Opinion
OO Civ.1401 (AKH)
February 28, 2002
OPINION AND ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Carlos Samper, the petitioner pro se, petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner makes the following challenges to his conviction for murder in the second degree, New York Penal Law § 125.25(1), entered on March 18, 1993: (1) the trial court's supplemental jury charge improperly lowered the prosecution's burden of proof; (2) the trial court erred when it denied petitioner's motion for a mistrial after a witness blurted out that petitioner was a drug seller; (3) the trial court erred when it failed to grant a mistrial after the jury sent out a note indicating that it was having difficulty arriving at a unanimous verdict; (4) the misconduct of the prosecution in allegedly allowing a key prosecution witness to perjure herself; failing to disclose Brady material, intimidating defense witnesses, and engaging in ex parte communications with the trial court deprived petitioner of a fair trial and due process of law; and (5) petitioner was denied effective assistance of counsel. Because I find that none of the stated grounds merits relief; the petition is denied.
I. Background
The charges that give rise to the instant petition stem from an incident that occurred on July 26, 1990 in Manhattan, New York when at approximately 1:45 a.m., Humberto Valdez was shot to death in front of a bar. After a trial by jury, petitioner was convicted of murder in the second degree on February 23, 1993 and sentenced on March 18, 1993.
On appeal, the New York State Supreme Court, Appellate Division, affirmed the conviction by order dated May 13, 1997. Petitioner then moved to vacate the judgement against him pursuant to New York Criminal Procedure Section 440.10 on the ground that he received ineffective assistance of counsel, claiming his counsel failed to call potential alibi witnesses or use other allegedly exculpatory evidence. Petitioner then filed an amended motion of June 22, 1999 arguing that, in addition to ineffective assistance of counsel, petitioner did not receive a fair trial because of misconduct on the part of the prosecution. Specifically, petitioner claimed the prosecution had allowed a witness to perjure herself, intimidated defense witnesses, withheld Brady material, and engaged in ex parte communication with the trial judge. See N.Y. Criminal Procedure Law § 440.10 (McKinney 2000) (state criminal procedure allowing for motions to vacate judgment). The New York Supreme Court (Jeffrey Atlas, J.S.C.) denied petitioner's motion by order dated July 13, 1999, rejecting both claims of ineffective assistance of counsel and prosecutorial misconduct.
Petitioner then filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 on February 24, 2000. Finding no grounds upon which relief can be granted, the petition is denied.
II. Discussion
A. Jury Instructions
On the first day of the jury's deliberations, the trial court received two notes from the jury requesting instructions pertaining to the evaluation of the testimony of two eyewitnesses, Bolivar Pena and Denise Valdez. The first note asked, in pertinent part, "what is reasonable doubt? Does it apply to the final verdict or individual testimonies?" Tr. 885. Before the court had an opportunity to respond to the first note, the judge received the second note, which inquired "which gets more weight, whether the prosecution proved beyond a reasonable doubt the guilt of the petitioner or belief in the testimony, that is, Pena (Denis) as a means to determine guilt of the defendant." Tr. 887.
Citations to "Tr." refer to the transcript of petitioner's trial in New York State Supreme Court.
The court responded to both notes in the following instruction:
You first have to look at all the evidence in the case, all the testimony. You consider all the testimony. And having considered all the testimony, in light of my instructions as to how to weigh it and so forth and so on, you decide, what testimony, what evidence you credit, you believe.
You either believe portions of testimony or all the testimony or you don't. Having decided what testimony, what evidence you believe, you then decide whether, on the basis of the testimony that you accept, that you credit, whether the People have proven the guilt of the defendant beyond a reasonable doubt.
So it's essentially a two stage operation. You first have to decide what testimony you believe. And then you ask yourself whether, based on the testimony that you believe, have the People proven the guilt of the defendant beyond a reasonable doubt. Tr. 890-91.
The court then re-read the credibility charge and reminded the jury to first decide the facts, based on the testimony they credit, then to decide reasonable doubt.
The jury deliberated for the remainder of the day. The following day, the jury sent out another note, requesting a clarification of credibility and reasonable doubt. The jury asked:
If a jury believes a key prosecution witness was in general not a truthful person, and therefore, may have been lying in his testimony, is that alone sufficient to infer reasonable doubt, or must the juror articulate specific reasons why the witness would have chosen to lie before reasonable doubt can be inferred? Tr. 913.
