deciding this question, the court must apply an objective
standard of reasonableness. Id.
Generally, defense counsel is "strongly presumed to have
rendered adequate assistance . . ." Id. at 690, 104 S.Ct. 2052.
To succeed on such a claim, then, the defendant must "overcome
the presumption that, under the circumstances, the challenged
action `might be considered sound trial strategy.'" Id. at 689,
104 S.Ct. 2052 (quoting Michel v. Louisiana, 350 U.S. 91, 101,
76 S.Ct. 158, 100 L.Ed. 83 (1955)).
If defense counsel's performance is found to have been
defective, relief may only be granted where it is shown that the
defense was actually prejudiced by counsel's errors.
Strickland, 466 U.S. at 692, 104 S.Ct. 2052. Prejudice is
established upon a showing that "there is a reasonable
probability that, but for counsel's unprofessional errors, the
result of the proceeding would have been different." Id. at
694, 104 S.Ct. 2052. The court determines the presence or absence
of prejudice by considering the totality of the trial evidence.
Id. at 695, 104 S.Ct. 2052.
After reviewing the record, I find that petitioner received
"reasonably competent assistance," and that, therefore,
petitioner's claim lacks merit. As for any uncalled witnesses,
none of whom petitioner has identified, such claims are generally
looked upon with disfavor. Schwander v. Blackburn,
750 F.2d 494, 500 (5th Cir. 1985). Moreover, in light of the evidence of
Garvey's guilt (which included Garvey's own admission that he
possessed drugs and participated in drug sales), I do not find
any significant likelihood that the result of the trial would
have been different if his attorney had called any additional
witnesses. See Munoz v. Keane, 777 F. Supp. 282, 289 (S.D.N Y
1991) (habeas relief not warranted since, even if all three
uncalled witnesses had testified consistent with their affidavits
submitted by petitioner, result of his trial would not likely
have been different), aff'd, 964 F.2d 1295 (2d Cir.), cert.
denied, 506 U.S. 986, 113 S.Ct. 494, 121 L.Ed.2d 432 (1992);
Strouse v. Leonardo, 715 F. Supp. 1170, 1180-81 (E.D.N.Y. 1989)
(even assuming truth of petitioner's allegations about content of
prospective witnesses' testimony, and assuming that counsel's
alleged failure to interview these witnesses was objectively
unreasonable, petitioner was not prejudiced in light of
overwhelming evidence of guilt adduced at trial), aff'd in part,
vacated on other grounds in part, 928 F.2d 548 (2d Cir. 1991).
Petitioner's host of complaints pertaining to his
dissatisfaction with respect to his attorney's performance during
trial do not establish an ineffective assistance to counsel
claim. A review of the record reveals that petitioner's counsel
was familiar with criminal law and procedure and he developed a
plausible defense strategy which he presented to the jury. In
addition, Garvey's counsel took the opportunity to cross-examine
the prosecution's witnesses and made a variety of objections and
applications to the court before and after trial.
Garvey's vague, conclusory claim that his trial attorney failed
to overcome the written statement petitioner gave to police after
his arrest does not establish grounds for habeas relief, and
requires little comment. It was the evidence, not Garvey's
lawyer, that did not support Garvey's defense. The trial
transcript reflects that defense counsel did the best that he
could with the evidence facing him, and that he reasonably and
adequately argued to the jury that Garvey could not understand
the statement he signed. That the jury was not persuaded by these
arguments cannot be blamed on defense counsel, but is simply
attributable to the substantial evidence of Garvey's guilt.
Petitioner's contention that his attorney also failed to object
to various alleged evidentiary errors at trial also requires
little comment. It is noteworthy that petitioner withdrew his
claim for relief based upon
these errors. Moreover, neither the alleged errors nor defense
counsel's failure to object to them gives rise to a
For the foregoing reasons, petitioner's application for a writ
of habeas corpus is denied in its entirety, and the petition is
dismissed. Further, because petitioner has failed to make a
substantial showing of a denial of a constitutional right, I deny
a certificate of appealability. 28 U.S.C. § 2253.
Also for the reasons set forth above, I hereby certify that any
appeal from this order would not be taken in good faith pursuant
to 28 U.S.C. § 1915(a) and leave to appeal to the Court of
Appeals as a poor person is hereby denied. Coppedge v. United
States, 369 U.S. 438, 82 S.Ct. 917, 8 L.Ed.2d 21 (1962).
IT IS SO ORDERED.