Opinion
99 Civ. 9754 (JSM)
December 19, 2001
MEMORANDUM OPINION AND ORDER
Richard Shaw who was convicted after a jury trial in the New York State Supreme Court, Bronx County of Robbery in the First Degree and Criminal Possession of a Weapon in the Second Degree brought this action pursuant to 28 U.S.C. § 2254 seeking to vacate his indeterminate sentence of twenty-five years to life. The matter was referred to Magistrate Judge Ellis who has filed a thorough Report and Recommendation which not only details the procedural defaults which bar consideration of certain of petitioners claims but also considers those claims on the merits and concludes that they do not justify federal habeas corpus relief. Petitioner has filed objections to the Report and Recommendation.
Little need be added to Judge Ellis' excellent opinion. However, given the length of petitioner's sentence and the fact that the People's case rested primarily on the eyewitness identification of a witness who picked him out of a lineup but could not identify him at trial, some note should be made of petitioner's claim that his counsel was ineffective because he did not call available alibi witnesses.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 604, 104 S.Ct. at 2068.
This is not a case in which defense counsel ignored his client's assertion that there were alibi witnesses who could establish his innocence. Petitioner admits that his attorney or his investigator interviewed each of the potential witnesses and that the attorney subpoenaed one of then from Ohio. Given the fact that counsel made a proper investigation of the alibi defense, it is evident that counsel made a tactical decision not to call these witnesses but rather to concentrate on the weaknesses in the prosecution's case. This tactical decision was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689, 104 S.Ct. at 2055.
As the Appellate Division observed in rejection petitioner's ineffective assistance of counsel claim:
Counsel's decision not to call alibi witnesses who would have placed defendant in close proximity to the robbery around the time that it occurred appears to have been a well-advised trial strategy. "Since defendant failed to raise any factual issue as to whether **753 counsel's decision not to pursue the alibi defense was not the result of a reasoned, professional judgment or that such tactic had a reasonable likelihood of success, the motion court properly summarily rejected defendant's claim that he was deprived of effective assistance of counsel." (People v. Newton, 192 A.D.2d 447, 597 N.Y.S.2d 13, lv. denied 69 N.Y.2d 1007, 517 N.Y.S.2d 1041, 511 N.E.2d 100; see, People v. Benjamin, 151 A.D.2d 685, 543 N.Y.S.2d 945)People v. Shaw, 232 A.D.2d 174, 175, 647 N.Y.S.2d 751, 752-53 (1st Dept. 1996).
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
In view of the foregoing, petitioner's application for bail is denied as moot.