Speculation Is Not Prejudice: The Second Circuit’s Doubly Deferential Strickland–AEDPA Framework Illustrated in Cortez v. Kopp

Note: This decision is a Summary Order of the U.S. Court of Appeals for the Second Circuit. Under Fed. R. App. P. 32.1 and Second Circuit Local Rule 32.1.1, it is nonprecedential. Even so, it provides a clear and instructive application of the “doubly deferential” standard governing ineffective-assistance claims on federal habeas review.

Introduction

This appeal arises from Paul Cortez’s petition for a writ of habeas corpus under 28 U.S.C. § 2254 following his New York conviction for second-degree murder. Cortez argued that his trial counsel rendered ineffective assistance under Strickland v. Washington by (1) failing to properly investigate and present expert testimony on a bloody fingerprint found in the victim’s bedroom, and (2) failing to use surveillance footage that, he contended, supported an alternative-perpetrator theory involving the victim’s live-in boyfriend.

The district court denied relief, concluding that even if counsel performed deficiently, Cortez failed to show prejudice. On appeal, Cortez pressed only the prejudice prong. The Second Circuit affirmed, holding that—under AEDPA’s deferential framework—Cortez had not shown that the state courts unreasonably applied clearly established federal law in rejecting his Strickland claim.

Summary of the Opinion

Posture and Scope of Review: The court reviewed de novo the denial of the § 2254 petition but applied AEDPA’s limitations, focusing on § 2254(d)(1) because Cortez argued only “unreasonable application” of clearly established federal law, not unreasonable factual determinations.
Framework: The panel resolved the case on Strickland’s prejudice prong alone, as Strickland permits courts to dispose of ineffective-assistance claims without reaching the performance prong when prejudice is lacking.
Holding: The court held that the state courts did not unreasonably apply Strickland in concluding that any alleged deficiencies by trial counsel did not prejudice Cortez. In light of robust circumstantial evidence of guilt, speculative expert testimony and the unintroduced surveillance clip do not create a reasonable probability of a different result—much less show an “unreasonable application” of Strickland beyond fairminded disagreement.

Key Facts Framing the Prejudice Analysis

Physical and forensic evidence:
- A fingerprint matching Cortez’s left index finger on the victim’s bedroom wall, overlapped by the victim’s blood.
- Bed sheets bearing a bloody boot print corresponding to the make/model of boots Cortez wore that night, matching his shoe size (10½).
Communications and location evidence:
- Cell phone records showing 14 calls from Cortez to the victim on the day of the murder, with several calls originating from the vicinity of her East 86th Street residence between 5:27 p.m. and 6:33 p.m.
- A pattern of intensive calling (292 calls in the prior month), followed by a cessation of calls around the time of the murder—supporting an inference of Cortez’s knowledge of the victim’s death.
Consciousness of guilt and motive:
- Cortez lied to a bandmate about missing a 6 p.m. rehearsal due to “oversleeping,” contradicting cell-site data placing him near the victim’s apartment at that time.
- Journal entries evidenced an obsession with the victim.

