Paige v. Lee

Filing 11

DECISION AND ORDER: Petitioner's petition for a writ of habeas corpus is DENIED in its entirety. A certificate of appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of the Court is directed to serve notice of entry of this Order on all parties and to close the case. Ordered by Judge William F. Kuntz, II on 4/15/2015. (Fwd'd for judgment) (Attachments: # 1 Appendix A) (Brucella, Michelle)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------------------------------)(
JASON PAIGE,
Petitioner,

DECISION AND ORDER
13-cv-1465 (WFK)

-againstWILLIAM A. LEE, SUPERINTENDENT,
GREEN HAVEN CORRECTIONAL FACILITY,
Respondent.

--------------------------------------------------------------)(
WILLIAM F. KUNTZ, II, United States District Judge:
Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 by
Petitioner Jason Paige ("Petitioner"). Petitioner seeks federal habeas relief based on ineffective
assistance of counsel. Petitioner argues his counsel was ineffective on three grounds: (1) failure
to object to inflammatory statements during summation, (2) failure to preserve for appellate
review the failure of a prosecution witness to make an in-court identification of Petitioner, and
(3) failure to adequately investigate a conflict of interest between the lead detective and
Petitioner's aunt. For the reasons discussed below, Petitioner's claims are meritless.
Accordingly, the petition for the writ of habeas corpus is DENIED in its entirety.

FACTUAL AND PROCEDURAL BACKGROUND
Between July 3 and July 20, 2008, Petitioner restrained Denetria Council ("Council"), his
then-girlfriend, inside an apartment where Petitioner and Council lived with Petitioner's nineyear old daughter and six-month old niece. Dkt. 9, Affirmation in Opposition to Petition for a
Writ of Habeas Corpus ("Affirmation") at if 4. Petitioner believed that Council had cheated on
him. Id. During this seventeen day period, Petitioner repeatedly demanded that Council admit to
cheating on him and repeatedly beat Council on her back and body with an electrical cord. Id.
At various times throughout the seventeen days, Petitioner would duct-tape Council to a crib to
prevent her from moving. Id. He would also pour water over her back to irritate her wounds.

Id. As a result of Petitioner's actions, Council sustained countless lacerations and scarring over

her back and body. Id. Eventually, Council was able to escape from Petitioner. Id.
Based on the foregoing, Petitioner was charged by Kings County, Indictment Number
7224/2008, with (1) one count of Kidnapping in the First Degree under New York Penal Law

("NYPL") § 135.25[2], (2) one count of Kidnapping in the Second Degree under NYPL §
135.20, (3) two counts of Assault in the First Degree underNYPL § 120.10[1], [2], (4) one count

of Attempted Assault in the First Degree under NYPL §§ 110.00/120/10[1], (5) one count of
Assault in the Second Degree underNYPL § 120.05[2], (6) one count of Unlawful Imprisonment
in the Second Degree under NYPL § 135.05, (7) one count of Assault in the Third Degree under
NYPL § 120.00[1], (8) three counts of Criminal Possession of a Weapon in the Fourth Degree
under NYPL § 265.01 [2], (9) two counts of Endangering the Welfare of a Child under NYPL §
260.1 O[l ], and (10) one count of Attempted Assault in the Third Degree under NYPL §§
110.00/120.00[1]. Id.

at~

5

On June 3, 2009, Petitioner's jury trial on the aforementioned charges commenced in the
New York State Supreme Court, Kings County. Id.

at~

9. On June 16, 2009, the jury returned a

verdict convicting Petitioner of Second Degree Kidnapping and two counts of First Degree
Assault, one count for causing serious physical injury with a dangerous instrument and the other
count for causing injury with intent to disfigure. Id.

at~

11. Petitioner, however, was acquitted

of First Degree Kidnapping, the most serious charge. Id.
Following the guilty verdict, Petitioner filed a prose motion in New York State Supreme
Court, Kings County, to set aside the verdict under New York Criminal Procedure Law§ 330.30
partly based on ineffective assistance of counsel for failure to request a psychiatric examination
to determine Petitioner's fitness to proceed. Id. at~ 12.

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On July 29, 2009, the trial court orally denied Petitioner's prose motion to set aside the
verdict and sentenced Petitioner to three concurrent determinate prison terms of twenty-five
years on each count, to be followed by five years of supervised release. Id. at

~

13.

