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September 11, 1998

DANIEL SENKOWSKI, Superintendent, Clinton Correctional Facility, Dannemora, New York, Respondent.

The opinion of the court was delivered by: PARKER




 Petitioner Michael Farrington pursuant to 28 U.S.C. ยง 2254, challenges the constitutionality of his conviction in Westchester County Court on March 26, 1993 for felony murder, and two counts of attempted robbery. Petitioner contends, in essence, that his Sixth Amendment rights were violated due to ineffective assistance of counsel and that his right to due process was violated by an improper jury instruction and by improper statements by the prosecutor in his summation.

 After obtaining new counsel, Petitioner both appealed and moved the trial court to vacate his conviction on the ground of ineffective assistance of counsel. After the trial court denied petitioner's motion for vacatur, the Appellate Division, Second Department, granted permission to appeal the denial of vacatur and to consolidate that appeal with the petitioner's pending appeal on the merits. On March 11, 1996, the Appellate Division affirmed both the judgment of conviction and the order denying vacatur. The New York Court of Appeals then denied leave to appeal. Petitioner timely filed his habeas petition in July 1997.


 In the early morning hours of July 16, 1991, seventeen-year-old Michael Farrington and a group of teenage friends were smoking marijuana and drinking beer in a park in Mt. Vernon, New York. One of the group, Anthony Burts, had a gun with him, which he displayed to the others. The group discussed robbing a restaurant, but decided to steal a car instead. They then left the park to retrieve a screwdriver from the home of Kenya Forrester, another member of the group.

 As they walked, they saw an unoccupied car with its engine idling in front of Forrester's house. The car belonged to Joseph Hanna, who was delivering newspapers. Normond Gainey, the fourth member of the group, directed Forrester to enter the vehicle, but he refused because they were in front of his house. Gainey then told Farrington to get in the car, which, after some initial hesitation, he did.

 Farrington drove the vehicle a short distance in Hanna's direction and then attempted to make a U-turn so as not to drive past Hanna. Hanna saw Farrington in the car, ran to the driver's side of the vehicle, reached into the car, and began struggling with Farrington. Hanna attempted to pull Farrington out of the window. Farrington attempted to drive away, but Hanna prevented his doing so and repeatedly attempted to place the gear shift into park and to remove the keys from the ignition. From across the street, Burts witnessed the struggle, took out his gun, and fired a shot. Gainey then took the gun from Burts, ran across the street, and fired a single shot at Hanna, mortally wounding him. The four teenagers then fled on foot.

 The facts stated above are undisputed. Accounts differ, however, as to Farrington's exact words to Hanna during the struggle. A few days after the incident, Forrester gave a videotaped statement in which he claimed that Farrington told Hanna, "You better let me get out the car and let me leave" and then, while Hanna continued to grab Farrington, "If you don't let me go my boys will come over and kill you." The portion of the videotape containing this statement was not introduced at trial; nor did defense counsel make any reference to Forrester's videotaped statement. At trial, nearly two years later, Forrester, who was not tried, testified that Farrington, "like told the man to get away from the car before his boys come over here and kill him." In his trial testimony, Forrester did not recount Farrington's statement to Hanna that "You better let me get out the car and let me leave." In a videotaped confession that was introduced at trial, Farrington stated that his only intention was to take the unoccupied car, and that he did not know or expect that his friends would intervene.


 Ineffective Assistance of Counsel

 Farrington first contends that the Sixth Amendment was violated because his counsel failed to introduce Forrester's videotaped statement and, moreover, failed to highlight the discrepancy between that videotaped statement and Forrester's trial testimony. Farrington argues that Forrester's videotaped statement would have established that Farrington did not use force to retain the automobile and therefore could not be guilty of attempted robbery. *fn1"

 To establish ineffective assistance of counsel, a petitioner must meet the standard set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984). The petitioner must show that counsel's performance fell below "an objective standard of reasonableness" under "prevailing professional norms," and also that counsel's deficient performance actually prejudiced the defense so as to deprive the defendant of a fair trial. Id. at 687-88; United States v. Cronic, 466 U.S. 648, 657-58, 80 L. Ed. 2d 657, 104 S. Ct. 2039 (1984). In order to show prejudice, there must be a ...

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