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BALANCE-SOLER v. POOLE

June 24, 2005.

GUILLERMO BALANCE-SOLER, Petitioner,
v.
THOMAS POOLE, Superintendent, Respondent.



The opinion of the court was delivered by: HUGH SCOTT, Magistrate Judge

Decision & Order

Petitioner Guillermo Balance-Soler ("Petitioner" or "Balance") has filed an application to this Court for habeas corpus relief pursuant to 28 U.S.C. § 2254 challenging his state court conviction. He asserts ineffective assistance of counsel in support of his Petition. The parties consented to proceed before the undersigned as Magistrate Judge (pursuant to 28 U.S.C. § 636(c)). (Docket No. 7, October 26, 2004.)

BACKGROUND

  Offense and State Court Proceedings

  Petitioner was charged with second degree murder, N.Y. Penal Law § 125.25(1), and one count of depraved indifference murder, N.Y. Penal Law § 125.25(2), for the murder of Maria DeJesus. He was tried in New York State Supreme Court (Monroe County, Geraci, J.). The trial testimony established that DeJesus was killed on February 6, 2000, when her boyfriend, Balance, stabbed her. Petitioner's defense counsel argued that he was under extreme emotional disturbance and not sufficiently responsible to have intended DeJesus' murder. Counsel, however, did not introduce evidence of petitioner's intoxication, instead argued that DeJesus had been drinking and became belligerent when drinking, eventually leading to petitioner "losing it" and attacking DeJesus. (See SCR,*fn1 Trial Tr. at 538-38.) Defense counsel argued in summation that, after the attack, petitioner turned himself in and cooperated with the police, cooperating not to get a deal or because he was intoxicated (id. at 546-47). The jury found petitioner guilty and, after the jury trial, on November 13, 2000, petitioner was sentenced to twenty years to life in prison.

  Appeal

  Petitioner appealed the judgment of conviction to the New York State Supreme Court, Appellate Division, Fourth Department, arguing that the jury instruction on extreme emotional disturbance was defective. The Fourth Department affirmed the conviction. People v. Balance-Soler, 298 A.D.2d 927, 748 N.Y.S.2d 88 (4th Dep't), leave denied, 99 N.Y.2d 555, 754 N.Y.S.2d 207 (2002). (See also Docket No. 1, Pet. Exs. C, D.)

  Post Conviction Motion

  Petitioner, proceeding pro se as he is presently with this habeas petition, filed a motion to vacate the judgment under New York Criminal Procedure Law § 440.10, arguing ineffective assistance of trial counsel in not arguing an intoxication defense to the element of intent. In particular, petitioner claimed that defense counsel did not introduce any evidence and did not call petitioner as a witness; she did not introduce evidence of petitioner's intoxication; counsel did not seek an intoxication defense charge, instead stipulating to the extreme emotional distress charge; counsel failed to challenge the validity of the translation by the police investigator to petitioner's statement about how much he had to drink the night of the attack; and defense counsel argued that petitioner was not intoxicated when he spoke with the police shortly after the incident. (Docket No. 1, Pet., Ex. E.) On November 6, 2003, the County Court agreed with the prosecution (see Docket No. 1, Pet., Ex. F, prosecutor's affirmation) and ruled that petitioner failed to argue these grounds on appeal and failed to provide substantiation (including an affirmation from defense counsel) to support his claim of ineffective assistance. Alternatively, the court found on the merits of petitioner's motion that his allegations did not rise to the level of ineffective assistance, applying New York's standard and concluding that petitioner received meaningful representation (Docket No. 1, Pet., Ex. G, at 4-7). This motion, the court concluded, was petitioner's dissatisfaction with a losing trial tactic (id. at 7).

  Petitioner then sought leave to appeal this decision, but the Fourth Department denied leave (Docket No. 1, Pet., Ex. I, decision of Jan. 30, 2004).

  Habeas Petition

  Petitioner then filed this Petition on March 30, 2004 (Docket No. 1) alleging the single claim of ineffective assistance of counsel. Respondent filed an Answer with attached record from the state court proceedings (Docket No. 5 (May 17, 2004)).

  ...


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