22- 2016

- pr

Englert v. Lowerre



# In **the**

**United States**  **Court of**  **Appeals**

**for the**  **Second Circuit** 

A UGUST T ERM 202 3

No

. 22

- 2016

- pr

D ONALD J. E NGLERT

, II,

Petitioner

- Appellant

,

v.

E RNEST L OWERRE

, S UPERINTENDENT OF F IVE P OINTS C ORRECTIONAL F ACILITY

, Respondent

- Appellee

.

__________

On Appeal from the United States District Court

for the Western District of New York

__________

A RGUED : A PRIL 4, 2024

D ECIDED : A UGUS T 15

, 202 4

________________

Before: L IVINGSTON

, Chief Judge

, R AGGI

, and R OBINSON

, Circuit Judges

.

________________2 Petitioner Do na ld J. Englert, II, who stands convicted in New York of

engaging in a c ourse of sexual conduct against a child in the first degree

, see N.Y.

Penal L aw § 130.75 (1)(a)

, appeals from a judgment of the United States District

Court for the Western District of New York (Siragusa, J. ) denying hi m a writ of

habeas corpus

. S ee 28 U.S.C. § 2254

. In seeking such relief, Englert raise s the same

Sixth Amendment challenge to conviction that he u nsuccessfully argued to state

courts, i. e.

, that his trial counsel was constitutionally ineffective in failing to consult

or call a medical expert to challenge the testimony of a government expert that the

victim

- child’s normal physical examination was consistent with past sexual abuse.

Under the deferential standard of review applicable to such a Sixth Amendment

claim

, particularly when raised in a § 2254 proceeding, we conclude that Englert

fails to show that the state court unreasonably applied controlling Supreme Court

precedent, i.e.

, Strickland v. Washington

, 466 U.S. 668 (1984), in rejecting Englert’s

ineffective -assistance claim

. This court’s decision in Gersten v. Senkowski

, 426 F.3d

58 8 (2d Cir. 2005) ( holding state court to have u nreasonably applied Strickland in

rejecting ineffective

- assistance challenge to counsel who, without investigation,

conceded that physical evidence demonstrated sexual assault of child when

qualified medical experts would have testified otherwise), compels no different

conclusion because, as we there stated

, and as controlling Supreme Court

precedent now makes clear

, “no per se rule” dictates that “expert consultation is

always necessary in order to provide effective assistance of counsel in child sexual

abuse cases ,” i d. at 609 (internal quotation marks omitted) ; see Harrington v. Richter

,

562 U.S. 86

, 111 ( 2011 ). In the particular circumstances of this case —where defense

counsel

, among other things, elicited a concession from the prosecution expert that

the child’s normal physical examination was as consistent with a lack of abuse as

with the alleged abuse— the state court did not unreasonably apply Strickland in

finding that Englert was not prejudiced by his attorney’s failure to c onsult or call

a medical expert and, thus, not denied effective assistance of counsel. See id.3 (recognizing that “[i]n many instances cross

- examination will be sufficient to

expose defects in an expert’s presentation”).

A F FIRMED

.

_________________

K RISTEN S ANTILLO , Gelber & Santillo PLLC

, New York,

NY, for Petitioner

- Appellant

.

J AMES F. G IBBONS

, Assistant Attorney General ( Barbara

D. Underwood, Solicitor General, Nikki Kowalski,

Deputy Solicitor General for Criminal Matters, Ira M.

Feinberg, Special Counsel, on the brief ), for Letitia James,

Attorney General of the State of New York

, New York,

NY, for Respondent

- Appellee

.

_________________

R EENA R AGGI

, Circuit Judge :

In 2013 , p etitioner Donald J. Englert, II, was convicted a fter a jury trial in

Monroe County

, New York

, of engaging in a course of sexual conduct against a

child in the first degree

. Se e N.Y. Penal L aw § 130.7 5( 1)(a)

. In unsuccessfully

challeng ing that conviction in state court both on direct appeal and on collateral

attack, Englert argu ed that he was denied effective assistance of counsel because

his trial attorney f ail ed to consult with or call an expert witness to rebut the

prosecution’s medical expert. That expert testified that she had examined the

child

- victim and found no physical evidence of sexual abuse

. Nevertheless, she

opined that such normal findings were consistent with the child’s account of abuse

ending more than six months earlier because any injurie s would have had time to

heal. When Englert made the same Sixth Amendment argument in petitioning for

federal habeas relief from conviction pursuant to 28 U.S.C. § 2254

, the United

States District Court for the Western District of New York ( Charles J. Siragusa,4 Judge ) denied his petition

, ruling that the state courts had not unreasonably

applied controlling Supreme Court precedent in holding Englert not to have been

denied effective assistance of counsel. See Englert v. Colvin

, No. 18

- CV

- 6871 (CJS),

2022 WL 3214774 (W.D.N.Y. Aug. 9, 2022). Englert now appeals from that

judgment.

On de novo r e view

, s ee Jordan v. Lamanna

, 33 F.4th 144, 150 (2d Cir. 2022), we

conclude that Englert’s habeas petition was properly d enied because he fails to

demonstrate, as required by the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”), see 28 U.S.C. § 2254(d), that the state courts ’ rejection of his

ineffective -assistance claim was based on an unreasonable application of clearly

established federal law

, specifically S trickland v. Washington

, 466 U.S. 668 (1984)

.

In Strickland

, the Supreme Court clearly established that a defendant raising an

ineffective -assistance- of

- counsel challenge to conviction must show both that “(1)

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

actually prejudiced as a result.” Harrington v. United States

, 689 F.3d 124, 129 (2d

Cir. 2012 ) (citing Strickland v. Washington

, 466 U.S. at 687

– 88 ). New York courts

did not unreasonably apply this law in concluding that Englert failed to make this

showing

. This court’s decision in Gersten v. Senkowski

, 426 F.3d 588 (2d Cir. 2005)

(holding state court to have unreasonably applied Strickland in rejecting

ineffective -assistance challenge to counsel who, without investigation, conceded

that physical evidence demonstrated sexual assault of c hild w hen qualified

medical experts would have testified otherwise), compels no different conclusion

because, as we there stated, and as controlling Supreme Court precedent now

makes clear, “no per se rule” dictates that “expert consultation is always necessary

in order to provide effective assistance of counsel in child sexual abuse cases,” i d.

at 609 (internal quotation marks omitted); see Harrington v. Richter

, 562 U.S. 86, 111

(2011). In the particular circumstances of this case —where defense counsel,

among other things, elicited a concession from the prosecution expert that the5 child’s normal physical examination was as consistent with a lack of abuse as with

the alleged abuse

— the state court did not unreasonably apply Strickland in finding

that Englert was not prejudiced by his attorney’s failure to consult or call a medical

expert and, thus, not denied effective assistance of counsel. See id. (recognizing

that “[i]n many instances cross

- examination will be sufficient to expose defects in

an expert’s presentation”).

Accordingly, we affirm the challenged judgment

.

BACKGROUND

I. Trial

A. The Prosecution Case

In January 2013, Englert was tried in New York State court on an indictment

alleging that, between 2005 and 2010, he engaged in a course of sexual conduct in

the first degree with N.L., the pre -adolescent daughter of Englert’s then

- girlfriend.

See N.Y. Penal L aw § 130.75 (1)(a)

. 1 T rial evidence indicated that

, in 2003, when

N.L. was two

- years old, the child and her mother began living with Englert

. In

2005, N.L

. ’s mother gave birth to a son by Englert. The following year, the couple

separated, apparently amicably because Englert continued to help care for his son

and N.L., both at their mother’s home and at his own home

, the latter visits

frequently spanning weekends. 2 Such visits continued until Englert moved to

California in 2010.

