Opinion
00-CV-5672 (JG)
October 20, 2003
EMANUEL M. SMITH, SR., Fallsburg, New York, for Petitioner
RICHARD A. BROWN, District Attorney, Noreen Healey, Assistant District Attorney, Kew Gardens, New York, for Respondent
MEMORANDUM AND ORDER
Emanuel Smith petitions for a writ of habeas corpus, challenging his convictions in state court arising out of the robbery of a livery cab driver. On October 17, 2003, I held oral argument in which Smith participated by telephone conference. After due consideration of the papers and the arguments made at the hearing, the petition is denied for the reasons set forth below.
BACKGROUND
On the evening of July 29, 1995, Anis Hassan was driving his livery cab in the Astoria section of Queens, New York, While stopped at a red light, petitioner Emanuel Smith, codefendant Clyde Hagen and a third man jumped into the cab. Hagen held a knife to Hassan's neck, and Smith took a "benzy box" radio from the dashboard, Hassan jumped out of the car and ran. Smith and his cohorts fled in the opposite direction.A short time later, Hassan saw Smith and Hagen walking on the street a few blocks away, Hassan called the police, Within a few minutes, the police arrived and ordered Smith and Hagen to stop. Hagen complied, but Smith fled. The police chased him for several blocks. During the chase. Smith jumped forty feet from elevated subway tracks. When the police subsequently found him hiding behind some garbage cans, Smith tried to hit the officers. It took three police officers to subdue him.
Smith was charged with robbery in the first degree, robbery in the second degree, criminal possession of stolen property in the fifth degree, and two counts of resisting arrest.
Smith moved pro se to suppress his identification on the ground that it was the fruit of an illegal arrest. Specifically, Smith claimed that the police lacked probable cause to arrest him. On October 29, 1997, the state court conducted a Wade/Dunaway hearing on the motion. After the hearing, the court determined that the police had probable cause to arrest Smith, and denied the motion to suppress. Smith also moved to dismiss the indictment based on an alleged violation of his speedy trial rights under Section 30.30 of the New York Criminal Procedure Law ("CPL") In a written decision dated February 18, 1998, the Supreme Court, Queens County denied the motion.
Smith proceeded to trial before a jury, which convicted him of all charges. He was sentenced as a second violent felony offender to concurrent indeterminate prison terms of from ten to twenty years on the first-degree robbery count, from seven and one-half to fifteen years on the second-degree robbery count, and one year on the stolen property and resisting arrest counts.
Smith appealed the judgment of conviction to the Appellate Division, Second Department. Appellate counsel filed a brief that raised the following claims; (1) the prosecutor committed misconduct in his cross-examination of Smith and summation; (2) the jury verdict was based on insufficient evidence and/or was against the weight of the evidence; and (3) that a police officer's testimony improperly bolstered the identification testimony of the victim, In addition. Brown filed a pro se supplemental brief raising the following claims: (4) that he was denied his right to a speedy trial pursuant to Section 30.30 of the CPL; (5) that the police did not have probable cause to arrest him; (6) that he was denied the effective assistance of counsel; and, (7) that he was deprived of his right to testify in the grand jury pursuant to Section 190.50(5) of the CPL.
Following the People's response to petitioner's pro se supplemental brief, petitioner made a motion to the Appellate Division, Second Department, seeking permission to file a pro se supplemental reply brief. On December 2, 1999, the court denied the request. Petitioner then made an application to the New York Court of Appeals seeking leave, pursuant to Section 460.20 of the CPL, to appeal the Appellate Division's denial of his motion. On January 11, 2000, an Associate Judge of the Court of Appeals denied the application on the ground that the Appellate Division's Order was not appealable under Section 450.90(1) of the CPL, People v. Wade, 94 N.Y.2d 886 (Ciparick, J.) (2000).
On January 10, 2000, the Appellate Division, Second Department, affirmed the judgment of conviction. People v. Wade, 701 N.Y.S.2d 631 (N.Y.App.Div. 2000), The court held that Smith had waived his right to testify before the grand jury when he failed to move to dismiss the indictment within five days after his arraignment. In addition, the court held that the People had presented legally sufficient evidence at trial to establish Smith's guilt beyond a reasonable doubt, and that the guilty verdict was not against the weight of the evidence. The court determined that petitioner's remaining contentions were without merit. Id.
