United States District Court, Southern District of New York
January 23, 1991
WILEY MINOR, PETITIONER,
ROBERT HENDERSON, SUPERINTENDENT, AUBURN CORRECTIONAL FACILITY, RESPONDENT.
The opinion of the court was delivered by: Kimba M. Wood, District Judge.
MEMORANDUM OPINION AND ORDER
In August 1988, petitioner filed this habeas corpus petition,
asserting two claims for relief. The court referred the matter to
Magistrate Judge Grubin on January 4, 1989. Having received the
Magistrate Judge's Report and Recommendation ("Report") and the
objections thereto submitted by petitioner, and having conducted
a de novo review of the record, the court accepts and adopts
the Magistrate's Report.
For substantially the reasons set forth by Magistrate Judge
Grubin, the application for writ is denied. The clerk of the
court is directed to enter judgment dismissing the petition
without prejudice. As the petition presents no questions of
substance for appellate review, a certificate of probable cause
will not issue. Alexander v. Harris, 595 F.2d 87, 90-91 (2d
Cir. 1979). We certify pursuant to 28 U.S.C. § 1915(a) that any
appeal from this order would not be taken in good faith. See
Coppedge v. United States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d
REPORT AND RECOMMENDATION TO THE HONORABLE KIMBA M. WOOD
SHARON E. GRUBIN, United States Magistrate Judge:
Petitioner pro se seeks a writ of habeas corpus pursuant to
28 U.S.C. § 2254 challenging his August 22, 1984 convictions
after a jury trial in the New York State Supreme Court, New York
County, of sodomy in the first degree (N.Y.Penal Law § 130.50),
attempted rape in the first degree (N.Y.Penal Law §§ 110.00 and
130.35), burglary in the first degree (N.Y.Penal Law § 140.30)
and assault in the second degree (N.Y.Penal Law § 120.05). He was
sentenced to concurrent indeterminate prison terms of eleven to
twenty-two years on the sodomy count, eleven to twenty-two years
on the burglary count, seven and one-half to fifteen years on the
attempted rape count and three and one-half to seven years on the
assault count. The Appellate Division, First Department, affirmed
the convictions without opinion on March 20, 1986, People v.
Minor, 118 A.D.2d 1051, 499 N.Y.S.2d 1001 (1986), and the New
York Court of Appeals denied leave to appeal on April 16, 1986,
People v. Minor, 67 N.Y.2d 947, 502 N.Y.S.2d 1040,
494 N.E.2d 125 (1986). Petitioner also moved to vacate the judgment of
conviction pursuant to N.Y.Crim.Proc.Law § 440.10 before the
Honorable Stanley Sklar of the New York State Supreme Court, New
York County, who had presided at the trial. The motion was denied
on May 4, 1987, and on May 10, 1988 the Appellate Division, First
Department, denied petitioner leave to appeal Justice Sklar's
The petition raises the following two questions: (1) whether
petitioner was denied a fair trial by comments of the prosecutor
during summation, and (2) whether petitioner was denied the
effective assistance of counsel at trial. For the reasons
discussed below, I find that both questions must be answered in
the negative, and I respectfully recommend that your Honor deny
Petitioner's convictions arise from events occurring in the
Manhattan apartment of Mr. and Mrs. William Ling on the morning
of April 16, 1983. Construing the evidence at trial in the light
most favorable to the state, see, e.g., Jackson v. Virginia,
443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979);
Reddy v. Coombe, 846 F.2d 866, 869 (2d Cir.), cert. denied,
488 U.S. 929, 109 S.Ct. 316, 102 L.Ed.2d 334 (1988); Garcia v.
Warden, 795 F.2d 5, 6 (2d Cir. 1986), the following was
The Ling apartment occupies the third and fourth floors of a
building located on East 37th Street. Mrs. Ling testified that
when she and her husband were home, they kept the doors to the
apartment on both the third and fourth floors unlocked. On the
morning of April 16, 1983 Mrs. Ling was watching television in
her bedroom in the back of the fourth floor, and Mr. Ling was
downstairs in the kitchen area washing dishes. Mrs. Ling
testified that she lit both of two lamps in the bedroom because
it was a dark morning. At about 9:30 a.m. she heard her two small
dogs begin to bark and then heard a door open. She turned around
towards the open door to the bedroom, expecting to see her
husband coming up the stairs, and instead saw petitioner entering
the bedroom. She described him at trial as a tall black man,
wearing a work
shirt over a dirty red t-shirt, whose breath was foul and whose
teeth were yellow and decayed. Mrs. Ling rose, walked to the door
and told petitioner to go away. Petitioner instead closed the
door behind him and did not reply. When Mrs. Ling reached for the
door, petitioner told her not to touch it and to "shut up." He
then removed a large screwdriver from his coat and again told her
to "shut up" or he would hurt her with the screwdriver. Mrs. Ling
offered him money to leave, but, she said, "he just said shut up,
he would tell me what he wanted." Tr. 52.*fn1
Petitioner next maneuvered Mrs. Ling over to the bed and told
her to lie down. The sexual assault followed, accompanied by
threats of physical harm, and the details Mrs. Ling related in
court are not necessary to recount herein. (See Tr. 56-57.) It
suffices to say that there was assuredly sufficient evidence from
which the jury could find that petitioner committed the crimes
for which he was convicted. (Petitioner does not challenge here
the sufficiency of the evidence). During the course of the sexual
abuse, Mrs. Ling attempted to extricate herself. She testified
that she maneuvered until she could feel that her body was on top
of the screwdriver which petitioner had placed on the bed.
