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FU v. COSTELLO

United States District Court, S.D. New York


December 10, 2004.

CHEN FU, Petitioner,
v.
JOSEPH COSTELLO, etc., et ano., Respondents.

The opinion of the court was delivered by: LEWIS KAPLAN, District Judge

ORDER

Petitioner was convicted in New York Supreme Court, New York County, of assault in the first degree and sentenced principally to a term of imprisonment of six years. The conviction was affirmed by the Appellate Division, and leave to appeal was denied by the New York Court of Appeals. People v. Fu, 293 A.D.2d 362, 742 N.Y.S.2d 199 (1st Dept.), leave to appeal denied, 98 N.Y.2d 696, 747 N.Y.S.2d 415 (2002). He seeks a writ of habeas corpus from this Court, principally on the ground that he received ineffective assistance of counsel at trial.

In a thorough report and recommendation, dated September 14, 2004, Magistrate Judge Gorenstein carefully considered petitioner's claims and recommended that relief be denied. Petitioner objected.

  The Court has carefully considered petitioner's objections. They are, however, without merit. Contrary to petitioner's contention, the inability of his trial attorney — who appears to have conducted an exceptionally thorough investigation and search for defense witnesses — to persuade some of those witnesses to cooperate and to give the testimony that petitioner now claims that they would give, despite diligent efforts on counsel's part, does not constitute ineffective assistance of counsel. Certainly there is no basis for concluding that the decision by the state courts was contrary to or an unreasonable application of Supreme Court precedent.

  Accordingly, the petition is denied. A certificate of appealability is denied, and the Court certifies that any appeal herefrom would not be taken in good faith within the meaning of 28 U.S.C. § 915(a)(3). The Clerk shall close the case.

  SO ORDERED.

20041210

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