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June 15, 1984

MACK STUBBS, Petitioner, against DALE THOMAS, Superintendent of Metropolitan Correction Center, Respondent.

The opinion of the court was delivered by: LOWE



 Before this Court is a petition for a writ of habeas corpus brought pursuant to 28 U.S.C. § 2254. Petitioner, Mack Stubbs, claims that the ineffective assistance of his state appointed investigator constituted a denial of his rights under the sixth and fourteenth amendments to the United States Constitution. In addition, petitioner claims that his failure to receive adequate investigative assistance denied him his right to a fair trial guaranteed by the due process clause of the fifth and fourteenth amendments. As set forth below, this Court finds that the petition must be denied.


 On December 8, 1972 Ernest Ballestero was stabbed to death on a street in Brooklyn, New York. Two months later, on February 14, 1973 petitioner Mack Stubbs, was arrested and charged with Ballestero's murder. He was arraigned on March 9, 1973 in New York Supreme Court, Kings County, and attorney Barry Agolnick, Esq. was appointed by the court to represent him pursuant to Article 18-B, § 722 of the County Law of New York. On October 1, 1973 Mr. Agolnick requested assignment of an investigator pursuant to Article 18-B, § 722, of the County Law and on November 1, Herman Race was appointed. On November 26, 1973 petitioner moved pro se for a change of counsel and on December 18, 1973 that motion was granted and new counsel, Barry Kamins was assigned.

 Prior to trial, petitioner told Mr. Kamins that at the time the murder was committed (5:35 p.m.), he was working in New Jersey with Willie McNeil. McNeil was employed as a carpet installer at Perry Carpets at 465 Franklin Avenue, Franklin Square, Long Island, and petitioner was allegedly helping him install carpet on the day of the murder. The steps taken by Mr. Kamins and petitioner's court appointed investigator, Mr. Race, to investigate petitioner's alibi defense, are the subject of detailed factual findings by Judge Knapp of this Court in a related habeas action brought by petitioner. These findings are discussed in full, infra, at pp. 9-12 of this Opinion. Suffice it to say for the present, that both Mr. McNeil and Mr. Race informed Mr. Kamins that they had attempted to locate McDeil's work records for the date in question, but that such records were unavailable. Thus McNeil was unable to review the records prior to testifying at petitioner's trial.

 Petitioner's trial commenced on August 29, 1974. The case against the petitioner rested almost entirely on the testimony of two eye witnesses, Lois Ormand and Hattie Freeman. The witnesses testified that they first met petitioner on December 7, 1972, the day before the murder, when James McNeil *fn1" brought petitioner to Ms. Freeman's apartment and introduced him as his cousin. They further testified that they spent several hours on the following day, December 8, 1974, at Ms. Freeman's apartment socializing and drinking with petitioner, James McNeil, and Ernest Ballestero (the deceased). At approximately 5:30 that afternoon the group left the apartment to go buy more food and liquor. Ms. Freeman testified that as they left the apartment, petitioner said to her that "one of us will not be coming back." Both witnesses testified that as they walked down the street, Ms. Freeman and Mr. McNeil walked ahead, and Ms. Ormand, petitioner and Mr. Ballestero following behind. According to Ms. Ormand, Mr. Ballestero was walking in between her and petitioner, when she heard Ballestero exclaim "oh" She turned to see petitioner pulling a knife out of Ballestero's chest. Ms. Ormand testified that petitioner then ran down the street shouting "I got him" Ms. Freeman similarly testified that as she turned around to check on the rest of the group, she observed petitioner taking a knife from Ballestero's chest. She then saw petitioner run down the street. Neither Ms. Ormand nor Ms. Freeman actually saw petitioner stab Ballestero, or knew where the knife came from. James McNeil, the only other witness to these events, was never called as a witness. Both Ms. Ormand and Ms. Freeman testified that they did not know Mr. McNeil's whereabouts at the time of trial.

 Willie McNeil was the only witness called on behalf of petitioner. McNeil testified that on December 8, 1972 he and petitioner had spent the entire day together, working and socializing. McNeil testified that he was employed as a carpet installer at Perry Carpets, and that petitioner worked as his assistant from November 1972, until December 23, 1972. Petitioner was paid by McNeil and was at no time employed by Perry Carpets.McNeil further testified on direct examination, that on the day of the murder, he and the petitioner were installing carpets in Jersey City and Newark and that at approximately 7:30, when they had completed their work, they went to Dave McDougal's home in Newark, New Jersey until sometime between 10:30 p.m. and 11:00 p.m. *fn2" McNeil also testified tht he had checked with him employer and that said employer no longer had the route slips for December 8, 1972.

 The government's cross-examination of McNeil began on August 29, 1974 and resumed after a four day adjournment, on Sepgember 3, 1974. On the second day of the cross-examination McNeil acknowledged that he had been mistaken about where he was working on December 8, 1972. He testified that over the weekend someone had located his work record and informed him that he had worked at five different locations in Brooklyn on December 8, and none in New Jersey. The New Jersey jobs had been performed on December 9, 1972, a Saturday. On redirect, McNeil reiterated his testimony that he was working with petitioner until about 7:30 p.m. on December 8. He did not mention visiting the home of Dave McDougal in New Jersey, as he had in his original testimony, and gave no other explanation as to why he remembered being with petitioner on the day in question.

 In its summation, the government emphasized McNeil's mistaken recollection as to his work location and attacked his credibility:

 [N]ow the Defense in this case produces a real star witness. This is the star, if I can use counsel's term, who came into this courtroom and told you last Friday "Oh, I remember December 8, 1972 just like yesterday. I know we went to New Jersey . . .

 Very interestingly, there is a recess, and I asked him, "By the way, Mr. McNeil, on December 8, 1972 you didn't work in New Jersey?

 A. No, I didn't work in New Jersey.

 Q. By the way, Mr. McNeil, you worked in Brooklyn on five jobs?

 A. That's right, five jobs.I checked the records.

 What did he check -- the records that he didn't have? Is that the defense in this case? A witness that comes to this courtroom and has the audacity, before you, in a court of law, to come in here and say on Friday "I was in New Jersey. I remember December 8, 1972, but I don't know what happened on December 8, 1973, and now comes back here and says "Oh yes. He was not with me in New Jersey, but he was with me in Brooklyn."

 Is that the defense in this case? Is that the star witness?

 I am not going to trouble you by going over each and every question with Mr. McNeil, the real star. But if you wish, the Court will have all the testimony read back to you, with relation to whether he worked on December 5th and 6th and 7th. Mind you, he checked the records on ...

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