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October 30, 1998

JOSEPH MORALES, Petitioner, against UNITED STATES OF AMERICA, Respondent.

The opinion of the court was delivered by: KAPLAN


 LEWIS A. KAPLAN, District Judge.

 Petitioner Joseph Morales was convicted in this Court on nine counts of conspiracy to deprive others of their Thirteenth Amendment right to be free of involuntary servitude, substantive offenses of depriving others of that right, conspiracy to import and harbor aliens for purposes of prostitution and to transport individuals in foreign commerce with the intent that they engage in prostitution, and substantive offenses of harboring illegal aliens for the purpose of prostitution. His motion for a new trial was denied in 1996, *fn1" and his conviction was affirmed by the Court of Appeals in 1997. He now seeks to set aside his conviction and sentence under 28 U.S.C. § 2255 on a plethora of grounds, most of which already have been rejected in an unpublished order dated August 12, 1998. Remaining for decision following an evidentiary hearing are Morales's contentions that he was deprived of the effective assistance of counsel because his trial counsel failed to (1) call Morales as a witness in his own defense, (2) present exculpatory witnesses at trial, and (3) properly investigate the case. This order contains the Court's findings of fact and conclusions of law following the hearing.


 Morales's contention that trial counsel was constitutionally ineffective because he failed to call Morales as a witness in his own defense is utterly without merit. The trial record shows that Morales's counsel opened to the jury on the premise that Morales would testify on his own behalf. Indeed, trial counsel and Morales both testified that they intended and expected when the trial began that Morales would be called to the stand. Morales, however, maintains that, when the government rested its case, his trial counsel simply rested without calling Morales and without any further discussion of the subject. Trial counsel, on the other hand, testified that Morales during the government's case told him that he did not wish to testify. According to trial counsel, he then advised Morales that he had opened on the premise that Morales would be a witness, that it would be helpful to Morales's case for him to take the stand, and that counsel wanted the jury to see Morales, who he regarded as an "innocent" and not a mean or violent person. Morales nevertheless persisted, and counsel acquiesced in his decision.

 The Court credits trial counsel's account of these events and rejects Morales's. In doing so, it relies both on its assessment of the demeanor and credibility of the two witnesses and on the logic of the situation. Having opened on the premise that Morales would testify, there simply is no explanation for why counsel would have failed to call him absent a change of heart by Morales that is credible to this Court in any meaningful way. Hence, Morales, who concededly was aware of his right to testify in his own behalf, made a knowing and deliberate waiver of that right. Ground II of the Section 2255 motion is baseless.


 Morales's two remaining grounds both involve claims that Morales's trial counsel improperly failed to present exculpatory evidence. Morales contends first that he identified three former brothel employees to his counsel, each of whom allegedly met with counsel and indicated that they would testify in substance that Morales was ignorant of the fact that the women in the brothel were being held against their will, yet counsel failed to call them at trial. He contends also that he told defense counsel, and counsel in any case knew, that some of the women who had been at the brothel had told others that they had not been held against their will but that counsel failed to make any serious attempt to interview the women or call them as witnesses at trial.

 The Facts

 The Former Brothel Employees

 At the outset, there is some uncertainty as to whether all of these individuals -- Freddy, Tony and Mr. Matthews -- actually existed. Defense counsel testified at the hearing that he recalled having met only with one brothel employee, an individual named Freddy whom he decided not to call because Freddy was ambivalent about what he had known concerning illegal activities at the brothel, had a criminal record, was collecting some form of government benefits for which he was rendered ineligible by his employment, and in counsel's view would have made a poor impression. But counsel's recollection was flawed at least to the extent that he had no recollection of Matthews despite the fact that he applied to the Court for CJA funds to fly Matthews to New York to testify.

 Morales tells a different story. His petition refers only to Matthews who, he said, "sat in the courtroom through the whole" trial, would have testified that defendant did not know what was going on at the brothel, but was not called. At the hearing, Morales identified "Tony" as an exculpatory witness for the first time and added that the person described in the petition was not Matthews, but Freddy. He claimed, moreover, that Freddy did not have a criminal record - that distinction belonged to Tony.

 Having considered the conflicting accounts, the Court finds that there were two prospective former brothel employee witnesses - Freddy and Matthews. Neither of them sat in the courtroom during the trial. *fn2" It is not persuaded that anyone named Tony was identified to Morales' counsel as a prospective witness.

 The next question is why counsel failed to call Freddy and Matthews. According to Morales' petition, counsel failed to call Matthews, later changed by Morales to Freddy, because counsel forgot. Counsel, who had no recollection of Matthews, testified that he did not call Freddy for the reasons outlined above. He testified further than once Morales decided late in the trial not to testify himself, counsel would not have called any but the most impressive and conclusive of witnesses because the calling of an inconclusive witness in the face of Morales' refusal to testify after an opening that assumed his presence simply would have called attention to Morales' absence, undermined the defense's ability to rely on its lack of any obligation to offer any evidence, and thus prejudiced the defense case.

 The Court credits counsel's testimony as to the reason for his failure to call Freddy. Moreover, it is readily apparent that these witnesses, even if they were prepared to say that Morales did not know what was going on at the brothel, had very substantial problems. First, it is doubtful that their assumed testimony concerning Morales' state of mind would have been admissible in evidence. Second, both Freddy and Matthews, according to Morales, held the same job that Morales claims to have held - bouncer. Whatever they may have said to Morales or his lawyer before trial, it is unlikely that either would have taken the stand and admitted to their own roles at the brothel in view of the fact that Morales already was under indictment for very much the same conduct. Had they been subpoenaed, they almost surely would have invoked the Fifth Amendment. In consequence, it is quite likely, and the Court finds, that Morales' counsel elected not to call either of these witnesses for an amalgam of all of these reasons, including unpersuasiveness, the questionable ...

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