State had breached a constitutional duty to preserve the semen samples from the victim’s body and clothing, and held that when identity is an issue at trial and the police permit the destruction of evidence that could eliminate the defendant as the perpetrator, such loss is material to the defense and is a denial of due process. Youngblood, 488 U.S. at 55 , 109 S.Ct. 333 (citation to lower court decision omitted).
The Supreme Court reversed the state courts and reinstated Youngblood’s conviction, holding that the negligent destruction of semen samples by the police did not deprive the defendant of a fair trial. Although recognizing that “the Due Process Clause of the Fourteenth Amendment, as interpreted in Brady, makes the good or bad faith of the State irrelevant when the State fails to disclose to the defendant material exculpatory evidence,” the Supreme Court determined that a “different result” was required when dealing with the State’s failure to preserve “evidentiary material of which no more can be said than that it could have been subjected to tests, the results of which might have exonerated the defendant.” Youngblood, 488 U.S. at 57 , 109 S.Ct. 333 ; accord Illinois v. Fisher, 540 U.S. 544, 547 , 124 S.Ct. 1200 , 157 L.Ed.2d 1060 (2004). The Supreme Court ultimately held in Youngblood that “unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58 , 109 S.Ct. 333 (emphasis added).
The Youngblood court found that the semen samples and clothing evidence were not apparently exculpatory, even though it had potentially greater value than the breath samples in Trombetta , because “[t]he possibility that the semen samples could have exculpated respondent if preserved or tested is not enough to satisfy the standard of constitutional materiality in Trombetta.” 488 U.S. at 56 n. *, 109 S.Ct. 333 (emphasis supplied). The Youngblood court reiterated the importance of the materiality standard set forth in Trombetta — that the exculpatory value of the lost or destroyed evidence be “ ‘apparent’ ” “ ‘before’ ” spoliation or loss of such evidence occurs. Id. at 56 n *, 109 S.Ct. 333 (quoting Trombetta, 467 U.S. at 489 , 104 S.Ct. 2528 ); accord Illinois v. Fisher, 540 U.S. at 547 , 124 S.Ct. 1200 ; see also, e.g., Olszewski, 466 F.3d at 56 .
The Youngblood court then set forth a new standard for lost evidence that is only “potentially useful”: “[Ujnless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.” Id. at 58 , 109 S.Ct. 333 (emphasis supplied); accord Fisher, 540 U.S. at 547 , 124 S.Ct. 1200 ; see also, e.g., Bakhtiar, 994 F.2d at 975 ; Olszewski, 466 F.3d at 56 .
*258 The Supreme Court revisited Trombetta and Youngblood in its 2004 decision, Illinois v. Fisher, 540 U.S. 544 , 124 S.Ct. 1200 , 157 L.Ed.2d 1060 (2004). Defendant Fisher, who was charged with possession of cocaine, filed a discovery motion requesting all physical evidence, including the cocaine, that the State intended to use at trial. Id. at 545 , 124 S.Ct. 1200 . Before the prosecutor turned over the cocaine to defense counsel, Fisher “jumped bond” and became a fugitive. Id. Upon Fisher’s capture a decade later, the Sate reinstated the indictment charging him with possession of cocaine. In the interim, however, the State had, in good faith, already destroyed the alleged drugs. Id. at 546 , 124 S.Ct. 1200 . The Supreme Court held that substance seized from Fisher was “plainly the sort of ‘potentially useful evidence’ referred to in Youngblood , not the material exculpatory evidence addressed in Brady and Agurs” because “[a]t most, [Fisher] could hope that, had the evidence been preserved, a fifth test conducted on the substance would have exonerated him.” Id. at 548, 124 S.Ct. 1200 (citing Youngblood, 488 U.S. at 57 , 109 S.Ct. 333 ).
The Supreme Court reiterated that “the applicability of the bad-faith requirement in Youngblood depended ... on the distinction between ‘materially exculpatory’ evidence and ‘potentially useful’ evidence.” Id. at 549, 124 S.Ct. 1200 . Bad faith was not necessary if the evidence was “materially exculpatory.” Id. In Fisher , because the cocaine was only “potentially useful evidence”, there was no due process violation because the defendant did not allege that the police acted in bad faith. Id. at 547-48 , 124 S.Ct. 1200 .
Petitioner here makes essentially the same argument made by the defendant in Youngblood — that there is a possibility that the missing semen sample could have exonerated him in that it potentially could have contained semen of a DNA-type different from Petitioner’s. The Supreme Court rejected such an argument in Youngblood , stating that the “[pjossibility that the semen samples could have exculpated [defendant] if preserved or tested is not enough to satisfy the constitutional standard of materiality in Trombetta . ” 488 U.S. at 57 n. *, 109 S.Ct. 333 (emphases supplied); see also, e.g., Colon v. Kuhlman, 1988 WL 61822 , at *4 (S.D.N.Y.1988) (“[Habeas petitioner] Colon argues that this materiality standard is met here because serological testing of the semen samples at issue could have established his innocence to a scientific certainty, and because no other comparable evidence could accomplish this end. I do not reach the materiality question, however, because the facts of this case do not establish the Trombetta threshold requirement that evidence have been destroyed or otherwise undermined by conduct of the prosecution.”) (internal citation omitted), aff'd, 865 F.2d 29 (2d Cir.1988).