1 In this opinion, we identify the child

- victim by initials rather than name and take similar

anonymizing steps in quoting the Confidential Appendix.

2 The record indicates that Englert’s son spent every weekend with him. N.L. joined them

every other weekend.6 1. Victim Testimony

To prove th e charge d abuse

, the prosecution relied primarily on the

testimony of N.L. , by then 12

- years old. N.L. recounted that, w hen she was four

or five years old and still living with Englert

, he began touching her breasts,

butt ocks

, and vagina over her clothes

, but then started touching her vagina with

his finger under her clothes

. Af ter Englert and the child’s mother separated, he

continued to engage in such abusive touching on occasions when N.L.’s mother

left her and her half -brother in Englert’s care.

N.L. testified that when she was eight or nine, the abuse es calated, with

E nglert trying to insert his penis into her vagina and, when that hurt, to insert it

into her anus, or failing that, to rub it against her buttocks. By the time N.L. was

ten, on weekend visits to Englert’s home, he would have her sleep in his bed with

him where he would “usually” insert his penis into her vagina. Confidential

App’x 1103

– 04. Also, he sometimes had her shower with him, and there pick her

up and p ut his penis in her vagina. He also put cherry

- flavored lubricant on his

penis and inserted it into N.L.’s mouth

. At other times, Englert placed his mouth

on N.L.’s vagina. On more than one occasion, Englert showed N.L. pornographic

videos on his computer before inserting his penis in to her vagina or anus

.

N.L. testified t ha t when she asked Englert not to touch her, he would

question her love for hi m. Englert warned N.L. not to tell anyone about his

conduct lest he get in trouble. N.L. stated that she did not then tell anyone because

she was afraid. Englert continued sexually to abuse N.L. until he moved to

California in November 2010

.

In May 2012, when N.L. was 11, she revealed Englert’s sexual abuse to a

school friend who encouraged N.L. to tell her mother

, which she then did.

Thereafter, on May 24, 2012, N.L. was interviewed by a forensic examiner at the7 J ustice for Children’s Advocacy Center in Batavia, New York

, and then, on June 4,

2012, physically examined by a pediatric nurse practitioner

.

On cross

- examination, N.L. testified that she was doing well in school, had

many friends, and had a happy childhood. She also testified that, after Englert

moved to California, she and her family were upset that he wanted his son to visit

him there. Englert’s request was the subject of state court proceedings for some

time before N.L. disclosed Englert’s sexual abuse to her mother. Although N.L.

was not aware of th ose proceedings, she acknowledged knowing that, after

making her abuse disclosure, her half -brother would not be visiting Englert in

California.

2. Medical T estimony

Cecilia Lyons, t he n urse practitioner who physically examined N.L.,

testified to having conducted approximately 1,000 pediatric sexual abuse

examinations over 14 years

. In examining N.L., she us ed a col po scope

, which can

magnif y the genital and rectal area s up to 10,000 times

. Nurse Lyons reported that

the results of her examination were “essentially normal ,” w ith the edges of the

child’s hym en appearing smooth, and with no lacerations or tears either to her

hym en, genital, or anal area. Id. at 1474. Nurse Lyons opined that such normal

findings were nevertheless consistent with N.L. ’s report of sexual abuse more than

six months earlier because the nurse “would have expected her injuries to have

been healed” in th e intervening time

, id. at 1477

– 78, making it “not likely” that

N.L. would have any visible injuries or scarring

, i d. at 1498

. In so stating, Nurse

Lyons referenced unspecified “research that shows how quickly hymens heal even

when there is an injury, to the point where . . . they look normal like they did before

they had the assault.” Id. at 1477. She testified that fewer than 3% of the children

she had examined ha d disclosed sexual abuse within 72 hours of its occurrence,

and she had found physical evidence of such abuse in fewer than 5% of cases.8 On cross

- examination, counsel questioned Nurse Lyons about a litany of

possible genital and rectal abnormalities and injuries that are indicia of sexual

abuse

. S he acknowledged that none was evident in N.L. 3 More significantly, she

a cknowledged that normal examination findings for N.L., which she opined w ere

consistent with sexual abuse , were also consistent with an absence of sexual abuse.

The nurse admitted that her co nsistent- with -abuse conclusion was informed in

part by the child’s forensic interview and personal history. As for research

indicating hymen regeneration or healing, Nurse Lyons conceded that she had not

herself conduct ed such research and had never personally observed hymen

regrowth. 4

3. Relatives’ Testimony

No prosecution witness testified to having seen Englert abu se N.L. Instead,

her mother

— who professed to having had no idea that her child was being abused

during the charged five

- year span

— testified that in her own sexual encounters

with Englert, he had favored anal and oral sex and had used a fruit

- flavored

lubricant for the latter. N.L.’s grandmother testified t hat on one occasion when

she made an unannounced visit to Engl ert’s home

, she saw then

- five

- year

- old N.L.

run up to Englert, who was then seated on a couch

, pull a comforter off him

, and

3 With respect to the vaginal area, defense counsel asked if Nurse Lyons had observed

any signs of friability, hyperemia, intercrural intercourse, leukorrhea, petechia, complete

or partial transection of the hymen, lesions, abrasions, abnormal tissues , or scarring . With

respect to the rectal area, counsel asked if Nurse Lyons had observed any signs of

abnormal anal tone, fissures, skin tags, anal warts, gaping anus or anal cavity,

hemorrhoids, abnormal folds, proctitis or inflammation, a red mass or rectal prolaps e,

discharge, sphincter tears, lacerations, abrasions, scarring, or puborectalis.

4 Prosecution witness Stefan Perkowski, a licensed clinical social worker, testified about

Child Sexual Abuse Accommodation Syndrome and the prevalence of children’s delayed

disclosures of abuse. On cross

- examination, Perkowski acknowledged having no

knowledge of N.L.’s case.9 grab at his boxer shorts

. As the child did so, her grandmother saw that Englert

appeared to have an erection.

On cross

- examination, the grandmother acknowledged making no mention

of this incident before N.L. disclosed abuse by Englert because she was not sure

what she had seen. Also on cross

- examination, N.L.’s mother acknowledged that

her daughter was a happy, well

- adjusted child, who did well in school

, had many

friends

, and had never received counseling for sexual abuse. N.L.’s mother

testified that she thought her daughter would benefit from counseling and

attributed her failure to receive it to the mother’s inability to find a female

counselor who specialized in sexual abuse trauma

. N.L.’s mother also

acknowledged that in the year before her daughter disclosed any sexual abuse, the

mother had been involved in “hostile” and “bitter” court proceedings with Englert

over his desire to have his son visit him in California

. Confidential App’x 1383,

1385

. N.L.’s mother opposed such visitation, which

, in fact, was not permitted

after Englert was charged with abusing N.L.

B. The Defense Case

Testifying in his own defense, Englert denied engaging in any sexual

conduct with N.L.

, insisting he viewed the child as his daughter. The defense’s

theory of the case was that N.L. fabricated abuse allegation s at her mother’s behest

because of the couple’s d ispute about their son visiting Englert in California.

Englert testified that before he moved to California, he had e njoyed a good

relationship with N.L.’s mother

. But after he moved and the visitation issues

arose

, she told Englert that she w as going to do whatever she could to prevent him

from seeing his son . When Englert subsequently learned that New York

authorities were investigating him for sexually abusing N.L

., he returned to the

state in August 2012 to attend a wedding and voluntarily went to the police in an

effort to clear his name. Soon after, he was arrested.10 Englert’s brother and current girlfriend t estified, the former reporting a

positive relationship between Englert and N.L.; the latter stating that Englert’s

relationship with N.L.’s mother grew hostile after Englert moved to California.

