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June 9, 1992

JOSE DELGADO, Petitioner against HANS WALKER, Warden, Respondent.

The opinion of the court was delivered by: STERLING JOHNSON, JR.

 JOHNSON, District Judge:

 Petitioner Jose Delgado was convicted on August 21, 1985, after a jury trial in New York State supreme Court, Kings County, of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree. Delgado was sentenced to twenty-five years to life on the murder conviction and seven and one-half to fifteen years on the weapon charge. The New York Appellate Division, Second Department, unanimously affirmed the conviction on January 19, 1988 and modified the weapon possession sentence to five to fifteen years. The New York Court of Appeals denied leave to appeal on March 17, 1988. On October 17, 1988, the New York Appellate Division, Second Department, denied petitioner's motion for a writ of error coram nobis and on March 14, 1990, the New York Supreme Court, Kings County, denied petitioner's motion to vacate the judgment. On August 2, 1990, the New York Appellate Division, Second Department, denied petitioner's request for leave to appeal that decision.

 Thereafter, petitioner filed the instant petition for a writ of habeas corpus pursuant to 28 U.S.C. ¬ß 2254. Petitioner seeks habeas corpus relief on the grounds, inter alia, that he was deprived of his due process right to a fair trial (citing various facts in support of such motion), and that he was denied effective assistance of counsel at both the trial and appellate level. Each of these claims has been exhausted and, as such, this court addresses the merits of petitioner's claims. Rose v. Lundy, 455 U.S. 509, 71 L. Ed. 2d 379, 102 S. Ct. 1198 (1982); Picard v. Connor, 404 U.S. 270, 30 L. Ed. 2d 438, 92 S. Ct. 509 (1971).


 A. The Incident and the Arrest.

 The evidence adduced at the trial of the defendant in New York State Supreme Court, Kings County established the following: On October 16, 1984, Jose Delgado was involved in a minor traffic accident with Raymond Garcia. The two men became involved in a fight. Shortly thereafter, Delgado left the scene, telling Garcia that he would return. Delgado returned to the scene with a .38 caliber revolver and shot Garcia twice in the head, and once in the back.

 After interviewing eyewitnesses who identified Garcia as the perpetrator of the shooting, New York City Police Detective Gardella arrested petitioner at his home at approximately 2:00 a.m. on October 17, 1984. Gardella arrived at the defendant's home, identified himself and was granted entry by Delgado. At the time, Delgado was in his underwear; Gardella followed Delgado to the bedroom so that Delgado could get dressed.

 Upon entry into the bedroom, Gardella saw and seized a revolver, the revolver that ballistics experts later established to have been used in the commission of the crime. Gardella then took petitioner to the 72nd Precinct where, after Delgado was advised of his Miranda rights, he made a confession.

 B. The Trial.

 Immediately prior to trial, Delgado attempted to, plead guilty to second-degree murder. In the course of allocuting, however, he claimed self-defense and, on this basis, the court trial, refused to accept the plea.

 At trial, the Kings County Assistant District Attorney (hereinafter the "State") introduced the testimony of eyewitnesses including two individuals who were friends of Delgado, Detective Gardella, a medical examiner and a ballistics expert. Defense counsel cross-examined each person vigorously and conducted a voir dire with respect to certain evidence, as needed.

 Not only did Delgado's trial counsel attempt to impeach the State's witnesses, but he also sought to establish the defendant's peaceful and truthful character by calling two witnesses. The defense sought to prove the affirmative defenses of justification and extreme emotional distress. Finally, the defense tried to challenge the validity of the post-arrest statement allegedly made by the defendant. Specifically, defense counsel argued that the alleged confession was fabricated by the State because, he averred, the defendant was not capable of making a confession in English as the New York police officer testified

 To rebut the charge that the alleged confession had been fabricated by the police, the State sought to introduce a videotaped statement made by Delgado in which Delgado is seen and heard asking for a lawyer in English. After an in camera review of the tape, the trial court granted the State leave to introduce the statement finding that it did not violate the defendant's right against self-incrimination, right to counsel and due process right to a fair trial. *fn1"

 Trial counsel sought a jury instruction as to extreme emotional disturbance. The court refused that request.

 After deliberating and seeking several read-backs of testimony including that of an eyewitness, the jury found the defendant guilty of Second Degree murder and criminal possession of a weapon in the second-degree.


 A. Ineffective Assistance Of Trial Counsel.

 Petitioner claims that his trial counsel was ineffective. In support of his claim, petitioner cites trial counsel's failure to make a motion pursuant to Payton v. New York, 445 U.S. 573, 100 S. Ct. 1371, 63 L. Ed. 2d 639 (1980). A Payton motion challenges a warrantless, nonconsensual entry into a suspect's home for the purpose of making an arrest as violative of the Fourth Amendment when such entry is not justified by probable cause or exigent circumstances.

 The Supreme court established the standards by which counsel's conduct is reviewed when a Sixth Amendment claim of ineffective assistance of trial counsel is raised. Strickland v. Washington, 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674 (1984). First, a defendant must show that counsel performed in a manner which was so deficient as to not be "within the realm of reasonable professional competence," 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) (citing Strickland). Second, petitioner must demonstrate that he was deprived of "a fair trial, a trial whose result is reliable," because of the errors of trial counsel. Strickland, 466 U.S. at 687, 104 S. Ct. at 2064. "The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result." Strickland, 466 U.S. at 686, 104 S. Ct. at 2064.

 Standing alone, the act of forgoing a Payton motion was neither unreasonable nor did it render the verdict in this case unreliable. Defense counsel's actions did not illustrate a lack of sound professional judgment. From a tactical viewpoint, counsel probably determined that a Payton motion was unlikely to succeed given the exigent circumstances leading up to the arrest of Delgado. *fn2" A violent murder had occurred, no weapon had been found at the scene of the crime which suggested that the alleged assailant remained armed, and eyewitnesses, including friends of Delgado's, had identified Delgado as the perpetrator. It was reasonable for a police detective to conclude that the suspect might seek to flee the jurisdiction given these factors.

 Furthermore, there is no evidence that Detective Gardella used force to gain entry into Delgado's apartment. Given these factors, it was not an unreasonable decision by counsel to forgo making a Payton motion, and to emphasize instead the arguments that were most ...

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