UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
August 6, 1998
JOSE YANEZ, Plaintiff against JOHN KEANE, Superintendent, Sing Sing Correctional Facility, Defendant.
The opinion of the court was delivered by: HAIGHT
MEMORANDUM AND ORDER
HAIGHT, Senior District Judge:
Claiming ineffective assistance of counsel, Jose Yanez petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. By Report and Recommendation dated February 9, 1998, Magistrate Judge Andrew J. Peck recommends that this Court deny Yanez's petition. Yanez objects to Judge Peck's Report and Recommendation on the ground that it overlooks the Second Circuit's recent opinion in Boria v. Keane, 83 F.3d 48, clarified on rehearing, 90 F.3d 36, corrected op. 99 F.3d 492 (2d Cir. 1996), cert. den. sub. nom. Keane v. Boria, 138 L. Ed. 2d 1012, 117 S. Ct. 2508 (1997).
In Boria, the Second Circuit concluded that it was ineffective assistance of counsel for a lawyer not to discuss with his client the advisability of accepting a plea offer where the lawyer believed that rejecting the offer would be suicidal. See 83 F.3d at 51. By contrast, Yanez's trial counsel, Joseph T. Klempner, firmly believed that an appeal of the denial of Yanez's suppression motion had merit and so advised his client in discussing a plea offer. Moreover, for the reasons set forth in Judge Peck's report, Klempner's belief was warranted. See Report and Recommendation of February 9, 1998 at 19-26. Boria is thus inapplicable to the facts of this case.
Accordingly, I adopt Judge Peck's Report and Recommendation in its entirety, and Yanez's petition is hereby denied.
It is SO ORDERED.
Dated: New York, New York
August , 1998
CHARLES S. HAIGHT, JR.
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