In response, the court reminded the jury that petitioner was presumed innocent and that the presumption remained with him throughout the trial "until the jury has deliberated on the evidence, has resolved the issue, including the issue of credibility as to each other witness and is convinced beyond a reasonable doubt that he is guilty." Tr. 919-20. Next, the court reread its charge on reasonable doubt and credibility, Tr. 921-24, and explained that:
If you decide that a particular prosecution witness is not a truthful person, you don't believe the testimony, you don't believe — you reject it, you decide you are not accepting that as the truth, whatever that witness said, what you then have to do — and you do the same for each witness . . . You decide what is the testimony you do credit. You put aside the testimony you don't credit on one side. You put the testimony you do credit, you do believe on the other side.
Now, once you have done that, you then have to decide . . . have the People proven the defendant guilty beyond a reasonable doubt, based on the evidence that you credit, that you believe.
Now, this is not to suggest that if you find that a particular — as you put it, a key witness has lied, that that lying in and of itself; the lying — suppose you decide they have lied, that that lying does not have some evidentiary — could have, it could have some evidentiary value.
It could be that if you decide that they are lying, that you could possibly connect that up with other evidence that you do credit and accept some contention or argument in connection with that. I'm not suggesting you can't do that.
In other words, I'm not suggesting that you should not — that you cannot make something — if you want to use something, make something of the facts that somebody is lying. It depends on all the other evidence in the case.
But in the end, after deciding issues of credibility, you have to look at all the evidence in the case and decide whether the People have proven the defendant guilty beyond a reasonable doubt, and I have just told you what reasonable doubt is. . . .
If you decided or you decide that you don't believe a particular witness, you are entitled to that belief, whether you can articulate a reason for not believing them or not. Tr. 924-26.
The constitutional precept that a criminal defendant can be convicted only upon proof beyond a reasonable doubt is well established. In Re Winship, 397 U.S. 358, 364 (1970). It is the duty of the trial court, through its instruction, to ensure that there is a "reasonable likelihood" that a juror would understand the principle of reasonable doubt and the burden of proof that results therefrom. Boyde v. California, 494 U.S. 370, 380 (1990). Petitioner claims that he was denied his constitutional right to a free trial because of significant errors in the trial court's supplemental jury instruction. Specifically, petitioner asserts that it was reversible error for the trial judge to instruct the jury that it did not have to believe the prosecution witnesses beyond a reasonable doubt in order to find the petitioner guilty. Petitioner also alleges that the supplemental charge lowered the prosecution's burden of proof.
In reviewing the adequacy of a particular instruction to a jury, the charge must be viewed as a whole. Cupp v. Naughten, 414 U.S. 141, 146-7 (1973); see also Francis v. Franklin, 471 U.S. 307, 316; United States v. Viafara-Rodriguez, 729 F.2d 912, 914 (2d Cir. 1984). In addition, "Burdens of proof never operate on evidence; they operate on the ultimate facts or elements that the evidence is offered to prove;" the burden "applies to the defendant's guilt and to every element necessary to establish guilt." Viafara-Rodriguez, 729 F.2d at 913. The court was required to inform the jury that the prosecution, through its evidence, must prove the defendant guilty beyond a reasonable doubt. Petitioner concedes that the trial court initially issued correct instructions regard reasonable doubt and the element of identification.
In viewing the trial court's charge in its entirety, I find that the trial court instructed the jury as to its need to evaluate all the evidence, including the credibility of witnesses, and to determine upon all the evidence if the prosecution proved the defendant guilty beyond a reasonable doubt. Furthermore, the jury was told that it could believe that reasonable doubt existed without having to articulate any reasons for such doubt. The supplemental jury instruction sufficiently instructed the jury as to the prosecution's burden of proof.
Petitioner also claims that the trial court lowered the People's burden of proof through its supplemental jury charge. Specifically, he alleges that the trial court encouraged the jury to use a "balance test" to evaluate the eyewitness testimony. However, the trial court did not suggest the jury use any form of "balance test" that would lower the People's burden. The trial court, in response to a specific jury note, properly instructed the jury that it should accept only the testimony that it believed, and to determine, based on the believable testimony alone, if the People had proven petitioner's guilt beyond a reasonable doubt.