Petitioner, apparently realizing her attempt to retrieve the
screwdriver, said, "I am going to hurt you." Tr. 53. Mrs. Ling
then grabbed the screwdriver, pushed petitioner away from her and
jumped up, screaming for her husband and attempting to exit the
room. Petitioner pulled her back, pushed her onto the bed and
punched her in the head. At this point Mr. Ling, who had heard
the commotion from downstairs, entered the bedroom and yelled,
"Get off of her." He then pulled petitioner away from his wife
and onto the floor and punched him in the face. Petitioner then
hit Mr. Ling, who staggered backwards into a rocking chair, and
petitioner shouted, "I'm going to get my screwdriver. I'm going
to stick you." Tr. 54.*fn2
Mr. Ling, hoping to attract the attention of the tenants who
lived on the second floor, went to the doorway of the apartment
and began to call for help and run down the stairs. Petitioner
then pushed Mr. Ling down the stairs, jumped over him and
fled.*fn3 He left behind a dirty gray herringbone overcoat. Mrs.
Ling found her husband lying at the bottom of the stairs covered
with blood. She summoned emergency assistance, and the couple was
taken by ambulance to Bellevue Hospital where Mr. Ling received
seventeen stitches for a wound to his head and a splint for
injuries to his foot.
Subsequently, Mrs. Ling identified petitioner from photographs,
at a line-up and in court.*fn4 In addition to Mrs. Ling's
identification and the testimony of both of the Lings, petitioner
was linked to the crimes through circumstantial evidence provided
by the testimony of Jennifer Barrows, program director for the
First Moravian Church Coffee Pot, a "drop-in" center open around
the clock at Lexington Avenue and East 30th Street. She testified
that she knew petitioner as a client of the center who had come
intermittently since May 1981. She was shown the gray
herringbone overcoat recovered from the Lings' apartment and
identified it as a coat she had seen petitioner wearing that
winter. She remembered the coat because it was unusual for a
client of the center to have such an overcoat.
Petitioner's first claim herein, that comments by the Assistant
during his summation violated petitioner's right to a fair trial,
arises from the following portion of the summation:
MR. JACOBSON [prosecutor]: . . . Ladies and
gentlemen, rape is probably one of the most horrible
crimes one individual can commit against another.
MR. WOJSZWILO [petitioner's counsel]: Objection.
THE COURT: Sustained. This is not an analysis on
the nature of crimes. The jury is to disregard it
totally. Follow my instructions, each of you. Rather,
we are concentrating on the evidence and the laws and
arguments that are based on them. You may proceed.
MR. JACOBSON: I meant to say it is a very special
crime in the way or the impression that it leaves on
a victim by the very nature of the way the crime is
committed. A rape victim sees her attacker like no
other victim of crime.
MR. WOJSZWILO: Objection, your Honor.
THE COURT: Sustained. We have no evidence
whatsoever at this trial as a comparison of the view
or impression of victims of rapes or attempted rapes
and victims of any other crimes. The remarks of the
Assistant District Attorney, accordingly, are
stricken in this respect. They are improper and
incorrect. They must be disregarded by you totally.
Once again, I must ask you, will you each follow
that instruction 100 percent. Thank you. Please
confine yourself based on the argument of evidence.
Tr. 327-28. Petitioner contends that the prosecutor's remarks
deprived him of a fair trial because they attempted to bolster
otherwise weak identification evidence and to appeal to the jury
to render a verdict based upon its emotional reaction to the
The question for this court in the context of federal habeas
corpus review is "whether the prosecutor['s] comments `so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.' Donnelly v. DeChristoforo,
416 U.S. 637, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)." Darden v.
Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471, 91 L.Ed.2d
144 (1986). See also United States v. Pena, 793 F.2d 486, 490
(2d Cir. 1986); United States v. Wilkinson, 754 F.2d 1427, 1435
(2d Cir.), cert. denied sub nom. Shipp v. United States,
472 U.S. 1019, 105 S.Ct. 3482, 87 L.Ed.2d 617 (1985). The instant
claim may be compared to one in Castro v. Sullivan, 662 F. Supp. 745
(S.D.N.Y. 1987), where the petitioner, Castro, was alleged to
have shot and robbed William Belen and Adolfo Montenegro.
Montenegro had identified Castro as one of his assailants in a
pretrial line-up. The Honorable John M. Walker explained as
Specifically, petitioner objects to a prosecution
argument supporting Montenegro's identification of
petitioner as the perpetrator of the robbery and
killing. In summation, the prosecutor described human
memory of any traumatic event as "like a camera,
[which] takes a picture and that picture is stored on
the film and that film is memory." Thus, according to
the prosecutor, an image of the individuals involved
in the November 13, 1980 shooting "was burned on his
[Montenegro's] mind. . . ." Transcript, at 603.
