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February 17, 1982

Jeffrey PETERSON, Petitioner,
Joseph KENNEDY, Warden, Mt. McGregor Correctional Facility, Robert Abrams, Attorney General of the State of New York, Respondents

The opinion of the court was delivered by: FOLEY


Petitioner, represented by counsel in this federal habeas corpus proceeding, is presently an inmate of Mt. McGregor Correctional Facility, Wilton, New York. On March 21, 1979, the petitioner was convicted after a trial by jury in the County Court of Albany County of Criminally Negligent Homicide and Driving While Intoxicated. He was sentenced to an indeterminate term of one and one-third years to four years on the homicide conviction and a definite one-year term on the second conviction, the one-year definite sentence to merge with the indeterminate sentence.

After conviction, the petitioner directly appealed to the Appellate Division, Third Department, and also filed in Albany County Court an immediate N.Y. Crim.Pro.L. § 440.10 motion to vacate the judgment of conviction. The petitioner's § 440.10 motion was denied by the County Court. The Appellate Division granted leave to appeal the denial of this motion, which was joined with the direct appeal from the judgment of conviction. The appeals from both were affirmed without opinion by the Appellate Division on October 23, 1980. People v. Peterson, 78 A.D.2d 781, 434 N.Y.S.2d 843 (3rd dep't 1980).

 Pending the above appeal in the Appellate Division, the petitioner filed a second motion pursuant to Crim.Pro.L. § 440.10 in the Albany County Court. This second motion was denied on September 9, 1980 and leave to appeal to the Appellate Division, Third Department, was denied on October 23, 1980.

 Leave to appeal to the New York Court of Appeals from the affirmance of the judgment of conviction and the denial of the original § 440.10 motion was denied after oral argument, with no opinion, on January 12, 1981. People v. Peterson, 52 N.Y.2d 905, 437 N.Y.S.2d 1049, 418 N.E.2d 1334 (1981). Petitioner's motion for reargument in the Appellate Division, Third Department, was denied on March 20, 1981.

 By Memorandum-Decision and Order dated October 2, 1981, I directed the filing and service of the petition upon the Respondents pursuant to Rules 4 and 5 of the Rules Governing Section 2254 Cases (28 fol. 2254) in order to obtain answer or other pleading in response to its allegations. An answer has been filed in opposition to the petition by the Attorney General together with a memorandum of law concluding that the petition should be dismissed. Both sides have attached relevant documents to their submissions, including decisions of the courts involved in the prosecution and appeals in this matter. This court is appreciative of such cooperation.

 Petitioner bases his claim for habeas corpus relief on a single ground. The petitioner claims that he was denied his Sixth Amendment right to the effective assistance of counsel during the trial in this matter. To understand this claim a brief review of the facts is necessary.

 After jury trial, the petitioner was found to have driven an automobile at an excessive rate of speed while intoxicated. The automobile he was driving was involved in an accident which resulted in the death of the driver of the other automobile. The petitioner's sole defense at trial was that he was not driving the vehicle at the time of the accident. He claims that another occupant in the car, one Warner, was driving. At trial, the only eyewitness to testify that petitioner was driving was Warner. All the other evidence submitted by the prosecution was circumstantial and dealt with the positions of petitioner's and Warner's bodies as found resting in the car immediately after the accident. Petitioner, the only witness for the defense, testified that he was a passenger in the vehicle at the time of the accident and that Warner was driving. No other evidence was presented in his defense.

 Petitioner's claim of ineffective assistance of counsel arises from the fact that petitioner's counsel at trial failed to use, or even attempt to use in defense, forensic evidence that had been obtained for possible trial use and was in his possession. The evidence in question was a technical report prepared by a consulting engineering firm claimed by the attorneys for the petitioner as showing that hair samples matching the petitioner's were found in passenger side of the automobile. Petitioner claims that this evidence, not offered at trial, was exculpatory and necessary and important for jury consideration in that it would have corroborated the trial testimony of the petitioner that he was not driving the automobile at the time of the fatal accident, but was a passenger. Petitioner's attorneys claim that trial counsel's failure to offer and utilize this evidence in defense rendered the counsel's assistance ineffective, thereby violating the Sixth Amendment.


