Appeal from order of the United States District Court for the Southern District of New York, Dudley B. Bonsal, J., denying after a hearing petition for writ of habeas corpus. Affirmed.
Waterman and Feinberg, Circuit Judges, and Gurfein, District Judge.*fn*
In April 1969, after a jury trial, James A. Walker was convicted in Supreme Court, Bronx County, New York of rape and sexual abuse in the first degree, incest, assault in the third degree and two counts of endangering the welfare of a child. The charges arose from appellant's alleged molestation of his 12 year old daughter Diane. Sentenced to concurrent terms of up to 25 years in prison, Walker appealed without success*fn1 and thereafter sought collateral review, which the Bronx Supreme Court refused without a hearing.*fn2 Having exhausted his state remedies, appellant petitioned the United States District Court for the Southern District of New York for a writ of habeas corpus. He now appeals from the order of Judge Dudley B. Bonsal denying the application after a hearing. We find no constitutional error, and therefore affirm the decision of the court below.
Appellant first contends that the incompetence of appointed counsel deprived him of his sixth and fourteenth amendment rights to adequate representation. Initially, Walker was defended by William Harrison of the Legal Aid Society. In December 1968 -- 11 months after appellant's arrest*fn3 -- the Society was relieved as counsel and replaced by James P. Maniatis, assigned by the Appellate Division. Appellant complains that the mistakes and defaults of those two attorneys combined to render his representation "woefully inadequate," United States v. Currier, 405 F.2d 1039, 1043 (2d Cir.), cert. denied, 395 U.S. 914, 23 L. Ed. 2d 228, 89 S. Ct. 1761 (1969), and hence unconstitutional.
It has long been clear that tactical errors or strategic miscalculations by counsel afford no constitutional grounds for relief. United States v. Garguilo, 324 F.2d 795, 797 (2d Cir. 1963). In order to infringe the constitution,
[a] lack of effective assistance of counsel must be of such a kind as to shock the conscience of the Court and make the proceedings a farce and mockery of justice.
United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 94 L. Ed. 586, 70 S. Ct. 478 (1950); United States ex rel. Crispin v. Mancusi, 448 F.2d 233, 237 (2d Cir.), cert. denied, 404 U.S. 967, 30 L. Ed. 2d 288, 92 S. Ct. 346 (1971). We have carefully considered all of Walker's allegations with respect to his attorneys' performance. Although counsel here were scarcely Clarence Darrows, Maniatis -- if not Harrison -- provided a colorable defense. Appellant's case does not, therefore, give rise to a valid claim of inadequate legal assistance under the extremely stringent standard laid down in Wight, supra.
Walker has mounted a blunderbuss attack on the quality of his representation both before and during trial. As examples of neglect or incompetence, appellant cites such things as his attorneys' alleged failure: to investigate leads furnished by Walker himself; to interview his daughter Diane (the complaining witness) prior to the date of trial; to call favorable witnesses to the stand; to demand a preliminary hearing; to understand the function of a Huntley hearing and utilize it properly; to object that the court lacked jurisdiction; and to provide effective advocacy on behalf of the client at trial. We now proceed to evaluate each of these charges in turn.
The chief investigatory default attributed to counsel was the alleged omission to follow up appellant's report -- first communicated two months after his arrest -- that his daughter had recanted her accusations in the presence of her mother (appellant's wife) and her aunt, Mrs. Helen Morgan.*fn4 Such evidence, if it existed, would clearly have been crucial. The case against appellant rested largely on the testimony of the girl Diane, corroborated by her younger brother Michael.*fn5 Moreover, the basis of appellant's defense was a challenge to his daughter's credibility. Taking the stand to deny the sex-related charges,*fn6 he sought to impugn the girl's veracity by claiming that she was lying out of anger because he had punished her for stealing and cashing his unemployment check. Under these circumstances, wholly to ignore appellant's lead might well have been inexcusable. At the hearing before Judge Bonsal, however, Maniatis testified that he had spoken with appellant's wife at the time of trial and that she had refused to give any evidence of the girl's alleged retraction or of her character for veracity.*fn7 Maniatis also stated that he had interviewed Mrs. Morgan, who likewise declined to testify to the daughter's reputation for telling the truth.*fn8 Since counsel's story was credible, the district judge would have been entitled to find that Maniatis had tried to some extent to pursue the recantation issue, potentially so vital to appellant.
Appellant's further illustrations of supposedly inadequate representation may be dealt with somewhat more summarily. It is true that neither Harrison nor Maniatis ever saw the complaining witness Diane prior to the day of the trial, but an investigator from Legal Aid spoke to her in August 1968. His report reveals that the girl was adhering to the story that Walker had molested her sexually and forced her brother to do the same. In addition, she told the interviewer that appellant had been having relations with her since she was nine years old. Although more diligent counsel would have followed up the report with a personal talk, one cannot say that the investigation which was undertaken accomplished nothing at all.*fn9 It is also true that trial counsel Maniatis rejected several potential witnesses who, Walker believes, would have aided in his defense;*fn10 these were Mrs. Walker (the wife), Mrs. Morgan (her sister) and Howard Ramhold (his brother-in-law). As previously indicated,*fn11 however, neither of these two women would have helped appellant at all. Moreover, Maniatis testified at the hearing before Judge Bonsal that Ramhold, who was supposed to give evidence regarding the daughter's theft of the unemployment check, denied any knowledge of the matter when he appeared at the trial under compulsion of process. We would only add that the decision to call or bypass particular witnesses is peculiarly a question of trial strategy, United States v. Matalon, 445 F.2d 1215, 1219 (2d Cir.), cert. denied, 404 U.S. 853, 30 L. Ed. 2d 93, 92 S. Ct. 92 (1971), which courts will practically never second-guess.*fn12 See Garguilo, supra, 324 F.2d at 797.
Appellant also complains of the failure of counsel to demand a preliminary hearing. It appears, however, that appellant was sent to Bellevue for a mental examination on the same day as his arraignment -- January 22, 1968; he was returned to court on February 6. Clearly, no hearing could have been scheduled during appellant's hospital stay. Only two days after his release from Bellevue, the indictment was handed down. At this point, the issue of probable cause was moot, and the right to a hearing had ended. People v. Jackson, 48 Misc. 2d 1026, 266 N.Y.S. 2d 481 (Sup. Ct. N.Y. Co. 1965). There is nothing in the record to indicate that an inquiry into Walker's mental condition was not, at the time, at least as much in appellant's interest as a challenge to probable cause.
As a further point, appellant contends that counsel improperly advised him to take the stand at a Huntley hearing*fn13 despite the fact that the prosecution did not offer any statements to be used in evidence against him. But the record reveals that the arresting officer, Detective Farrell, did allude at the hearing to "questions" he had posed to Walker, which the latter had answered. (Indeed, at the trial, the officer testified to some of appellant's alleged remarks, such as: "I'm a father. I can assault my daughter.") Walker, through his present counsel, appears to object to Maniatis's failure to cross-examine Detective Farrell on the content of these oral "statements." (Instead, the attorney questioned appellant himself about his responses to Farrell.) Although this tack may reveal something less than consummate judgment, Maniatis did zero in several times on the heart of the Huntley inquiry: the voluntariness of the statements -- which in this case hinged on whether and when Miranda warnings had ...