The gi rlfriend also den ied that Englert enjoyed anal sex, testifying that when he

tried it once at her urging

, he was repulsed.

The defense called no medical expert. Instead, in address ing the jury,

counsel emp hasized the lack of physical evidence of abuse and the normal

findings of N.L.’s genital and rectal examination

. Counsel urged the jury to use

common sense in considering this medical evidence, arguing that p hysical

evidence of abuse would be expected if N.L. had, in fact, been sexually victimized

over a number of years. 5 Counsel also highlighted evidence showing that N.L.

was happy, well- adjusted, and excelling in school, with no behavioral or mental

health issues. He argued that this too was inconsistent with years of sexual abuse

and reminded the jury that prosecution witness Perkowski had testified that

almost all of the nearly 3,200 child sex abuse victims he had encountered had

required counseling

.

T he jury found Englert guilty

, and on April 9, 2013, the state court sentenced

him to 22 years’ imprisonment

. 6

5 See, e.g. , Confidential App’x 1689 (“[R]emember a little four or five year old [g]irl having

anal intercourse for years, you would think you would have some of this medical

evidence to support something, and I’d submit to you that there was no medical evidence

to support anything, especially using a colposcope with ten thousand magnification.

Again, no scars, no tears, no lacerations, to that which she admitted.”)

6 In imposing sentence, the trial judge, who had t he benefit of seeing the witnesses testify,

observed that, like the jury, he had found N.L.’s “testimony to be credible.” Confidential

App’x 1827. Insofar as Englert’s friends and family had written to the court insisting that

the evidence against him was fabricated, the trial judge stated, “had they been here and

heard the testimony, they might be less sure of their position.” Id. at 1828.11 II. State Direct Appeal

With the assistance of new counsel, Englert appealed his conviction

,

arguing, inter alia

, that he had been de nied the effective assistance of counsel

guaranteed by the New York and United States Constitutions because trial counsel

failed to present expert medical testimony to explain the significance of the normal

findings of N.L.’s physical examination and to counter Nurse Lyons’s testimony

that these findings were consistent with sexual abuse

.

In affirming Englert’s conviction, the A ppellate Division rejected this claim,

ruling that “[t]he failure of defense counsel to obtain the testimony of an expert

does not constitute ineffective assistance of counsel because defendant has not

shown that such testimony was available, that it would have assisted the jury in

its determination or that [defendant] was prejudiced by its absence .” People v.

Englert

, 130 A.D.3d 1532, 1533 ( N.Y. App. Div. 4th Dep’t 2015) ( internal quotation

marks omitted). The New York Court of Appeals denied further review. See People

v. Englert

, 26 N.Y.3d 967 (2015) ; People v. Englert

, 26 N.Y.3d 1144 (2016) (denying

reconsideration)

.

III. State Collateral Challenge to Conviction

A. Englert’s Submission

Proceeding pro se, Englert moved under N.Y. Crim. P roc . L aw § 440.10 to

revoke his conviction, again arguing

, inter alia

, that trial counsel had been

constitutionally ineffective in failing to consult with or call a medical expert. 7 In

support of this motion and his request for an evidentiary hearing, Englert

7 In his § 440.10 motion, Englert also claimed that counsel was constitutionally ineffective

for failing to call an expert to rebut Perkowski’s testimony. Because this court did not

grant a certificate of appealability as to that claim

, see infra at 16, we do not discuss it

further except as relevant to the instant appeal

, s ee 28 U.S.C. § 2253(c)(1)(A) , (c)(3)

.12 submitted his own affidavit and seven almost identically worded affidavits from

various relatives, each of whom recounted pre

- trial conversations with defense

counsel about consulting with or hiring experts to rebut prosecution experts and

N.L

. ’s allegations of abuse. Englert and his relatives claimed that trial counsel told

them that it was “ not his responsibility” to consult or hire an expert because “[t]he

burden of proof rested with the prosecution.” Confidential App’x 303

– 07, 3 09

– 10.

One of Englert’s cousins stated that trial counsel told her that “he didn’t have

sufficient time to locate and hire an expert before the trial began.” Id. at 308.

E nglert also submitted an affidavit from Dr. Jeffrey Bomze, a p hysician with

experience in forensic pediatrics and child sexual abuse cases

. Insofar as Nurse

Lyons testified that N.L.’s normal examination findings were consistent with

sexual abuse, Dr. Bomze did not reject the possibility

. Indeed, he acknowledged

that “the absence of any identifiable trauma does not rule out abuse,” id. at 319,

and that Nurse Lyons “testified correctly that the large majority of sexually abused

children have no positive findings on anogenital examination if the exam is

delayed beyond the first several days or longer ,” i d. at 32 1. Instead, Dr. Bomze

faulted Nurse Lyons for “concluding with certainty that sexual abuse occurred in

this case” “ without adequate evaluation, ” as indicated by the “l ack of detailed

descriptions of the anogenital examinations” conducted and the failure to consider13 “[t]he full context of the child’s medical and psychosocial histories” or other

possible explanations for examination results. Id

. 8

, 9

As for Nurse Lyons’s testimony that hymens can heal even after injury from

sexual abuse, Dr. Bomze agreed that the “majority” of hymenal lacerations heal

,

but characterized the nurse’s opinion as incomplete or confusing because

“complete lacerations of the hymen” and “deep lacerations of the posterior

hymen” may not fully heal. Id. at 3 21

– 22.

Dr. Bomze stated that if he had been retained by the defense, he would have

advised trial counsel to request N.L.’s complete medical history to determine if

there were any documented medical or psychosocial issues after the alleged abuse

given the delayed disclosure. He would have advised counsel to highlight for the

jury the types of trauma associated with sexual assault that were not found in

N.L.’s case

, and he would have pointed counsel to (unspecified) studies indicating

that residual findings of abuse are more frequently found in children subjected to

anal abuse than in those subjected to vaginal abuse. As to Nurse Lyons’s

8 Nurse Lyons did not testify “with certainty” that N.L. had been sexually abused. Rather,

she testified that N.L.’s normal physical examination was consistent with her account of

sexual abuse months earlier because there was time for any injuries to have healed, and

that, as a medical provider, she would not have reasonably expected to see any kind of

injury. Confidential App’x 1478.

9 Dr. Bomze identified the following specific findings that may indicate “anogenital

abuse”: “anal fissures, disrupted anal folds, lacerations, bruises, compromise or

asymmetry of the anal sphincter, venous pooling and anal dilation.” Confidential App’x

319. He identified the following findings as indicative of genital abuse: “transection of

the hymen through its entirety and to the base, hymenal bleeding or bruising, scars of the

posterior fourchette or fossa and the absence of posterior hymenal tissue .” Id. at 319 –20.

As noted supra at 8 & n.3 , trial counsel questioned Nurse Lyons about numerous possible

injuries or abnormalities and had the nurse acknowledge that she had found evidence of

none in N.L.’s genital and rectal area.14 testimony that a lack of physical evidence of abuse is consistent with abuse, Dr.

Bomze stated he would have advised trial counsel, on cross

- examination, to ask

the nurse whether it “ is also consistent with a child who has not been abused.” Id.

at 325. 10 He also would have advised counsel to call a medical expert to testify

that Nurse Lyons’s examination of N.L. revealed no physical evidence of abuse,

that the nurse erred in attributing “no significance” to that absence, and that her

consistent

- with -abuse conclusion was “very misleading for the jury” because it

could be interpreted to mean that N.L. was “definitely abused.” Id. at 325

– 26.