Analysis

Precedents Cited and Their Influence

Strickland v. Washington, 466 U.S. 668 (1984): Establishes the two-prong ineffective-assistance test—deficient performance and prejudice. The panel invoked Strickland’s instruction that courts may resolve the claim on prejudice alone. The prejudice standard requires a “reasonable probability” of a different result.
Harrington v. Richter, 562 U.S. 86 (2011): Emphasizes AEDPA’s high bar and “doubly deferential” review when Strickland claims are raised on habeas. A state-court decision must be “beyond any possibility for fairminded disagreement” to warrant relief. The panel relied on this to reject Cortez’s bid to reweigh the evidence.
White v. Woodall, 572 U.S. 415 (2014): Clarifies that an “unreasonable application” under § 2254(d)(1) is not mere error; it must be objectively unreasonable. The panel quoted Woodall to define the operative threshold.
Brown v. Davenport, 596 U.S. 118 (2022): Although addressing harmless-error review in habeas, the Court’s “fairminded jurist” framing reinforced AEDPA’s demanding standard, which the panel used to underscore the prejudice showing required here.
Wong v. Belmontes, 558 U.S. 15 (2009): Requires courts assessing prejudice based on omitted evidence to consider the entire evidentiary picture—including unfavorable evidence. The panel applied Wong to weigh the proposed expert and surveillance evidence against the state’s robust case.
Garner v. Lee, 908 F.3d 845 (2d Cir. 2018): Restates that the likelihood of a different result must be “substantial, not just conceivable,” and warns against speculation about what witnesses would have said. The court invoked Garner to discount conjecture about the defense fingerprint expert.
Kovacs v. United States, 744 F.3d 44 (2d Cir. 2014): Reiterates Strickland’s prejudice test and the need for a reasonable probability of a different outcome. The panel quoted Kovacs for the controlling prejudice standard.
Torres v. Donnelly, 554 F.3d 322 (2d Cir. 2009): Confirms that courts may resolve Strickland claims on prejudice alone. The panel relied on this to bypass performance and focus on prejudice.
United States v. Hasan, 586 F.3d 161 (2d Cir. 2009); United States v. Reiter, 897 F.2d 639 (2d Cir. 1990); Lindstadt v. Keane, 239 F.3d 191 (2d Cir. 2001): These cases support the proposition that “overwhelming evidence” of guilt makes showing prejudice difficult. The panel invoked this line to characterize the state’s case as “robust” and to discount the likely effect of the omitted defense evidence.
Waiters v. Lee, 857 F.3d 466 (2d Cir. 2017): Explains that habeas relief is justified when omitted evidence would “so clearly alter the entire evidentiary picture” that the state decision becomes indefensible. The panel distinguished Cortez’s case from Waiters, finding no such transformative effect.
Bell v. Cone, 535 U.S. 685 (2002): Reinforces deference to state-court Strickland adjudications under § 2254(d). The court cited Bell to conclude the state court did not apply Strickland unreasonably to Cortez’s facts.
People v. Cortez, 85 A.D.3d 409 (1st Dep’t 2011), aff’d, 22 N.Y.3d 1061 (2014): New York courts previously described the evidence as “overwhelming.” The panel referenced these decisions to show that habeas review occurs against an already solid state-court evidentiary assessment.
Gonzalez v. United States, 722 F.3d 118 (2d Cir. 2013): Cited for the general Sixth Amendment right to effective assistance at all critical stages, framing the constitutional interest at stake.
Murray v. Noeth, 32 F.4th 154 (2d Cir. 2022): Provides the de novo standard for reviewing the denial of § 2254 petitions while applying AEDPA’s restrictions.

Legal Reasoning

The court’s reasoning proceeded in three integrated steps: the governing standards, the evidentiary backdrop, and the application to each alleged deficiency.

Governing standards:
- Under AEDPA § 2254(d)(1), relief lies only if the state court’s decision was an “unreasonable application” of clearly established Supreme Court law—an exceptionally high threshold that excludes even clear error if fairminded jurists could disagree.
- Under Strickland, Cortez had to show a reasonable probability of a different outcome but for counsel’s errors. Because habeas applies “doubly deferential” review to Strickland claims (Richter), Cortez had to demonstrate not only prejudice, but that any contrary state-court conclusion was beyond fairminded disagreement.
Evidentiary backdrop:
- The state’s case featured interlocking circumstantial proof: the fingerprint overlapped by the victim’s blood; cell-site data placing Cortez near the apartment during the critical time window; a flurry of calls followed by sudden cessation; lies indicating consciousness of guilt; motive evidence from Cortez’s journal; and a bloody boot print matching the make/model of boots he wore that night and his shoe size.
- Against this, the court measured the proposed defense proof: expert testimony that might cast doubt on the timing of the fingerprint’s deposition, and surveillance footage bearing on the boyfriend’s timeline.
Application to alleged deficiencies:
- Fingerprint expert/forensic investigation:
  - The defense consulted fingerprint examiner Kenneth Moses, who confirmed the print belonged to Cortez and stated he would need the original sheetrock to determine whether the print pre- or post-dated the blood. Because no such analysis occurred, the court characterized any prejudice from not “following up” as speculative. Under Garner, courts will not credit conjecture about what an expert would have said.
  - Post-judgment expert submissions argued the print was not in blood and thus predated the blood spatter. But trial counsel had already elicited from the state’s forensic witness that he could not authoritatively establish the print was made in blood and argued in summation there was no proof the print was made that day. A fairminded jurist could conclude the jury considered and rejected this timing argument; additional expert declarations would not “so clearly alter” the evidentiary picture (Waiters).
- Surveillance footage and the alternative-perpetrator theory:
  - Cortez argued that the file name of a surveillance clip (indicating approximately 6:38 p.m.) showed the boyfriend leaving the building after the murder window, supporting that he, not Cortez, was the killer. The court found this unpersuasive. Even crediting the timestamp, the clip only shows the boyfriend outside at 6:38 p.m.; it does not place him inside the apartment at the moment of the killing, and it leaves time for Cortez to act during the neighbor’s 6:20–6:25 p.m. phone call.
  - Moreover, trial counsel already attacked the timeline using police testimony that the boyfriend reported leaving about twenty minutes before the 6:59 p.m. 911 call (i.e., ~6:39 p.m.), cross-examined the boyfriend with that timing, and argued in summation that the boyfriend committed the crime. The jury nonetheless convicted. The incremental surveillance clip would not likely have changed that result, particularly against the broader circumstantial evidence connecting Cortez to the crime.

