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SEARS v. UNITED STATES

April 16, 1992

WILLIAM J. SEARS, Petitioner
v.
UNITED STATES OF AMERICA, Respondent


Munson


The opinion of the court was delivered by: HOWARD G. MUNSON

MEMORANDUM-DECISION

 Before the court is a petition for a writ of habeas corpus, brought pursuant to 28 U.S.C. § 2255 (1988). Petitioner William J. Sears is currently incarcerated in Hollidaysburg, Pennsylvania, having served approximately two months of his eight month sentence after pleading guilty in this district to violating 18 U.S.C. § 1623 (1988) ("False declarations before grand jury or court"). Sears's petition is based upon his belief that he was convicted without effective assistance of counsel in violation of the Sixth Amendment of the United States Constitution. Sears is represented by new counsel in the instant proceeding. *fn1"

 I. BACKGROUND

 In the early morning hours of December 16, 1987, New York State Troopers executed a search warrant at Wild Bill's Grocery & Deli ("Wild Bill's") on the St. Regis Mohawk Indian Reservation, which is located in this district near Massena, New York. At the time, petitioner Sears allegedly owned Wild Bill's. Pursuant to the warrant, the troopers searched for and found thirty gambling devices in a back room of Wild Bill's. The troopers seized the machines and left the premises. More than two and a half years later, on July 20, 1989, state troopers arrested Sears for using and/or possessing illegal gambling devices in violation of 15 U.S.C. § 1175 (1988). Eight days later, a federal grand jury impaneled in this district indicted Sears on the same charge.

 Jury trial on Sears's indictment began in this district on November 17, 1989, before Circuit Judge Van Graafeiland (sitting by designation). During Sears's case-in-chief, his defense counsel called him to the stand and the following dialogue ensued:

 Q (by defense counsel):

 Sir, I want to talk to you briefly about your personal. Do you have any military experience?

 A (by Sears):

 Yes. I was in the United States Army for six years.

 * * *

 Q: Did you serve any or did you have any overseas assignments?

 A: Yes.

 Q: Would you tell us ...


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