B. State Court Decision

On June 4, 2018, the New York Supreme Court denied Englert’s § 440.10

motion without holding a hearing. See N.Y. Crim. Proc. Law § 440.30(1)(a), (4)

(directing court to consider whether motion is determinable without hearing to

resolve factual questions and listing grounds for denying motion without

hearing)

. The court observed that Englert had unsuccessfully raised a similar

ineffective -assistance challenge on direct appeal. Insofar as he now offered

affidavits to support his collateral challenge, the court was not convinced. Noting

that “nothing” in Dr. Bomze’s affidavit “contradict[s] Lyon[s]’s key conclusions,”

the court concluded that Englert was not prejudiced by trial counsel’s failure to

consult or call him. Conf idential App’x 380

– 81. The court explained that Dr.

Bomze did not “set forth an opinion that it would not be possible for there to be a

physical exam of the victim six months to one year after the last incident of abuse,

and for it to show ‘normal’ findings despite the years and frequency of abuse.” Id.

at 381 (emphasis in original)

. And, w hile recognizing that Dr. Bomze faulted the

process by which Nurse Lyons conducted her physical examination of N.L., the

10 In fact, trial counsel elicited such a concession from Nurse Lyons. See supra at 8.15 state court observed that he did not seriously challenge “the substance” of her

examination findings. Id.

As for Englert and his relatives’ claim s that trial counsel declined to consult

an expert, the court deemed the veracity of those claims “questionable .” Id. at 385

n.15

. Even crediting those affidavits, however, the court determined that counsel

had not provided Englert with ineffective representation. Rather, the record

showed trial counsel was “fully engaged, knowledgeable, and aggressive in his

cross examination” of the prosecution’s witnesses and, specifically as to Nurse

Lyons, counsel “posit[ed] to the jury the possibility that if the victim had been

abused to the extent she testified, then the physical examination would have

shown the evidence of injury.” Id. at 38 3–8 4.

On November 15, 2018, the Appellate Division denied Englert leave to

appeal the denial of his § 440 .10 motion

.

IV. Federal Habeas Proceedings

On December 3, 2018

, Englert

, proceeding pro se

, filed the instant h abeas

petition again arguing, inter alia

, that his trial counsel was constitutionally

ineffective.

On August 9, 2020, the district court denied the petition

. As to the

ineffective -assistance claim, the district court held that the state court s did not

unreasonably apply Strickland v. Washington

, 466 U.S. 668, in rejecting the claim

because, at the first step of Strickland analysis, the record showed trial counsel to

have been “versed in the indicia of abuse,” to have questioned Nurse Lyons

extensively about her observations of N.L.’s genital and rectal area, and to have

“employed the reasonable strategy of demonstrating the absence of such indicia

[of abuse] in N.L.’s case to imply that no such abuse occurred.” Englert v. Colvin

,16 2022 WL 3214774

, at *9. The district court thus deemed it unnecessary to address

the prejudice step of St r ickland analysis.

After Englert timely fil ed this appeal, this court appointed counsel and

issued a Certificate of Appealability on the following questions: “[ 1] whether the

district court erred in denying Englert’s claim that counsel was ineffective for not

consulting or calling an expert medical witness and [2] whether the district court

erred in denying Englert’s claim that counsel’s cross examination of the state’s

medical expert was ineffective. ” Certificate of Appealability, Englert v. Lowerre

,

No. 22

- 2016 (2d Cir. Mar. 15, 2023)

, Dkt

. 31. In addressing these questions,

appointed counsel treats the second as a subpart of the first, i.e.

, arguing that trial

counsel’s cross

- examination of Nurse Lyons was ineffective because he had failed

to consult a medical expert. Thus, we treat the questions together in explaining

why Englert’s § 2254 petition was properly denied on the merits.

DISCUSSION

I. Standard of Review

We review de novo the district court’s denial of En glert’s § 2254 petition for

relief from his state court conviction

. See Jordan v. Lamanna

, 33 F.4th at 150.

Where, as her e, a state court has rejected on the merits a claim the reafter

raised in a § 2254 petition, AED PA permits a federal court to gran t habeas relief

only where the state court’s decision was “contrary to, or involved an

unreasonable application of, clearly established Federal law ,” 28 U.S.C.

§ 2254(d)(1), or was “based on an unreasonable determination of the facts in light

of the evidence presented,” id. § 2254(d) (2)

. A state court decision is “contrary to”

clearly established federal law “if the stat e court arrive [d] at a conclusion opposite

to that reached by [the Supreme] Court on a question of law ” or the state court

“decides a case differently than [ the Supreme] Court has on a set of materially17 indistinguishable facts.” Williams v. Taylor

, 529 U.S. 362, 412

– 13 (2000)

. A state

court decision involves an “unreasonable application” of clearly established

federal law “if the state court identifies the correct governing legal principle from

[the Supreme] Court’s decisions but unreasonably applies that principle to the

facts of the prisoner’s case .” Id. at 413.

This “highly d e ferential ” standard of review is “difficult to meet” in that it

“ demands that state

- court decisions be given the benefit of the doubt.” Cullen v.

Pinholster

, 563 U.S. 170, 181 (2011) (internal quotation marks omitted) ; accord

Fischer v. Smith

, 780 F.3d 556, 560 (2d Cir. 2015) ; see also Burt v. Titlow

, 571 U.S. 12,

20 (2013) (stating that on § 2254 review, federal courts “will not lightly conclude

that a State’s criminal justice system has experienced the ‘extreme malfunctio [n]’

for which federal habeas relief is the remedy” (quoting Harrington v. Richter

, 562

U.S. at 102 ))

. Thus, under AEDPA, t he determinative question “ is not whether a

federal court believes the state court’s determination was incorrect but whether

that determination was unreasonable —a substantially higher threshold.” Schriro

v. Landrigan

, 550 U.S. 465, 473 (2007); see McCray v. Capra

, 45 F.4th 634, 640 (2d Cir.

2022) (“[A] federal court may not issue a writ of habeas corpus simply because it

thinks the state court ‘ applied clearly established federal law erroneously or

incorrectly

. ’” (quoting Williams v. Taylor

, 529 U.S. at 411)). In other words, to

obtain § 2254 relief, a petitioner must s how “t hat the state court ’s ruling on the

claim being presented in federal court was so lacking in justification that there was

an error well understood and comprehended in existing law beyond any

possibility for fairminded disagreement .” Harrington v. Richter

, 562 U.S. at 103

.

Thus, “the existence of ‘reasonable arguments on both sides’ is ‘all [the state] needs

to prevail in [an] AEDPA case.’” Jordan v. Lamanna

, 33 F.4th at 151 (quoting White

v. Woodall

, 572 U.S. 415, 427 (2014)).18 Further, under AEDPA, “clearly established Federal law,” 28 U.S.C.

§ 2254(d)(1), “refers only to the holdings of the Supreme Court extant at the time

of the relevant state court decision,” Jackson v. Conway

, 763 F.3d 115, 134 (2d Cir.

2014) (internal quotation marks omitted); see Williams v. Taylor

, 529 U.S. at 412.

While this court may rely on our own prior decisions for the limited purpose of

“ascertain[ing] whether [we] ha[ve] already held that the particular point in issue

is clearly established by Supreme Court precedent,” we may not rely on our

decisions or those of other circuits “to refine or sharpen a general principle of

Supreme Court jurisprudence into a specific legal rule that th[e] Court has not

announced.” Marshall v. Rodgers

, 569 U.S. 58, 64 (2013); accord Rodriguez v. Miller

,

537 F.3d 102, 106

– 07 (2d Cir. 2008) (noting “[n]o principle of constitutional law

grounded solely in the holdings of the various courts of appeals or even in the

dicta of the Supreme Court can provide the basis for habeas relief” under AEDPA ).

Here, the “ clearly established” federal law a pplicable to Englert’s

ineffective -assistance claim is the two- part test articulated by the Supreme Court

in Strickland v. Washington

, 466 U.S. 668

. See Cullen v. Pinholster

, 563 U.S. at 189.

