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CARLSON v. BARTLETT

March 4, 1993

FRANK CARLSON, Petitioner,
v.
GEORGE BARTLETT, Superintendent, Defendant.



The opinion of the court was delivered by: VINCENT L. BRODERICK

 VINCENT L. BRODERICK, U.S.D.J.

 I

 Frank Carlson was convicted in state court on November 20, 1984 of robbery, burglary and unlawful imprisonment. His conviction was affirmed by the Appellate Division, Second Department on February 18, 1992, Dkt. No. 90-04686, 91-00163. He sought federal habeas corpus relief under 28 USC 2254. By memorandum order of January 25, 1993, I denied the petition but deferred entry of judgment for 45 days thereafter to permit petitioner, who is in custody under his convictions and acting pro se, to seek reconsideration if justified.

 Petitioner has made such an application, pressing the following matters:

 (1) he takes exception to admission of a car as evidence at his trial - a matter that does not appear to raise any substantial federal question,

 (2) he iterates his contention, rejected for the reasons given in my January 25, 1993 memorandum order, that his retained attorney who replaced other counsel had a fatal conflict of interest because of unrelated representation of some police officer witnesses in civil matters; *fn1" and

 (3) he submits for the first time in this court, an affidavit sworn to April 10, 1989 of James DiDomozio, an alleged alibi witness petitioner asserts defense counsel should have interviewed and called.

 II

 Mr. DiDomozio's affidavit, prepared after petitioner's conviction and obviously furnished to petitioner in an effort to aid petitioner's efforts to set aside the state court convictions involved in the present case, raises many questions and answers few. By itself, it does not indicate that appearance of this witness would have been likely to alter the outcome of the trial; neither it nor an affidavit of petitioner's estranged wife that an alibi witness was discussed, indicates lack of effective assistance of counsel. Not calling a witness whose testimony may boomerang is at times a better strategy than putting such a witness on the stand. See generally Brink's, Inc. v. City of New York, 717 F.2d 700 (2d Cir. 1983).

 Gaps in a statement can raise questions about the credibility of the presentation as serious as any questionable affirmative statements. In this instance, what DiDomizio's affidavit does not say, in the context of what it does assert, makes the affidavit an insufficient basis for granting the pending petition or ordering a hearing on it unless the questions raised by the gaps are answered. DiDomizio's affidavit (of which a copy is attached to this memorandum order), indicates:

 (a) that DiDomizio was a long time friend of petitioner, but vouchsafes no information as to the nature of any of their joint activities or how Didomizio became acquainted with petitioner;

 (b) that DiDomizio went to petitioner's home to pick him up so that both could attend a murder trial, without indicating why either or both wished to attend that trial, whether they knew anyone involved in the case, and why they decided not to go ahead with the plan to attend the trial;

 (c) that DiDomizio "just visited" at petitioner's home from 9:30 AM to 1:00 PM on March 14, 1984, without indicating what if anything they did or discussed, or whether anyone else was ...


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