Based upon its review of Youngblood, Trombetta, and Fisher , the Court concludes that the fluid sample must fall into the “potentially exculpatory”, rather than the “apparently exculpatory” category. This is because there is only the “[possibility that the semen samples could have exculpated [defendant] if preserved or tested,” which “is not enough to satisfy the constitutional standard of materiality in Trombetta.” Youngblood, 488 U.S. at 57 n. *, 109 S.Ct. 333 . In such cases of “potentially exculpatory”, despoliated evidence, the Supreme Court requires “bad faith” on the part of the prosecution or police be demonstrated. Illinois v. Fisher, 540 U.S. at 547-48 , 124 S.Ct. 1200 (citations omitted). Accord, e.g., Jones v. McCaughtry, 965 F.2d 473, 477 (7th Cir.1992) (“Criminal defendants must satisfy a threshold requirement before reviewing courts consider the constitutional material *259 ity of the [missing] evidence in question. In Arizona v. Youngblood, 488 U.S. [at] 58, 109 S.Ct. 333 ..., the Supreme Court held that ‘unless a criminal defendant can show bad faith on the part of the police, failure to preserve potentially useful evidence does not constitute a denial of due process of law.’ ”).
Thus, in Jones , the Seventh Circuit held that the defendant alleging a due process violation as a result of the government’s destruction of a sperm sample first was required to show bad faith on the part of the government in connection with the spoliation of the evidence. Id. Only if defendant could satisfy that burden would the court move to the next step of the analysis, which required the defendant to show materiality — that the evidence possessed exculpatory value apparent before it was destroyed and that it was of such a nature that he was unable to obtain comparable evidence by other means. Id. (citing Youngblood, 488 U.S. at 58 , 109 S.Ct. 333 ; Balfour v. Haws, 892 F.2d 556, 565 (7th Cir.1989)).
In determining whether bad faith on the part of the government is present in this case, Youngblood and Trombetta provide some guidance, although I note that no Supreme Court case has concluded that the government acted in bad faith in these types of missing evidence cases. Young-blood linked the “bad faith” requirement to the materiality standard articulated earlier in Trombetta , stating that “[t]he presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the police’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.” 488 U.S. at 57 n. *, 109 S.Ct. 333 (citing Napue v. Illinois, 360 U.S. 264, 269 , 79 S.Ct. 1173 , 3 L.Ed.2d 1217 (1959)). In Youngblood , the defendant could not show that the police knew the semen samples would have exculpated him when they failed to perform certain tests or to refrigerate the victim’s clothing. Id. (emphasis supplied). Thus, the Supreme Court explained, the missing evidence was “simply an avenue of investigation that might have led in any number of directions,” including, presumably, further incriminating the defendant. Id.
Such is the case here; Dearstyne has not shown that sample collected and discarded by Dr. Close would have exculpated him. See Youngblood, 488 U.S. at 57 n. *, 109 S.Ct. 333 . The Supreme Court in Trombetta found no evidence of bad faith on the part of the police officers who did not retain the defendants’ breath samples because the defendants did not produce any evidence of “official animus” or a “conscious effort to suppress exculpatory evidence.” 467 U.S. at 488 , 104 S.Ct. 2528 ; accord, e.g., Jones v. McCaughtry, 965 F.2d at 477 (petitioner protested that the discovery of a single sperm in a urine specimen from the victim was received against him at trial despite the fact that the specimen had been destroyed without his having had the opportunity to examine it; court declined to find “bad faith” where there was nothing in the record to suggest that the hospital laboratory technician was “acting in bad faith or in an attempt to circumvent disclosure requirements or otherwise frustrate the defense when she destroyed the sperm sample” which was disintegrating and technician testified that she lacked knowledge of how to “fix” the microscope slide so as to preserve the sample).
In Youngblood situations, “[m]ere negligence does not constitute bad faith”. Lagrassa v. Walker, NO. CV 07-2464PA(AJW), 2009 WL 2413736 , at *7 (C.D.Cal. Aug. 3, 2009) (citing Youngblood, 488 U.S. at 58 , 109 S.Ct. 333 ); Edmonds v. Purdy, No. 08 Civ. 8808(DLC)(AJP), 2009 *260 WL 483189 , *14 (S.D.N.Y. Feb. 26, 2009) (denying due process claim under Young-blood; “Second, and most important, despite Edmonds’ allegation of bad faith, the record does not show bad faith — as opposed to sloppy procedures — on the part of the police in losing the videotape.”) (collecting cases; citations omitted), report and recommendation adopted, 2008 WL 4369314 (S.D.N.Y. Sept. 25, 2008); Johnson v. Berghuis, No. 2:06-CV-14098, 2009 WL 2777309 , at *5 (E.D.Mich. Aug. 26, 2009) (“The mere fact that the police had control over evidence and failed to preserve it is insufficient, by itself, to establish bad faith, nor will bad faith be found in the government’s negligent failure to preserve potentially exculpatory evidence. ‘The presence or absence of bad faith by the police for purposes of the Due Process Clause must necessarily turn on the law enforcement’s knowledge of the exculpatory value of the evidence at the time it was lost or destroyed.’ Youngblood, 488 U.S. at 56, n. *1, 109 S.Ct. 333 . Petitioner’s claim fails because he does not demonstrate in his habeas pleadings that the police acted in bad faith in failing to preserve the gun for trial. Malcum [v. Burt], 276 F.Supp.2d [664,] 683 [ (E.D.N.Y.2003) ].”).
The Court now turns to the question of whether the facts of the present case illustrate “bad faith” on the part of Dr. Close. In his affidavit, Dr. Close explained that he destroyed the fluid sample (including the swabs and microscope slides) immediately after conducting the examination in June of 1987. (Close Affi, Docket No. 81). Dr. Close explained that he did not believe it was necessary to preserve the samples because victim T.O. was being taken to the hospital immediately thereafter, and he expected the medical personnel there to examine T.O. and preserve any relevant evidence by means of a “rape kit.” Id. (Docket No. 81).
The Court believes that Dr. Close’s handling of this matter was professionally disgraceful, inexcusable, and falling well be.low the level of competent practice one would

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/7226783. Public record. Not legal advice.