Th is test requires a defendant challenging conviction based on i neffective

assistance of counsel to show both that “(1) counsel’s performance was objectively

deficient, ” and that “ (2) petitioner was actually prejudiced as a result.” Harrington

v. United States

, 689 F.3d at 129 (citing Strickland v. Washington

, 466 U.S. at 687

– 88).

At the fir st step of Strickland analysis, courts “‘strongly presume [] ’” that

counsel “‘rendered adequate assistance and made all significant decisions in the

exercise of reasonable professional judgment.’” Cullen v. Pinholster

, 563 U.S. at 189

(quoting Strickland v. Washington

, 466 U.S. at 690). To overcome this presumption,

a petitioner “ bears a heavy burden,” United States v. Barrett

, 102 F.4th 60, 72 (2d

Cir. 2024) (internal quotation marks omitted), because “[t]he question is whether

an attorney’s representation amounted to incompetence under ‘prevailing19 professional norms,’ not whether it deviated from best practices or most common

custom,” Harrington v. Richter

, 562 U.S. at 105 (quoting Strickland v. Washington

,

466 U.S. at 690).

To establish prejudice at Strickland ’s second step, a petitioner must

demonstrate “ that there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.”

Strickland v. Washington

, 466 U.S. at 694. “A reasonable probability is a probability

sufficient to undermine confidence in the outcome,” id.

, which requires “a

‘substantial,’ not just ‘conceivable,’ likelihood of a different result,” Cullen v.

Pinholster

, 563 U.S. at 189 (quoting Harrington v. Richter

, 562 U.S. at 112).

As the Supreme Court has observed, when Strickland applies “in tandem”

with AEDPA, our review of the state court’s denial of a petitioner’s ineffective

assistance challenge to conviction is “doubly” deferential, certainly at the first step

of analysis. Harrington v. Richter

, 562 U.S. at 105 (internal quotation marks

omitted) ; see Burt v. Titlow

, 57 1 U.S. at 15 (stating that “doubly deferential”

standard requires giving “both the state court and the defense attorney the benefit

of the doubt” ). 11

11 In Waiters v. Lee , 857 F.3d 466 (2d Cir. 2017), this court observed that it is an “open

question” in this circuit whether double deference applies at both steps of Strickland

analysis, id. at 477 n.20, and that while Cullen v. Pinholster , 563 U.S. at 202, appears to

support an affirmative answer, circuit courts are divided on the question. We need not

conclusively decide the issue here because even if Strickland deference to counsel applies

only at the performance, not the prejudice, step of analysis, AEDPA deference to the sta t e

court ’s application of Strickland applies to both steps of analysis . T hat is sufficient for us

to conclude that Englert fails to show that the state courts unreasonably applied

Strickland ’s prejudice test in this case

. See infra at 27–32.20 II. Strickland Analysis

A. The Performance Step: Counsel’s Obligation T o Consult with or

Call a Medical Expert in Child Sexual Abuse Cases

At the fir st step of Strickland

, Englert bears a heavy burden in arguing that

trial counsel was constitutionally ineffective in failing to consult with or call a

medical expert to counter Nurse Lyons’s testimony because, as the Supreme Court

has stated

, “strategic decisions

— including whether to hire an expert

— are entitled to

a ‘strong presumption’ of reasonableness.” Dunn v. Reeves

, 594 U.S. 731, 739 (2021)

(emphasis added) (quoting Harrington v. Richter

, 562 U.S. at 104) ; see United States

v. DiTomasso

, 932 F.3d 58, 69

– 70 (2d Cir. 2019) (“ Trial counsel ’s [a]ctions or

omissions

. . . that might be considered sound trial strategy, including decisions

not to call specific witnesses— even ones that might offer exculpatory evidence

—

[are] ordinarily not viewed as a lapse in professional representation. ” (internal

quotation marks omitted)). To be sure, in making such decisions, defense counsel

has a “ duty to make reasonable investigations or to make a reasonable decision

that makes particular investigations unnecessary.” Strickland v. Washington

, 466

U.S. at 69 1. Nevertheless, we evaluate the reasonableness of an attorney’s

investigative choices with a “heavy measure of deference to counsel’s judgments,”

id.

, mindful that the “same investigation” is n ot “ required in every case” and “[i]t

is rare that constitutionally competent representation will require any one

technique or approach,” Cullen v. Pinholster

, 563 U.S. at 195 (internal quotation

marks omitted).

In here a rguing t hat his trial counsel must be deemed constitutionally

ineffective for not consulting with or calling a medical expert, Englert relies not on

Supreme Court precedent but on this court’s decision in Gersten v. Senkowski

, 426

F.3d 588

. In that AEDPA habeas challenge to a petitioner’s New York child sexual

abuse conviction, this court held that the state court unreasonably applied21 Strickland in rejecting an ineffective

- assistance claim based on trial counsel’s failure

to consult or call a medical expert. See id. at 607

– 11

. But that does not mean the

same conclusion applies here. In Gersten itself, this court made plain that “no per

se rule” mak es “expert consultation

. . . always necessary in order to provide

effective assistance of counsel.” Id. at 609 (internal quotation marks omitted)

.

More recently, t he Supreme Court has made this point even more forcefully

.

See Harrington v. Richter

, 562 U.S. at 111. In there rejecting a § 2254 challenge to

conviction based on defense counsel’s failure to consult with or call a forensic

blood expert, the Court stated that Strickland does not require “for every

prosecution expert an equal and opposite expert from the defense.” Id. While the

Court recognized that, in some cases, counsel could be deemed ineffective for

failing to consult with or call an expert, it emphasized that there were “coun tless”

ways to provide effective representation, id. at 106, and that strategic

considerations

— such as the possibility of shifting the jury’s attention to “esoteric

matters of forensic science” or “ transform [ ing ] the case into a battle of the

experts”— could justify not calling a defense expert, i d. at 10 8–09; see Strickland v.

Washington

, 466 U.S. at 688

– 89 (“No particular set of detailed rules for counsel’s

conduct can satisfactorily take account of the variety of circumstances faced by

defense counsel or the range of legitimate decisions regarding how best to

represent a criminal defendant.”). Indeed, in Harrington v. Richter

, the Supreme

Court observed t ha t “[i]n many instances cross

- examination will be sufficient to

expose defects in an expert’s presentation.” 562 U.S. at 111.

As earlier n ot ed, AEDPA permits federal habeas relief from a state

conviction based on legal error only if a state court’s legal rulings were contrary to

or unreasonably applied federal law “as determined by the Supreme Court [.]” 28

U.S.C. § 2254(d)(1)

. Thus, Gersten and similar earlier precedents of our court here22 relied on by Englert 12 must be understood in light of Harrington v. Richter ’s

teachings as to both the Strickland deference properly accorded counsel’s choices

in deciding whether to consult or call experts and the AEDPA deference properly

accorded state court s on habeas review of such a claim. See 562 U.S. at 105

.

Consistent with that double deference at the first step of Strickland analysis, a

§ 2254 petitioner claiming that counsel was constitutionally ineffective in failing to

consult with or call an expert witness must show that “ every fairminded juris [t]

would agree that every reasonable lawyer would have ” consulted or called a

medical witness in the particular case. Dunn v. Reeves

, 594 U.S. at 740 ( emphasis

in original) (internal quotation marks omitted)

. 13 Englert fails to make that

showing here.

That is evident from significant differences between this case and Gersten.

