The opinion of the court was delivered by: Martin, District Judge.
MEMORANDUM OPINION AND ORDER
Eric McCalvin ("Petitioner"), who was convicted of Robbery in the First
Degree after a jury trial in the New York State Supreme Court, New York
County, and sentenced to an indeterminate term of twelve and one-half to
twenty-five years, to be served consecutively to an indeterminate term of
ten to twenty years imposed after an earlier plea to the same offense
arising from a different incident, brings this action pursuant to
28 U.S.C. § 2254 seeking to vacate his conviction.
Petitioner contends that: (1) the evidence against him was insufficient
to sustain his conviction, (2) his sentence was excessive, and (3) his
appellate counsel was ineffective in not raising on appeal the claim that
his trial counsel had been ineffective.
In addition to contesting Petitioner's claims on the merits, the State
argues that the Court should not consider his claims because they are
time-barred under the Anti-Terrorism and Effective Death Penalty Act.
While in other circumstances the State's claim might have merit, in this
case Petitioner filed a timely petition with this Court which the Court
closed on its active docket so that Petitioner could pursue an
unexhausted claim in the State courts. Thus the present petition is, in
effect, an amendment to the prior timely petition and, therefore, relates
back to that petition for statute of limitations purposes. See
Petitioner's claim that the evidence against him was not sufficient is
merely an attack on the credibility of the principal witness. That issue
was resolved against him by the jury. As the Second Circuit observed in
Farrington v. Senkowski, 214 F.3d 237, 240-241 (2d Cir. 2000):
[A] state prisoner "is entitled to habeas corpus
relief [only] if it is found that upon the record
evidence adduced at the trial no rational trier of
fact could have found proof of guilt beyond a
reasonable doubt." Einaugler v. Supreme Court of State
of New York, 109 F.3d 836, 839 (2d Cir. 1997) (quoting
Jackson v. Virginia, 443 U.S. 307, 324, 99 S.Ct.
2781, 2792-93, 61 L.Ed.2d 560 (1979)). Appellant bears
the burden of rebutting the presumption that all
factual determinations made by the state court were
correct. See 28 U.S.C. § 2254 (e).
While Petitioner points to certain inconsistencies in the witness'
testimony, it can not be said that no rational trier of fact could have
credited the essential thrust of his testimony, i.e., that Petitioner
used a gun in robbing him.
Petitioner's claim that his sentence was excessive is without merit.
extraordinary factors, not present here, a sentence within the statutory
range is not subject to challenge under the Eighth Amendment. See
Harmelin v. Michigan, 501 U.S. 957, 994-96, 111 S.Ct. 2680, 2701-02, 115
L.Ed.2d 836 (1991); Briecke v. New York, 936 F. Supp. 78, 85 (E.D.N.Y.
1996). Sentencing decisions are not cognizable on habeas corpus review
unless the sentence imposed falls outside the range prescribed by state
law. See White v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). That is not
the case here.
Petitioner's final contention is that his appellate counsel was
ineffective. In order to prevail on a claim of ineffective assistance of
counsel, a defendant must establish that: (1) counsel's performance was
deficient, and (2) the deficient performance prejudiced the defense. See
Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80
L.Ed.2d 674 (1984). To establish prejudice, "[t]he defendant must show
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. at 2068.
The Supreme Court decision in Murray v. Carrier, 477 U.S. 478, 106
S.Ct. 2639, 91 L.Ed.2d 397 (1986), establishes that the failure to raise
a viable issue does not necessarily mean that counsel's representation
was constitutionally deficient. Mere error in judgment by an attorney,
even if professionally unreasonable, does not warrant setting aside the
verdict of a criminal proceeding if the error does not undermine
"confidence in the outcome." See Martin v. Garvin, No. 92 Civ. 3970, 1993
WL 138813, at *2 (S.D.N.Y. Apr. 23, 1993) (quoting Strickland, 466 U.S.
at 694, 104 S.Ct. at 2068). The soundness of this proposition is
reflected in the reasoning promulgated by the Ninth Circuit that "[t]he
Constitution does not guarantee representation that is infallible." See
Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978).
While Petitioner alleges that his trial counsel was ineffective in
several respects, e.g., "he failed to conduct a thorough investigation,"
he does not attempt to demonstrate that the result of the trial would
have been different had counsel done what Petitioner alleges was not
done. The prosecution's case against Petitioner rested on the testimony
of the victim, and there is no suggestion that there were other witnesses
to the incident who might exculpate Petitioner. Thus, the decision of
appellate counsel not to raise an ineffective assistance of counsel
argument on appeal was well within the range of tactical strategy that is
left to the professional judgment of defense counsel, and there is a
"strong presumption that counsel's conduct falls within the wide range of
reasonable professional assistance." Strickland, 466 U.S. at 689, 104
S.Ct. at 2065.
For the foregoing reasons, the petition for relief pursuant to
28 U.S.C. § 2254 is denied and the action is dismissed. In addition,
pursuant to 28 U.S.C. § 1915 (a), the Court certifies that an appeal
from this case may not be taken in forma pauperis; such an appeal would
be frivolous and cannot be taken in good faith. See Coppedge v. United
States, 369 U.S. 438, 444-45, 82 S.Ct. 917, 920-21, 8 L.Ed.2d 21 (1962).
The Court determines that the petition presents no question of substance
for appellate review and that Petitioner has failed to make a
"substantial showing of the denial of a constitutional right."
28 U.S.C. § 2253 (c)(2); see Fed.R.App.P. 22(b). Accordingly, a
certificate of appealability will not issue.