In addition, petitioner alleges that the trial court implied that there was"other evidence" that the jury could use to establish petitioner's guilt. The instruction did not, in fact, suggest such an implication. The trial court told the jury that if it chose to discredit certain testimony and to find that a witness had lied, yet there might still be evidentiary value in connection with that testimony in conjunction with other evidence in the case. There was no implication that the other evidence available was only on the side of the prosecution; the instruction applied to all the evidence in the record. Since the jury instruction was adequate, I deny this ground of petitioner's claim.
B. Inappropriate Witness Outburst and Allen Charge
The government alleges that petitioner's claims regarding the inappropriate witness outburst and the trial court's Allen charge were procedurally forfeited. The applicable law provides that a federal habeas corpus court cannot consider a claim that has been procedurally forfeited unless there is good cause for the failure to follow the rule of state procedure and actual prejudice resulted therefrom or a miscarriage of justice would result if the court did not address the merits of petitioner's claim. See Wainwright v. Sykes, 433 U.S. 72 (1977); Coleman v. Thompson, 501 U.S. 722 (1991).
After the New York State Supreme Court, Appellate Division, affirmed petitioner's conviction, petitioner sought leave to appeal. However, petitioner's counsel raised only one issue, that of the allegedly erroneous jury instruction, thereby relinquishing any right to appeal the other claims. While I find that the procedural grounds are sufficient for dismissal, I nevertheless review petitioner's other grounds as well, and I deny them as without merit.
1. Inappropriate Witness Outburst
Petitioner claims that an outburst by a witness, Denise Valdez, that petitioner was a drug dealer, rendered his trial so unfair as to deny him due process. Prior to trial, defense counsel moved to preclude all references to petitioner's alleged drug-related activities. While the court reserved judgment on the matter, the prosecution provided assurances that Ms. Valdez had been instructed to refrain from any references to drug related activities between the deceased and the petitioner. Nevertheless, at trial, during Ms. Valdez's testimony, she first implied and then stated that petitioner was involved in drug-related activities, and a "drug dealer." Tr. 268. The trial judge immediately struck the comment, ordered the jury to ignore it, and gave the following curative instruction.
[E]very once in a while, you will hear something that I decide is not competent evidence in the case, and I order that it be stricken from the record and that you not consider it.
Obviously, you have heard it, and it's something — but you are honorbound, you are honor-bound to put out of your mind any testimony that I have ordered stricken and decide this case without reference to that.
And this is particularly important in connection with this last piece of testimony by Ms. Valdez, this outburst.
I am again stressing that you — that I have stricken that from the record and that you are not to in any way let what she said in this last little piece enter into your deliberations in this matter. Tr. 275.
As a general rule, courts "presume that a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it." Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987). In this case, the trial court immediately struck the contentious statements and provided a thorough and specific instruction to disregard those comments. Therefore, Denise Valdez's outburst, which the jury was specifically charged to ignore, does not entitle petitioner to federal habeas corpus relief.
2. Allen Charge
During the second day of jury deliberations, the jury sent out two notes indicating that it was having difficulty arriving at a unanimous verdict. In response to the first note, the court issued an abbreviatedAllen charge, directing the jury to continue deliberating. Tr. 904. After the second note, petitioner moved for a mistrial, which the court denied and suspended jury deliberations for the evening.
Allen v. United States, 164 U.S. 492 (1896).
The following morning, the court delivered an Allen charge, concluding with the following statement:
I'm not suggesting that you surrender your honest convictions as to the weight or effect of the evidence, solely because of the opinion of fellow jurors. But I am asking that you listen to each other's opinions and reconsider your own position, and after doing that, if you are still comfortable with your own position, then by all means, stick to it.
If after you're satisfied that you have given it another serious try, and you believe that — and there is no agreement, and you believe that it is unlikely that you would reach agreement within a reasonable time, send me a note to that effect and I'll deal with it, but I think that it is worth having another crack at it, in accordance with what I told you. Tr. 946.
Petitioner alleges that the trial court erred when it failed to grant a mistrial and forced the jury to continue jury deliberations. Petitioner concedes that, under New York law, there is no stipulated time of jury deliberation required in order for a trial court to grant a mistrial.People v. Rothwax, 63 N.Y.2d 243 (1984). However, he asserts that trial courts have discretion in discharging juries and declaring mistrials where the juries have deliberated for less time than the case at bar.See e.g. Arizona v. Washington, 434 U.S. 497, 503-04; Illinios v. Somerville, 410 U.S. 458, 463.