In Gersten

, trial counsel “conceded” that the physical evidence of examination

offered by the prosecution “ was indicative of sexual penetration without

conducting any investigation to determine whether this was the case.” 426 F.3d at

608. As this court noted, had counsel reasonably investigated the medical issues,

he would likely have di scovered “exceptionally qualified medical experts” who

12 See Eze v. Senkowski , 321 F.3d 110 (2d Cir. 2003); Lindstadt v. Keane , 239 F.3d 191 (2d Cir.

2001); see also Pavel v. Hollins , 261 F.3d 210 (2d Cir. 2001) (pre- AEDPA case).

13 In holding that the state court’s application of Strickland was unreasonable in Gersten

, this court determined that § 2254(d)(1) is satisfied where the state court’s decision

“reflect [s] ‘[s]ome increment of incorrectness beyond error,’ although that ‘increment

need not be great.’” 426 F.3d at 607 (quoting Henry v. Poole , 409 F.3d 48, 68 (2d Cir. 2005) );

see Eze v. Senkowski , 321 F.3d at 125 (applying same standard and citing Francis S. v. Stone

, 221 F.3d 100, 111 (2d Cir. 2000) ) . As we have since recognized, the “some increment of

incorrectness ” standard, which “originated in Francis S. v. Stone , 221 F.3d 100,” did not

“survive[] the Supreme Court’s decision in Richter , 562 U.S. at 102,” and the more

deferential “no reasonable jurist” standard pronounced therein. Garner v. Lee , 908 F.3d

845, 861 n.14 (2d Cir. 2018).23 would testif y that the physical evidence, in fact

, “was not indicative of sexual

penetration and provided no corroboration whatsoever of the alleged victim’s

story.” Id.

By contrast, here, there is no dispute that N. L .’s physical examination

revealed no signs of sexual abuse. On that record, the prosecution’s witness, Nurse

Lyons, could opine only that such normal examination findings were nevertheless

consistent with the child’s allegations of sexual abuse m ore than six months earlier

because any injuries would have had time to heal. E nglert’s trial counsel

— far

from conceding that point

— on cross

- examination elicited from Nurse Lyons

admission s that (1) normal examination findings were also consistent with “no

abuse ,” Confidential App’x 14 89; 14 and (2) the nurse’s cons istent

- with -abuse

opinion depended, at least in part, on “ the history

. . . given” by N. L., i d. at 1490

.

Thus, far from failing to challenge the prosecution expert’s medical

conclusions or even conducting an ineffective cross

- examination , defense counsel

neutralize d the physical examination evidence, thereby reducing

— if not

eliminating

— any corroborative value the prosecution might try to assign it

.

Counsel thus shift ed the focus of the trial to the credibility of essentially

uncorroborated witnesses, particularly N.L. and her mother, and to their possible

motives to testify falsely

. In short, this is one of the “many instances” referenced

by the Supreme Court in Harrington v. Richter where cross

- examination was, by

itself, “sufficient to expose defects in an expert’s presentation.” 562 U.S. at 111.

On this record, one can hardly conclude that counsel’s use of cross

- examination,

14 Counsel asked the jury to use their common sense to question whether if, as N.L.

testified, she had been regularly sexually abused for several years by an adult male, she

would have no physical injuries or scars of any kind. To support that argument, cou nsel

took Nurse Lyons through a litany of possible injuries and had her confirm that she had

seen no signs of such injury or scarring in her physical examination of the child.24 rather than expert testimony, to neutralize Nurse Lyons’s consistent

- with

- abuse

opinion, was an approach that “no competent lawyer would have chosen.” Dunn

v. Reeves

, 594 U.S. at 739 (holding that “[e]ven if there is reason to think that

counsel’s conduct ‘was far from exemplary,’ a court still may not grant relief if

‘[t]he record does not reveal’ that counsel took an approach that no competent

lawyer would have chosen” (quoting Burt v. Titlow

, 571 U.S. at 23

– 24) ). Much less

does it appear that “ every fairminded juris [t] would agree” that proceeding as

counsel did without consulting or calling an expert amounted to professional

incompetence. Id. at 740 (emphasis in original) (internal quotation marks omitted) ;

see Harrington v. Richter

, 562 U.S. at 105.

Further, in co ntrast to Gersten

, in this case there is no reason to t hink that if

trial counsel had consulted a medical expert, that expert would have offered

o pinions materially at odds with Nurse Lyons ’s

. The submitted affidavit from Dr.

Bomze question ed some of Nurse Lyons’s examination methods

— e.g.

, in his view,

she should have documented the child’s examination positions and obtained the

child’s full medical and psychosocial history before expressing any opinion

— but,

in the end, he agree d with the nurse’s critical conclusions : i.e.

, that (1) the c hild’s

physical examination findings were all normal; (2) such normal findings do not

rule out sexual abuse; (3) it is possible for physical signs of abuse, including hymen

injuries

, to heal over time ; and (4) a majority of sexually abused children show no

signs of abuse on a physical examination when they delay disclosing abuse beyond

the first several days. Counsel was not incompetent for failing to call a medical

expert who

, thus, would have reinforced the prosecution’s argument that normal

examination findings did not foreclose abuse.

Indeed, had a defense expert testified consistent with Dr. Bomze’s opinions

,

that would have made it harder for counsel to pursue the defense strategy of

appeal ing to jury common sense in arguing the unlikelihood of a pre

- adolescent25 child being sexually abused over almost five years and showing no signs

whatsoever of physical injury

— an argument critical to counsel’s urging

reasonable doubt as to N.L.’s testimony. 15 While Dr. Bomze’s assertion that certain

severe hymen injuries do not readily heal might have sup ported counsel’s

argument, any such support would have been easily undermined by the doctor’s

ac knowledgment that “the large majority of sexually abused children have no

positive findings on anogenital examination if the exam is delayed beyond the first

several days or longer” after abuse. Confidential App’x 32 1. 16 Trial counsel cannot

be deemed incompetent for not introducing such equivocal expert testimony,

particularly given its potential for triggering a distracting “battle of the experts”

on “esoteric matters of forensic science,” when counsel reasonably aim ed to

neutralize the physical examination evidence

— which he did

— and to focus jury

attention on witness credibility and motive to falsify. Harrington v. Richter

, 562

U.S. at 108

– 09

.

F urther, i nsofar as Dr. Bomze faulted Nurse Lyons for testifying with

“certainty” about N.L. being abused, Confidential App’x 321

, the characterization

is mistaken. Nurse Lyons testified that the child’s normal examination results

were consistent with her account of abuse and that she would not have expected

to see injuries in light of N.L.’s delayed disclosure

, not that the nurse found abuse

demonstrated to some reasonable degree of medical certainty. Finally, Dr. Bomze

stated that

, had he been consulted, he would have urged Englert’s trial counsel to

question Nurse Lyons about normal examination results also being consistent with

15 To the extent this also shows

, at the second step of Strickland analysis

, that Englert

cannot demonstrate prejudice, we discuss that conclusion further in the next section of

this opinion. See infra at 29–30.

16 We also note that the record is unclear as to how often or how deeply Englert penetrated

N.L. given her testimony that , when she told him efforts to do so hurt, he pursued other

methods of gratification. See supra at 6.26 the absence of child sexual abuse

. But t rial counsel did just that, eliciting the

concession that neutralized the physical examination ’s normal findings. See supra

at 23

. Thus, it appears that Englert’s ineffective

- assistance challenge fails at step

one of Strickland analysis.

