Frank W. DEARSTYNE, Petitioner-Appellant, v. William MAZZUCA, Superintendent, Fishkill Correctional Facility, Respondent-Appellee, 679 F. App'x 21

SUMMARY ORDER Petitioner Frank W. Dearstyne appeals from the judgment of the United States District Court for the Northern District of New York (Scullin, J.) denying his petition for a writ of habeas corpus. In 1991, Dear-styne was convicted, following a jury trial in New York state court, of crimes related to the sexual abuse of two young girls who were in the care of Dearstyne’s mother for babysitting. Dearstyne served twenty-two years in state prison and is now on parole supervision.

We assume the parties’ familiarity with the facts and procedural history of this case. “We review a district court’s denial of a petition for a writ of habeas corpus de novo.” Tavarez v. Larkin, 814 F.3d 644, 648 (2d Cir. 2016). Dearstyne argues that New York courts unreasonably applied clearly established federal law, as determined by the U.S. Supreme Court, in their response to Dearstyne’s claim that his alleged confession was involuntary and therefore inadmissible at trial. In Jackson v.

Denno, the Supreme Court held that pursuant to the Due Process Clause of the Fourteenth Amendment, “[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.” 378 U.S. 368, 380, 391, 84 S.Ct. 1774, 12 L.Ed.2d 908 (1964). Accordingly, in Jackson, “[a] constitutional rule was laid down ... that a jury is not to hear a confession unless and until the trial judge has determined that it was freely and voluntarily given.” Sims v.

Georgia, 385 U.S. 538, 543-44, 87 S.Ct. 639, 17 L.Ed.2d 593 (1967); see also Pinto v. Pierce, 389 U.S. 31, 32, 88 S.Ct. 192, 19 L.Ed.2d 31 (1967) (per curiam) (“Jackson v. Denno ... held that a defendant’s constitutional rights are violated when his challenged confession is introduced without a determination by the trial judge of its voluntariness after an adequate hearing.”). Dearstyne, before his trial, moved to suppress his alleged confession on the grounds that the confession was involuntary. New York state trial judge M. Andrew Dwyer held an evidentiary hearing on Dearstyne’s involuntariness claim.

Following the hearing, Judge Dwyer issued an order, dated July 8, 1991, stating as follows: . During the taking of the 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.

Dearstyne contends that Judge Dwyer’s order violated Jackson by failing to adjudicate the voluntariness of Dearstyne’s allegedly inadmissible confession prior to submitting the voluntariness issue to the jury. The state, on the instant appeal, counters that Judge Dwyer, in the July 8, 1991 order, did adjudicate Dearstyne’s volun-tariness claim, namely by finding that Dearstyne’s confession was voluntary.

However, to the extent the state has not waived this argument through its prior representations in this case, and after a careful review of the entire record, we cannot conclude that the trial judge’s resolution of the issue of voluntariness as a matter of federal law “appear[s] from the record with unmistakable clarity.” Sims, 385 U.S. at 544, 87 S.Ct. 639. Consequently, we find that the state trial court’s procedure did not comport with Jackson v. Denno and its progeny. See Jackson, 378 U.S. at 391, 84 S.Ct. 1774; Sims, 385 U.S. at 543-44, 87 S.Ct. 639; Pinto, 389 U.S. at 32, 88 S.Ct. 192.

In determining the proper remedy for the Jackson violation, we are mindful of the Supreme Court’s statement that a determination of voluntariness is to be made based on the “totality of all the surrounding circumstances.” Dickerson v. United States, 530 U.S. 428, 434, 120 S.Ct. 2326, 147 L.Ed.2d 405 (2000) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 226, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973)). Accordingly, we direct that the case be remanded to state court to adjudicate Dearstyne’s voluntariness claim in its entirety.

This adjudication is to include consideration of Dearstyne’s claim that his confession was involuntary because the police intentionally isolated him from his parents and of Dear-styne’s claim that his confession was involuntary because the police used coercive interrogation techniques. Dearstyne also argues that New York courts unreasonably applied clearly established federal law, as determined by the Supreme Court, in rejecting his claim that his trial counsel, Eugene Grimmick, provided ineffective assistance in violation of Dearstyne’s Sixth Amendment rights.

Specifically, Dearstyne contends that Grim-mick provided ineffective assistance of counsel by not calling at trial, or consulting with, experts in the medical or behavioral and psychological fields. Dearstyne’s ineffective assistance claim was denied by the state trial court (McGrath, J.) that adjudicated Dearstyne’s state-law motion to vacate his conviction. The New York Appellate Division affirmed, and the New York Court of Appeals denied leave to appeal. People v. Dearstyne, 305 A.D.2d 850, 761 N.Y.S.2d 118 (2003), lv. denied, 100 N.Y.2d 593, 766 N.Y.S.2d 169, 798 N.E.2d 353 (2003).

To establish ineffective assistance of counsel, Dearstyne “must show 1) that his attorney’s performance ‘fell below an objective standard of reasonableness,’ and 2) that there was prejudice, meaning a ‘reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.’” Tavarez, 814 F.3d at 648 (internal citation omitted) (quoting Strickland v. Washington, 466 U.S. 668, 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)).

Further, “to obtain habeas relief on his ineffective-assistance claim, [a petitioner] must establish that the state court’s rejection of the claim was an unreasonable application of clearly established federal law.” Id. at 648-49. Here, we cannot find that the New York state courts unreasonably applied Strickland v. Washington in determining that Dearstyne’s trial counsel’s performance did not fall “below an objective standard of reasonableness.” Strickland, 466 U.S. at 688, 104 S.Ct. 2052.

In particular, Judge McGrath reasoned that Dearstyne’s trial counsel had pursued a “clear strategic pattern” of “point[ing] out the ambiguities of the People’s case in every area, emphasizing to the jury that there were no experts to interpret the evidence, and challenging] them to find sexual abuse ‘beyond a reasonable doubt.’” Respondent’s App. at 30. The state courts’ adjudication of Dearstyne’s ineffective assistance allegations did not run afoul of the “doubly’ deferential “standards created by Strickland and § 2254(d).” Harrington v. Richter, 562 U.S. 86, 105, 131 S.Ct 770, 178 L.Ed.2d 624 (2011).

Accordingly, we deny Dear-styne’s ineffective assistance of counsel claim. We have considered all of the parties’ remaining arguments and have found in them no basis for altering our decision. Accordingly, the judgment of the district court is AFFIRMED IN PART and REVERSED IN PART. We remand for the entry of judgment conditionally granting the writ of habeas corpus and ordering Dearstyne’s release from parole unless a New York court adjudicates the voluntariness of Dearstyne’s confession within ninety days after issuance of the mandate to the federal district court.

If that adjudication results in the determination that Dearstyne is entitled to a new tidal, then a new trial must be held within 180 days of the issuance of the mandate to the federal district court. . Because Dearstyne is on parole supervision, he is "in custody” for habeas purposes. See Jones v. Cunningham, 371 U.S. 236, 243, 83 S.Ct. 373, 9 L.Ed.2d 285 (1963).