Sixth Circuit found that defendant was prejudiced by his counsel's recommendation that he refuse a plea offer. See Turner, 858 F.2d at 1206-07. The Sixth Circuit discounted as self-serving the defendant's own testimony that he would have taken the plea offer if he had been advised to do so. See id., 858 F.2d at 1206. The court found, however, sufficient objective evidence to establish prejudice based on the defendant's counteroffer of a one-year plea agreement in response to a two-year proposal. This clear evidence of defendant's willingness to deal refuted the state's argument that the defendant's protestations of innocence would have prevented any plea agreement. See id. Petitioner in this case, however, does not advance similarly clear evidence of his willingness to accept a plea offer.
On September 25, 1989, Greenwald made a motion to dismiss the charge against his client or, in the alternative, to reinstate the original indictment. The basis for this motion was the prosecution's disclosure in August 1989 that it intended to introduce at trial two inculpatory statements made by petitioner on the day of his arrest. In his affirmation submitted with that motion, Greenwald stated that petitioner had rejected the plea offer in August 1988 based on his knowledge of the case at that time, and that if Greenwald had been aware of the statements, his advice to petitioner regarding the plea might have been different. See Affirmation of Gary Greenwald, dated September 25, 1989, at PP 7-8. Petitioner contends that these statements conclusively demonstrate that he was receptive to a plea offer. We disagree. At most, the statements reveal that Greenwald might have had a different understanding of his client's chances at trial had he known of the statements the prosecution intended to introduce. The statements to which petitioner refers do not demonstrate a reasonable probability that petitioner would have accepted a plea offer at any time before his conviction and sentencing.
Greenwald apparently also made an oral application to the trial court on September 20, 1989, to reinstate the original indictment "and thereby afford the Defendant an opportunity to be put back in the same position he would have been in . . . that is, in a position to plead guilty to Class B felony." See Greenwald Affirmation, P 10. Petitioner contends that this statement also conclusively demonstrates that petitioner would have been receptive to a plea offer. To the contrary, we find that it is just as likely that Greenwald's application was simply a last-ditch effort to have his client tried on the less serious Class A-II charge. Under the circumstances, one would expect that if petitioner were in fact willing to plead guilty, Greenwald's affirmation would say so clearly. Moreover, by that point, the one-to-three year plea offer had been withdrawn, and there is no indication that the District Attorney would have reinstated the offer. Therefore, this statement also does not conclusively demonstrate a reasonable probability that petitioner would have accepted the plea offer. Accordingly, petitioner has failed to satisfy the prejudice component of the Strickland test and his claim of ineffective assistance of counsel must fail.
B. Fourth Amendment Arguments
Petitioner also argues that the introduction at trial of the marked money seized by police officers who entered his place of business without a warrant violated his Fourth Amendment rights. This court's authority to review Fourth Amendment claims made in a petition for a writ of habeas corpus is sharply circumscribed: "Where the State has provided an opportunity for full and fair litigation of a Fourth Amendment claim, a state prisoner may not be granted federal habeas corpus relief on the ground that evidence obtained in an unconstitutional search or seizure was introduced at his trial." Stone v. Powell, 428 U.S. 465, 494, 49 L. Ed. 2d 1067, 96 S. Ct. 3037 (1976); Grey v. Hoke, 933 F.2d 117, 121 (2d Cir. 1991). Relief is unavailable even if the federal court might have decided the issue differently. See Capellan v. Riley, 975 F.2d 67, 71 (2d Cir. 1992).
Petitioner does not argue that he was not afforded a full and fair opportunity to litigate his Fourth Amendment claim in the state court. Indeed, it is abundantly clear that petitioner's claim was fully considered by the state courts. The trial court held a lengthy suppression hearing before ruling that the evidence in question was admissible. The Appellate Division, Second Department, found that the police had probable cause to enter the garage to arrest petitioner and that the marked money had therefore been seized incident to a lawful arrest. Petitioner also raised these Fourth Amendment issues in his application for leave to appeal to the Court of Appeals, which was denied. Petitioner's Fourth Amendment claims were therefore fully and fairly litigated in the state courts, and we have no authority to revisit the issue.
C. Insufficiency of the Evidence
Last, petitioner contends that the evidence adduced against him at trial was insufficient to establish his guilt beyond a reasonable doubt. In order to grant habeas relief on this ground, the court must find, "after viewing the evidence in the light most favorable to the prosecution, [that no] rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 61 L. Ed. 2d 560, 99 S. Ct. 2781 (1979); Bossett v. Walker, 41 F.3d 825, 830 (2d Cir. 1994), cert. denied, 131 L. Ed. 2d 316, 115 S. Ct. 1436 (1995). Moreover, "the fact that not all of the inferences drawn from circumstantial evidence were inevitable does not negate the sufficiency of the evidence to prove the defendant's guilt beyond a reasonable doubt." Thomas v. Scully, 854 F. Supp. 944, 955 (E.D.N.Y. 1994) (citing United States v. Brown, 776 F.2d 397, 403 (2d Cir. 1985), cert. denied, 475 U.S. 1141, 90 L. Ed. 2d 339, 106 S. Ct. 1793 (1986)). The Second Circuit has stated that "'the jury is exclusively responsible for determining a witness' credibility.'" Bossett, 41 F.3d at 830 (quoting United States v. Strauss, 999 F.2d 692, 696 (2d Cir. 1993)).
The jury certainly had a reasonable basis for finding petitioner guilty of the crime for which he was convicted. Jeffrey Cannella, an informant whose cooperation with the police had previously resulted in successful operations, testified that he had arranged the sale with petitioner and purchased the drugs from him. His testimony was corroborated by his production of the cocaine shortly after the sale and by the discovery of the marked money in petitioner's pocket. Petitioner's counsel cross-examined Cannella extensively in an attempt to discredit his testimony. The jury therefore had an opportunity to consider Cannella's credibility carefully before finding petitioner guilty. We cannot say that the jury's decision was irrational. Therefore, petitioner's claim of insufficiency of the evidence fails.
For the reasons set forth above, Boria's petition for a writ of habeas corpus is denied.
Date: October 6, 1995
White Plains, New York
William C. Conner
Senior United States District Judge