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MATURA v. UNITED STATES

February 6, 1995

WALLACE MATURA, Petitioner, against UNITED STATES OF AMERICA, Respondent.


The opinion of the court was delivered by: DAVID N. EDELSTEIN

 EDELSTEIN, District Judge:

 Petitioner, Wallace Matura, brings this motion to vacate, set aside, or correct his sentence, pursuant to 28 U.S.C. § 2255. *fn1"

 On October 18, 1989, petitioner and his co-defendant Philip Harris were arrested after Harris handed a bag containing two quart bottles filled with phencyclidine ("PCP") to an informant and an undercover Drug Enforcement Administration ("DEA") agent who were sitting in a car on 137th street in Manhattan. In this drug transaction, Matura allegedly acted only as a lookout and wheelman.

 After a jury trial, petitioner was convicted of conspiracy to distribute and possess with intent to distribute more than one kilogram of PCP in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Petitioner was also convicted of distributing and possessing with intent to distribute more than one kilogram of PCP in violation of 21 U.S.C. §§ 812, 841(a)(1), and 841(b)(1)(A). Pursuant to the Federal Sentencing Guidelines, this Court sentenced petitioner to a ten-year term of imprisonment, followed by a five-year term of supervised release.

 Thereafter, petitioner appealed his convictions. In an unpublished opinion, the Court of Appeals for the Second Circuit affirmed petitioner's convictions.

 Petitioner now moves, pursuant to 28 U.S.C. § 2255, to vacate, set aside, or correct his sentence. Petitioner contends that he is entitled § 2255 relief because his trial counsel was ineffective. Petitioner claims that his trial counsel made several errors. First, petitioner contends that trial counsel "failed to perform an adequate and timely pre-trial factual and legal investigation." (Petitioner's motion P 10(a).) Second, petitioner claims that counsel "failed to timely and properly file a pre-trial motion for severance from co-defendants." Id. Third, petitioner contends that his counsel "failed to investigate, consider, or present concrete physical evidence as to petitioner's automobile that was a part of this case and which would have explained why petitioner was outside of it--which was a crucial question in this case." Id. Fourth, petitioner contends that his counsel "failed to investigate, consider, or present evidence" that petitioner was legitimately employed and did not work as a drug dealer. Id. Fifth, petitioner claims that his trial counsel failed "timely and adequately [to] question the main prosecutorial witnesses" regarding the fact that petitioner allegedly did not fulfill the standard profile for a lookout in a drug case. Id.

 For the reasons discussed below, all of petitioner's claims are without merit, and therefore, petitioner's motion is denied.

 DISCUSSION

 Petitioner's claim of ineffective assistance of counsel is within the scope of § 2255 because his claim alleges that his sentence was imposed in violation of the Constitution of the United States. See 28 U.S.C. § 2255 (petitioner may bring a § 2255 motion on the ground that his sentence was imposed in violation of the Constitution of the United States).

 The sixth amendment to the Constitution guarantees criminal defendants the right to counsel. As the Supreme Court has noted, "the Sixth Amendment right to counsel exists, and is needed, in order to protect the fundamental right to a fair trial." Strickland v. Washington, 466 U.S. 668, 684, 80 L. Ed. 2d 674, 104 S. Ct. 2052, reh'g denied, 467 U.S. 1267, 82 L. Ed. 2d 864, 104 S. Ct. 3562 (1984). The right to counsel protects a defendant's right to a fair trial because "access to counsel's skill and knowledge is necessary to accord defendants . . . 'ample opportunity to meet the case of the prosecution.'" Id. at 685 (quoting Adams v. United States ex rel. McCann, 317 U.S. 269, 275-76, 87 L. Ed. 268, 63 S. Ct. 236 (1942)). Because counsel plays such a crucial role, the Supreme Court has recognized that "'the right to counsel is the right to the effective assistance of counsel.'" Id. at 686 (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). Thus, if a defendant's counsel fails to render adequate legal assistance, the defendant's sixth amendment rights are violated. See id. (citing Cuyler v. Sullivan, 446 U.S. 335, 344, 64 L. Ed. 2d 333, 100 S. Ct. 1708 (1980)).

 The Supreme Court has established a two-part test for determining whether an attorney's representation constitutes ineffective assistance of counsel. "First, the defendant must show that counsel's performance was deficient." Id. at 687. "Second, the defendant must show that the deficient performance prejudiced the defense." Id.

 To satisfy the first prong of the Strickland test, a defendant must show that "his attorney's performance 'fell below an objective standard of reasonableness.'" See Mayo v. Henderson, 13 F.3d 528, 533 (2d Cir. 1994) (quoting Strickland, 466 U.S. at 688). The Supreme Court has eschewed articulating a rigid set of standards for determining whether an attorney's conduct is reasonable, stating instead that "the proper measure of attorney ...


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