In a letter dated February 7, 2000, appellate counsel sought leave to appeal to the New York State Court of Appeals, In his application, counsel listed the same claims that had been raised in the Appellate Division brief and in Smith's pro se supplemental brief.
On June 16, 2000, the application was denied. People v. Wade, 735 N.E.2d 42 (5 (N.Y. 2000).
In his petition for a writ of habeas corpus, Smith alleges the following seven grounds:
(a) that he was denied the right to a speedy trial pursuant to Section 30.30 of the CPL;
(b) that the police did not have probable cause to arrest him;
(c) that the prosecutor committed misconduct in cross-examination and summation, by vouching for the credibility of state witnesses and using inflammatory remarks;
(d) that a police officer's testimony improperly bolstered the identification testimony of the victim;
(e) that the jury verdict was based on insufficient evidence and/or was against the weight of the evidence;
(f) that he was denied his right to testify before the grand jury in violation of Section 190, 15 of the CPL; and.
(g) that he received ineffective assistance of counsel.
DISCUSSION
A. The Standard of ReviewThe Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") has narrowed the scope of federal habeas review of state convictions where the state court has adjudicated a petitioner's federal claim on the merits. See 28 U.S.C § 2254(d). Under the AEDPA standard, which applies to habeas petitions filed after AEDPA's enactment in 1996, the reviewing court may grant habeas relief only if the state court's decision "was contrary to, or involved an unreasonable application off clearly established Federal law, as determined by the Supreme Court of the United Slates," 28 U.S.C. § 2254(d)(1). The Supreme Court has interpreted the phrase "clearly established Federal law" to mean "the holdings, as opposed to the dicta, of [the Supreme Court's] decisions as of the time of the relevant state-court decision,"Williams v. Taylor, 529 U.S. 362, 412 (2000); see also Gilchrist v. O'Keefe, 260 F.3d 87, 93 (2d Cir. 2001).
A decision is "contrary to" clearly established federal law, as determined by the Supreme Court, if "the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the Supreme Court] has on a set of materially indistinguishable facts."Williams, 529 U.S. at 413, A decision is an "unreasonable application" of clearly established Supreme Court law if a state court "identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case" Id. Under the latter standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Gilchrist, 260 F.3d at 93 (citing Williams, 529 U.S. at 411), InterpretingWilliams, the Second Circuit has added that although "[s]ome increment of incorrectness beyond error is required . . . the increment need not be great; otherwise, habeas relief would be limited to state court decisions so far off the mark as to suggest judicial incompetence." Id.(citing Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000)).
This standard of review applies whenever the state court has adjudicated the federal claim on the merits, regardless of whether it has alluded to federal law in its decision. As the Second Circuit stated inSellan v. Kuhlman:
[f]or the purposes of AEDPA deference, a state court "adjudicate[s]" a state prisoner's federal claim on the merits when it (1) disposes of the claim "on the merits," and (2) reduces its disposition to judgment. When a state court does so, a federal habeas court must defer in the manner prescribed by 28 U.S.C. § 2254(d)(1) to the state court's decision on the federal claim — even if the state court does not explicitly refer to either the federal claim or to relevant federal case law.Sellan v. Kuhlman, 261 F.3d 303, 312 (2d Cir. 2001).
In addition, a state court's determination of a factual issue is presumed to be correct, and is unreasonable only where the petitioner meets the burden of "rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(e)(1).
B. Smith's Claims
1. The Speedy Trial Claim
Smith asserts in his petition that the People "failed to meet N.Y.S. law standards of speedy trial," (Pet. at 5.) Pursuant to Section 30.30 of the CPL, the People are required to be ready for trial within six months of commencement of the action.See N.Y. Grim. Proc. Law § 30.30. However, respondent correctly contends that a claimed violation of Section 30.30 is not cognizable on habeas review, as such relief can be granted only upon a showing that the state court judgment is based on a violation of federal law. See 28 U.S.C. § 2254(a).