After sentencing, with the assistance of assigned appellate counsel, Petitioner appealed
his judgment of conviction to the Appellate Division. Id.

at~

14. On or about March 29, 2011,

appellate counsel filed a brief appealing Petitioner's judgment arguing Petitioner received
ineffective assistance of counsel based on counsel's failure to object to "inflammatory statements
by the prosecutor in summation, including calling [Petitioner] the 'poster child for domestic
violence abusers."' Id.
On October 18, 2011, the Appellate Division unanimously affirmed Petitioner's judgment
of conviction and found that Petitioner had received effective assistance of counsel. Id. at 16;

see also People v. Paige, 931 N.Y.S.2d 262 (2d Dep't 2011).
On November 16, 2011, Petitioner applied to the New York State Court of Appeals for
leave to appeal the Appellate Division's decision confirming Petitioner's conviction.
Affirmation at~ 17. Petitioner sought review of all claims raised in his appeal to the Appellate
Division. Id. On January 12, 2012, the New York State Court of Appeals denied Petitioner's
leave to appeal. Id. at~ 19; see also People v. Paige, 963 N.E.2d 132 (N.Y. 2012).
On March 15, 2013, Petitioner filed his prose petition for writ of habeas corpus pursuant
to 28 U.S. C. § 2254 in this Court. Affirmation at ~ 21; Dkt. 1, Petition for Writ of Habeas

Corpus ("Petition"). The Petition challenges Petitioner's incarceration on the basis Petitioner
received ineffective assistance of counsel at trial. Petition at 16-18. 1

1

Petitioner's originally filed Petition stated three grounds for habeas relief. Petition at 16-18. On April

25, 2013, Petitioner submitted a letter to withdraw his first and third grounds of the Petition. Dkt. 5. On
March 19, 20 I 4, the Court granted Petitioner's request to withdraw grounds one and three. Dkt. 1O,

Memorandum and Order at 1. Therefore, the only issue remaining for the Court to determine is

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Petitioner argues he received ineffective assistance of counsel on three grounds: (1)
'"Defense Counsel failed to object to all inappropriate and inflammatory remarks made by the
prosecution during summation[,]" including statements where "[t]he prosecutor called the
Petitioner a 'poster child for domestic violence abusers,"' and referred to Council's skin as being
"'ripped like a piece of meat,"' (2) "Defense Counsel failed to preserve for appellate review the
failure of a prosecution witness to make an in-court identification of [Petitioner]," and (3)
"[Defense] Counsel failed to adequately investigate [Petitioner's] claim that lead [New York
Police Department] detective[] Steven Swantek[] had a conflict of interest issue in that Swantek
had [a] prior romantic relationship with Petitioner's aunt which ended on bad terms." Id. at 1617. With respect to the second ground, Petitioner acknowledges he did not exhaust available
state remedies. Specifically, Petitioner states:
'Ground Two' was not exhausted via state remedies available. There are three
reasons explaining th[is] lack of exhaustion. First, Appellate Counsel elected to
make an alternative ineffective assistance of counsel claim, while raising the
issues in her brief. Second, she elected to raise the unpreserved issues, asking the
Court to exercise its interest of justice jurisdiction. Consequently, issues '1' and
'2' were not exhausted by state appellate review. Third, Petitioner is a Prose
litigant who has an 11th grade education and a history of being treated for mental
illness. Petitioner has sought assistance from a paralegal inmate in the facility's
law library where he is currently incarcerated to litigate this issue. Hence, issue
number '3' likewise has not been exhausted.
Id. at 17-18 (emphasis in original). Moreover, Petitioner also concedes that issues two and three

for his ineffective assistance of counsel claim were not raised on direct appeal. Id. at 18. Lastly,
Petitioner also acknowledges all issues comprising his ineffective assistance of counsel claim
were neither raised through a post-conviction motion nor through state habeas corpus review. Id.

whether habeas relief should be granted based on the issues raised in Petitioner's ineffective
assistance of counsel claim.

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DISCUSSION
I.

Legal Standard

The Court's review of the Petition is governed by The Antiterrorism and Effective Death
Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254. A federal habeas court may only consider
whether a person is in custody pursuant to a state court judgment "in violation of the Constitution
or laws or treaties of the United States." 28 U.S.C. § 2254(a). AEDPA requires federal courts to
apply a "highly deferential standard" when conducting habeas corpus review of state court
decisions and "'demands that state-court decisions be given the benefit of the doubt." Renico v.
Lett, 559 U.S. 766, 773 (2010) (internal quotation marks and citations omitted). For the reasons

discussed below, the Court denies the Petition in its entirety.
II.

