witnesses to testify on his behalf. Second, Leaks contends that his attorney failed to request the services of a handwriting expert to analyze notes that linked Leaks to the robberies. Third, he contends that his attorney was ineffective in his cross-examination of three F.B.I. agents. Finally, Leaks claims that his attorney failed to determine whether a search warrant was obtained prior to the search of his home.
The first three arguments regarding his attorney's performance at trial are decisions that "fall squarely within the ambit of trial strategy," and, if reasonably made, cannot support an ineffective assistance claim. United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir.), cert. denied, 484 U.S. 957 (1987). Leaks argues that his attorney failed to call witnesses for the defense because his attorney "did not find out if there were any other witnesses other than those called by the government." Petitioner's Br. at 39. Leaks, however, does not identify anyone who could have testified on his behalf. Indeed, he presents no one who could have provided exculpatory evidence, leaving me to conclude no such witness existed. A lawyer's role is not to create witnesses out of thin air. Certainly, failure to do so does not amount to ineffective assistance of counsel. Simply, it is a reasonable tactical decision to rely on attacking the government's witnesses rather than calling witnesses who will be subject to cross-examination by the government. United States v. Eisen, 974 F.2d 246, 265 (2d Cir. 1992), cert. denied, 123 L. Ed. 2d 178, 113 S. Ct. 1619 (1993). See also Nersesian, 824 F.2d at 1321 ("The decision whether to call any witnesses on behalf of the defendant, and if so which witnesses to call, is a tactical decision of the sort engaged in by defense attorneys in almost every trial."). Moreover, because he has failed to present the names of any witnesses who would have testified on his behalf, Leaks has failed to establish any "prejudice".
Leaks next claims that his attorney's failure to request the services of a handwriting expert to independently analyze the notes recovered at the scene of some of the robberies amounts to ineffective assistance of counsel. According to the government's handwriting expert, these notes linked Leaks with the crime. Leaks argues that: "if the defense had called its own handwriting expert, there is a possibility the defense experts [sic] conclusions would have differed from those of the government's expert." Petitioner's Br. at 41. This argument is nothing more than mere speculation. Counsel's decision not to request the services of an expert cannot be considered objectively unreasonable when Leaks has only presented his vague hope that another expert might have reached a different result than the government expert.
Thus, relying on a cross-examination of the government's handwriting expert was a reasonable tactical decision. Eisen, 974 F.2d at 265. More importantly, as this claim is purely speculative, Leaks has also failed to show that any "prejudice" occurred as a result of his lawyer's strategic decision not to retain another handwriting expert.
Leaks also claims that his attorney was ineffective in his cross-examination of government witnesses. He claims his attorney failed to expose inconsistencies in the testimony of three F.B.I. agents concerning the layout of the defendant's apartment and the location of the Federal Magistrate from whom the agents obtained a search warrant.
It was not objectively unreasonable for Leaks' attorney to decide not to cross-examine these witnesses on these issues. Leaks' attorney probably recognized that when the agent testified that the terrace was "roof level," she meant that Leaks' apartment was near the roof of the building. Further, even if Leaks is correct in a literal sense, the focus of this inquiry was whether Leaks' apartment was accessible from a second entrance in the rear of the apartment. Given all the testimony on this issue, it was possible that someone on the roof of the building could have gained access to Leaks' apartment through the terrace. Therefore, counsel's failure to pursue this relatively unimportant detail further was not objectively unreasonable.
Leaks also points to discrepancies in the testimony of two agents as to the location of the Federal Magistrate from whom the search warrant was eventually obtained. One agent testified that the search warrant was obtained in Newark, while another testified that it was Plainsboro. Tr. at 398, 421. Given the inconsequential nature of this discrepancy, it is certainly not unreasonable that an attorney would decide not to cross-examine a witness on this issue. This issue was simply irrelevant to the central inquiry, which was whether the search of Leaks' apartment was lawful. The location where the warrant was obtained has no bearing on this matter. Thus, the decision not to cross examine the agents on this issue does not amount to ineffective assistance of counsel.
Finally, Leaks claims that his attorney's failure to investigate whether a search warrant was ever issued, authorizing a search of his home, amounts to ineffective assistance of counsel. As discussed above, a valid search warrant was issued. Therefore, his counsel's decision not to investigate this matter obviously does not amount to ineffective assistance of counsel.
Most important of all, to my mind, Leaks has failed to show that there was a reasonable probability that the result of his trial would have been different had his attorney been "effective". Strickland, 466 U.S. at 694. An overwhelming amount of evidence was presented to an impartial jury, thereby convincing them that Leaks was indeed guilty of the crimes charged. The simple truth is that even had Leaks' counsel done everything that Leaks claims was constitutionally necessary, he would still be where is today: in jail. In sum, Leaks failed to meet his burden of demonstrating deficient performance and prejudice. Id. at 687, 694. His argument that his counsel provided ineffective assistance at trial must fail.
For the foregoing reasons, Leaks' motion under 28 U.S.C. § 2255 to vacate, set aside or correct sentence is denied.
DATED: New York, New York
January 26, 1994
KEVIN THOMAS DUFFY, U.S.D.J.