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JOURNET v. COOMBE

November 25, 1986

MICHAEL JOURNET, Petitioner,
v.
PHILLIP COOMBE, JR. Superintendent, Eastern Correctional Facility, Respondent



The opinion of the court was delivered by: KRAM

MEMORANDUM OPINION AND ORDER

SHIRLEY WOHL KRAM, U.S.D.J.

 Petitioner Michael Journet petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Journet alleges three claims: that he received ineffective assistance of counsel at his trial; that his right to due process was violated When the trial court refused to perm it him to discover the identity of a confidential informant or give a missing witness charge to the jury; and that prosecutorial misconduct during summation deprived him of a fair trial. After reviewing petitioner's claims, the Court denies Journet's petition for the reasons given below.

 FACTS

 On the evening of October 29, 1975, petitioner Journet sold approximately four ounces of cocaine to an undercover agent of the New York Drug Enforcement Administration for $4,800. The agent had been introduced to Journet at a Manhattan restaurant by an unidentified confidential informant on September 8, 1975.

 At that meeting, Journet and the agent discussed a possible sale, and the agent gave Journet a phone number where he could be reached. Journet contacted the agent, but did not sell him any cocaine at that time.

 On October 28, 1975 the agent telephoned the confidential informant, and asked the informant to arrange for Journet to contact the agent again. Journet did telephone the agent the following day, at which time he offered to sell the agent four ounces of cocaine at a Manhattan restaurant that evening.

 When the agent arrived at the restaurant, Journet led him to the men's room, where he handed the agent a package containing one ounce of cocaine. Journet then asked the agent to wait, and left the restaurant for a half hour. He returned with a package that contained almost three ounces of cocaine. Journet handed this package to the agent as they sat in a car in front of the restaurant. As soon as the agent had handed Journet forty-eight one hundred dollar bills, one of the members of the agent's back-up team arrested Journet as he emerged from the car.

 Journet was subsequently convicted by a New York State jury of two counts of criminal sale of a controlled substance. On November 23, 1977, he was sentenced to two concurrent indeterminate terms of from fifteen years to life and from one year to life. He is currently incarcerated in a New York prison pursuant to that judgment.

 Petitioner appealed his conviction to the New York State Appellate Division, First Department. He raised the claims contained in his habeas petition, as well as a fourth claim not before this Court. *fn1" The Appellate Division affirmed Journet's conviction without opinion on March 27, 1980. Leave to appeal to the New York Court of Appeals was denied on May 27, 1980. Petitioner also filed a motion pursuant to New York Criminal Procedure Law (CPL) § 440.20, to vacate his sentence on the ground that his sentence (which was the minimum allowed by the statute) failed to serve the interests of justice. This motion was also denied. Journet subsequently filed a petition for habeas corpus relief. Having previously determined that Journet has exhausted his state court remedies (See 567 F. Supp. 503 (1983)), the Court now decides the merits of Journet's petition.

 DISCUSSION

 I

 Petitioner's first claim is that he received ineffective assistance of counsel at his trial in violation of his Sixth Amendment right. He alleges that his trial counsel's representation was only perfunctory at trial, and that she failed to prepare the law and facts relevant to his defense.

 He also alleges specifically that his counsel failed to investigate or call as a witness a woman who had been present during both of Journet's conversations with the undercover agent, and that his counsel also did not seek, during the trial, disclosure of the identity of the confidential informant who introduced the agent to Journet. (Counsel did seek the informant's identity in a pre-trial omnibus motion. The record is unclear as to when before trial that motion was orally ...


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