Analysis: Petitioner's Ineffective Assistance of Counsel Claim

Petitioner bases his ineffective assistance of counsel claim on the following three actions
of counsel: ( 1) failure to object to inflammatory statements made by the prosecutor during
summation, (2) failure to preserve for appellate review the failure of a prosecution witness to
make an in-court identification of Petitioner, and (3) failure to adequately investigate a conflict
of interest between the lead detective Steven Swantek and Petitioner's aunt. The Court addresses
each issue in turn.

A. Defense Counsel's Failure to Object to Inflammatory Statements Satisfied
Strickland

Petitioner first argues he is entitled to federal habeas relief for ineffective assistance of
counsel based on defense counsel's failure to object to inflammatory statements made during
summation. Petitioner's argument is unavailing.

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A petitioner is entitled to habeas corpus relief if he can show the state court decision "was
contrary to, or involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(l). The Supreme
Court has explained that "an unreasonable application of federal law is different from an

incorrect application of federal law." Williams v. Taylor, 529 U.S. 362, 410 (2000) (emphasis in
original). ''[A] federal habeas court may not issue the writ simply because that court concludes
in its independent judgment that the relevant state-court decision applied clearly established
federal law erroneously or incorrectly." Id. at 411. Instead, the state court's application of
federal constitutional principles must be "objectively unreasonable" to warrant issuance of the
writ. Id. at 409. "This distinction creates 'a substantially higher threshold' for obtaining relief
than de nova review." Renico, 559 U.S. at 773 (quoting Schriro v. Landrigan, 550 U.S. 465, 473
(2007)).

Strickland v. Washington, 466 U.S. 668 (1984), sets forth the relevant federal law
governing ineffective assistance of counsel claims. In reviewing a state court's application of the

Strickland standard, "[ t ]he pivotal question is whether the state court's application of the
Strickland standard was unreasonable. This is different from asking whether defense counsel's
performance fell below Strickland's standard. Were that the inquiry, the analysis would be no
different than if, for example, [the district court] were adjudicating a Strickland claim on direct
review of a criminal conviction in a United States [D]istrict [C]ourt." Harrington v. Richter, 562
U.S. 86, 101 (2011).
"Under Strickland, in order to prevail on an ineffective-assistance-of-counsel claim, a
defendant must meet a two-pronged test: (1) he 'must show that counsel's performance was
deficient' ... and (2) he must show that 'the deficient performance prejudiced the defense[.]"'

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Bennett v. United States, 663 F.3d 71, 84 (2d Cir. 2011) (quoting Strickland, 466 U.S. at 687,
690). "It is the accused's 'heavy burden' to demonstrate a constitutional violation under

Strickland." Moreno v. Smith, 06-CV-4602, 2010 WL 2975762, at *15 (E.D.N.Y. July 26, 2010)
(Matsumoto, J.) (quoting United States v. Gaskin, 364 F.3d 438, 468 (2d Cir. 2004)).
Under the first prong, "[j]udicial scrutiny of counsel's performance must be highly
deferential ... a court must indulge a strong presumption that counsel's conduct falls within the
wide range of reasonable professional assistance; that is, the defendant must overcome the
presumption that, under the circumstances, the challenged action might be considered sound trial
strategy.'' Strickland, 466 U.S. at 689 (internal quotation marks and citations omitted).
Under the second prong, 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. A reasonable probability is a probability sufficient to undermine
confidence in the outcome. In making the determination whether the specified errors resulted in
the required prejudice, a court should presume, absent challenge to the judgment on grounds of
evidentiary insuniciency, that the judge or jury acted according to law." Id. at 694
As discussed above, Petitioner raised his ineffective assistance of counsel claim based on
defense counsel's failure to object to inflammatory statements made during summation in his
Appellate Division Brief. Petition at 14. The statements at issue made by the prosecutor are as
follows: ( 1) calling Petitioner a "poster child for domestic violence abusers," (2) referring to
Counci I's skin as being ''ripped like a piece of meat," and (3) urging the jury to "[g]ive [Council]
the chance to stay away. Give her a chance to have a life without [Petitioner]." Id. at 17.