It is true that the Sixth Amendment guarantees an accused the right to a speedy trial, see U.S. Const. amend. VI, and that Smith's petition cites the Sixth Amendment as well as New York law. (Pet. at 5.) Respondent persuasively contends that Smith has failed to exhaust this purported federal speedy trial claim in state court, but I need not resolve the issue on that ground because the claim is so conspicuously lacking in merit. See 28 U.S.C. § 2254(b)(2) (petition may be denied on the merits notwithstanding a failure to exhaust).
"The determination of whether pre-trial delay violates the Sixth Amendment is governed by Barker v. Wingo, 407 U.S. 514, 530 (1972)." Davis v. Kelly, 316 F.3d 125, 127 (2d Cir. 2003).Barker identified four factors "courts should assess in determining whether a particular defendant has been deprived of his right. . . . Length of delay, the reason for the delay, the defendant's assertion of his right, and prejudice to the defendant."Barker, 407 U.S. at 530. None of the four factors is either necessary to or sufficient for a finding of a deprivation of the right of speedy trial; rather, they must be considered together with such other circumstances as may be relevant as part of "a difficult and sensitive balancing process." Davis, 316 F.3d at 127. Here, Smith alleges that the People are responsible for a 306-day delay (excluding periods properly excluded under New York law) in bringing him to trial. (Pet. Ex. A at 10.) A delay of less than one year in bringing a defendant to trial does not normally implicate a defendant's constitutional speedy trial right, at least where, as here, there is no claim of prejudice to Smith, see Mackenzie v. Portuondo, 208 F. Supp.2d 302, 315 (E.D.N.Y. 2002) (prejudice "frequently weighs heaviest in considering a speedy trial challenge") (citation omitted), and the pre-trial phase of the case was complicated by multiple proceedings related to his competency, see United States v. Dale, 426 F. Supp. 675, 677-78 (S.D.N.Y. 1976) ("delays caused by a defendant's mental inability to stand trial or delays necessitated by a psychiatric examination required to determine a defendant's competency to stand trial are not to be considered in deciding whether a defendant's right to speedy trial has been abused,") (citations omitted).
Other courts have held that longer periods of time than the 306 days cited by Smith did not violate defendants' speedy trial rights.See Flowers v. Warden, 853 F.2d 131, 133 (2d Cir. 1988) (17 months); United States v. McGrath, 622 F.2d 36, 41 (2d Cir. 1980) (2 years); Barker, 407 U.S. at 533-34 (over 5 years);Warwick v. Kuhlmann, No. 98 Civ. 6393, 2003 WL 22047883, at *3 (S.D.N.Y. Aug. 29, 2003) (27 months); Davis v. McLaughlin, 122 F. Supp.2d 437, 443 (S.D.N.Y. 2000) (just over 1 year).
Smith was originally found to be not competent to proceed to trial, and he was admitted to the Mid-Hudson Psychiatric Center on January 10, 1996, Though he was found fit to proceed in April 1996, numerous additional adjournments occurred because additional psychiatric examinations were ordered pursuant to CPL § 730. In addition, the case was apparently adjourned due to the substitution of counsel for Smith. The foregoing facts are set forth in Smith's Affidavit and Memoranda of Law In Reply to Respondent['s Opposition to the Petition] For a Writ of Habeas Corpus, dated August 12, 2001, at 4-7.
2. The Fourth Amendment Claim
Smith claims that identification testimony should have been suppressed at his trial because it was the fruit of an illegal arrest, that is, a warrantless arrest conducted in the absence of probable cause.