In nevertheless u r ging otherwise, Englert points to his own and his family

members’ affidavits

, which indicate that counsel’s failure to consult with or call a

medical expert was based not on any con sidered trial strategy, but on a lack of

time or inclination to pursue the matter. In considering th at argument on AEDPA

review, we note th e state court ’s initial skepticism about the veracity of these

substantially identical affidavits. We also note the absence of any a ffidavit from

Englert’s trial counsel and any explanation from Englert as to why none was

obtained. See Dunn v. Reeves

, 594 U.S. at 740

– 42 ( deeming absence of evidence

from trial counsel “particularly significant” to evaluating ineffectiveness claim

given “ range of possible reasons . . . counsel may have had for proceeding as they

di d” and concluding that state court not obliged to accept petitioner’s “blanket

assertion on an incomplete evidentiary record” that no reasonable strategy

supported counsel’s actions (internal quotation marks omitted) ); see also Burt v.

Titlow

, 571 U.S. at 22

– 23 (“ [T]he b urden to ‘ show that counsel ’s performance was

deficient ’ rests squarely on the defendant .” ( quoting Strickland v. Washington

, 466

U.S. at 687 )). We need not pursue those points further because, even if we were to

credit Englert’s affidavits and

, at step one of Strickland

, decide that further inquiry

into counsel’s reasons for not consulting or calling a medical expert was

warranted, that would not entitle Englert to habeas relief because, in any event, he

fails to demonstrate the prejudice required at Strickland ’s second step.

Thus, we proce ed to that step, mindful of the Supreme Court’s instruction

that “[t]he object of an ineffectiveness claim is not to grade counsel’s

performance,” and ‘[i]f it is easier to dispose of an ineffectiveness claim on the27 ground of lack of sufficient prejudice

, . . . that course should be followed.”

Strickland v. Washington

, 466 U.S. at 697; accord Waiters v. Lee

, 857 F.3d 466, 478

– 79

& n.21 (2d Cir. 2017) ( rejecting Strickland claim for failure to demonstrate prejudice

and declining to resolve performance prong, even though court had “no reason to

disagree” with state court’s plausible explanations for counsel’s failure to call

expert ). 17

B. The Prejudice Step: the State Court Did Not Unreasonably Apply

Strickland ’s Prejudice Prong

Englert argues that, with the benefit of expert consultation or testimony,

trial counsel would have been able to rebut Nurse Lyons’s testimony, undermine

N.L.’s credibility, and support his fabrication defense. He maintains that Nurse

Lyons’s testimony was “critical” to the prosecution’s case because it explained to

the jury why they should not be troubled by the lack of physical evidence of abuse,

and that Dr. Bomze’s affidavit “established the opposite of Lyons’ [s] conclusions, ”

i.e. , “ that it would be expected to find evidence of sexual abuse” in a child who had

been continually abused. Appellant’s Br. at 44, 54 (emphasis in original)

. We are

not persuaded that every fairminded jurist was obliged so to conclude.

To explain, we n ot e at the outset that Englert overstates Dr. Bomze’s

affidavit

. Therein, Dr. Bomze did not opine that he would expect to see physical

evidence of injury in a child who claimed sexual abuse akin to that reported by

N.L. Nor did he dispute Nurse Lyons’s conclusion that the absence of such

physical evidence was, nevertheless, consistent with N.L.’s account of abuse

because injuries would have had time to hea l. To the contrary, Dr. Bomze

17 Although the district court did not address Strickland prejudice in denying Englert

habeas relief, we may “affirm on any ground that finds support in the record, even if it

was not the ground upon which the [ district ] court relied .” United States v. Avenatti , 81

F.4th 171, 210 n.42 (2d Cir. 2023) (internal quotation marks omitted).28 corroborated the critical portion of Nurse Lyons’s testimony when he stated that

“t he large majority of sexually abused children have no positive findings on

anogenital examination if the exam is delayed beyond the first several days or

longer .” Confidential App’x 32 1. While Dr. Bomze may have faulted c ertain

statistics cited by Nurse Lyons in support of her opinions, in the end, he agreed

that “the absence of any identifiable trauma does not rule out abuse.” Id. at 319.

Indeed, Dr. Bomze does not even opine that identifiable trauma is likely in this

case.

Thus, as noted supra at 22

– 24

, this case is not akin to Gersten v. Senkowski

,

where the petitioner proffered expert evidence that completely refuted the

prosecution’s physical evidence purportedly showing forced sexual penetration of

the child

- victim

. 426 F.3d at 611

– 12; cf. Pavel v. Hollins

, 261 F.3d 210, 227

– 28 (2d

Cir. 2001) ( faulting defense counsel, pre -AEDPA, for not calling defense expert

who would have stated “unequivocally” that victims’ medical condition s were

“not consistent” with their claim s of abuse (internal quotation marks omitted)).

Because Englert can point to “ no evidence ” from Dr. Bomze “ directly challenging

. . . conclusions reached by the prosecution’s expert[],” the state court reasonably

determined that his Strickland claim fell short of establishing the substantial

likelihood of a different result necessary to demonstrate prejudice

. Harrington v.

Richter

, 562 U.S. at 112.

In urging otherwise, E nglert submits that consulting an expert such as Dr.

Bomze would have a llowed trial counsel to rebut Nurse Lyons’s testimony that

hymens can regenerate. But this fails to demonstrate prejudice because Dr. Bomze

agreed that “the majority” of hymenal lacerations do heal over time

. Confidential

App’x 321

– 22. And w hile Dr. Bomze faulted Nurse Lyons for not distinguish ing

“complete” or “deep” hymenal lacerations

, which “ may not fully heal,” i d. at 322

(emphasis added)

, he did not opine that such lacerations would be expected if a29 child had been abused or that the absence of finding unhealed lacerations

undermined N.L.’s claim of abuse

.

Englert argues that by not consulting with or calling Dr. Bomze, trial counsel

was unable to adduce evidence that anal abuse of a child should result in some

bleeding, 18 and that physical indications of anal abuse can persist longer than

comparable indications of vaginal abuse

. Even assuming such testimony might

have provided ad ditional fodder for challenging N.L.’s credibility, it would not

require every fairminded jurist to question conviction. As Dr. Bomze himself

acknowledged , a large majority of sexually abused children have no positive

findings of injury on anogenital examination when, as in N.L.’s case, they delay

disclosing the abuse. Moreover, N.L. testified that Englert’s penis penetrated her

buttocks “only a little bit ,” undercutting the value of Dr. Bomze’s opinion

regarding injuries in this case. Confidential App’x 1065.

To be sure, if c alled as a witness, Dr. Bomze would have reiterated for the

jury that N.L.’s physical examination findings were normal and could have

emphasized that such findings did not necessarily establish abuse. But trial

counsel effectively made those points by securing N urse Lyons ’s concession that

N.L.’s normal examination findings were also consistent with no abuse and by

appealing to jurors’ common sense about the expected physical effects on a

preadolescent child of years of sexual abuse

. As noted supra at 24

– 25

, calling Dr.

Bomze would have made it more difficult for counsel to appeal to juror common

sense as that would mean two medical practitioners would have agree d that most

children who delayed reporting sexual abuse do not show physical injuries. On

this record, then, the jury did not need to hear from Dr. Bomze

, and trial counsel

did not need to consult with him, to understand that the absence of physical

18 N.L. testified that s he did not kn o w if she bled during any of the abuse she experienced.30 evidence of abuse is not proo f that a child has been abused, and that Nurse Lyons’s

testimony on the point was, at best, neutral and, therefore, inconclusive

. 19 See

Harrington v. Richter

, 562 U.S. at 112 (holding state court reasonably concluded

evidence of prejudice insufficient where uncalled expert would not have testified

differently from concession trial counsel extracted from prosecution expert); Wong

v. Belmontes

, 558 U.S. 15, 23

– 24 (2009) (declining to consider uncalled expert

testimony persuasive of Strickland prejudice where jury did not need to hear from

expert to understand evidence and could r ely

, instead, on “common sense”). In

these circumstances, we conclude that Dr. Bomze’s testimony would not have “so

clearly ‘alter[ed] the entire evidentiary picture’ that the [state] court’s decision ”

that Englert failed to demonstrate prejudice “ is indefensible.” Waiters v. Lee, 857

F.3d at 484 (quoting Strickland v. Washington

, 466 U.S. at 696)

.

