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SCHRAMM v. IRVIN

April 2, 1998

HERMAN D. SCHRAMM, Petitioner,
v.
FRANK IRVIN, Respondent.



The opinion of the court was delivered by: HECKMAN

DECISION AND ORDER

 In accordance with 28 U.S.C. § 636(c), the parties have consented to have the undersigned conduct all further proceedings in this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. For the following reasons, the petition is denied.

 BACKGROUND

 On December 1, 1987, petitioner was indicted by an Erie County Grand Jury for Murder in the Second Degree under N.Y. Penal Law § 125.25(1), *fn1" Assault in the First Degree under N.Y. Penal Law § 120.10(1), *fn2" and Criminal Possession of a Weapon in the Third Degree under N.Y. Penal Law § 265.02(1). *fn3" Those charges arose out of a stabbing that resulted in the death of Emmitt O'Grady and serious injuries sustained by Robert Nelson on October 11, 1987.

 On February 23, 1989, following a six-day trial, the jury returned a verdict acquitting petitioner of Murder in the Second Degree, but finding him guilty of the lesser included offense of Manslaughter in the First Degree (N.Y. Penal Law § 125.20). *fn4" The jury also found him guilty of Assault in the First Degree and Criminal Possession of a Weapon in the Third Degree. On January 5, 1990, following lengthy post-conviction proceedings, petitioner was sentenced to a prison term of 12 1/2 to 25 years on the manslaughter charge, and 4 to 8 years on the assault charge, to run consecutively. The court also imposed a term of 3 1/2 to 7 years for the weapons charge, to run concurrently with the other terms.

 Petitioner appealed this sentence to the Appellate Division, Fourth Department. He made the following arguments on direct appeal:

 
1. Prosecutorial misconduct; *fn5"
 
2. Denial of effective assistance of counsel;
 
3. Defective jury charges with regard to the defense of justification; and,
 
4. Harsh and excessive sentence.

 (see Brief for Appellant, Item # 5, Exhibit B).

 On April 26, 1991, the Fourth Department unanimously affirmed petitioner's conviction. People v. Schramm, 172 A.D.2d 1048, 569 N.Y.S.2d 303 (4th Dept. 1991). The court found that petitioner was not deprived of effective assistance of counsel. In particular, the Court held that trial counsel's decision not to further investigate petitioner's defense of justification constituted "trial tactics and strategy," not ineffective assistance of counsel. Id. The court also found that the instances of prosecutorial misconduct were either "unpreserved for review, or were cured by the court in sustaining defense counsel's objections and giving curative instructions to the jury." Id. The court found that questions regarding the jury charges were unpreserved, and in any event the charge "properly stated applicable law". Id. Finally, the court reviewed petitioner's other claims and found them to be without merit. Id.

 On August 9, 1991, the New York State Court of Appeals denied leave to appeal. People v. Schramm, 78 N.Y.2d 974, 574 N.Y.S.2d 954, 580 N.E.2d 426 (1991).

 Before petitioner was sentenced, he moved at least twice to set aside the verdict under N.Y. Criminal Procedure Law § 330.30. Petitioner raised the grounds of prosecutorial misconduct, newly discovered evidence and improper jury instructions, but the court denied these motions.

 In March, 1992, petitioner filed a motion to vacate the judgment of conviction pursuant to New York Criminal Procedure Law § 440. On November 27, 1992, Erie County Court Judge Timothy Drury denied the motion in all respects. On May 26, 1993, the Fourth Department denied petitioner's application for a certificate granting leave to appeal that denial.

 In this petition for habeas corpus relief, petitioner raises arguments similar to those raised in the state court proceedings. In particular, petitioner asserts:

 
1. Denial of effective assistance of trial counsel under the Sixth Amendment;
 
2. Prosecutorial misconduct; and,
 
3. Denial of a fair trial.

 Respondent's memorandum of law urges this court to deny the petition, in part due to procedural default that bars some of petitioner's claims, but, ...


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