In this case, the prosecutor's remarks were clearly
in the realm of argument, rather than a recitation of
facts extrinsic to the record. Indeed, to the extent
they could be construed as factual, the judge
properly admonished the jury to disregard them,
during his charge:
In making the factual determination on which your
verdict will be based, you may consider only the
testimony of the witnesses as you have heard it in
this courtroom and exhibits received in evidence
and the stipulations. Comments, remarks and
summation by opposing attorneys are not evidence
nor anything I have said with regard to the facts
Transcript, at 665-66. Such an instruction is
sufficient to cure any prejudice that could have
resulted from the prosecution's argument. See, e.g.,
Donnelly v. DeChristoforo, 416 U.S. 637, 644, 94
S.Ct. 1868, 1872, 40 L.Ed.2d 431 (1974); Payne v.
Jones, 638 F. Supp. 669, 676
(E.D.N.Y. 1986) [, aff'd, 812 F.2d 712 (2d Cir.
1987)]; Snow v. Reid, 619 F. Supp. 579, 584
662 F. Supp. at 752. See also Garofolo v. Coomb, 804 F.2d 201
206 (2d Cir. 1986).
In petitioner's case, even if we were to assume that the
remarks were not properly within the realm of argument, they
hardly could be seen to have rendered petitioner's trial
constitutionally infirm. The trial court gave not only the
standard instructions in the charge concerning what the jury
should and should not consider as evidence, but also instructions
to the jury that were clear, pointed and immediate to disregard
those very remarks. The Second Circuit has recently affirmed that
"[e]ven where the prosecutor's argument was clearly
impermissible, we have been reluctant to reverse where the
transgression was isolated, the trial court took swift and clear
steps to correct the implication of the argument, and the
evidence against the defendant was strong. See, e.g., United
States v. Cruz, 797 F.2d  at 93 n. 1 [(2d Cir. 1986)]. . .
." United States v. Parker, 903 F.2d 91, 98 (2d Cir. 1990).
See also Greer v. Miller, 483 U.S. 756, 766, 107 S.Ct. 3102,
3109, 97 L.Ed.2d 618 (1987); United States v. Tutino,
883 F.2d 1125, 1137 (2d Cir. 1989), cert. denied, ___ U.S. ___, 110
S.Ct. 1139, 107 L.Ed.2d 1044 (1990); United States v. Erb,
543 F.2d 438, 442 (2d Cir.), cert. denied, 429 U.S. 981, 97 S.Ct.
493, 50 L.Ed.2d 590 (1976); Cruz v. Scully, 716 F. Supp. 766,
772 (S.D.N.Y. 1989). Moreover, petitioner did not thereafter
request further instruction to the jury nor any other relief with
respect to the statements. See, e.g., United States v. Canales,
744 F.2d 413, 431 (5th Cir. 1984), reh'g denied, 750 F.2d 69
(5th Cir. 1984) (en banc) ("When we are asked to reverse in
these circumstances we are, in effect, asked to go against the
implicit judgment of both the trial court and the defendant's
trial counsel that the trial court's corrective action was
adequate and appropriate"); Shaw v. Stone, 506 F. Supp. 571, 576
(M.D. Ga. 1981), aff'd sub nom. Shaw v. Boney, 695 F.2d 528
(11th Cir. 1983) (per curiam); Taylor v. Dalsheim, 459 F. Supp. 260,
263 n. 2 (S.D.N.Y. 1978), aff'd, 610 F.2d 807 (2d Cir.
1979), cert. denied, 444 U.S. 1048, 100 S.Ct. 738, 62 L.Ed.2d
It is quite clear that the challenged language of the
prosecutor, viewed in the context of the identification evidence
at trial, the entire argument before the jury and the trial
judge's instructions can hardly be said to have been so unfair as
to have denied petitioner due process of law. Ground One of the
petition must, therefore, be denied.*fn5
Petitioner's second claim is that he was denied his right to
the effective assistance of counsel because his trial counsel
failed to present an alibi defense and failed to demonstrate in
front of the jury that the overcoat found at the Lings' apartment
was too small a size to fit petitioner.
The Supreme Court set forth the standards for evaluating a
claim of ineffective assistance of counsel in Strickland v.
Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984),
and has reaffirmed them in Kimmelman v. Morrison, 477 U.S. 365,
374-75, 106 S.Ct. 2574, 2582-83, 91 L.Ed.2d 305 (1986), and
Darden v. Wainwright, 477 U.S. 168, 184, 106 S.Ct. 2464, 2473,
91 L.Ed.2d 144 (1986). See also Tsirizotakis v. LeFevre,
736 F.2d 57, 62-63 (2d Cir.), cert. denied, 469 U.S. 869, 105 S.Ct.
216, 83 L.Ed.2d 146 (1984); Arce v. Smith, 710 F. Supp. 920,
924-25 (S.D.N.Y.), aff'd, 889 F.2d 1271 (2d Cir. 1989), cert.
denied sub nom. Arce v. Berbary, ___ U.S. ___, 110 S.Ct. 2185,
109 L.Ed.2d 513 (1990). Because
the purpose of the sixth amendment's requirement of effective
assistance of counsel is to ensure a fair trial, "[t]he essence
of an ineffective-assistance claim is that counsel's
unprofessional errors so upset the adversarial balance between
defense and prosecution that the trial was rendered unfair and
the verdict rendered suspect." Kimmelman v. Morrison, 477 U.S.
at 374, 106 S.Ct. at 2582. See also Strickland v. Washington,
466 U.S. at 686, 104 S.Ct. at 2063-64; United States v.
Ditommaso, 817 F.2d 201, 215 (2d Cir. 1987).
