Opinion
02 Civ. 9331 (JSM)
August 5, 2003
OPINION ORDER
Gregory Jenkins, who was convicted in the New York State Supreme Court, New York County, on charges of Criminal Possession of a Controlled Substance in the Third Degree, brings this action pursuant to 28 U.S.C. § 2254 seeking to vacate 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 they were not properly preserved for review in the trial court. While there appears to be merit to this argument, given the fact that these claims are so lacking in merit, the Court will decide the claims on the merits.
Before turning to Petitioner's specific claims, it must be noted that Congress has limited the jurisdiction of the federal courts to provide relief under 22 U.S.C. § 2254.
(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 —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(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.See generally Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
None of the claims asserted by the Petitioner meets this standard.
Petitioner's first claim is that the action of his counsel denied Petitioner his right to testify before the grand jury. Petitioner's claim that he was denied his right to appear before the grand jury does not present an issue of constitutional dimension but is merely an issue of state law. The defendant in a federal criminal proceeding has no right to appear before a grand jury and the Constitution does not require it. If the state chooses to provide such a right, the failure to do so in an individual case does not violate any provision of the United States Constitution.
As the Supreme Court said in Estelle v. McGuire, 112 S.Ct. 475, 480, 502 U.S. 62, 67-68 (1991):
We have stated many times that "federal habeas corpus relief does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 3102, 111 L.Ed.2d 606 (1990); see also Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 874-75, 79 L.Ed.2d 29 (1984). Today, we reemphasize that it is not the province of a federal habeas court to reexamine state-court determinations on state-law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States. 28 U.S.C. § 2241; Rose v. Hodges, 423 U.S. 19, 21, 96 S.Ct. 175, 177, 46 L.Ed.2d 162 (1975) (per curiam).
Petitioner also cites his counsel's waiver of his right to appear before the grand jury as one of the actions that demonstrate that his counsel was ineffective. 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.
The Supreme Court decision in Murray v. Carrier, 477 U.S. 478, 106 S.Ct. 2639 (1986), establishes that the failure to raise a viable issue does not necessarily mean that counsel's representation was constitutionally deficient. Mere error in judgment by an attorney, even if professionally unreasonable, does not warrant setting aside the verdict of a criminal proceeding if the error does not undermine "confidence in the outcome." See Martin v. Garvin, No. 92 Civ. 3970, 1993 WL 138813, at *2 (S.D.N.Y. Apr. 23, 1993) (citing Strickland, 466 U.S. at 694, 104 S.Ct. at 2068). The soundness of this proposition is reflected in the reasoning promulgated by the Ninth Circuit that "[t]he Constitution does not guarantee representation that is infallible." See Cooper v. Fitzharris, 586 F.2d 1325, 1330 (9th Cir. 1978).
Here, the decision of defense counsel that Petitioner should not testify before the grand jury 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. Indeed, counsel would have been ineffective had he advised Petitioner to appear before the grand jury. Since the evidence against Petitioner came from an undercover police officer who purchased drugs from him, there was no realistic possibility that the grand jury would not indict him. All that his appearance before the grand jury would do would be to give the prosecutor a preview of the defense.
Nor is there merit to any of the other arguments of Petitioner concerning his counsel's performance. While Petitioner claims his attorney did not adequately investigate the case, this is not a case that required substantial independent investigation, since it rested almost exclusively on the testimony of the undercover officer. Petitioner's claim that his attorney did not use prior inconsistent statements of the undercover officer to impeach him involved only a matter of trial strategy, which as noted above, 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.
Even if the Court were to agree with Petitioner that his counsel's performance was deficient in some respect, Petitioner would not be entitled to relief because he has failed to demonstrate "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.
Petitioner's contention that the jury's verdict convicting him on one count and acquitting him on the other was "repugnant," is without merit. Since the count on which Petitioner was convicted involved the sale to the undercover and the buy money for this purchase was found on Petitioner at the time of his arrest, the evidence on this count was substantially stronger than the evidence on the count on which he was acquitted which consisted solely of the undercover's testimony that he observed a person ask Petitioner "for two" and then observed the exchange of money and passing envelopes. That the jury decided that the proof on the count of conviction constituted "proof beyond a reasonable doubt," while the proof on the other count did not, shows only that the jury gave careful consideration to the case and that Petitioner's counsel did an effective job of representing him.
Petitioner's final claim is that the prosecutor made improper comments at the trial. In order to warrant federal habeas relief, the comments of a prosecutor must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process." Darden v. Wainright, 477 U.S. 168, 181, 106 S.Ct. 2464, 2471 (1986). However, Petitioner fails to cite any specific comment that improperly prejudiced him and a review of the prosecutor's summation reveals none.
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.