Opinion
00 Civ. 2095 (JSM).
November 3, 2000.
Memorandum Opinion and Order
Jerry DeJesus, who was convicted after a jury trial in the Supreme Court, New York County, on charges of Murder in the Second Degree and Criminal Possession of a Weapon in the Second Degree, and was sentenced to concurrent terms of twenty-five years to life and seven and one-half to fifteen years, petitions under 28 U.S.C. § 2254 seeking to set aside his conviction.
In addition to contesting Petitioner's claims on the merits, the State argues that the Court should not consider certain of Petitioner's claims because he failed to exhaust his state remedies. However, 28 U.S.C. § 2254(b)(2) gives the Court the discretion to deny unexhausted claims on the merits. Given the fact that, as demonstrated below, these claims are so lacking in merit, the court will exercise its discretion and decide Petitioner's claims on the merits.
Petitioner's first claim is that he was denied his Sixth Amendment right to counsel because the police conducted a line-up in the absence of his counsel even though counsel had specifically told the police that he wanted to be present at any line-up. This claim is without merit because the right to counsel does not arise until the institution of judicial proceedings. Because the case was still in the investigatory stage at the time that the line-up was conducted, and petitioner had not been formally charged with any crime, there was no requirement that an attorney be present at the lineup. See Kirby v. Illinois, 406 U.S. 682, 688, 92 S.Ct. 1877, 1881-82 (1972). In any event, the police made reasonable efforts to contact Petitioner's attorney before conducting the line-up, and there was no error in proceeding in his absence.
Petitioner also contends that hcLs appellate counsel was ineffective in failing to raise on appeal a claim that the police lacked probable cause for his arrest and that his Miranda rights were violated. In order to prevail on a claim of ineffective assistance of counsel, a defendant must establish 1) that counsel's performance was deficient and 2) the deficient performance prejudiced the defense. See Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 2068 (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.
Because petitioner had been identified in a photo array by two eye-witnesses prior to his arrest, and the challenged statement had been made voluntarily by him when the police first approached him, counsel's decision not to raise these claims on appeal 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 . . . ." Strickland, 466 U.S. at 689, 104 S.Ct. at 2065.
Petitioner's final argument that the trial court deprived him of a defense by refusing to admit a 911 tape as an excited utterance of an eye-witness who described someone else as the murderer is also without merit. The trial judge carefully reviewed the 911 tape and concluded that the caller's words indicated that he was not an eye-witness to the crime, but that he had arrived on the scene as the parties were leaving in a car.
28 U.S.C. § 2254 provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim-
**********
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
It certainly cannot be said that the trial judge made "an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."
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 (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); Fed.R.App.P. 22(b). Accordingly, a certificate of appealability will not issue. SO ORDERED.
Dated: New York, New York November 2, 2000 JOHN S. MARTIN, JR. U.S.D.J.
For Petitioner: Jerry DeJesus, Great Meadow Correctional Facility, Comstock, NY.
For Respondent: Alan Gadlin, Ass't District Attorney, New York, NY.