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United States District Court, Southern District of New York

April 7, 2003


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

Memorandum Opinion and Order

Petitioner Steven Tucker pleaded guilty in the Supreme Court, New York County, to charges of rape, sexual abuse and endangering the welfare of a minor and was sentenced to an indeterminate term of four years and one month to twelve years and three months. He now petitions under 28 U.S.C. § 2254, seeking to set aside his conviction.

Petitioner's principal contention is that he received ineffective assistance of counsel. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish: 1) that counsel's performance was deficient, and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (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.

Petitioner's claims are without merit. The record demonstrates that in the middle of pre-trial proceedings, Petitioner decided that he wanted to accept the plea bargain that the judge had stated earlier. Aware of the sentence he would receive and, after being fully advised of his rights, the Petitioner made a conscious decision to give up his right to a trial and any other claims he might have, and to plead guilty.

Petitioner's claim that his counsel coerced his plea is without merit. Since the judge had stated on the record that she would impose the maximum sentence of eight and one-third years to life if the rape victim was required to testify at trial, counsel's advice that Petitioner plead and receive an agreed sentence of four years and one month to eight years and three months was not an act of coercion by counsel, but rather was good advice. Since the defendant, who was twenty-eight years old, acknowledged that he had intercourse with the thirteen year old victim, there was every likelihood that the jury would accept the testimony of the victim that plaintiff had forced himself on her, rather than his own testimony that the intercourse resulted from an amorous relationship between them. Accordingly, counsel's recommendation to Petitioner that he plead guilty 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 v. Washington, 466 U.S. 668, 689 (1984).

Nor is there any basis for Petitioner's claim that he should have been given new counsel at sentencing or that his counsel was ineffective at sentencing. Given counsel's familiarity with the case and the fact that Petitioner had twice had assigned counsel replaced, it was well within the sentencing judge's discretion to deny another request by Petitioner for new counsel. As to the merits of counsel's representation, Petitioner has failed to demonstrate any prejudice since he received precisely the sentence he agreed to accept in his plea bargain.

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 (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) and Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.



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