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The Appellate Division rejected Petitioner's claim on the merits. Affirmation

at~

16.

Petitioner thereafter presented his claim to the New York Court of Appeals, but the New York
State Court of Appeals denied Petitioner's leave to appeal. Id.

at~~

17, 19.

Here, there is nothing in the record to suggest the state courts applied Strickland
unreasonably when rejecting Petitioner's ineffective assistance of counsel claim based on
statements made by the prosecutor during summation. See Harrington, 562 U.S. at 101 In fact,
all indications demonstrate that Petitioner's trial counsel performed well above the requirements
of Strickland.
Under the first prong of Strickland, a review of the record reveals a professionally sound
and successful performance by defense counsel. This is especially true given that defense
counsel was successful in obtaining an acquittal on the count of First Degree Kidnapping - the
most serious count with which Petitioner was charged. See, e.g., Riddick v. Fischer, 04-CV2230, 2004 WL 2181118, at *4 (S.D.N.Y. Sept. 27, 2004) (Lynch, J.) (rejecting habeas relief
based on ineffective assistance of counsel where "[Petitioner] was acquitted of the most serious
charges against him[.]").
Furthermore, any objection to the allegedly inflammatory statements made by the
prosecutor during summation would have been futile given the graphic photographs of Council's
injuries presented to the jury. See Appendix A (photos of Council presented as State's Ex. 9A-9F
at trial). ·'The failure to make demonstrably futile arguments cannot constitute constitutionally
ineffective assistance of counsel." Maldonado v. Burge, 697 F. Supp. 2d 516, 541 (S.D.N. Y.
2010) (Holwell, J.) (internal quotation marks and citation omitted). Here, the photographs
explicitly showcase the extent of Council's injuries - scabbing, bleeding, open lacerations, and
crisscross whip marks all over the front and back of her arms, legs, hands, shoulders, torso, and

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back. Appendix A (photos presented as State's Ex. 9A-9F at trial). Given the impact of this
evidence, any attempt to object to the prosecutor's statements made during summation would
have been futile. It is completely plausible that defense counsel chose not to object to the
prosecutor's statements made during summation to avoid further highlighting the damning
evidence. Taylor v. Fischer, 05-CV-3034, 2006 WL 416372, at *5 (S.D.N.Y. Feb. 21, 2006)
(Lynch, J .) ("The Court of Appeals identified several strategic considerations that could have led
a reasonable lawyer to forgo objections ... [including] the desire not to call attention to
unfavorable evidence or to highlight unfavorable inferences.") (internal citation omitted).
Because Petitioner has failed to meet the first prong under Strickland, the Court need not engage
in analysis of the second prong under Strickland. Strickland, 466 U.S. at 697 ("[T]here is no
reason for a court deciding an ineffective assistance claim to ... address both components of the
inquiry if the defendant makes an insufficient showing on one."). In any event, the Court will
analyze the second prong to show that Petitioner's argument fails under both prongs.
Under the second prong of Strickland, Petitioner has not demonstrated any prejudice that
resulted from defense counsel's failure to object to statements made by the prosecutor during
summation. Specifically, there is nothing in the record to suggest "but for counsel's
unprofessional errors, the result of the proceeding would have been different." Id. at 694. Given
the overwhelming evidence - testimony from Council, medical records, and graphic photographs
of Council's injuries - there is no reasonable probability that the outcome of the trial would have
been more favorable to Petitioner had defense counsel objected to the statements made by the
prosecutor during summation. As such, defense counsel's failure to object to the statements
made by the prosecutor did not provide a complete and independent basis for the jury to find
Petitioner guilty beyond a reasonable doubt. Id. at 695 ("When a defendant challenges a

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conviction, the question is whether there is a reasonable probability that, absent the errors, the
factfinder would have had a reasonable doubt respecting guilt.").
Based on the above, the state courts did not unreasonably apply Strickland. Accordingly,
Petitioner's claim for relief based on ineffective assistance of trial counsel on this issue is
DENIED.
B. Petitioner's Ineffective Assistance of Counsel Claim Regarding Defense
Counsel's Failure to Object to an In-Court Identification is Procedurally
Barred
Petitioner's second claim for ineffective assistance of counsel is based on defense
counsel's failure to preserve for appellate review the failure of a prosecution witness to make an
in-court identification. Petitioner's argument, however, is barred as a matter oflaw.
The general rule under § 2254 is a habeas petitioner serving a state sentence must first
exhaust all available state court remedies. 28 U.S.C. § 2254(b); Baldwin v. Reese, 541 U.S. 27,
29 (2004). "State remedies are deemed exhausted when a petitioner has: (i) presented the federal
constitutional claim asserted in the petition to the highest state court (after preserving it as
required by state law in the lower courts) and (ii) informed that court (and lower courts) about
both the factual and legal bases for the federal claim." Ramirez v. Attorney Gen. of the State of

