Opinion
99 Civ. 88 (JSM).
April 19, 2000.
William Barber, # 89A9497, Mid-Orange Corr. Facility, pro se.
Jean Joyce, Stuart P. Levy, Assistant District Attorneys, for Respondent.
MEMORANDUM OPINION AND ORDER
William Barber, who was convicted in the New York State Supreme Court, Bronx County, of murder, manslaughter, and criminal possession of a weapon, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate his conviction. The State contends that all of the claims that Petitioner asserts, other than the ineffective assistance of counsel claims, are procedurally barred because they were not properly raised in the state courts. While there appears to be merit in this position, the short answer is that none of the claims have merit.
Petitioner's first claim that there was not sufficient evidence before the state grand jury presents solely a matter of state law and is not a ground for habeas corpus relief. "[F]ederal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102 (1990).
Petitioner next contends that the trial court improperly permitted the prosecution to introduce a prior statement of a witness as a past recollection recorded. There was no error in this ruling. Since the witness was testifying and subject to cross-examination by defense counsel, there was no violation of Petitioner's constitutional right to confront the witnesses against him. See California v. Green, 399 U.S. 149, 158, 90 S. Ct. 1930, 1935 (1970); United States v. Laljie, 184 F.3d 180, 192 (2d Cir. 1999).
Although Petitioner contends that the prosecutor knowingly elicited false testimony from the medical examiner that her examination indicated that the shooting did not occur at close range, there is nothing to support the assertion that this testimony was perjurious. To the extent that Petitioner argues that the witness did not have an adequate basis for her testimony, that was an issue for the jury to decide.
Petitioner's claim that the trial court erroneously applied an objective rather than subjective standard with regard to the defense of justification presents solely a matter of state law, which is not subject to review in a habeas corpus proceeding. As the Supreme Court said in Estelle v. McGuire, "it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions." 502 U.S. 62, 67-68, 112 S.Ct. 473, 480 (1991).
Similarly, the question whether Petitioner should have been allowed to introduce evidence of the victim's reputation for violence presents solely an issue of state law that is not subject to habeas corpus review.
Petitioner raises several claims relating to whether an appropriate analysis of the victim's clothing would have revealed the presence of gunpowder, which would have supported his claim that the shooting occurred as he and the victim were struggling. His claim that he did not receive a relevant report and that his counsel was ineffective in the way that he handled this issue are without merit. In a state post-conviction proceeding Petitioner's claims in this regard were carefully considered by the trial judge and rejected. Defense counsel swore that he received the relevant report and that he had made a tactical decision not to pursue further testing.
In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish that 1) counsel's performance was deficient and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984). To establish prejudice "[t]he defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694, 104 S.Ct. at 2068.
In addition, defense counsel's decision not to pursue further testing was well within the range of tactical strategy that is left to the professional judgment of defense counsel, and there is a "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689, 104 S.Ct. at 2055.
Moreover, the record is clear that Petitioner was not prejudiced in this regard since the prosecution submitted an affidavit from the chemist who tested the victim's clothing and swore that no gunpowder residue was found on the clothing. Although Petitioner now contends that the chemist should have been called at the hearing, his counsel was provided with the telephone number of the chemist and there is no reason to believe that her testimony would have been favorable to Petitioner.
For the foregoing reasons, the petition for relief pursuant to 28 U.S.C. § 2254 is denied and the action is dismissed. In addition, pursuant to 28 U.S.C. § 1915(a), the Court certifies that an appeal from this case may not be taken in forma pauperis; such an appeal would be frivolous and cannot be taken in good faith. See Coppedge v. United States, 369 U.S. 438, 444-45, 82 S. Ct. 917, 920-21 (1962). The Court determines that the petition presents no question of substance for appellate review and that Petitioner has failed to make a "substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2); see Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue.
SO ORDERED.
Dated: New York, New York April 18, 2000.