Nevertheless, a trial court, when faced with a jury that is having trouble arriving at a unanimous verdict, is also given the option to instruct the jury to deliberate further. Lowenfield v. Phelps, 484 U.S. 231, 238 (1988); Allen v. United States, 164 U.S. at 501. In the course of what is referred to as an "Allen Charge," the judge reminds the jurors of their duty to listen to the opinions of their fellow jurors and be willing to re-evaluate their own reasoning, without at any time sacrificing their own conscientious decision-making. Allen v. United States, 164 U.S. at 501-02.
Ultimately, the essential factor is that the defendant receives an "uncoerced verdict" from the jury. Lowenfield v. Phelps, 484 U.S. at 241. In determining whether or not there was coercion, the length of the deliberation is not dispositive. Smalls v. Batista, 191 F.3d 272, 279-80 (2d Cir. 1999). The specific element indicative of coercion is whether the jury was encouraged to "abandon, without any principled reason, doubts that any juror consciously holds as to a defendant's guilt."Smalls v. Batista, 191 F.3d at 279 quoting United States v. Melendez 60 F.3d 41, 51 (2d Cir. 1995). Accordingly, a necessary component of such a charge to a jury requires the trial judge to "admonish the jurors not to surrender their own conscientiously held beliefs." Smalls v. Batista, 191 F.3d at 279.
I hold that the Allen charge was adequate. The trial court merely requested the jurors to resume deliberations and be open to each other's opinions. The trial court explicitly told jurors that it was "not suggesting that [they] surrender [their] honest convictions as to the weight of the evidence, solely because of the opinion of fellow jurors." Tr. 946. And, if at the end of deliberations, a juror still maintained his or her belief, the jurors were assured that they should "by all means stick with it." Tr. 946. Since the Allen charge was not coercive, petitioner is not entitled to relief on this ground.
C. Prosecutorial Misconduct
Petitioner alleges several sources of the prosecutor's misconduct which he believes deprived him of a fair trial and due process of law. He makes certain allegations regarding the prosecutor's conduct before the grand jury. However, these claims are not cognizable since the trial conviction served to cure any purported error. See Lopez v. Riley, 865 F.2d 30 (2d Cir. 1989). Petitioner claims also that the prosecution allowed a prosecution witness to perjure herself, failed to disclose exculpatory material, intimidated defense witnesses, and engaged in ex parte communications with the trial court.
In evaluating a claim of prosecutorial misconduct in a petition for habeas corpus relief; the appropriate standard of review is whether the prosecution engaged in "egregious misconduct . . . amounting to a denial of constitutional due process rights." Blissett v. Lefevre, 924 F.2d 434, 440 (2d Cir. 1991). Prosecutorial misconduct denies a defendant due process when that misconduct results in the denial of a defendant's right to a fair trial. Id.
Under 28 U.S.C. § 2254(d)(2), a state prisoner's application for a writ of habeas corpus may not be granted unless the state court adjudication resulted in a decision that was based on an unreasonable assessment of the facts. Furthermore, in making the assessment as to whether the conduct of the prosecution denied petitioner a fair trial, the state's factual determinations are presumed correct and it is petitioner's burden to rebut that presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
1. Allowing a Witness to Perjure Herself
Petitioner alleges that the prosecutor allowed the witness, Denise Valdez, to perjure herself. Petitioner correctly asserts that a prosecutor has an affirmative duty to correct false testimony of a witness. See Giglio v. United States, 405 U.S. 150 (1972). However, petitioner has failed to provide any evidence that Denise Valdez, in fact, committed perjury.
Petitioner claims that Denise Valdez perjured herself at trial when she stated that she observed Arturo Soriano hit the victim, Humberto Valdez, in the back causing him to fall to the ground after which, petitioner shot Humberto Valdez in the head. Petitioner asserts that since Soriano had claimed that he was not present during the shooting and was never accused of any wrongdoing, that must mean that Denise Valdez was lying. But, as the Supreme Court held, inconsistent accounts by different witnesses does not necessarily constitute perjury. Petitioner has failed to provide any further evidence that would lead me to question Justice Atlas's conclusion. Thus, I reject petitioner's claim.
2. Failure to Disclose Brady Material
Petitioner claims that the prosecution violated the requirements ofBrady in failing to provide the defense with potentially exculpatory evidence, such as investigation reports, that he maintains were in the possession of the prosecution at the time of trial. See Brady v. Maryland, 373 U.S. 83 (1963).
