The opinion of the court was delivered by: DAVID LARIMER, Chief Judge, District
Petitioner, John Reynolds ("Reynolds"), filed a pro se
petition for a writ of habeas corpus challenging his conviction
for second degree manslaughter in Cattaraugus County Court.
Reynolds was sentenced in January, 1999 to an indeterminate term
of imprisonment of 4 to 12 years. Although Reynolds was in
custody when he filed the petition, he has now been released.
The Court referred the petition to United States Magistrate
Judge Victor E. Bianchini pursuant to 28 U.S.C. § 636(b).
Magistrate Judge Bianchini issued a thorough, 22-page, Report and
Recommendation in which he recommends that the petition be denied
in all respects. Reynolds filed objections to that Report and
Recommendation and urged this Court to reject it on August 12,
Magistrate Judge Bianchini sets forth in great detail the facts
surrounding the fight which led to the death of Kevin King.
Reynolds does not challenge the sufficiency of the evidence, but
claims that his trial counsel provided ineffective assistance of
counsel. Magistrate Judge Bianchini carefully considered those
claims and rejected them. I agree with his conclusion.
I believe that Reynolds has failed to establish ineffective
assistance of counsel under the standards set forth in
Strickland v. Washington, 466 U.S. 668 (1984). To prove a Sixth
Amendment violation of the Constitution, a petitioner must show
both that the attorney's performance was inadequate and deficient
and that but for that error, the outcome of the proceeding would
have been different. Petitioner must show that the attorney's
performance was objectively unreasonable. Reynolds has failed to
establish either prong of the test.
The petitioner focuses on what he claims was poor advice as to
whether to accept a plea offer. The state court, though, made
factual findings that the defendant on several occasions in open
court rejected the plea offer. In the state court proceeding,
Reynolds' trial attorney disputed Reynolds' assertion that he had
not been advised of the law concerning accomplice liability.
Furthermore, it appears that Reynolds had several attorneys
involved in the case.
As Magistrate Judge Bianchini pointed out, at trial the defense
was not an unreasonable one. The defense attempted to establish
that petitioner was attempting to act as a peacemaker between the
two groups and that he did not make the statement that may have
precipitated the brawl.
I also find, as did Magistrate Judge Bianchini, that the
affidavit submitted by petitioner in an attempt to show that he
would have taken the guilty plea does not constitute objective
evidence of that fact. It involved little more than self-serving,
after the fact, statements by family and friends. I find no evidence here to support petitioner's claim that
there has been a constitutional violation of his right to counsel
under the Sixth Amendment. What is presented, is little more than
second-guessing about tactics pursued at trial that were
certainly reasonable at the time, and not objected to by
I adopt and accept the Report and Recommendation of United
States Magistrate Judge Victor E. Bianchini filed June 21, 2005
(Dkt. #17). The petition for a writ of habeas corpus is denied
and dismissed. Furthermore, I deny a certificate of appealability
because petitioner has failed to make a substantial showing of a
denial of a constitutional right. 28 U.S.C. § 2253.
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