Fourth Amendment claims generally cannot be raised on habeas review.Thomas v. Andrews, 2002 WL 31409925, at *4 (E.D.N.Y, Sept. 20, 2002), Federal habeas review of such claims is governed by the Supreme Court's decision in Stone v. Powell, 428 U.S. 465 (1976). As the Court held: "[W]here the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, the Constitution does not require that a state prisoner be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial," Stone, 428 U.S. at 482. The Second Circuit has held that Fourth Amendment claims in habeas petitions are reviewable only "(a) if the state has provided no corrective procedures at all to redress the alleged [F]ourth [A]mendment violations; or (b) if the state has provided a corrective mechanism, but the defendant was precluded from using that mechanism because of an unconscionable breakdown in the underlying process." Capellan v. Riley, 975 F.2d 67, 70 (2d Cir. 1992) (citation omitted).
Here, Smith availed himself of New York's corrective procedures, both in the trial court, where he moved to suppress, and (via his supplemental brief on appeal) the Appellate Division, There was no breakdown in that process, which afforded Smith a full and fair opportunity to litigate his claim of an illegal arrest. Accordingly, Smith's Fourth Amendment claim is rejected.
3. The Prosecutorial Misconduct Claim
Smith claims that his due process right to a fair trial was violated by the prosecutor's cross-examination of him as well as by the prosecutor's summation. Although the Assistant District Attorney certainly did not distinguish himself at Smith's trial, habeas relief is not warranted on this ground.
Habeas relief based on a claim of prosecutorial misconduct is unavailable unless the misconduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974), A petitioner "must demonstrate that he suffered actual prejudice because the prosecutor's comments during summation had a substantial and injurious effect or influence in determining the jury's verdict," Bentley v. Scully, 41 F.3d 818, 824 (2d Cir. 1994), cert. denied, 516 U.S. 1152 (19%), Similarly, a "prosecutor's unprofessional cross-examination . . . cannot give rise to a constitutional claim unless the prosecutor's acts constitute `egregious misconduct.'"Miranda v. Bennett, 322 F.3d 171, 180 (2d Cir. 2003) (quotingDonnelly, 416 U.S. at 647-43), In making this determination, the habeas court should consider the severity of the prosecutor's conduct; the measures, if any, that the trial court took to remedy any prejudice; and the certainty of conviction absent the prosecutor's remarks. See Bentley, 41 F.3d at 824.
Smith rightfully contends that the prosecutor behaved badly during the cross-examination of Smith. In certain instances, the prosecutor showed unprofessionalism and immaturity. In others, the prosecutor improperly sought to have Smith comment on the credibility of other witnesses a practice of which a dim view has been taken by the Second Circuit. See United States v. Richter, 826 F.2d 206, 208 (2d Cir. 1987), The prosecutor also improperly argued with Smith; when Smith answered the question "Why didn't you stop?" by saying "I was scared," the prosecutor responded "No, You were guilty," (Trial Tr. at 585.)
See Trial Tr. at 575 (after Smith denied using two specified aliases, the prosecutor asked: "I suppose I'm pulling these names out of a hat, too?"); id. at 579 ("Q; That's your testimony and you are sticking with it; is that your testimony?"); id at 580 ("Q: Did a flying saucer drop you from the ski (sic)?")
See Trial Tr. at 578 ("Q: So Is it your testimony that every single person who has described what you were wearing on July 29, 1995, is inaccurate?")
When Smith correctly responded by saying "You can't say that, sir," the prosecutor retorted; "I just did," (Trial Tr. at 585.) Inexplicably, the trial court overruled the objection to this inappropriate comment. (See id. at 585-86.)
The challenged portions of the summation are less objectionable, The prosecutor's contention that the jury could conclude that Hassan was telling the truth (Trial Tr, at 645-46), and that if Smith were not the perpetrator he was "the unluckiest guy in the world" (id. at 647), constituted permissible argument. Similarly, that he called Smith a liar in summation does not amount to misconduct warranting habeas relief Criminal trials often involve irreconcilable testimony, and an argument that a defendant — or any other witness, for that matter — lied under oath is not something courts should be squeamish about.See Jones v. Keane, 250 F. Supp.2d 217, 236-37 (W.D.N.Y. 2002).
