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July 22, 1985


The opinion of the court was delivered by: SPRIZZO



 Petitioner Herminio Sanchez brought this petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, claiming that he was denied his Sixth Amendment right of effective assistance of counsel at his state court trial, and that the state court imposed upon him a sentence which violated the United States Constitution. *fn1" Sanchez previously filed a petition for habeas corpus relief on these same grounds in the United States District Court for the Northern District of New York. Judge James T. Foley denied the petition on the merits. See Memorandum Decision and Order, Sanchez v. Jones, 80 CV 490 (N.D.N.Y. Nov. 3, 1980).

 The Court referred the instant petition to United States Magistrate Naomi Reice Buchwald for review and recommendation pursuant to 28 U.S.C. § 636(b)(1). Magistrate Buchwald recommended that petitioner's first claim be denied on the merits, and that the second claim, relating to his sentence, be dismissed as a successive petition pursuant to Rule 9(b) of the Rules Governing Section 2254 Cases in the United States District Court. Petitioner filed objections only with respect to the recommendation regarding the ineffective assistance of counsel claim. Therefore, the Court adopts the Magistrate's recommendation with respect to the second claim regarding petitioner's sentence and dismisses it as a successive petition.

 The remainder of this Opinion and Order constitutes the Court's de novo determinations pursuant to 28 U.S.C. § 636(b) (1) with respect to the ineffective assistance of counsel claim. The facts of the case are set forth in the Magistrate's Report and Recommendation, and will be discussed herein only as necessary to resolve petitioner's objections. The Court notes that the petition itself simply claims that, although counsel knew "far in advance" that petitioner's defense would be based upon an alibi, counsel failed to adequately prepare that defense. Petitioner's objections to the Magistrate's Report and Recommendation are more specific. The Court will consider each objection in turn.

 As preliminary matter, while Sanchez did allege ineffective assistance of counsel in his petition before Judge Foley, subsequent to that court's denial of the petition, and while the instant petition was already pending, the Second Circuit articulated a new legal standard applicable to ineffective assistance claims. The court replaced the old rule wherein the issue was whether counsel's representation constituted a "farce and mockery of justice," with the standard which all other circuits now apply, and which looks to whether counsel rendered "reasonably competent assistance" -- whether counsel's representation was within the range of competence reasonably expected of attorneys in criminal cases. See Trapnell v. United States, 725 F.2d 149, 153 (2d Cir. 1983).

 The Supreme Court subsequently approved the reasonable competence standard and held that to succeed on an ineffective assistance claim, petitioner must show that his counsel's representation was not reasonably competent under prevailing professional norms, see Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 2064-65, 80 L. Ed. 2d 674 (1984), under all of the circumstances, see id at 2066, *fn2" and that he was thereby prejudiced in that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the trial would have been different. Id. at 2067-68. The Court defined a reasonable probability as "a probability sufficient to undermine confidence in the outcome." Id. at 2068.

 Since the Court has concluded that the petition must be denied on the merits even assuming that the new standard is applicable, there is no need for the Court to decide whether it may properly apply that standard retroactively in a case where a previous petition raising the same claim was denied and where the standard applicable to the claim raised has changed since the filing of both the first and the second petitions. See Respondents' Supplementary Memorandum of Law at 2-4. However, the Court notes that the Second Circuit has applied the rule of Trapnell and Strickland in cases on appeal where the "farce and mockery" standard had been applicable when the case was before the district court. See, e.g., Tsirizotakis v. Lefevre, 736 F.2d 57, 61-63 (2d Cir.), cert. denied, 469 U.S. 869, 105 S. Ct. 21683 L. Ed. 2d 146 (1984); Wise v. Smith, 735 F.2d 735, 737 (2d Cir. 1984). *fn3"

 As the Supreme Court noted in Strickland, "the benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied upon as having produced a just result." See 104 S. Ct. at 2064. The starting point of this inquiry is a consideration of the strength of the prosecution's case against petitioner. See, e.g., Wise, supra, 735 F.2d at 739; United States v. Helgesen, 669 F.2d 69, 71 (2d Cir.), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 445, 102 S. Ct. 1978 (1982); United States v. Aulet, 618 F.2d 182, 188 (2d Cir. 1980). The stronger the evidence against him, the greater must be petitioner's showing of unreasonableness in order to demonstrate prejudice. See Strickland, supra, 104 S. Ct. at 2069.

 Petitioner was convicted on two counts of first degree robbery of the El Frente Social Club. The record indicates that the manager and the bartender of the Club, both of whom had known petitioner before the robbery and both of whom were eyewitnesses to the crime, testified that they recognized petitioner as one of the robbers. *fn4" These identifications made the government's case very strong. Therefore, petitioner's showing herein must also be strong in order to establish that, absent any error of counsel, the factfinder would have had a reasonable doubt respecting his guilt. See Strickland, supra, 104 S. Ct. at 2069; cf. Wise, supra, 735 F.2d at 739; Stubbs v. Thomas, 590 F. Supp. 94, 101 (S.D.N.Y. 1984).

 1. Failure to investigate potential witnesses

 Petitioner claims his trial counsel failed to properly investigate and interview potential witnesses to establish petitioner's alibi defense. The record of the state court proceedings fails to support this claim. At petitioner's Wade hearing, held approximately one week before trial, his counsel advised the court that he had unsuccessfully attempted to locate potential alibi witnesses for months, despite petitioner's help, and had even used the services of an investigator. Moreover, he only succeeded in speaking with two witnesses the previous day at a meeting arranged by petitioner. These two witnesses, although they did not testify at trial, provided counsel with the name of a third potential witness, Rosalie Riley, who did testify and whom counsel spoke with on at least two occasions before she testified, and again on the day she appeared for trial.

 In view of counsel's efforts and eventual success with respect to finding and interviewing these witnesses, the Court rejects petitioner's claim that his counsel's performance in investigation and interviewing fell below the standard of reasonable competence. Petitioner's contention that counsel permitted Ms. Riley to testify before interviewing her to see what her testimony would be is contradicted by the record. Moreover, while the last minute meetings with Ms. Riley may not have been the best method of interviewing and preparing her, the record indicates that counsel had no alternative due to the difficulties he encountered in locating and speaking with Ms. Riley. Therefore, the Court sees no basis for finding that counsel did not render reasonably competent assistance in this regard. Cf. Strickland, supra, 104 S. Ct. at 2066-67.

 Petitioner does not specify how he was prejudiced by these alleged errors on the part of counsel, or why a different course of conduct by counsel would with reasonable probability have resulted in his acquittal. The Court can find no basis for saying that, but for counsel's conduct with respect to investigating and interviewing these witnesses, the result of the trial would have been different. It ...

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