In sum, taking account of all the evidence as Wong requires, the court concluded that Cortez failed to show a reasonable probability of a different outcome, let alone that the state courts’ no-prejudice determination was an unreasonable application of Strickland.

Impact

Reinforcement of “doubly deferential” review: This order exemplifies how rarely federal habeas relief will be granted on ineffective-assistance grounds where a state court has already adjudicated the claim. Petitioners must overcome both Strickland’s demanding prejudice standard and AEDPA’s fairminded-disagreement buffer.
Speculative expert proffers are insufficient: The court’s treatment of the fingerprint issue underscores that post hoc expert declarations must do more than hypothesize alternative possibilities; they must materially change the evidentiary landscape. Absent concrete, trial-ready analysis—especially of original physical evidence—prejudice will be hard to establish.
“Already before the jury” principle: When defense counsel has raised the core theory (e.g., fingerprint timing; alternative-perpetrator timeline) and the jury rejects it, new iterations of the same theory are unlikely to demonstrate prejudice unless they add qualitatively different, compelling proof.
Overwhelming circumstantial evidence matters: Courts readily find no prejudice where the prosecution’s case is robust and multifaceted, as here. This decision illustrates that even non-direct evidence can be “overwhelming” in aggregate.
Nonprecedential but instructive: While not precedential, the opinion offers a practical roadmap for how the Second Circuit assesses Strickland prejudice under AEDPA—useful for litigants calibrating habeas strategies involving uncalled experts or unintroduced forensic/timeline evidence.

Complex Concepts Simplified

Ineffective assistance of counsel (Strickland): To win, a defendant must show (1) deficient performance—counsel acted below professional norms; and (2) prejudice—a reasonable probability that, but for counsel’s errors, the outcome would have been different.
Prejudice standard (“reasonable probability”): Not a mere possibility. Courts look for a substantial likelihood of a different result, sufficient to undermine confidence in the verdict.
AEDPA deference (§ 2254(d)(1)): Federal courts may grant habeas relief only if the state court’s application of Supreme Court precedent was not just wrong but objectively unreasonable—so wrong that no fairminded jurist could agree with it.
“Doubly deferential” review: When a Strickland claim is presented on habeas, courts defer first to counsel’s strategic choices and second to the state court’s adjudication. This double layer makes relief especially rare.
Wong v. Belmontes principle: When assessing whether omitted evidence would have mattered, courts consider everything the jury would have heard—both the new defense evidence and the prosecution’s case—rather than isolating the new evidence in a vacuum.
“Overwhelming evidence”: A shorthand for a strong, corroborated record (even if circumstantial) that makes it difficult to show that any single error (or set of errors) likely changed the verdict.
Speculative proffers: Assertions about what a witness “would have” said—without concrete, admissible support—do not establish prejudice.
Summary orders: Nonprecedential decisions that nevertheless can be cited under Rule 32.1; they often reflect settled law applied to specific facts.

Conclusion

Cortez v. Kopp confirms a demanding reality for habeas petitioners pressing ineffective-assistance claims: speculation about uncalled experts or unintroduced exhibits rarely suffices to show Strickland prejudice, especially when trial counsel already advanced the core defense theory and the prosecution’s case was robust. Applying AEDPA’s “fairminded jurist” constraint and Strickland’s “reasonable probability” test together, the Second Circuit concluded that the state courts did not unreasonably reject Cortez’s claim. The order illustrates the practical force of the “doubly deferential” framework, the necessity of non-speculative, outcome-altering proffers, and the decisive role that a comprehensive evidentiary record—here, fingerprint and blood evidence, cell-site and call data, consciousness-of-guilt statements, and motive—plays in foreclosing a finding of prejudice.