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January 13, 2003


The opinion of the court was delivered by: John S. Martin, Jr., United States District Judge


Lenard Berrian, who was convicted in the New York State Supreme Court, New York County, on charges of Criminal Sale of a Controlled Substance in the Third Degree, brings this action pursuant to 28 U.S.C. § 2254, seeking to vacate his conviction.

In addition to contesting Petitioner' s claims on the merits, the State argues that the Court should not consider certain of Petitioner's claims because he failed to exhaust his state remedies. However, 28 U.S.C. § 2254(b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are totally lacking in merit, the Court will exercise its discretion and decide the claims on the merits.

Before turning to Petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
See Generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).

None of the claims asserted by Petitioner meet this standard. While Petitioner lumps several claims in a single sentence and none of the claims are supported by case citation, it appears that his principal claim is that his trial counsel was ineffective. He claims that because his counsel had many other clients, counsel did not devote adequate time to his case and failed to represent him effectively.

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 (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 (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).

Petitioner claims that his counsel was ineffective in failing to preserve his right to appear before the grand jury. However, given the nature of the People's proof — testimony of an undercover officer who purchased crack from Petitioner and of another officer who arrested Petitioner and found the buy money in his possession — no competent criminal lawyer would allow his client to appear before the grand jury. The decision of defense counsel that Petitioner should not testify in the grand jury and that the substance of his defense not be placed before the grand jury 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.

To the extent that Petitioner's argument is that the denial of his right to appear before the grand jury alone deprived him of due process, that claim does not present an issue of constitutional dimension, but is merely an issue "of state law." The defendant in a federal criminal proceeding has no right to appear before a grand jury and the Constitution does not require it. If the state chooses to provide such a right, the failure to do so in an individual case does not violate any provision of the United States Constitution.

As the Supreme Court said in Estelle v. McGuire:

We have stated many times that "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); see also Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984). Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam)
502 U.S. 62, 67-68, 112 S.Ct. 475, 480 (1991).

Petitioner's claim that his counsel did not adequately represent him at the pre-trial hearing fails because there is no basis to conclude that "counsel's performance was deficient or the deficient performance prejudiced the defense. See Strickland v. Washington, supra.

Petitioner's attack on his appellate counsel is similarly without merit, as it fails to satisfy either prong of the Strickland test. In Jones v. Barnes, 463 U.S. 745, 752-53, 103 S.Ct. 3308, 3313 (1983), the Supreme Court rejected the argument that appellate counsel had an ...

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