Under Brady, "suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to guilt or to punishment." Id. at 87; see United States v. Zackson, 6 F.3d 911, 917 (2d Cir. 1993). Evidence is deemed "material" only if "there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different." Kyles v. Whitley, 514 U.S. 419, 433-34 (1995). Nevertheless, even if evidence is material and exculpatory, it "is not `suppressed"' by the prosecution within the meaning of Brady "if the defendant either knew, or should have known, of the essential facts permitting him to take advantage of any exculpatory evidence." Zackson, 6 F.3d at 918 (quoting United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982)).
Petitioner claims that his counsel was not provided with certain documents. However, it is these same documents that petitioner claims his counsel failed to use as a basis for his ineffective assistance of counsel claim. Resp. Ex. K. Thus, the state produced such documents, it was petitioner's counsel's decision not to use them. Since there is no proof that documents were actually withheld, the claim is without merit.
3. Intimidation of Defense Witnesses
Petitioner claims that the prosecution allowed Detective Morales to intimidate alibi witnesses to prevent them from testifying. In certain cases, "intimidation or threats that dissuade a potential witness from testifying may infringe a defendant's due process rights . . ." United States v. Delia, 944 F.2d 1010, 1018 (2d Cir. 1991). However, before the petitioner is entitled to habeas corpus relief; he must prove that the prosecutor's conduct did, in fact, interfere with the witnesses' free and unhampered choice to testify. United States v. Pinto, 850 F.2d 927 (2d Cir. 1988). Petitioner has failed to provide any evidence to the effect that the defense witnesses did not testify because of the conduct of the prosecution. In fact, in his habeas corpus petition, petitioner claims that his counsel's failure to call these witnesses is indicative of ineffective representation. Since it was counsel's choice not to call these witnesses and there is no evidence to indicate that there was intimidation or threats that dissuaded any of the defense witnesses from testifying, I deny the petition for habeas corpus relief on this ground.
4. Ex parte communications between the Prosecution and the Trial Court
During sentencing, the trial court made the following statement:
[T]his act was from the beginning in the discussions we had all the time, regarded by all of us, I don't mean to include you [Mr. Jaffe, defense counsel], but regarded by Mr. Hurley and myself, if true, if proven, as a simply hideous execution of a defenseless person. S. 5.
Citations to "S." refer to the sentencing in petitioner's trial in New York State Supreme Court.
Citations to "S." refer to the sentencing in petitioner's trial in New York State Supreme Court.
Petitioner asserts that this statement is indicative of the fact that the prosecution and the trial court colluded to ensure his conviction, in violation of the federal constitution. See Marshall v. Jerrico, 446 U.S. 238, 242 (1980). Petitioner also points to the following statement made by the judge after the jury sent out its second note indicating its difficulty arriving at a verdict:
I think you're right [Mr. Jaffe, defense counsel]. And I think Mr. Hurley is right in one respect. And that is that this is an important case for this community, and that retrying it is not going to be an easy business for the People.
And even if there is only a slender chance of unanimity tomorrow morning, the inconvenience that is suffered by the jurors having to stay one more night in a hotel, is a small price to pay, even though, I am not trivializing it, but if there is a possibility of a verdict tomorrow, I think we have done the right thing. Tr. 938.
Petitioner believes that the only way the court would have come to the conclusion as to the importance of the case to the community and the difficulty the prosecution would have in retrying the case, would have been through ex parte communications with the prosecution.
However, petitioner offers no evidence to support his speculation. And his speculation is without merit, for the trial judge did not need a counsel to tell him that the case was important, to both parties and to the public in general. Petitioner is entitled to habeas corpus relief only if he was prejudiced by such an ex parte contact. McKenzie v. McCormick, 27 F.3d 1415, 1419 (7th Cir.); Bell v. Coughlin, 778 F. Supp. 164, 170 (S.D.N.Y. 1991), aff'd 17 F.3d 390 (2nd Cir. 1993). Petitioner has not shown any prejudice.
D. Ineffective Assistance of Counsel
The Sixth Amendment to the United States Constitution states, in pertinent part, that "[i]n all criminal prosecutions, the accused shall enjoy . . . the Assistance of Counsel for his defense." U.S. Const. amend. VI. It is well established that the Sixth Amendment right to counsel is an essential component of the fundamental right to fair trial. Powell v. Alabama 287 U.S. 45; Gideon v. Wainwright, 372 U.S. 335 (1963). Furthermore, "the right to counsel is the right to the effective assistance of counsel." McMann v. Richardson 397 U.S. 759, 771 n. 14 (1970).