N. Y, 280 F.3d 87, 94 (2d Cir. 2001) (citations omitted). "When a claim has never been
presented to a state court, a federal court may theoretically find that there is an 'absence of
available State corrective process' under§ 2254(b )(1 )(B)(i) if it is clear that the unexhausted
claim is procedurally barred by state law and, as such, its presentation in the state forum would
be futile. In such a case the habeas court theoretically has the power to deem the claim
exhausted." Aparicio v. Artuz, 269 F.3d 78, 90 (2d Cir. 2001) (quoting Reyes v. Keane, 118 F.3d
136, 139 (2d Cir. 1997)). As the Second Circuit has recognized, this "proves to be cold comfort

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to most petitioners because it has been held that when 'the petitioner failed to exhaust state
remedies and the court to which the petitioner would be required to present his claims in order to
meet the exhaustion requirement would now find the claims procedurally barred,' federal habeas
courts also must deem the claims procedurally defaulted." Id. (quoting Coleman v. Thompson,
501 U.S. 722, 735 n.1 (1991)).
Dismissal of a federal habeas petition on procedural default grounds "differs crucially"
from a dismissal for failure to exhaust state court remedies because a procedural default
constitutes "an adjudication on the merits." Turner v. Artuz, 262 F.3d 118, 122-23 (2d Cir.
2001) (citation omitted). "This means that any future presentation of the claim would be a
second or successive habeas petition, requiring authorization by [the Second Circuit] pursuant to
28 U.S.C. § 2244(b)(3)(A).'' Aparicio, 269 F.3d at 90 (citation omitted). "For a procedurally
defaulted claim to escape this fate, the petitioner must show cause for the default and prejudice,
or demonstrate that failure to consider the claim will result in a miscarriage of justice (i.e., the
petitioner is actually innocent)." Id. (citing Coleman, 501 U.S. at 748-50).
Moreover, N.Y. Crim. Proc. Law§ 440.10(2)(c) "requires a state court to deny a motion
to vacate a judgment based on a constitutional violation where the defendant unjustifiably failed
to argue the constitutional violation on direct appeal despite a sufficient record." Sweet v.

Bennett, 353 F.3d 135, 139 (2d Cir. 2003). 'The purpose of this rule 'is to prevent Section
440.10 from being employed as a substitute for direct appeal when the defendant was in a
position to raise an issue on appeal ... or could readily have raised it on appeal but failed to do
so."' Id. (quoting People v. Cooks, 491 N.E.2d 676, 678 (N.Y. 1986)) (brackets omitted).
Here, Petitioner has admitted his second argument for ineffective assistance of counsel
based - defense counsel's failure to preserve for appellate review the failure of a prosecution

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witness to make an in-court identification - was not exhausted using all state remedies available
and was not raised on direct appeal. Petition at 17-18. Moreover, this claim could have been
raised on direct appeal as it was based on the record at trial - specifically, the failure of a
prosecution witness to make an in-court identification during trial. Id. Although Petitioner
argues he should be excused from failing to raise this claim because his appellate counsel elected
to make an alternative ineffective assistance of counsel claim and because he has an 11th grade
education, such an argument is futile. Id. Petitioner has failed to establish how this argument
demonstrates cause for default and prejudice. Aparicio, 269 F.3d at 90. Because this claim was
never fairly presented to the state court for review, and the Petitioner is no longer able to raise
such claims before the Appellate Division, as Petitioner has already made, and lost, his direct
appeal, Petitioner's claim is foreclosed from federal habeas review in this Court. The Court
therefore DENIES habeas relief on Petitioner's second argument of ineffective assistance of
counsel.

