Because petitioner has failed to satisfy both parts of the Strickland test, his argument is meritless. Under the first part of the Strickland test, petitioner must demonstrate that counsel's performance was deficient. In the instant case, defense counsel did not act unreasonably in failing to present evidence that petitioner held a legitimate job. The central issue in this case was whether petitioner acted as a lookout and a wheelman in a specific drug transaction. Three DEA agents testified that petitioner had acted in these capacities. Defense counsel could reasonably have believed that evidence of petitioner's employment would do little to counter this testimony. Indeed, counsel may have feared that such evidence might have opened the door to damaging cross-examination.
Petitioner has also failed to demonstrate that trial counsel's alleged error prejudiced petitioner's defense. Under the second part of the Strickland test, "the defendant must show that [counsel's] deficient performance prejudiced the defense." Strickland, 466 U.S. at 687. Even if petitioner had established that he was legitimately employed, the outcome of the trial would not have been different. Petitioner was convicted based on his participation in a single narcotics transaction. At trial, three DEA agents testified that they saw Mr. Matura participate in this transaction. Thus, even if Mr. Matura had presented evidence at trial that he held a legitimate job, such evidence would not cast a reasonable doubt on the agents' testimony.
Therefore, petitioner's claim is meritless.
5. Failure To Question Witnesses Regarding the Fact that Petitioner Allegedly Did Not Fulfill the Profile of a Lookout in a Drug Case
Petitioner contends that he was denied effective assistance of counsel because "counsel failed to timely and adequately question the main prosecutorial witnesses as to petitioner's complete lack of fulfilling the 'look-out person' drug profile behavior as is recognized by the DEA and federal courts nationwide."
Once again, petitioner's argument fails to satisfy both prongs of the Strickland test. First, petitioner has not demonstrated that his counsel acted unreasonably in failing adequately to cross-examine the prosecution's witnesses regarding petitioner's failure to fulfill the DEA's profile of a lookout in a drug case. Under a Strickland analysis, "the defendant must overcome the presumption that, under the circumstances, the challenged action 'might be considered sound trial strategy.'" Id. at 689 (quoting Michel v. Louisiana, 350 U.S. 91, 101, 100 L. Ed. 83, 76 S. Ct. 158 (1955)). In the instant case, petitioner has failed to overcome this presumption. In defending petitioner at trial, counsel's primary objective was to cast doubt on the testimony of the three DEA officers who testified that they saw petitioner participate in a narcotics transaction. A reasonable attorney might well choose not to pursue a line of questioning regarding the DEA profile because it had little bearing on the case. Moreover, a reasonable attorney might also decline to ask such questions on cross-examination for fear of opening the door to damning testimony. See United States v. Dukes, 727 F.2d 34, 42 (2d Cir. 1984) (attorney's failure to cross-examine a prosecution witness was reasonable where attorney could conclude that such cross-examination "might make [the witness] move closer to the government's position").
Further, petitioner has not demonstrated that he suffered any prejudice, and thus petitioner has failed to satisfy the second prong of the Strickland test. Strickland, 466 U.S. at 689 ("defendant must show that the deficient performance prejudiced the defense"); United States v. Reiter, 897 F.2d 639, 645 (2d Cir.) (although defendant demonstrated that his counsel acted unreasonably by inadequately cross-examining a witness, defendant failed to demonstrate that he was denied effective assistance of counsel because "given the overwhelming evidence of [defendant's] guilt, he was not prejudiced by [counsel's] performance"), cert. denied 498 U.S. 817, 498 U.S. 868, 498 U.S. 990, 112 L. Ed. 2d 34, 111 S. Ct. 59 (1990). The Government's case against petitioner was not based on the fact that petitioner looked like a lookout in a drug case. Rather, the Government's case was based on the testimony of three DEA agents who witnessed petitioner's participation in a narcotics transaction. Even if petitioner's attorney could have established on cross-examination that petitioner does not fit the DEA's profile of a lookout, such testimony would not have cast a reasonable doubt on the strong evidence of petitioner's guilt.
Accordingly, petitioner's § 2255 motion is DENIED.
Dated: New York, New York
February 6, 1995
David N. Edelstein