collateral motion to vacate his sentence of conviction, he raised none of the particular grounds in that motion that he raises in the present petition. His claim is therefore unexhausted. Respondent suggests that the state court would deem the claim procedurally barred, pursuant to section 440.10(3)(c) of the New York Criminal Procedure Law, if petitioner sought to raise it in a new motion to vacate his judgment of conviction. That contention is speculative, however.
Pursuant to section 440.10(3)(c), a claim that defendant was in a position adequately to raise in a prior section 440.10 motion only "may" be barred, and the trial court "may in its discretion grant the motion if it is otherwise meritorious and vacate the judgment." The claim is not inevitably procedurally barred and is therefore not exhausted.
The claim is. however, meritless. Given the fact that the police detective was an experienced investigator who used binoculars, and that he was thoroughly cross-examined at trial, there is no reason to believe that an investigation of the crime scene by counsel would have supplied petitioner with any persuasive evidence challenging the detective's account of the events that transpired. Petitioner does not explain who counsel failed to interview as an alibi witness or what such a witness might have testified to. Petitioner also fails to explain how counsel's failure to obtain "photographs" might have proven his innocence. Petitioner has, in a word, not demonstrated that he was denied the effective assistance of trial counsel.
Finally. petitioner claims that the trial court improperly denied his application to suppress evidence seized from him by the police officer. This claim is barred under Stone v. Powell for the same reasons articulated above with respect to the alleged failure of the police to have probable cause to arrest petitioner.
There is no basis for a claim of actual innocence. The evidence of petitioner's guilt was overwhelming.
The petition for a writ of habeas corpus is denied and dismissed for failure to prosecute.
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure. No other issue open to consideration by this court has merit. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
No certificate of appealability is granted, petitioner having failed to make a substantial showing of the denial of a constitutional right. Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. § 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003). Any decision of the federal district court for which a certificate of appealability is granted will be reviewed de novo by the Court of Appeals.
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