The Court explained in Strickland that a petitioner claiming
ineffective assistance of counsel has the burden of demonstrating
two elements. See also United States v. Aiello, 900 F.2d 528,
532 (2d Cir. 1990); Abdurrahman v. Henderson, 897 F.2d 71, 74
(2d Cir. 1990); Cuevas v. Henderson, 801 F.2d 586, 589 (2d Cir.
1986), cert. denied, 480 U.S. 908, 107 S.Ct. 1354, 94 L.Ed.2d
524 (1987); Mitchell v. Scully, 746 F.2d 951, 954 (2d Cir.
1984), cert. denied, 470 U.S. 1056, 105 S.Ct. 1765, 84 L.Ed.2d
826 (1985); Lawson v. United States, 648 F. Supp. 378, 380
(S.D.N.Y. 1986). First, he must show not simply that his counsel
erred, but that the errors were not within the realm of
reasonableness under the professional norms prevailing at the
time of trial. Strickland v. Washington, 466 U.S. at 687-88,
104 S.Ct. at 2064-65. Although the Court has not established
specific guidelines for evaluating the reasonableness of
counsel's actions, there is to be applied a "strong presumption
that counsel's conduct falls within the wide range of reasonable
professional assistance" and that counsel has "made all
significant decisions in the exercise of reasonable professional
judgment." Id. at 690, 104 S.Ct. at 2066. A petitioner "must
overcome the presumption that, under the circumstances, the
challenged action `might be considered sound trial strategy.'"
Id. (quoting Michel v. Louisiana, 350 U.S. 91, 101, 76 S.Ct.
158, 164, 100 L.Ed. 83 (1955)). See also Mills v. Scully,
826 F.2d 1192, 1197 (2d Cir. 1987); Cuevas v. Henderson, 801 F.2d
Second, the petitioner must show that his attorney's
performance prejudiced his defense. Thus, if a petitioner can
establish that his counsel's performance fell below the
prevailing professional norms, he must also show that there is "a
reasonable probability that, but for counsel's unprofessional
errors, the result of the proceeding would have been different."
Strickland v. Washington, 466 U.S. at 694, 104 S.Ct. at 2068.
See also Kimmelman v. Morrison, 477 U.S. at 375, 106 S.Ct. at
2582-83; United States v. Jones, 900 F.2d 512, 519 (2d Cir.
1990); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.
1990); Whaley v. Rodriguez, 840 F.2d 1046, 1051 (2d Cir.),
cert. denied, 488 U.S. 944, 109 S.Ct. 371, 102 L.Ed.2d 360
(1988); United States v. Ditommaso, 817 F.2d at 215; Solomon
v. Harris, 749 F.2d 1, 2 (2d Cir. 1984), cert. denied,
470 U.S. 1087, 105 S.Ct. 1851, 85 L.Ed.2d 149 (1985); Mitchell v.
Scully, 746 F.2d at 954. A reasonable probability is "a
probability sufficient to undermine confidence in the outcome" of
the proceeding. Strickland v. Washington, 466 U.S. at 694, 104
S.Ct. at 2068. A petitioner cannot satisfy this second prong of
the analysis by showing only that counsel's errors had "some
conceivable effect" on the result, for "not every error that
conceivably could have influenced the outcome undermines the
reliability of the result of the proceeding." Id. at 693, 104
S.Ct. at 2067. Rather, a petitioner must demonstrate that absent
counsel's errors, "the decision reached would reasonably likely
have been different," considering the totality of the evidence.
Id. See also United States ex rel. Roche v. Scully,
739 F.2d 739, 742-44 (2d Cir. 1984). Although analysis of an ineffective
assistance claim involves the two elements of counsel's error and
petitioner's prejudice, as a petitioner making the claim must
meet the burden of establishing both, it is not necessary for a
reviewing court to address both elements if the petitioner makes
an insufficient showing on either one. Strickland v.
Washington, 466 U.S. at 697, 104 S.Ct. at 2069-70. See also
United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987),
cert. denied sub nom. Annabi v. United States, 484 U.S. 1061,
108 S.Ct. 1018, 98 L.Ed.2d 983 (1988); Mitchell v. Scully, 746
F.2d at 954.
With respect to his contention concerning an alibi defense,
petitioner alleges that a report by a private investigator showed
the existence of such a defense but that his counsel did not
present any of the evidence found by the investigator. In denying
this claim which petitioner raised in his § 440.10 motion,
Justice Sklar wrote as follows:
The motion is denied because it is totally without
The motion is grounded upon the defendant's claim
that "evidence" unearthed by an investigator on
behalf of defendant "would prove that defendant
herein could not have committed the crimes charged
The motion also urges that because of the
defendant's attorney's failure to present such
evidence, Mr. Minor was not represented by competent
counsel — such incompetence rising to the level of
ineffective assistance of counsel.
