C. Ineffective Assistance of Counsel
Petitioner claims that he was denied effective assistance of trial
counsel because defense counsel implied to the jury that Hammock was
guilty of killing the two victims and because counsel failed to present
exculpatory evidence at trial. During voir dire, defense counsel stated
"Jesse Hammock is black and he's accused of killing two people. Those two
people happen to be white. Does that bother you in any way? Would that in
any way cause you to pre-judge him, knowing that the two people that he
killed happened to be white. . . ." (TT*fn2 137-38). The judge
intervened with "that he's accused of killing. . . ." (TT 138).
Petitioner's claim that counsel failed to introduce exculpatory
evidence is based on his claim that he provided counsel with letters from
prosecution witness Vernessa Maddox. He contends that the letters would
have established how he came into possession of the evidence found in his
apartment. (Answer, Appendix D at 15). This evidence was never offered or
produced at trial. The Appellate Division rejected petitioner's
ineffective assistance of counsel claims and stated that to the extent
his claims arise from matters outside the record, he should develop the
facts in a post-judgment motion pursuant to New York CPL § 440.
People v. Hammock, 255 A.D.2d at 958.
To establish ineffective assistance of counsel, a defendant must
prove: (1) that counsel's performance fell below an objective standard of
reasonableness, Strickland v. Washington, 466 U.S. 668, 688 (1984); and
(2) that the deficient performance prejudiced the defense, which requires
a showing that there is a reasonable probability that, but for counsel's
unprofessional errors, the result of the proceeding would have been
different, Strickland, 466 U.S. at 694; and see Bloomer v. United
States, 162 F.3d 187, 192 (2d Cir. 1998); Tyson v. Keane, 159 F.3d 732,
736 (2d Cir. 1998), cert. denied, 526 U.S. 1027 (1999).
In determining whether counsel's performance was deficient, petitioner
"must show that counsel's representation fell below an objective standard
of reasonableness." Strickland, 466 U.S. at 688; Bloomer, 162 F.3d at
192. This "includes a consideration of all the circumstances surrounding
the attorney's actions." Bloomer, 162 F.3d at 192. Finally, in evaluating
counsel's conduct, the "court must indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional
assistance." Strickland, 466 U.S. at 689; Bloomer, 162 F.3d at 193.
Moreover, an error by counsel, even if professionally unreasonable,
does not warrant setting aside the judgment in a criminal proceeding,
under the Strickland standard, if the error had no effect on the
judgment. To merit federal habeas relief on ineffective assistance of
counsel grounds, the petitioner must show that counsel's deficient
performance prejudiced his defense; that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different.
A review of the record shows that petitioner's attorney was not
deficient in the course of his representation. Trial Counsel's statement
during voir dire was in the midst of a series of questions exploring the
effect of racial differences on the jurors' ability to fairly judge the
evidence. He began the question by stating that Hammock was "accused of
killing two people"
(TT 137), and then continued to focus on the racial
issue. His query: "Would that in any way cause you to pre-judge him,
knowing that the two people that he killed happened to be white . . . ."
was immediately clarified by the trial court. (TT 137-38). This single
clearly-inadvertent comment, when viewed in the context of the rest of
the voir dire and the entire trial, fails to provide a reasonable
probability that the result of the proceeding would have been different.
With respect to petitioner's claim that counsel failed to introduce the
exculpatory letters, as noted above, petitioner did not pursue this claim
in the state courts. Thus, not only has the issue not been exhausted, the
evidence concerning the claims are not in the record. What impact, if
any, such letters would have had on the trial is impossible to
determine. Clearly, petitioner has not demonstrated a reasonable
possibility that the production or introduction of such letters would have
altered the result. His assertion that the letters would have exonerated
him stands alone, unsupported by the record before the court.
Accordingly, I find that petitioner has failed to demonstrate that his
counsel's performance fell below the requirements for adequate counsel,
and he is not entitled to habeas relief on this ground.
For the reasons stated above, Jesse Hammock's petition for habeas
relief pursuant to 28 U.S.C. § 2254 is denied, and the petition is
Further, because the issues raised in the petition are not the type
that a court could resolve in a different manner, and because these
issues are not debatable among jurists of reason, this Court concludes
that the petition presents no federal question of substance worthy of
attention from the Court of Appeals and, therefore, pursuant to
28 U.S.C. § 2253 and Fed.R.App.P. 22(b), this Court denies a
certificate of appealability.
IT IS SO ORDERED.