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MATOS v. MILES

March 9, 1990

EVIDIO MATOS, PLAINTIFF,
v.
RONALD MILES, SUPERINTENDENT OF SOUTHPORT CORRECTIONAL FACILITY, DEFENDANT.



The opinion of the court was delivered by: Kevin Thomas Duffy, District Judge:

MEMORANDUM & ORDER

Petitioner Evidio Matos, proceeding pro se, seeks a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1982). Matos is currently a New York state prisoner serving concurrent indeterminate prison terms of fifteen years to life and three and one-half to seven years upon conviction of murder in the second degree and assault in the second degree, respectively. The sentence was imposed by the Supreme Court, New York County (Torres, J.) after a trial by jury. On appeal, the Appellate Division, First Department, affirmed Matos' conviction and sentence without opinion. The New York Court of Appeals then denied leave to appeal.

Matos appears to have fully exhausted his state remedies as required by Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71 L.Ed.2d 379 (1982). He now seeks this petition on the grounds that: (1) he was deprived of effective assistance of counsel at the trial stage; and (2) the trial court did not deliver sua sponte an alibi charge.

FACTS

Shortly before midnight on June 10, 1984, Matos and an unidentified man armed with a shotgun became embroiled in an argument with Eriberto and Abraham Echevarria near the corner of 112th Street and Lexington Avenue in Manhattan. During the dispute, Matos struck Abraham Echevarria across the abdomen with a heavy metal pipe and then ordered his accomplice to shoot Eriberto Echevarria. Eriberto was shot at close range and soon afterwards died from the wounds. Matos and his cohort then fled into the night.

Matos was arrested a short time later when Noelia Jardines, Eriberto Echevarria's common law wife and a witness to the shooting, pointed him out on the street to the police. Shortly thereafter, Abraham Echevarria also identified Matos at the police precinct as the man who had struck him with the pipe and had ordered the other man to shoot Eriberto. Both Jardines and Abraham later testified at trial to have recognized Matos as someone they had seen in their neighborhood prior to the incident on June 10, 1984.

Matos claims that his counsel: (1) failed to investigate and prepare the defense case; (2) failed to make appropriate pretrial motions to suppress identification evidence; (3) failed to impeach prosecution witnesses with prior inconsistent descriptions and versions of events; (4) elicited damaging hearsay testimony; (5) failed to call two alibi witnesses; (6) failed to request an alibi charge; and (7) failed to make an opening statement and did not present a focused summation consistent with the evidence.

DISCUSSION

A defendant challenging his conviction based on a claim of inadequate representation bears the burden of showing that his attorney's performance "`fell below an objective standard of reasonableness,'" Abdurrahman v. Henderson, 897 F.2d 71, 74 (2nd Cir. 1990) (quoting Strickland v. Washington, 466 U.S. 668, 688, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674 (1984)), and that "but for this error, there is a `reasonable probability' the outcome would have been different." Id. at 694, 104 S.Ct. at 2068. To meet that burden, Matos must overcome the strong presumption that counsel's efforts could be considered sound trial strategy under the circumstances counsel faced at the time he represented his client. Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.

With these circumstances in mind, most of Matos' allegations of ineffectiveness merit little discussion. That counsel did not open to the jury is of no consequence. The Second Circuit has held that the decision whether or not to open is generally a matter of trial tactics, and thus does not constitute the basis for a claim of ineffective assistance of counsel. United States v. Nersesian, 824 F.2d 1294, 1321 (2nd Cir. 1987). Indeed, at times it is the best strategy for a lawyer to rely upon the presumption of innocence. Similarly, counsel's summation to the jury was not, as Matos suggests, "unfocused." Counsel confronted the evidence and thoroughly advanced his theory of the case. As such, it cannot be said that counsel's strategy in either instance was unreasonable under the circumstances.

Matos' claim that counsel failed to impeach prosecution witnesses with prior inconsistent descriptions and versions of events also does not rise to the level of ineffective assistance of counsel. "Decisions whether to engage in cross-examination, and if so, to what extent and in what manner, are similarly strategic in nature." Nersesian, 824 F.2d at 1321.

While I am limited by the record in evaluating whether counsel actually failed to speak with petitioner to prepare the defense, it appears that counsel spoke to Matos on the phone, and there is no allegation that counsel did not speak to prior counsel regarding the case. Even assuming that Matos did not speak to counsel, Matos in no way demonstrates a reasonable probability that, but for counsel's failings, the result of the proceeding would have been different. The record reveals that counsel possessed a thorough command of the facts and that the evidence against Matos at trial was overwhelming.

Matos also contends that his counsel elicited damaging hearsay testimony from the arresting officer on cross-examination regarding the circumstances of the identification made by Jardines before Matos' arrest. However, counsel's tactic was clearly part of a plausible trial strategy that Matos had no knowledge of the shooting and thus Matos' conduct when arrested indicated no consciousness of guilt. Again, that strategy was not unreasonable in light of the facts as they were ...


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