The reality is that Mr. Minor claimed during the
trial, and upon sentencing, that he could not have
committed the crimes of which he was found guilty.
The additional reality is that an extraordinary
presentation was made at the trial that
overwhelmingly identified the defendant as the
perpetrator. . . .
Defendant's counsel was thorough, careful,
experienced and devoted. The reality is that the
"evidence" referred to by defendant simply did not
exist. One might note that with respect to the
instant motion, defendant does not even specify what
the claimed evidence is.
Memorandum Decision, May 4, 1987, pp. 1-2 (emphasis added).
In presenting this claim to this court, petitioner similarly
did not state what the evidence was that allegedly would have
shown his innocence. Rather, again, he simply asserted in
conclusory form that his sixth amendment rights were violated
because counsel did not present this unspecified proof.
Petitioner, who is apparently claiming that he was in some
location other than the Lings' bedroom at the time of the crime,
should be able to say where he was, yet his submissions on this
petition are bereft of any explanatory indication by him. In
opposition to the petition, respondent herein noted petitioner's
persistent failure to set forth the nature of the alleged alibi
defense. However, in his Traverse filed in response to the
respondent's papers, petitioner stated to the contrary — that the
nature of his defense had been presented to the state courts in
his § 440.10 motion together with a copy of the investigator's
Respondent erroneously claims that petitioner has
never before set forth the nature of the alibi
defense that could have and should have been offered.
This is not so! Petitioner fully briefed this issue
on his C.P.L. § 440.10 motion, and even attached a
copy of the report of the private investigator to
show that an alibi defense was viable.
Traverse ¶ 13. Yet, petitioner still did not state for this court
what the alleged evidence was, nor did the various copies of the
§ 440.10 motion papers in this court's file show any such
explanation or report. Accordingly, on June 19, 1990 I issued an
order directing petitioner to submit to me a copy of the
investigator's report or, if he no longer had one available, to
set forth the specific substance of its contents.
Petitioner has now submitted a copy of the report by the
investigator, Leroy L. Witherspoon. The document shows that
Witherspoon, hired by petitioner's counsel, took painstaking
efforts to pursue all possible leads in an unsuccessful attempt
to establish evidence that would aid petitioner. The only
portions of the report concerning a possible alibi are those that
recount conversations Witherspoon had with petitioner's mother
and sister who stated petitioner had been staying at his
brother's house in Brooklyn on the weekend in question (although
they, apparently, had not been present with him). However, when
Witherspoon spoke with petitioner's brother, his brother's wife
and another sister, they all stated that petitioner had been at
his brother's house on several occasions, but they could not
remember whether he had been there on the date of the crime,
April 16, 1983, or, in fact, any specific date he had been there.
Moreover, after having learned of this possible alibi from
petitioner's mother and sister, Witherspoon interviewed
petitioner and reported as follows:
I asked if he could have been at his brothers [sic]
house that Saturday April 16, 1983. He said he had
been there a few times but he was not there at that
Report of Leroy L. Witherspoon, dated November 2, 1983, p. 3.
In short, petitioner's claim that his attorney was deficient in
failing to present at trial evidence uncovered by the
investigator is simply not supported by the investigator's
findings, and petitioner offers nothing else. As Justice Sklar
wrote in his denial of petitioner's § 440.10 motion on this
claim, "the `evidence' referred to by defendant simply did not
exist." (See page 1017, supra.)
It is quite clear, moreover, that petitioner's counsel did not
simply overlook the work done by the investigator but rather was
well aware of Witherspoon's efforts and involved in them.
Counsel's deliberate decision not to present any evidence arising
from them, even if any existed, can hardly be said to constitute
a violation of the sixth amendment. That the decision was a
considered one was shown at one point during the course of the
trial when petitioner asked to address the court. Petitioner told
the court that he did not understand why no witnesses were being
called on his behalf since there had been an investigator
retained who had interviewed him and other people. The following
colloquy then occurred:
THE COURT: Mr. Wojszwilo [petitioner's counsel], is
there anything that you want to say? If not, I will
MR. WOJSZWILO: For the purpose of clarification, I
would want to indicate an investigator was engaged by
me to speak to Mr. Minor and to take certain action
as a result of his conversations with Mr. Minor and
also with me.
That investigator's name is Leroy Witherspoon. He
spoke to Mr. Minor, I believe on two occasions.
THE DEFENDANT: Yes.
MR. WOJSZWILO: At Riker's Island.
He spoke to me on several other occasions. I am
satisfied to this day with the efforts that were made
and speaking to various people and trying to speak to
other people without going into — I don't think it is
appropriate the result of that investigation.
I have indicated to Mr. Minor that it is not my
intention to call any witnesses nor to — well, to
call any witnesses.