Petitioner argues that he was deprived of his right to a fair trial as a result of several alleged errors on the part of his attorney. Petitioner complains that counsel failed to call three alibi witnesses to testify, did not use a number of documents as evidence at trial, and did not pursue a line of investigation that he claims would have led to the impeachment of a key prosecution witness, Denise Valdez.
The established standard of review when considering claims of ineffective assistance of counsel is a two-pronged test. Strickland v. Washington, 466 U.S. 668, reh'g denied, 467 U.S. 1267 (1984). Petitioner must show (1) that counsel's performance was deficient; that counsel made "errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment" and (2) that counsel's deficient performance prejudiced the defendant to the extent that "but for counsel's unprofessional errors, the result of the proceeding would have been different. Id. at 687 694.
Ineffective assistance of counsel is established by demonstrating that "counsel's performance fell below an objective standard of reasonableness as measured by prevailing professional norms and considering all of the surrounding circumstances." Id. at 687-88. Furthermore, a defendant who challenges a conviction because of ineffective assistance of counsel must overcome the strong presumption that counsel's conduct falls within a "wide range of reasonable professional assistance." Id. at 689; United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990). Acts or omissions that might be considered sound trial strategy do not constitute ineffective assistance. Mason v. Scully 16 F.3d 38 (2d Cir. 1994).
I find that counsel presented a thorough defense that was within the range of "reasonable professional assistance." I agree with Justice Atlas that defense counsel mounted a vigorous defense in this case. It was a tactical decision within counsel's discretion not to call Delia Ospina, Gloria Bonilla, and Luis Fernando Ospina as defense witnesses. See Trapnel v. United States, 725 F.2d 149, 155 (2d Cir. 1983). Petitioner contends that these witnesses could have provided him with an unbiased alibi defense. However, the People assert that petitioner had an extremely close relationship with the witnesses such that he had even lived with them and that these witnesses provided conflicting statements. Given the differing interpretations of the credibility and usefulness of these witnesses, counsel's decision was entirely tactical and ultimately reasonable.
Petitioner also contends that counsel failed to use numerous documents that were supposedly crucial to his defense. Counsel has discretion to sort through the material available to him and to select what he deems to be useful and effective. I agree with Justice Atlas that counsel conducted a thorough cross-examination of Pena and Valdez, using the evidence to attack their credibility by exposing their criminal histories, inconsistent statements, biases and motives to fabricate. The effect of his cross-examination is reflected in the notes from the jury to the court during their deliberations, showing that the jury questioned the veracity of Pena and Valdez's testimony. Accordingly, I find that counsel's tactical decisions regarding which documents to use were reasonable.
Lastly, petitioner alleges that counsel failed to conduct a sufficient investigation: specifically, that counsel did not investigate the phone call that Denise Valdez testified she made the night of the murder. The Sixth Amendment imposes a duty on counsel to investigate, since reasonably effective assistance is based on making an informed decision based on an investigation of the options. Strickland, 466 U.S. at 680. However, counsel does not have to investigate every possible lead. The adversary system requires deference to counsel's strategic choices if they are based on professional judgement. Id.
In the case at bar, counsel was able to present sufficient doubt about the veracity of Valdez's testimony by using other evidence, e.g. her lack of knowledge of her boyfriend's last name. Accordingly, it was reasonable for counsel to have forgone a line of investigation that would have served a duplicative role at trial. As a whole, counsel's cross-examination of the prosecution's witnesses was sufficient. Indeed, the jury sent a note to the judge showing that it questioned the veracity of Valdez and Pena's testimony. Thus, I find that the argument of inadequate investigation lacks merit. See United States v. Schmidt, 105 F.3d 82, 90 (2d. Cir.), cert. denied, 118 S.Ct. 130 (1997). Since, Petitioner cannot demonstrate either deficient performance or prejudice, he is not entitled to relief on this final ground asserted in his petition.
III. Conclusion
For the reasons stated above, the Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 is denied in its entirety. Because Petitioner has failed to make a substantial showing of the denial of a constitutional right, see 28 U.S.C. § 2252(c)(2), Petitioner is not entitled to a certificate of appealability There are no issues worthy of appellate review, and no certificate of appealability will be issued.
The Clerk of the Court is directed to mark this matter as closed.
SO ORDERED.