The same conclusion obtains with respect to Englert’s argument that Dr.

Bomze ’s testimony would have assisted the jury in understanding the significance

of N.L.’s lack of social, emotional, and psychological issues. As an initial matter,

Englert is mistaken in arguing that t rial counsel was “prevented” from arguing

that N.L.’s happiness, success in school, and lack of mental health issues were

“inconsistent with long

- term child sexual abuse.” Appellant’s Br. at 48. Counsel

not only intimated as much in his cross

- examination of N .L., her mother, and

Nurse Lyons , but also, in summation

, argued that, as a matter of common sense,

such an absence of social, emotional, and psychological issues was inconsistent

with years of sexual abuse

. Further, counsel reinforced that point by re minding

the jury that prosecution witness Perkowski had testified that almost all of the

approximately 3,200 sexually abused children he had encountered as a clinical

19 Indeed, in contrast to Nurse Lyons’s testimony, the unrebutted medical evidence in

Gersten was the “most significant corroborative evidence” of the victim’s accusations of

abuse. 426 F.3d at 612.31 social worker needed professional counseling

. 20 Had Dr. Bomze been called to

testify, he might have identifie d certain social, emotional, or psychological

problems associated with children who have been sexually abused ( e.g.

, “irritation,

anxiety, depression, sexually acting out, school problems,” Confidential App’x

321 ), but such testimony was unlikely to have undermined the outcome of the case.

Notably, nowhere in his affidavit does Dr. Bomze directly assert that the absence

of such indicia undermines a claim of abuse

— the conclusion trial counsel was

urging the jury to reach by reference to their own common sense.

Nor can Englert establish th at the state court unreasonably applied

Strickland ’s prejudice test in failing to recognize that consulting an expert such as

Dr. Bomze could have helped trial counsel cr oss

- examine Nurse Lyons more

effectively

. Without the assistance of a medical expert, trial counsel engaged in an

extensive cross

- examination of Nurse Lyons that, as noted, effectively neutralized

her consistent

- with

- abuse conclusion

. While Dr. Bomze might have advised trial

counsel to establish that Nurse Lyons looked for and failed to find certain indicia

of sexual abuse in N.L.’s genital and anal areas, trial counsel effectively did as

much by taking the nurse through a litany of possible injuries and abnormalities

and having her confirm that a physical examination

— under 10,000 times

magnification —revealed none

. As for other areas of cross

- examination suggested

by Dr. Bomze, particularly relating to Nurse Lyons’s examination methods and

procedures, the state court reasonably determined that Englert was not prejudiced

by trial counsel’s failure to pursue such inquiry. As respondent observes,

challenging Nurse Lyons’s physical examination as incomplete or otherwise

unsound might have suggested that her normal findings were inaccurate and that

20 C ounsel was only precluded from speculating “how many [k]ids are sexually abused

for seven years” and do not suffer from psychosocial problems. Confidential App’x 1693.32 she had missed indicia of abnormalities or injuries supportive of N.L.’s abuse

claim. This would hardly have served Englert’s interests.

In sum, because Englert failed to show how consulting or calling a medical

expert would have materially undermined Nurse Lyons’s testimony beyond that

achieved by trial counsel on cross

- examination or otherwise would have been

substantially likely to yield a different trial outcome, see Cullen v. Pinholster

, 563

U.S. at 189; Harrington v. Richter

, 562 U.S. at 111 –1 2, the state courts did not

unreasonably apply Strickland in concluding that Englert was not denied “a trial

whose result is reliable ,” Strickland v. Washington

, 466 U.S. at 687. 21 Accordingly,

on AEDPA review, Englert’s ineffective

- assistance challenge to conviction under

§ 2254 was correctly denied for lack of prejudice

.

C. The State Court’s Decision Was Not Based on an Unreasonable

Determination of the Facts

We briefly address E nglert’s contention that the state court’s rejection of his

ineffective -assistance claim on § 440.10 review was based on “an unreasonable

determination of the facts in light of the evidence ” and, thus, does not preclude

federal habeas relief. 28 U.S.C. § 2254(d)(2) . The argument fails on the merits.

21 We likewise reject Englert’s claim that

, in denying his § 440 .10 motion, the state court

unreasonably applied Strickland by holding him to “a higher standard for prejudice” than

warranted and requiring him to prove

, “definitively, that he is actually innocent .”

Appellant’s Br. at 56– 57. Viewing the state court’s analysis as a whole, we understand

that court to have determined that Englert failed to demonstrate prejudice as a result of

his trial counsel’s failure to consult or call an expert such as Dr. Bomze because the

doctor’s affidavit did not contradict Nurse Lyons’s key conclusions

. See Confidential

App’x 380 –81. The affidavit supports that conclusion

, which is consistent with

Strickland ’s prejudice inquiry. See Harrington v. Richter , 562 U.S. at 112.33 First, Englert asserts that the state court “misidentified” Nurse Lyons’s key

conclusions and “disregarded” portions of Dr. Bomze’s affidavit in determining

that Englert did not establish prejudice. Appellant’s Br. at 5 2, 55

. We locate no

such errors in the state court’s characterization of the evidence and, in any event,

Englert fails to show that all fairminded jurists would have otherwise found or

stated the facts, as required to obtain § 2254 relief. See Cardoza v. Rock

, 731 F.3d

169, 178 (2d Cir. 2013) (holding that § 2254 (d)(2) requires showing that “reasonable

minds could not disagree that the trial court misapprehended or misstated

material aspects of the record in making its finding ” ).

Second, Englert argues that it was unreasonable for the state court to reject

his ineffective

- assistance claim without holding an evidentiary hearing because he

satisfied the requirements for a hearing under New York law. See N.Y. Crim. Proc.

Law § 440.30(1), (4)

. Englert does not explain how the lack of an evidentiary

hearing rendered the state court’s factual determinations unreasonable, and any

procedural error by the state court in denying a hearing under state law is not

cognizable on federal habeas review. Cf. Estelle v. McGuire

, 502 U.S. 62, 67

– 68

(1991) (emphasizing “it is not the province of a federal habeas court to reexamine

state

- court determinations on state

- law questions”).

Finally, because E ng lert’s claims of state court errors of law and fact fail on

the state court record, the district court correctly denied his request for an

evidentiary hearing in that forum before denying him habeas relief under § 2254.

See Cullen v. Pinholster

, 563 U.S. at 182

– 83 ; Shoop v. Twyford

, 596 U.S. 811, 819 (2022) ;

Garner v. Lee

, 908 F.3d 845

, 860 (2d Cir. 2018)

.

CONCLUSION

For the foregoing reasons, we conclud e that the district court correctly

denied Englert ’s 28 U.S.C. § 2254 request for habeas corpus relief from a New York34 State conviction for engaging in a course of sexual conduct against a child in the

first degree, see N.Y. Penal L aw § 130.75(1)(a)

, on the ground of ineffective

assistance of counsel. The state courts’ rejection of Englert’s ineffective

- assistance

claim was not based on either a misstate ment of the facts or an unreasonable

application of c ontrolling Supreme Court precedent, i.e.

, St rickland v. Washington

,

466 U.S. 66 8, particularly insofar as Englert fail s to demonstrate prejudice from

trial counsel’s failure to consult with or call a medical expert. In th ese

circumstances, no federal habeas relief is warranted. See 28 U.S.C. § 2254 (d)

.

Accordingly, we AFFIRM the district court’s judgment denying Englert’s

petition for a writ of habeas corpus.