Tr. 250-51. The court then at some length explained to petitioner
that he could present any witnesses he and his counsel wished to
As discussed earlier, there is a strong presumption that
counsel "made all significant decisions in the exercise of
reasonable professional judgment." Strickland v. Washington,
466 U.S. at 690, 104 S.Ct. at 2066. See also Darden v.
Wainwright, 477 U.S. at 185-86, 106 S.Ct. at 2473-74. Petitioner
here has failed to even specify what witnesses or other evidence
he believes counsel should have presented. The Second Circuit has
repeatedly instructed that "we will not second-guess trial
counsel's defense strategy simply because the chosen strategy has
failed." United States v. Ditommaso, 817 F.2d at 215. See also
United States v. Aiello, 900 F.2d at 532-33; United States v.
Nersesian, 824 F.2d at 1321-22; Mills v. Scully, 826 F.2d at
1197; Cuevas v. Henderson, 801 F.2d at 590; Trapnell v. United
States, 725 F.2d 149, 155 (2d Cir. 1983). The record here shows
clearly that petitioner's attorney made a tactical choice not to
attempt to present an alibi defense. On the record that has been
presented to us, not only was such a decision reasonable, but it
appears to have been the only rational choice. Petitioner has
presented to evidence to the contrary. In Sanchez v. Scully,
613 F. Supp. 1065 (S.D.N.Y. 1985), Judge Sprizzo of this court
addressed as follows a petitioner's claim that his trial counsel
had failed to investigate and interview properly potential
witnesses to establish an alibi defense:
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 investigating and
interviewing fell below the standard of reasonable
To the extent petitioner objects to counsel's
failure to call other alibi witnesses at trial, the
Court rejects this as a matter of trial strategy
which does not rise to the level of a constitutional
613 F. Supp. at 1068 and n. 5. Similarly, Judge Glasser of the
Eastern District of New York held in another case in which a
petitioner claimed his counsel had violated his sixth amendment
right by failing to call alibi witnesses that "`complaints of
uncalled witnesses are not favored in federal habeas review,
because the presentation of testimonial evidence is a matter of
trial strategy and because allegations of what a witness would
have testified are largely speculative.'" Caronia v. Jones, No.
CV 84-4779, slip op. at 1 (E.D.N.Y. June 30, 1988) (1988 WL
83186) (quoting Buckelew v. United States, 575 F.2d 515, 521
(5th Cir. 1978)). In Cepulonis v. Ponte, 699 F.2d 573 (1st Cir.
1983), where a petitioner claimed he had presented his trial
counsel with an alibi but counsel had failed to investigate it,
the court held:
[J]ust as counsel is not required to waste the
court's time pursuing frivolous legal motions . . .
so too counsel need not chase wild factual geese when
it appears, in light of informed professional
judgment, that a defense is implausible or
insubstantial as a matter of law, or, as here, as a
matter of fact and of the realities of proof,
procedure, and trial tactics.
699 F.2d at 575. Petitioner's failure to specify to this day the
alleged proof that could have been offered to establish an
confirms that his attorney's conduct in this regard
hardly constituted ineffective assistance. See also Arce v.
Smith, 710 F. Supp. at 925-26. Cf. Farinaro v. Kirk,
675 F. Supp. 75, 82 (E.D.N.Y. 1987), appeal dismissed, 872 F.2d 1021
(2d Cir. 1989); People v. Ford, 46 N.Y.2d 1021, 416 N.Y.S.2d 536,
389 N.E.2d 1058 (1979) (mem.).*fn7
With respect to petitioner's contention that his trial counsel
was also deficient because he did not have petitioner physically
put on the overcoat found in the Lings' apartment in front of the
jury to demonstrate that it did not fit him, again, we cannot
second-guess what was clearly a matter of trial tactics, strategy
and style. Nor can we say that, even assuming that the failure to
have petitioner model the coat could be deemed to have been
professional error, such error was such as to have so affected
the proceedings or prejudiced petitioner as to have rendered the
representation a violation of the sixth
amendment. "The sixth amendment does not entitle a defendant to
perfection but to basic fairness." United States v. Aiello, 900
F.2d at 534. See, e.g., Healey v. New York, 453 F. Supp. 14,
16-17 (S.D.N.Y. 1978), where this court stated:
The general rule is that habeas relief will not be
granted where it is shown only that there have been
tactical or strategical errors of counsel, or that
the case could have been better tried. Rickenbacker
v. Warden, 550 F.2d 62, 66 (2d Cir. 1976), cert.
denied, 434 U.S. 826, 98 S.Ct. 103, 54 L.Ed.2d 85
(1977); United States ex rel. Pugach v. Mancusi,
310 F. Supp. 691, 716 (S.D.N.Y. 1970), aff'd,
441 F.2d 1073 ([2d Cir.]), cert. denied, 404 U.S. 849,
92 S.Ct. 156, 30 L.Ed.2d 88 (1971).
See also Cuevas v. Henderson, 801 F.2d at 590; Journet v.
Coombe, 649 F. Supp. 522, 524 (S.D.N.Y. 1986); Grant v. United
States, 447 F. Supp. 732, 736-37 (S.D.N.Y.), aff'd,
591 F.2d 1330 (2d Cir. 1978).
Petitioner also appears to raise on this petition additional
ways in which he contends his attorney was deficient which were
not, however, presented to the New York courts. Specifically, he
asserts that his counsel should have shown the jury petitioner's
front teeth which he alleges were "perfect" in contrast to Mrs.
