something that cannot be fairly attributed to him," Coleman v. Thompson, 115 L. Ed. 2d 640, 111 S. Ct. 2546, 2566 (1991), and the "prejudice" must be so substantial that it undermines the integrity of the entire trial. United States v. Frady, 456 U.S. at 169-70.
All of counsel's alleged deficiencies at trial were known to Brito no later than at the close of trial, when his counsel completed work on his case. Having been thus placed in the possession of all of the facts relating to his claim of ineffective representation, it is not sufficient for Brito to justify a failure to raise this claim on direct appeal by "his former state of ignorance and of acguiescence to [his] plight." See Appellant's Response to Government's Response and Memorandum of Law to Appellant's Original § 2255 at 4 ("Petitioner's Br.").
In any event, Brito has failed to allege facts sufficient to support a claim of ineffective assistance of counsel. The standards governing ineffective assistance claims are well settled. The defendant must: (1) overcome a strong presumption that his counsel's conduct was reasonable and show that his counsel's representation fell below "an objective standard of reasonableness" under "prevailing professional norms;" and (2) "affirmatively prove prejudice," that is, show that "but for counsel's unprofessional errors, the result of the proceeding would have been different." Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also United States v. Aguirre, 912 F.2d 555, 560 (2d Cir. 1990); United States v. Reiter, 897 F.2d 639, 644-45 (2d Cir.), cert. denied, 498 U.S. 817, 112 L. Ed. 2d 34, 111 S. Ct. 59 (1990); United States v. Bari, 750 F.2d 1169, 1182 (2d Cir. 1984), cert. denied, 472 U.S. 1019 (1985).
Brito's claims of ineffective assistance arise out of his attorney's exercise of professional judgment in planning a trial strategy rather than out of any omission that could, if unreasonable, lay the basis for an ineffective assistance claim. United States v. Helgesen, 669 F.2d 69, 72 (2d Cir. 1982), cert. denied, 456 U.S. 929, 72 L. Ed. 2d 445, 102 S. Ct. 1978 (1982). First, Brito claims that counsel failed to seek fingerprint and handwriting analyses on Government Ex. 10, an address book recovered from Brito's wallet when he was arrested. Brito Br. at 8. Numerous attorneys and agents, and possibly Brito himself, handled the book during discovery, and therefore it was too late by the time of the trial, when the significance of the book became apparent, to conduct an accurate fingerprint analysis. Therefore, Brito's attorney's professional judgment that the risk of creating inculpatory evidence by fingerprint and handwriting analyses outweighed the possibility of producing exculpatory evidence was reasonable under these circumstances. Furthermore, counsel's decision to focus his attack on the seizing agent's failure to list the address book on his inventory was a reasonable alternative to seeking an adjournment to request handwriting and fingerprint analyses.
Second, Brito claims that his attorney should have argued on summation that since Brito had only been in New York four weeks before his arrest, it was not likely that cautious drug dealers would have trusted him in their conspiracy. While this might have been a reasonable argument for counsel to make in summation, counsel's failure to do so hardly amounts to ineffective assistance of counsel. "A fair assessment of attorney performance requires that every effort be made to eliminate the distorting effects of hindsight . . . and to evaluate the conduct from counsel's perspective at the time." Strickland v. Washington, 466 U.S. 668, 689, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see also United States v. Jones, 918 F.2d 9, 11-12 (2d Cir. 1990). Under this standard, which "indulge[s] a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance," id. at 12, Brito's trial counsel's performance was reasonable.
The Clerk of the Court is directed to dismiss the petition and close the above-captioned action.
It is SO ORDERED.
Dated: New York, New York
March 30, 1993
John E. Sprizzo
United States District Judge
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