Fay v. Annucci

Background

George Fay was convicted in New York State court of first-degree rape, criminal sexual act, and sexual abuse arising from a July 2016 incident. The indictment alleged that the victim was unable to consent because she was physically helpless. The jury found Fay guilty on all three counts, and the state court sentenced him to concurrent prison terms, including 10 years on the rape and criminal-sex-act counts and seven years on the sexual-abuse count.

At trial, Fay testified that the victim had initiated the sexual encounter, had consented, and had appeared awake and conscious. The defense sought to call Dr. Michael Thorpe as an expert on sleep disorders and the effects of alcohol on sleep and behavior. Counsel proposed that Thorpe would testify about situations in which an intoxicated person might be asleep while engaging in physical activity that made the person appear awake and conscious. The trial judge excluded the testimony because the defense gave inadequate and late notice, did not provide a sufficient written proffer, and had not shown that Thorpe had appropriate qualifications or that the proposed opinion had a recognized scientific basis.

The Appellate Division affirmed Fay’s convictions. It held that the evidence was legally sufficient and that the verdict was not against the weight of the evidence. It also upheld the exclusion of Thorpe’s testimony, citing inadequate notice, the lack of a demonstrated scientific basis, and the resulting difficulty in conducting a hearing or allowing the prosecution to prepare rebuttal evidence. The New York Court of Appeals later denied leave to appeal.

Federal Petition and Later Motions

Fay filed a petition under 28 U.S.C. § 2254, the federal procedure allowing a state prisoner to challenge a conviction in federal court. He argued that excluding Thorpe’s testimony violated his Sixth Amendment right to present a defense. Magistrate Judge Sarah L. Cave recommended denying the petition because Fay had procedurally defaulted the constitutional claim and because the claim also failed on the merits. Fay did not object to that first recommendation.

After the recommendation was issued, Fay moved to amend the petition to add an ineffective-assistance-of-trial-counsel claim. He also moved to stay the federal case while he pursued that claim in New York state court under New York Criminal Procedure Law § 440.10. Magistrate Judge Cave recommended denying both motions. She concluded that the proposed claim had not been exhausted in state court and that a stay was unavailable because Fay had not shown good cause for failing to exhaust the claim earlier and the proposed claim was plainly meritless.

Court’s Analysis

Judge Engelmayer reviewed the unchallenged first recommendation for clear error and found none. The court held that Fay’s Sixth Amendment claim was procedurally barred because the First Department had relied on his failure to make a contemporaneous constitutional objection at trial. Fay had not shown cause and prejudice excusing that default, and he had not presented a basis for an exception based on actual innocence or a fundamental miscarriage of justice.

The court also adopted the recommendation’s merits analysis. A defendant’s right to present relevant testimony is not unlimited and remains subject to reasonable evidentiary and procedural rules. The court found that Fay had not shown Thorpe’s proposed testimony was supported by generally accepted scientific principles or that Thorpe was qualified to offer the specific opinion proposed. The court further found that, even if the testimony had been admitted, it would not have created a reasonable doubt in light of the trial evidence, including the victim’s account, the testimony about her immediate distress, corroborating evidence, Fay’s statements, and evidence concerning calls from his phone to a commercial-sex website.

The court separately rejected the motion to stay under the test for holding an unexhausted federal claim in abeyance. Fay had not shown good cause because his appellate lawyer deliberately chose to pursue the constitutional claim rather than an ineffective-assistance claim. The court also held that the proposed ineffective-assistance claim was plainly meritless: Fay had not shown that a timely and adequate proffer would have led to admission of Thorpe’s testimony or that the testimony would have changed the verdict. Because a stay was unwarranted, adding the unexhausted claim would have been futile.

Disposition

Judge Engelmayer adopted Magistrate Judge Cave’s two reports, dismissed Fay’s § 2254 petition, and denied Fay’s motions to amend the petition and to stay consideration of it while his state-court motion was pending. The clerk was directed to terminate the pending motions and close the case.