I have examined the challenged aspects of Smith's cross-examination carefully, and conclude that they did not, either independently or in the aggregate, deprive him of a fair trial. For example, the prosecutor withdrew the "flying saucer" question before it was answered, (Trial Tr. at 580), Other objectionable comments, such as the "No, you were guilty," merely apprised the jury at the incorrect time of the prosecutor's argument that was legitimately advanced during summation. Furthermore, the record reflects that the state court issued curative instructions to the jury, which I believe would have dissipated any undue prejudice. Thus, the state court's rejection of Smith's claim that prosecutorial misconduct deprived him of a fair trial cannot be characterized as an unreasonable application of federal law.
For example, prior to summations the court instructed:
I want to remind you of two things when you listen to the lawyers. The first thing is that the lawyers are not witnesses, They are advocates. They are promoting their point of view. So when they speak to you they are giving you their opinion. You are free to accept, to take, their opinion or you can reject their opinion when you find that their opinion is contrary to your own.
(Trial Tr. at 613.)
Prior to deliberations, the court further instructed:
If at any time you have felt that the lawyers . . . have said something that is different from your recollection of the testimony, it's your recollection that controls . . . not what I say on the facts or what the lawyers say. Evidence consists of the testimony of the witnesses. . . . Questions by themselves are not evidence.
(Id. 681-82.)
4. The Challenged Hearsay
Smith asserts that his Sixth Amendment rights were violated when the trial court permitted a police officer to testify that, as a result of a conversation with Hassan, he arrested Smith. The claim has no merit.
First, as presented to the state court, Smith's claim relied solely on New York law establishing a prohibition on the "bolstering" of witnesses. (See Def. App. Div. Br. at 27.) That claim simply is not a cognizable basis for federal habeas relief Estelle v. McGuire, 502 U.S. 62, 67-68 (1991) (federal habeas corpus relief does not lie for mere errors of state law).
Moreover, the challenged testimony was plainly harmless even if it was erroneously admitted. This is not a case like Ryan v. Miller, 303 F.3d 231, 249-50 (2d Cir. 2002), in which the challenged hearsay statement constituted, in effect, a crucial, uncross-examined accusation that the defendant committed the crime. To the contrary, in this case there already was evidence that Hassan had identified Smith as the person who stole his radio. Shortly after the robbery occurred, Hassan identified Smith to Police Officer Colette as one of the men who robbed him, (Trial Tr. at 545), Because Hassan testified at trial and was subject to cross-examination, his identification of Smith to the police does not raise a federal issue.See Fed.R.Evid. 801(d)(1)(c).
There was nothing improper in imparting to the jury that the reason Smith was arrested was because the officer had received information from the victim. The People were not required to force the jury to speculate how it came to pass that the officer apprehended Smith. Cf. United States v. Hoffer, 869 F.2d 123, 126 (2d Cir. 1989) (officer was properly permitted to testify that he was responding to a call of "an officer needing assistance" for non-hearsay purpose of explaining "how the police came to arrive at the scene"). Particularly in this case, where there is no indication that the challenged out-of-court statement constituted the People's evidence that Smith was the perpetrator, the rejection of Smith's hearsay claim does not warrant federal habeas relief.
5. The Sufficiency of the Evidence
Smith asserts that there was insufficient evidence to support his convictions. A petitioner "challenging the sufficiency of the evidence bears a very heavy burden." Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997) (internal quotation marks omitted), A state criminal conviction will be upheld if, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319 (1979), In making this assessment, a court may neither "`disturb the jury's findings with respect to witnesses' credibility" United States v. Roman, 870 F.2d 65, 71 (3d Cir. 1989) (citing United States v. Stratton, 779 F.2d 820, 828 (2d Cir. 1985)), nor "make credibility judgments about the testimony presented at petitioner's trial or . . . weigh conflicting testimony" Fagon v. Bara, 717 F. Supp. 976, 979 (E.D.N.Y, 1989) (citing United States v. Zabare, 871 F.2d 282, 286 (2d Cir. 1989)), Thus, under this "rigorous standard," a "federal habeas court faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Wheel v. Robinson, 34 F.3d 60, 66 (3d Cir. 1994) (quoting Jackson, 443 U.S. at 326).