Ling's description of someone with yellow and decayed teeth. He
further summarily contends in one sentence in what may perhaps be
called the "grab-bag" approach, without any additional
elaboration, as follows: "Other errors consisted of not hav[ing]
protected his client's speedy trial rights (tried 14 months after
arrest), gave a brief, discursive summation, failed to properly
cross examine the officer on his defective identification
procedures, etc." Petition at 5. Because petitioner never
presented these alleged instances of counsel's ineffectiveness to
the trial court or the state appellate courts, he has not
exhausted them. In order to exhaust a claim of ineffective
assistance of counsel for federal habeas corpus purposes, it is
required that each factual contention of a petition have been
presented for the state courts' consideration so that they, after
determining what occurred, will have had the opportunity to pass
on the claims. To have raised only certain of the alleged
instances of ineffectiveness to the state courts does not satisfy
the exhaustion requirement of 28 U.S.C. § 2254(b). See, e.g.,
Twitty v. Smith, 614 F.2d 325, 332-33 (2d Cir. 1979); Castillo
v. Sullivan, 721 F. Supp. 592 (S.D.N.Y. 1989); Williams v.
Scully, Civ. No. 87-742 (E.D.N.Y. Sept. 15, 1989) (1989 WL
113164); Muhammad v. Kuhlmann, No. 88 Civ. 4483, slip op. at 6
(S.D.N.Y. June 27, 1989) (1989 U.S.Dist Lexis 7156) (1989 WL
79051). See also Peoples v. Fulcomer, 882 F.2d 828, 830-32 (3d
Cir. 1989); Carlisle v. Housewright, 619 F. Supp. 1370 (D.Nev.
1985). As petitioner raises these additional contentions for the
first time herein, the petition is "mixed," containing both
exhausted and unexhausted claims, and may be dismissed in its
entirety by the court under the "total exhaustion" doctrine
enunciated in Rose v. Lundy, 455 U.S. 509, 102 S.Ct. 1198, 71
L.Ed.2d 379 (1982). However, "[t]he proposition that Rose v.
Lundy . . . requires dismissal of mixed petitions containing
both exhausted and unexhausted claims is subject to some doubt in
this Circuit. . . ." Crawford v. Scully, No. 86 Civ. 6542, slip
op. at 1 n. 1 (S.D.N.Y. Oct. 16, 1987) (1987 U.S.Dist Lexis 9331)
(1987 WL 19023). The respondent herein has not raised as a
defense the petitioner's failure to exhaust these claims, and I
find that it is more appropriate to exercise our discretion in
this case at this time to dismiss these contentions on their
merits than to require a further series of state and federal
proceedings. This is so because petitioner presents no colorable
claim, and to require exhaustion would, rather than serve the
interests of comity and federalism, merely waste judicial
resources. See Granberry v. Greer, 481 U.S. 129, 135, 107 S.Ct.
1671, 1675-76, 95 L.Ed.2d 119 (1987); Plunkett v. Johnson,
828 F.2d 954, 956 (2d Cir. 1987) ("[D]istrict courts . . . must not
adopt a per se rule that in the case of nonexhaustion the
petition must be dismissed"); Flores v.
Scully, No. 89 Civ. 1527, slip op. at 9 (S.D.N.Y. Oct. 13,
1989) (1989 WL 123097) ("When a court is convinced that the
petition lacks merit and when the State has waived any exhaustion
defense, application of the exhaustion doctrine would merely
result in useless litigation in the state courts"). See also
Sanders v. Sullivan, 863 F.2d 218, 221 (2d Cir. 1988); Boykins
v. Kelly, No. 87 Civ. 6608, slip op. at 15 (S.D.N.Y. Apr. 13,
1990) (1990 U.S.Dist Lexis 4231) (1990 WL 52294); Carroll v.
Hoke, 721 F. Supp. 446, 449 n. 1 (E.D.N.Y. 1989); Lane v.
LeFevre, 705 F. Supp. 88, 92-93 (N.D.N.Y.), aff'd, 891 F.2d 277
(2d Cir. 1989); Caronia v. Jones, No. CV 84-4779 (E.D.N.Y. June
30, 1988) (1988 WL 83186).
Petitioner's contention that his counsel violated his
constitutional rights because he did not "show" to the jury
petitioner's front teeth must be rejected for the same reasons
discussed above with respect to his contention that counsel
should have had petitioner model the overcoat in front of the
jury. (See pages 1019-1020, supra.) Such a claim simply
questions a matter of counsel's strategy and hardly amounts to a
violation of the sixth amendment. (I might note, moreover, that
petitioner, who was present in the courtroom throughout his
trial, had ample opportunity to show his front teeth to the
jurors.) With respect to his "grab-bag" of other alleged
instances of counsel's ineffectiveness, petitioner also fails to
state any valid claim because "[o]ne claiming ineffective
assistance of counsel must identify specific acts or omissions;
general statements and conclusionary charges will not suffice."
Knighton v. Maggio, 740 F.2d 1344, 1349 (5th Cir.), cert.
denied sub nom. Knighton v. Louisiana, 469 U.S. 924, 105 S.Ct.
