United States District Court, S.D. New York
December 10, 2004.
CHEN FU, Petitioner,
JOSEPH COSTELLO, etc., et ano., Respondents.
The opinion of the court was delivered by: LEWIS KAPLAN, District Judge
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.
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
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.
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