Smith's argument is frivolous. Immediately after the robbery, he fled the scene and led the police on a chase before resisting arrest. The victim promptly identified him as one of the robbers, and testified that his co-defendant, Hagen, put a knife to his neck, Those facts alone amply supported the jury's verdicts.
6. The Right to Testify Before the Grand Jury
Smith asserts that he was denied his right under Section 190, 50 of the CPL to testify before the grand jury. This claim fails for two reasons. First, it was rejected by the state court on procedural grounds, i.e., Smith failed to vindicate his right under state law by moving to dismiss the indictment. See Harris v. Reed, 489 U.S. 255, 261-62 (1989), There being no cause shown for the default and no prejudice flowing therefrom, and because no miscarriage of justice will result if the claim is not entertained, the claim must be rejected on procedural grounds. See Harris, 489 U.S. at 262.
Second, a defendant has no clearly established federal constitutional right to testify before the grand jury that indicted him. See Mirrer v. Smyley, 703 F. Supp. 10, 11-12 (S.D.N.Y. 1989) ("[T]here is no federal constitutional right to a grand jury in a state criminal proceeding. The right to a grand jury is a matter of New York State law and as such is not reviewable on a petition for habeas corpus."), aff'd, 876 F.2d 890 (2d Cir. 1989). Accordingly, even if it had been preserved and exhausted, Smith's claim would have no merit.
7. Ineffective Assistance of Counsel
Smith asserts that he was deprived of his Sixth Amendment right to effective assistance of counsel in the trial court. As part of this claim, which was raised in Smith's pro se supplemental brief to the Appellate Division, Smith contended, inter alia, that his attorney (1) failed to preserve his right under Section 180.10 of the CPL to a preliminary hearing; (2) failed to preserve his right to appear before the grand jury; (3) failed to prevent what Smith asserts was an excessive number of psychiatric examinations; (4) failed to follow-up on discovery demands; (5) never informed Smith of developments in the case; (6) failed to research the law; (7) failed to investigate leads or interview complaining witness; (8) failed to object to or request various jury charges; (9) failed to consult with Smith during argument; and (10) failed to seek a competency hearing while the trial was under way.
The Supreme Court has established the following standard for ineffective assistance claims:
First, the defendant must show that counsel's performance was deficient. This requires that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment, Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process that renders the result unreliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). Thus, to make out this type of claim, the petitioner must demonstrate both (1) that his attorney's performance fell below an "objective standard of reasonableness," Strickland, 466 U.S. at 688, and (2) that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different,"id., at 694, In assessing the reasonableness of counsel's performance, "[j]udicial scrutiny of counsel's performance must be highly deferential," and the court "must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance; that is, the defendant must overcome the presumption that, under the circumstance, the challenged action `might be considered sound trial strategy.'" Id. at 689 (citation omitted); see also Jackson v. Leonardo, 162 F.3d 81, 85 (2d Cir. 1998), To establish the requisite effect of counsel's performance on the outcome of the proceeding, it is not sufficient if the petitioner shows merely that counsel's errors had "some conceivable effect" on the outcome.Strickland, 466 U.S. at 693. Rather, there must be "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. This determination, unlike the determination whether counsel's performance fell below an objective standard of reasonableness, may be made with the benefit of hindsight,See Lockhart v. Fretwell, 506 U.S. 364, 372 (1993).
Smith's blunderbuss allegations of ineffectiveness are notably deficient in case-specific details. There is no explanation, for example, of which discovery demands were not followed up, or how the alleged failure to apprise Smith of developments in the case prejudiced Smith. Moreover, some of the challenged conduct of counsel (e.g. waiving a preliminary hearing, rather than insisting on one at which Smith would testify; and choosing not to put his client in the grand jury) appear plainly to have been strategic decisions (and good ones, at that) that are not susceptible to hindsight-aided review in a habeas petition. In short, the state court's rejection of Smith's claim on the merits cannot reasonably be characterized as an unreasonable application of the Strickland standard.
CONCLUSION
For the foregoing reasons, the petition is denied, Because Smith has failed to make a substantial showing of a denial of a constitutional right, no certificate of appealability shall issue.