306, 83 L.Ed.2d 241 (1984). See also Green v. McGougan,
744 F.2d 1189, 1191 (5th Cir. 1984) (ineffective assistance claim
that counsel "filed no timely or appropriate motions relative to
suppression" denied because insufficient to raise issue for
review); United States ex rel. Bonner v. Wyrick, 426 F. Supp. 1205,
1209 (E.D.Mo. 1976), aff'd, 563 F.2d 1293 (8th Cir.
1977), cert. denied, 439 U.S. 913, 99 S.Ct. 286, 58 L.Ed.2d 260
(1978) (no issue for review because "claim is not cast in a
specific factual context, and the nature of the legal premise
relied upon is not clear"). Rule 2(c) of the Rules Governing §
2254 Cases requires that a petition "specify" the grounds for
relief and set forth "the facts supporting each of the grounds
thus specified." In Aubut v. Maine, 431 F.2d 688 (1st Cir.
1970), the First Circuit Court of Appeals explained as follows:
We do not accept "notice" pleading in habeas corpus
proceedings. Were the rule otherwise, every state
prisoner could obtain a hearing by filing a complaint
composed, as is the present one, of generalizations
and conclusions. The petition should set out
substantive facts that will enable the court to see a
real possibility of constitutional error. Habeas
corpus is not a general form of relief for those who
seek to explore their case in search of its
431 F.2d at 689. In Bernier v. Moore, 441 F.2d 395
1971) (per curiam), the same court explained further:
The fundamental purpose of habeas corpus would be
undermined if the writ were prostituted by holding it
out as available upon mere "notice" or token
pleading, without any showing of entitlement. . . .
Habeas corpus is a special proceeding to right
wrongs, not a routine procedure to search for them. .
Mere assertions of ineffective counsel, for
example, are not enough. Nor is it sufficient to
refer to an act or omission of counsel, as does
petitioner in this case, without indicating why it
constituted gross impropriety or prejudicial
441 F.2d at 396. Our own Circuit Court of Appeals, citing the
foregoing cases with approval, has more recently stated:
Despite our firm conviction that the pleading
requirements in habeas proceedings should not be
overly technical and stringent, it would be unwise to
district judges with the burden of reading through
voluminous records and transcripts in every case. As
the First Circuit stated, "[h]abeas corpus is a
special proceeding to right wrongs, not a routine
procedure to search for them. . . ."
Williams v. Kullman, 722 F.2d 1048
, 1051 (2d Cir. 1983)
(citations omitted). In Harris v. Attorney General of the State
of New York, No. 81 Civ. 7083 (S.D.N.Y. July 25, 1984) (1984 WL
661), Judge Haight of this court, after considering the specific
contentions asserted of ineffective assistance of counsel in a
pro se petition, stated as follows with respect to an
additional contention sought to be asserted:
Petitioner also states in his petition that "Since
I am convicted of circumstantial evidence my lawyer
did not move to seek a lesser charge." It is unclear
what this means, and since petitioner, in violation
of Rule 2(c) of the Rules for habeas corpus
petitions, 28 U.S.C. § 2254, states no facts in
support of this claim, it will not be considered.
Slip op. at n. 1. The court denied the entire petition with
Petitioner's one-sentence claim here, commencing with "Other
errors consisted of" and culminating in "etc.," must be similarly
rejected. Petitioner does not indicate why the date of his trial
may have been in violation of his "speedy trial rights" nor how
he was prejudiced thereby; he does not indicate in what way he
believes counsel's cross-examination of the police officer was
improper; nor does he indicate what is meant by "etc." by which
he apparently intends to indicate additional allegations of
ineffectiveness. In any event, however, I have thoroughly
reviewed the entire transcript of petitioner's trial (including
counsel's summation and cross-examinations), and I do not find
any deficiencies apparent in counsel's performance that would
support a sixth amendment claim. Indeed, I find nothing to
indicate that the opinion of the trial judge, Justice Sklar, that
"[d]efendant's counsel was thorough, careful, experienced and
devoted" was incorrect. Memorandum Decision, May 4, 1987, p. 2.
In sum, as petitioner has failed to show that his attorney's
performance "so undermined the proper functioning of the
adversarial process that the trial cannot be relied on as having
produced a just result," Strickland v. Washington, 466 U.S. at
686, 104 S.Ct. at 2064, Ground Two of the petition should be
For the reasons set forth herein, I respectfully recommend that
your Honor deny this petition.
The parties are hereby directed that if you have any objections
to this Report and Recommendation you must, within ten (10) days
from today, make them in writing, file them with the Clerk of the
Court and send copies to the Honorable Kimba M. Wood, to the
opposing party and to the undersigned. Failure to file objections
within ten (10) days will preclude later appellate review of any
order that will be entered by Judge Wood. See
28 U.S.C. § 636(b)(1); Rules 6(a), 6(e) and 72(b) of the Federal Rules of
Civil Procedure; Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 88
L.Ed.2d 435 (1985); Small v. Secretary of Health and Human
Services, 892 F.2d 15, 16 (2d Cir. 1989) (per curiam); Wesolek
v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v.
Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).
Dated: New York, New York
July 23, 1990