C. Petitioner's Ineffective Assistance of Counsel Claim Regarding Defense
Counsel's Failure to Investigate a Conflict of Interest is Meritless

Petitioner's third and final claim for ineffective assistance of counsel is based on defense
counsel's failure to adequately investigate a conflict of interest between lead detective Steven
Swantek and Petitioner's aunt. Again, Petitioner's argument is unavailing.
As with Petitioner's second claim, Petitioner also admits this claim was not exhausted by
all state remedies available and was not raised on direct appeal. Petition at 17-18. However, this
claim differs from Petitioner's second claim for ineffective counsel in one crucial way:
Petitioner still has the opportunity to exhaust this claim in state court as there are no facts to
suggest this unexhausted claim is procedurally barred (i.e. there are no facts to suggest this was
an issue at trial that could have been raised on direct appeal). Id. at 18. Nonetheless, the Court

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may still deny Petitioner's claim on the merits because "'[a]n application for a writ of habeas
corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the
remedies available in the courts of the State" 28 U.S.C. § 2254(b)(2).
Here, Petitioner's claim is meritless. Petitioner contends counsel was ineffective
because:
Counsel failed to adequately investigate [Petitioner's] claim that lead
[New York Police Department] detective[] Steven Swantek[] had a
conflict of interest issue in that Swantek had [a] prior romantic
relationship with Petitioner's aunt which ended on bad terms. Further,
Swantek was very familiar with Petitioner as a result of Swantek's
relationship with his aunt. The detective failed to disclose this to the
Court, the District Attorney's Office prosecuting the case, his colleagues
who reported to the scene of the alleged crime with him to execute a
search warrant, nor did he disclose this to his [New York Police
Department] supervisors. Swantek planted evidence and assisted
[Council] to fabricate testimony.
Petition at 17.
The general rule is "undetailed and unsubstantiated assertions that counsel failed to
conduct a proper investigation have consistently been held insufficient to satisfy either Strickland
prong." Powers v. Lord, 462 F. Supp. 2d 371, 381(W.D.N.Y.2006) (Bianchini, Mag. J.) (citing

Polanco v. United States, 99-CV-5739, 2000 WL 1072303, at* 10 (S.D.N.Y. Aug. 3, 2000)
(Haight, J .));see also Lamberti v. United States, 95-CV-1557, 1998 WL 118172, *2 (S.D.N.Y.
Mar. 13, 1998) (Leval, Circuit J.) (rejecting Sixth Amendment claim based on failure to
investigate or communicate with petitioner as "vague and conclusory. [The allegations] do not
identify counsel's asserted failings with any specificity or show how any different conduct might
have changed the result. Such allegations cannot sustain a petition for habeas corpus.");

Madarikan v. United States, 95-CV-2052, 1997 WL 597085, at * 1 (E.D.N. Y. Sept. 24, 1997)
(Johnson, J.) (denying ineffective assistance claim based on failure to investigate or interview

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witnesses where petitioner's allegations of ineffective assistance were "conclusory, and g[a]ve
no indication as to what exculpatory evidence may have been revealed by an investigation");

United States v. Vargas, 871 F. Supp. 623, 624 (S.D.N.Y.1994) (Broderick, J.) (rejecting
ineffective assistance claim based on failure to investigate where there was "no evidence that
avenues suggested by the client which might have altered the outcome were ignored").
Here, Petitioner does not provide any details to establish how counsel failed to conduct a
proper investigation based on any alleged conflict of interest. For example, Petitioner does not
provide any facts or evidence concerning how Swantek's alleged personal relationship with
Petitioner's aunt interfered with his duties as a police officer in Petitioner's action. Additionally,
Petitioner does not provide any facts or evidence concerning the nature, timing, and
circumstances of Swantek's alleged romance and subsequent break-up with Petitioner's aunt to
establish any plausible reason for a conflict of interest to arise. Furthermore, Petitioner does not
even shed any light as to how any investigation of the relationship between Swantek and
Petitioner's aunt would have been helpful to his case.
Because Petitioner's claim of ineffective assistance of counsel based on failure to
investigate is simply too vague and conclusory to state a proper ground for habeas relief under
either Strickland prong, it must be dismissed as meritless. See Powers, 462 F. Supp. 2d at 382.

CONCLUSION
Petitioner's petition for a writ of habeas corpus is DENIED in its entirety. A certificate
of appealability shall not issue. See 28 U.S.C. § 2253. The Clerk of the Court is directed to
serve notice of entry of this Order on all parties and to close the case.

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s/WFK