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January 12, 1995

JOSE MEDINA, Petitioner, against CHRISTOPHER ARTUZ, Superintendent, Green Haven Correctional Facility, Respondent.

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



 Jose Medina has filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. 2254 seeking relief from his convictions on February 27, 1986 and sentence for murder and arson in the Supreme Court, Westchester County. Petitioner's prosecution arose from a fire in a building in which a mother and her son were found dead; petitioner was heard by witnesses to say that he "meant to get rid of" the child, who may have been killed before being burned according to expert testimony. The state court found in connection with sentence that petitioner had ignited the fire to hide prior murder and accordingly imposed consecutive sentences. Upon direct appeal, petitioner's conviction was unanimously affirmed in People v. Medina, 120 A.D.2d 749, 502 N.Y.S.2d 792 (2d Dept. 1986); the State Court of Appeals denied leave to appeal further, 68 N.Y.2d 915 (October 17, 1986).

 Petitioner alleges ineffective assistance of counsel based on failure to raise an issue of petitioner's mental capacity, consecutive sentencing constituting double jeopardy, use of legally insufficient evidence, denial of due process in failure to hold a hearing concerning recantation of a witness, failure to charge the standard of proof, and use of inflammatory evidence. Petitioner also moves for appointment of counsel. The motion and the petition are denied. *fn1"


 Although petitioner claims that his mental abilities should have been investigated, he has filed a 24 page detailed memorandum of law signed by himself and with no indication that others were involved. His highly grammatical and correctly filled out petition recites appeals to the Second Department, a request for review by the New York State Court of Appeals and a post-conviction application to the trial court based on a witness' recantation, all requiring some level of sophistication, and none of them raising the question of alleged ineffective assistance or any mental deficiency at the time of trial or at any other time. These points were only presented by means of a second collateral attack on the conviction.

 To establish ineffective assistance, petitioner must show that counsel's efforts fell below an objective standard of reasonableness, and that absent the errors the result would have been different. Strickland v. Washington, 466 U.S. 668, 687-94, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984); see Abdurrahman v. Henderson, 897 F.2d 71 (2d Cir. 1990). Petitioner's psychiatric records, presented eleven (11) years after his conviction, show no findings that more than medication were required. Failure to present the issue earlier both supports an adverse inference with respect to the merit of the claim, and makes it virtually impossible for the state to investigate petitioner's condition at the time. This delay would be sufficient to support dismissal of the petition under Rule 9(a) of the Rules Governing Section 2254 Cases in the United States District Courts *fn2" even apart from other considerations.

 Petitioner's counsel defended the case vigorously, conducting extensive cross-examination and offering testimony by a forensic pathologist to challenge the state's version of the alleged victims' deaths. Defense counsel, indeed, succeeded in obtaining dismissal of one count of murder. There is no reason to assume that the obviously diligent and sophisticated defense counsel overlooked anything as obvious as inability of the client to assist in his defense.


 Petitioner challenges his consecutive sentences of twenty-five (25) years to life for murder and eight and one-half (8-1/2) to twenty-five (25) years for arson.

 There is no authority for petitioner's claim that consecutive sentences where authorized by statute, may not be based on differing crimes constituting separate antisocial acts with their own risks to the innocent and requiring separate additional elements of proof, even if arising out of the same misconduct (such as murder and arson) without violating the prohibition of double jeopardy. See Daniels v. Bronson, 932 F.2d 102 (2d Cir. 1991); see also Jones v. Thomas, 491 U.S. 376, 105 L. Ed. 2d 322, 109 S. Ct. 2522 (1989).

 The sentencing court concluded that petitioner committed murder followed by arson intended to cover up the murder, based upon expert testimony. This finding, since fairly supported by the record, is sufficient to support the concurrency of petitioner's sentence. See Sumner v. Mata, 449 U.S. 539, 544-47, 66 L. Ed. 2d 722, 101 S. Ct. 764 (1980).

 Petitioner's detailed memorandum of law makes no complaint about the fairness of the actual sentence resulting from its consecutive nature, but rather only that ...

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