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October 6, 1995

OSCAR BORIA, Petitioner, against JOHN KEANE, Superintendent, Sing Sing Correctional Facility, Respondent.

William C. Conner, Senior United States District Judge

The opinion of the court was delivered by: CONNER


 Oscar Boria, who is currently incarcerated in Sing Sing Correctional Facility, has petitioned this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Upon examination of his petition, we directed the government to respond. See Rule 4, Federal Rules Governing Section 2254 Cases. Based on our review of both parties' submissions, the petition is denied.


 On May 13, 1988, petitioner was arrested inside the garage at O.B.'s Towing, his place of business, during a "buy-bust" operation conducted by the state police and a police informant, Jeff Cannella. The arresting officers did not have a warrant. The officers recovered from petitioner's shirt pocket $ 2,000.00 in marked money that the police had given to Cannella to make the buy. On May 24, 1988, petitioner was indicted on one count of criminal sale of a controlled substance in the second degree, a Class A-II felony, for selling two ounces of cocaine to Cannella. Petitioner, represented by counsel, pled not guilty at his arraignment. Petitioner subsequently retained Gary Greenwald, Esq., to represent him. Greenwald was petitioner's counsel from June 10, 1988, through sentencing.

 At some point after the indictment was returned, the District Attorney offered to permit petitioner to plead guilty to a Class B felony, with a sentence recommendation of one to three years in prison. The District Attorney advised Greenwald that if petitioner did not accept the plea offer, the District Attorney would seek a superseding indictment charging petitioner with a Class A-I felony. On August 10, 1988, Greenwald appeared in court and rejected the plea offer on his client's behalf. The grand jury returned a superseding indictment on September 20, 1988, charging petitioner with one count of criminal sale of a controlled substance in the first degree. On January 4, 1990, following a jury trial, petitioner was convicted and sentenced to a term of twenty years to life.

 Petitioner then moved under New York State Criminal Procedure Law § 440.10 to vacate the judgment of conviction on the ground of ineffective assistance of counsel. After a hearing, the Orange County Court issued a Decision and Order denying petitioner's motion on July 14, 1992. The Appellate Division, Second Department, granted leave to appeal that decision, and consolidated the appeal with the direct appeal of petitioner's conviction. In a Decision and Order dated May 23, 1994, the Appellate Division affirmed both the conviction and the denial of the motion to vacate. The New York Court of Appeals denied leave to appeal on July 22, 1994.

 Petitioner filed this application for a writ of habeas corpus on April 5, 1995. The petition requests relief on three grounds: ineffective assistance of counsel, admission at trial of evidence that was seized in violation of the Fourth Amendment, and insufficiency of the evidence to prove petitioner's guilt beyond a reasonable doubt.


 A. Ineffective Assistance of Counsel

 The Sixth Amendment guarantees to criminal defendants the "assistance of counsel" for their defense. See U.S. Const., amend. VI. The Supreme Court has held that "the right to counsel is the right to the effective assistance of counsel." Strickland v. Washington, 466 U.S. 668, 686, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984) (quoting McMann v. Richardson, 397 U.S. 759, 771 n.14, 25 L. Ed. 2d 763, 90 S. Ct. 1441 (1970)). The Supreme Court has articulated a two-prong test for determining whether a criminal defendant received effective representation. *fn1" First, the attorney's performance must be "'within the range of competence demanded of attorneys in criminal cases.'" Strickland, 466 U.S. at 687 (internal citation omitted). To avoid the temptations of hindsight, the reviewing court must "indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id., at 689. Second, if the attorney's performance was deficient, that deficiency must have prejudiced the defendant by creating a "reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id., at 694. The defendant must satisfy both prongs of this standard. Therefore, if petitioner makes an insufficient showing on one component of the inquiry, we need not address the other. See id., at 697.

 Petitioner contends that he was deprived of effective assistance of counsel because Greenwald did not advise him to accept the plea offer and because Greenwald conducted no independent investigation of the case to enable him to evaluate properly whether his client should accept the plea offer. Petitioner maintains that Greenwald instead counseled him that he had a strong argument that the seizure of the marked money violated the Fourth Amendment and therefore a good chance of prevailing on a motion to suppress. Petitioner asserts that if Greenwald had advised him that he had a real chance of being found guilty, he would have accepted the plea offer. Greenwald contends that he discussed the plea offer with petitioner on several occasions and that petitioner was uninterested in pleading guilty because he steadfastly maintained his innocence and wanted his day in court.

 In evaluating petitioner's contentions, we recognize that we do not begin our inquiry with a clean slate. Under 28 U.S.C. § 2254(d), "a determination after a hearing on the merits of a factual issue, made by a State court of competent jurisdiction [and] evidenced by a written finding . . . shall be presumed to be correct . . . ." To overcome this presumption, petitioner must provide "convincing evidence that the factual determination by the State court was erroneous." Id. In the alternative, upon review of the relevant portion of the record from the state court proceedings, the District Court may determine that the factual determination is not fairly supported by the record. See 28 U.S.C. § 2254(d)(8). The "high measure of deference" accorded to the state court's findings applies only to underlying issues of fact. See Sumner v. Mata, 455 U.S. 591, 597-98, 71 L. Ed. 2d 480, 102 S. Ct. 1303 (1982); Ventura v. Meachum, 957 F.2d 1048, 1055 (2d Cir. 1992). We review de novo a state court's conclusion that those factual circumstances demonstrate that petitioner received effective assistance of counsel. See Strickland, 466 U.S. at 698; Winkler v. Keane, 7 F.3d 304, 308 (2d Cir. 1993), cert. denied, 128 L. Ed. 2d 79, 114 S. Ct. 1407 (1994).

 In the state courts, petitioner raised the same ineffectiveness arguments that he advances in this petition on his motion to vacate the conviction. In addition, petitioner asserted that he had not learned of the plea offer until September 18, 1989, the first day of jury selection for petitioner's trial. After an extensive evidentiary hearing, the Orange County Court issued a written Decision and Order in which the court found that the plea offer had been previously communicated to petitioner, that petitioner had maintained his innocence from the time of his arrest through sentencing, and that petitioner had been adequately and competently represented throughout the proceedings. See People v. Boria, Index No. 2929-88, at 5-7 (Orange County Ct. July 14, 1992) (Byrne, J.). The Appellate Division subsequently affirmed this ruling, and the Court of Appeals denied leave to appeal. Therefore, unless petitioner provides us with convincing evidence to the contrary or the state court's conclusions are not supported by the record, we must ...

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