in-court identification. Matos thus does not show any prejudice
arising from counsel's failure to make an untimely suppression
motion. For purposes of determining issues of effective
assistance of counsel, "not every possible motion need be filed,
but only those having a solid foundation." Nersesian, 824 F.2d
at 1322. Counsel is "certainly not required to engage in the
filing of futile or frivolous motions." Id.
Similarly, the failure to call the alleged alibi witnesses does
not disclose a failure of representation by counsel. The evidence
at trial showed that the dispute between Matos and Eriberto began
at about 11:30 p.m. on 115th Street, and that the killing took
place between 11:30 p.m. and 12:00 a.m. One of the purported
alibi witnesses attested that he was with Matos only up to 11:30
p.m. and places him exactly where the prosecution witnesses say
that he was at that time. The other witness could only testify as
to the Matos' whereabouts between, at best, midnight and 12:30
a.m., when Matos was arrested. Thus neither witness, both of whom
were Matos' friends, was in any position to bolster Matos'
defense. Furthermore, at least one of them had been interrogated
by the police at the time of Matos' arrest and counsel for the
defense had no knowledge as to what statements the police might
have from that witness. Since neither witness could establish an
alibi for Matos, counsel's decision not to call those witnesses
can easily be justified and any claim of ineffective assistance
of counsel on that ground fails. See Farinaro v. Kirk,
675 F. Supp. 75, 82 (E.D.N.Y. 1987); see also Trapnell v. United
States, 725 F.2d 149, 156 (2nd Cir. 1983).
Concomitantly, counsel's failure to request an alibi charge was
consistent with his theory of the case. Based on the trial
testimony, there is no indication that such failure prejudiced
Matos. Again, Matos' allegations are insufficient to overcome the
strong presumption that counsel's performance was reasonable
under Strickland. See United States v. Torres, 845 F.2d 1165
(2nd Cir. 1988) (counsel's failure to move to suppress cash
seized from defendant at time of narcotics arrest and failure to
seek interested witness instruction with regard to government
informant's testimony did not rise to level of ineffective
assistance). "Every non-frivolous claim need not be urged if
`counsel, as a matter of professional judgment, decides not to
present those points.'" Abdurrahman, at 74 (quoting Jones v.
Barnes, 463 U.S. 745, 751, 103 S.Ct. 3308, 3312, 77 L.Ed.2d 987
Matos also complains that the trial court did not deliver a
sua sponte alibi charge to the jury. Of course, under New York
law a defendant's failure to request a jury instruction or object
specifically to the omission from the charge constitutes a
failure to preserve the issue for state appellate review as a
matter of law. N.Y.Crim. Pro.L. § 470.05(2) (McKinney 1983 &
Supp. 1990). Because the Appellate Division issued no opinion at
all, there is no indication that the state court ever reached the
merits, and thus no reason to look beyond the state procedural
bar. In any event, Matos has in no way shown that the omission
from the court's charge "so infected the entire trial that the
resulting conviction violates due process" — a mere showing that a
state trial court's "instruction is undesirable, erroneous, or
even `universally condemned'" will not suffice. Cupp v.
Naughten, 414 U.S. 141, 146-47, 94 S.Ct. 396, 400, 38 L.Ed.2d
368 (1973); Wright v. Smith, 569 F.2d 1188, 1191 (2nd Cir.
1978). In light of the charge as a whole, the otherwise extensive
instructions on the prosecution's burden of proof, and the
inherent weaknesses of Matos' alibi defense, this "error"
certainly does not rise to constitutional proportions.
The petition for habeas corpus is in all respects denied and
the complaint dismissed. Leave to appeal in forma pauperis is
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