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February 5, 1986

CHARLES J. SCULLY, Superintendent, Green Haven Correctional Facility, Respondent

The opinion of the court was delivered by: WEINFELD


Petitioner, following his conviction in the New York State Supreme Court, Bronx County, of two counts of robbery in the first degree and two counts of assault in the first degree was sentenced as a second felony offender to concurrent indeterminate terms of imprisonment, from twelve and one-half years to twenty-five years on each of the robbery convictions, and from seven and one-half years to fifteen years on each of the assault convictions. Upon appeal, the judgments of conviction were unanimously affirmed without opinion by the Appellate Division. Leave to appeal to the Court of Appeals was denied.

 Thereafter, in 1984, appearing pro se, petitioner filed a petition for a federal writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. He alleged the following violations of his constitutional rights: (1) that he was denied effective assistance of counsel upon his trial; (2) that there was insufficient evidence evidence that the victim's injuries were serious within the meaning of the New York first-degree robbery statute, *fn1" and thus that his conviction violated the Due Process Clause of the Fourteenth Amendment; (3) that the adjudication that petitioner was a second felony offender was also in violation of his due process rights, because the admissible evidence presented was insufficient to establish beyond a reasonable doubt that he was the subject of the prior felony convictions; (4) that he was denied his right to counsel when the trial court refused his request that new counsel be assigned to him for the purposes of sentence; and finally, (5) that the sentences imposed, the maximum allowed by law, were excessive because because of his drug addiction. These were the same issues which he had raised in the New York Appellate Division. This first federal habeas petition came before District Judge Kevin T. Duffy, and was denied because petitioner had failed to exhaust his state remedies as to each claim advanced. *fn2"

 Petitioner then, in 1985, filed the instant application, confining his claims of violation of federal constitutional rights to the alleged deprivation of his right to effective assistance of counsel at this trial. His claim was based upon the following contentions: (1) that his trial counsel shifted to the defense the burden of proving reasonable doubt; (2) that his trial counsel lacked familiarity with state criminal law; (3) that trial counsel was unable to argue issues coherently; (4) that counsel made a written statement to the court at the time of sentencing which stated that he had prepared adequately for trial; and (5) that the court denied petitioner's request to appoint new counsel in connection with his motion to vacate his conviction and for sentencing. The State did not dispute that petitioner had exhausted available state remedies as to the foregoing claim, but urged that his application for a writ be denied upon the merits.

 This Court referred petitioner's application to Magistrate Leonard Bernikow to hear and report. The magistrate, in an interim report based upon petitioner's traverse, wherein he alleged for the first time that his trial counsel should have moved to dismiss the superseding indictment for failure to grant him a speedy trial, specifically relying upon United States v. Marion,3 requested that the respondent answer this recently advanced claim. The prosecution submitted a detailed response, setting forth the history of the case as it progressed to trial, indicating that many continuances had been granted at the request of petitioner's trial counsel, as a result of other trial engagements, of illness of counsel of his wife, or simply as a result of counsel's failure to appear on occasions when the case was scheduled for trial. Each time a continuance was granted, the prosecution indicated to the court its readiness to proceed; trial finally commenced on December 8, 1980.

 After receiving this response to petitioner's traverse, the magistrate, notwithstanding that petitioner had exhausted state remedies as to his initial claim, recommended that the petition "be dismissed without prejudice on account of petitioner's failure to exhaust his state court remedies with respect to the factual matter he seeks to add to the petition," that is, the claim of failure to move to dismiss the indictment on the ground that it constituted a violation of the Fifth Amendment because it gave the prosecution an unfair advantage under United States v. Marion. This new claim, as already noted, was presented only after petitioner's original petition had been referred to the magistrate and was sub judice. While the magistrate's report correctly notes that dismissal without prejudice is the appropriate disposition of petitions presenting a mixture of exhausted and unexhausted claims, n.4 [Footnote omitted] the Court disagrees with the magistrate's recommendation because petitioner's initial claim of denial of effective assistance of counsel, which is the only claim presented in the petition before the Court and which was confined to the conduct of petitioner's counsel during the course of the trial, was presented to the state courts, and is acknowledged by the State to be ripe for determination.

 Upon a de novo consideration of the issue, and a detailed study of the entire trial record, including a word by word reading of the trial transcript and the sentencing minutes, and review of the briefs of the parties before the Appellate Division, this Court is persuaded that petitioner's claim that he was deprived of his right to effective counsel upon his trial is without substance, and that his petition with respect to these enumerated claims should be dismissed upon the merits.

 In seeking to sustain a claim of ineffective assistance of counsel, petitioner has the burden of proof. The Supreme Court, in its most recent discussion of the Sixth Amendment right to counsel, noted that the Amendment "recognizes the right to the assistance of counsel because it envisions counsel's playing a role that is critical to the ability of the adversarial system to produce just results. An accused is entitled to be assisted by an attorney, whether retained or appointed, who plays the role necessary to ensure that the trial is fair," and this requires "the effective assistance of counsel." *fn5" The Court concluded that "[t]he 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 on as having produced a just result." *fn6" Finally, the Court articulated these criteria on the issue:

 First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction . . . resulted from a breakdown in the adversary process. *fn7"

 The Court concluded that the proper standard for attorney performance is that of reasonably effective assistance within the range of competence demanded of attorneys in criminal cases, and held that when a convicted defendant contends that he received ineffective assistance of counsel, "he must show that counsel's representation fell below an objective standard." The ultimate issue is whether counsel's assistance was reasonably effective considering all the circumstances. *fn8"

 Upon review of this record, as already noted, the Court is persuaded that petitioner received a fundamentally fair trial, and that the conduct of his counsel, viewed against all the surrounding circumstances, met an objective standard of adequate and competent representation. The trial evidence abundantly established the petitioner as the perpetrator of the crime charged. He did not testify or offer any defense. The evidence presented by the prosecution to support its charges was indeed substantial. The defendant, appearing pro se at the time of sentencing, with his trial counsel present, moved to set aside the verdict pursuant to New York law, *fn9" and for the assignment of new counsel. Specifically, he asserted that his counsel had not practiced in New York for twenty years, in consequence of which he was unfamiliar with New York law; that he had not investigated the case; and that he had prepared no pre-trial motions.

 In addition to these allegations, petitioner presented a written statement of his trial counsel, in which counsel stated that he "never filed any motion or investigation [sic] of the facts concerning the case. Because of illness I did not represent Mr. Valdez to the best of my ability." This statement was puzzling to the trial judge, who questioned counsel's allegation that he had never filed motions. It appeared that petitioner, appearing pro se, had himself filed Mapp, Huntley, and Wade motions, and that the hearings, which extended over several days, were conducted by his counsel. Indeed, counsel contended that he was successful in part, inasmuch as an identification by one witness was suppressed. Upon further questioning by the trial judge, counsel stated that during the trial, which was tried over a five- or six-day period, he did the best he could.

 With respect to counsel's further signed statement that "[b]ecause of my illness I did not represent Mr. Valdez to the best of my ability," which the court suggested was somewhat misleading in light of the trial record and about which it requested clarification, trial counsel responded:

I will recant on that. To the best of my ability, I did represent him. [The statement] was signed Christmas week. All I wanted was the truth of the fact. I wanted to impress upon Mr. Valdez and the Court I did not ...

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