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January 17, 2002


The opinion of the court was delivered by: Gershon, District Judge.


Petitioner Wesley Jeremiah petitions for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated below, the petition is denied.


Petitioner appealed his conviction to the Appellate Division, Second Department, arguing that he was denied effective assistance of trial counsel because counsel: (1) conceded in his opening statement that petitioner caused Clairmont's death; (2) failed to review the medical records and challenge the cause of Clairmont's death in cross-examination of the medical examiner; (3) did not object to the admission of hearsay statements; (4) failed to cross-examine certain witnesses and inadequately or ineptly cross-examined others; (5) failed to make a Sandoval application (People v. Sandoval, 34 N.Y.2d 371, 357 N.Y.S.2d 849, 314 N.E.2d 413 (1974)) to preclude cross-examination of petitioner concerning a prior youthful offender adjudication and then improperly elicited from petitioner the existence of that prior conviction; and (6) neglected to rehabilitate petitioner on redirect. Petitioner also claimed that the prosecutor's summation was improper. The Appellate Division affirmed the conviction on December 3, 1990. People v. Jeremiah, 168 A.D.2d 458, 562 N.Y.S.2d 577 (2d Dep't 1990). The court rejected the claim of ineffective assistance, finding that defense counsel provided "meaningful" representation, when viewed in its entirety and in light of the circumstances presented. The court specifically rejected the argument that defense counsel had improperly conceded petitioner's responsibility for the shooting, stating:

At trial, the People introduced into evidence, in relevant part, the defendant's statement to the police in which he admitted that he shot the victim in self-defense, as well as eyewitness testimony concerning the shooting. Consequently, defense counsel's trial strategy was to concede that the defendant shot the victim, but to assert the defense of justification. This court will not, with the benefit of hindsight, second-guess an attorney's losing trial strategy, even where, as here, it included an admission to the actual shooting and the unlawful possession of the gun used to shoot the victim. (citations omitted)

Leave to appeal to the New York Court of Appeals was denied. People v. Jeremiah, 77 N.Y.2d 907, 569 N.Y.S.2d 939, 572 N.E.2d 622 (1991).

Petitioner, acting pro Se, then moved in Supreme Court, Kings County, to vacate his conviction pursuant to N.Y.Criminal Procedure Law § 440.10 on the ground that the prosecution failed to turn over potentially exculpatory evidence to him prior to trial. Specifically, petitioner claimed that he was prejudiced by the destruction of the original notes made by the police officer who testified at trial to the petitioner's admissions, in violation of People v. Rosario, 9 N.Y.2d 286, 213 N.Y.S.2d 448, 173 N.E.2d 881, cert. denied, 368 U.S. 866, 82 S.Ct. 117, 7 L.Ed.2d 64 (1961), and by the prosecution's failure to produce the grand jury testimony of an eyewitness and the medical records of the deceased's hospitalization. The trial court denied the motion. The court found that the issue of destruction of notes could not be raised in a Section 440.10 motion because sufficient facts appeared on the record to have permitted adequate review on direct appeal. The court also denied relief on this claim because petitioner had failed to request sanctions and develop the claim at trial. The court further found that there was no evidence that the police officer destroyed the notes in bad faith or that petitioner was prejudiced by their destruction. The claims concerning the hospital records and grand jury testimony were denied because they had not been raised at trial. The court also noted that the trial record indicated that counsel in fact had received the hospital records and had used them in cross-examining the medical examiner. Finally, the court rejected a claim of ineffective assistance of trial counsel, holding that sufficient facts appeared on the record to have allowed that issue to be raised on appeal, and also that there was "insufficient basis to require a hearing on this issue."*fn1 The Appellate Division denied petitioner leave to appeal the denial of his Section 440.10 motion.

Petitioner then moved the Appellate Division for a writ of error coram nobis, claiming ineffective assistance of appellate counsel on direct appeal because of counsel's failure to raise the issues that petitioner had raised in his Section 440.10 motion or to include them as grounds for arguing that trial counsel had been ineffective, including trial counsel's failure to request an adverse inference charge from the destruction of the police officer's notes. Petitioner also sought in the coram nobis petition to argue directly the merits of his claims concerning the police officer's notes, the medical records and the grand jury testimony, and to reargue the claim that trial counsel had been ineffective for failure to develop the defense of lack of causal connection between the shooting and Clairmont's death. The motion was denied on February 26, 1992.

The instant petition was filed in the Southern District of New York on April 21, 1997 and then transferred to this District. This court originally dismissed the petition as untimely; on April 8, 1999, the petition was ordered reinstated by the Second Circuit based upon its intervening decision in Ross v. Artuz, 150 F.3d 97 (2d Cir. 1998). Petitioner claims that he was deprived of the effective assistance of both trial and appellate counsel. Trial counsel is alleged to be ineffective because he: (1) failed to request an adverse inference charge for the destroyed notes; (2) stated in his opening statement that petitioner caused Clairmont's death although causation was or should have been a contested issue; (3) failed to examine the hospital records and, consequently, did not effectively cross-examine the medical examiner on causation; (4) brought out petitioner's conviction as a youthful offender during the direct examination of petitioner; (5) failed to make a pre-trial motion to suppress evidence of petitioner's prior bad acts. Appellate counsel is faulted for having neglected to raise trial counsel's failure to request an adverse inference charge for the destroyed notes as an additional ground for arguing ineffective assistance of trial counsel.


To establish a claim of violation of the Sixth Amendment right to the effective assistance of counsel, petitioner must satisfy the demanding two-part test established in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Petitioner must show both that counsel's performance was deficient and that the deficient performance prejudiced the defense. Id. at 687, 104 S.Ct. 2052. The first prong requires a showing that counsel's acts or omissions were outside the wide range of professionally competent assistance, evaluated from the perspective of counsel at the time and excluding the benefit of hindsight. There is a strong presumption that counsel's conduct falls within the range of reasonable decisions as judged by prevailing professional norms. Id. at 689-90, 104 S.Ct. 2052. Counsel is not required to anticipate changes in the law. Sellan v. Kuhlman, 261 F.3d 303, 315 (2d Cir. 2001). To establish the second, "prejudice" prong, petitioner must show a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A "reasonable probability" in this context is one that undermines confidence in the outcome of the proceeding. Strickland, 466 U.S. at 694, 104 S.Ct. 2052. The same two-part test applies to claims of ineffective assistance of trial counsel and of appellate counsel. Sellan, 261 F.3d at 315. In addition, since this petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), "which mandates deference to state court decisions," Sellan, 261 F.3d at 308, petitioner must show that state court decisions denying relief involved an objectively unreasonable application of clearly established federal law as determined by the Supreme Court. Id. at 308-14; 28 U.S.C. § 2254(d)(1).

Destruction of Police Officer's Notes

Petitioner asserts that trial counsel was ineffective for failing to request sanctions because the police officer who obtained a statement from petitioner and testified at trial had failed to preserve his original notes after he prepared a police report from them. Petitioner further contends that appellate counsel was ineffective for ...

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