 At the outset it should be noted that the merits of petitioner's Sixth Amendment claim can be reached in this federal habeas corpus review due to petitioner's satisfactory exhaustion of remedies in state courts. See 28 U.S.C. § 2254(b), (c). This exhaustion requirement must be met before the writ of habeas corpus can be granted. Picard v. Connor, 404 U.S. 270, 92 S. Ct. 509, 30 L. Ed. 2d 438 (1971). The considerable writing in the Second Circuit as to whether the claim presented in federal habeas corpus was explicitly presented federally in the state courts and whether a state procedural default may bar federal habeas corpus is not in issue under the circumstances presented herein. See Klein v. Harris, 667 F.2d 274 (2d Cir. 1981); Barnes v. Jones, 665 F.2d 427 (2d Cir. 1981); Daye v. Attorney General of the State of N.Y., 663 F.2d 1155 (2d Cir. 1981), pet. for hearing in banc granted, hearing in banc April 13, 1982; Gruttola v. Hammock, 639 F.2d 922, 929-30 (2d Cir. 1981); Washington v. Harris, 650 F.2d 447 (2d Cir. 1981); Forman v. Smith, 633 F.2d 634 (2d Cir. 1980), cert. denied, 450 U.S. 1001, 101 S. Ct. 1710, 68 L. Ed. 2d 204 (1981); Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979); Johnson v. Metz, 609 F.2d 1052 (2d Cir. 1979). See also Wainwright v. Sykes, 433 U.S. 72, 97 S. Ct. 2497, 53 L. Ed. 2d 594 (1977).

 It has long been recognized that the Sixth Amendment right to counsel is the "right to effective assistance of counsel." McMann v. Richardson, 397 U.S. 759, 771, 90 S. Ct. 1441, 1449, 25 L. Ed. 2d 763 (1970). The standard applied in the Second Circuit for determining the effectiveness of counsel is that set forth in United States v. Wight, 176 F.2d 376, 379 (2d Cir. 1949), cert. denied, 338 U.S. 950, 70 S. Ct. 478, 94 L. Ed. 586 (1950). The representation must be such "as to make the trial a farce and mockery of justice.... A lack of assistance of counsel must be of such a kind as to shock the conscience of the Court." Several recent cases in the Second Circuit have reaffirmed this standard. See United States v. Helgesen, 669 F.2d 69, 71 (2d Cir. 1982); United States v. Aulet, 618 F.2d 182, 187 (2d Cir. 1980); Indiviglio v. United States, 612 F.2d 624 (2d Cir. 1979); Twitty v. Smith, 614 F.2d 325 (2d Cir. 1979). See also, Barnes v. Jones, supra, 665 F.2d at 431.

 It should be noted that the other federal circuits and New York State do not follow the Second Circuit's standard for determining effectiveness of counsel. The newer, less stringent standard applied is along the lines of a "reasonable competence" test. See Barnes v. Jones, supra, at 431, n.4. And, in fact, the "farce and mockery" standard has been criticized and the Second Circuit has been urged within its own Panels to adopt a "reasonable competence" test. See Indiviglio v. United States, supra, at 632 (Mansfield, J., dissenting); Brinkley v. LeFevre, 621 F.2d 45, 48 (2d Cir.) (Weinstein, J., dissenting), cert. denied, 449 U.S. 868, 101 S. Ct. 203, 66 L. Ed. 2d 87 (1980).

 In the present case, the "farce and mockery" standard must be used to determine whether petitioner's counsel acted incompetently and ineffectively in violation of the Sixth Amendment by failing to even attempt to utilize forensic evidence in his possession in order to present petitioner's defense. It is my judgment that on the facts in this case petitioner was not denied the effective ...

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