Peters v. Graham

Filing 24

DECISION AND ORDER denying 13 Amended Petition for Writ of Habeas Corpus. Signed by Hon. Michael A. Telesca on 06/28/2017. (CDH) -CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

LUCIOUS PETERS,
Petitioner,
-v-

No. 6:13-cv-06222(MAT)

HAROLD D. GRAHAM, Superintendent of
Auburn Correctional Facility,

DECISION AND ORDER

Respondent.

I.

Introduction
Petitioner Lucious Peters ("Petitioner"), an inmate confined

at the Auburn Correctional Facility in Auburn, New York, has
petitioned this Court for a writ of habeas corpus pursuant to 28
U.S.C. § 2254.

On December 8, 2006, Petitioner was convicted in

Monroe County Court of murder in the second degree pursuant to N.Y.
Penal Law § 125.25(3) and on January 10, 2007, he was sentenced to
an indeterminate term of incarceration of 25 years to life.
Petitioner seeks a writ of habeas corpus on the ground that his
trial counsel provided ineffective legal assistance.

For the

reasons set forth below, habeas relief is denied and the amended
petition (Docket No. 13) is dismissed.
II. Factual Background
On March 9, 2006, Herschel Scriven (“Scriven”) was backing out
of a friend’s driveway when three men approached the car, intending
to commit an armed robbery. Scriven continued backing out, and the

would-be robbers fired multiple shots into the vehicle.

Scriven

was struck in the head and killed by a single shotgun slog.
On April 3, 2006, in the course of investigating Scriven’s
murder, Investigators Randall Benjamin and Neil O’Brien located
petitioner at Monroe Community College (“MCC”) and told him they
wanted him to come to the Public Safety Building (“PSB”) to discuss
a prior arrest related to a stolen car.

Petitioner agreed to

accompany the investigators to the PSB and, at approximately 8:12
a.m., he was placed in an interview room and provided with Miranda
warnings.

Petitioner indicated that he understood his rights and

agreed to speak to the investigators. The interview lasted several
hours and culminated in petitioner signing a written statement.
According to petitioner’s written statement, on March 9, 2006,
he

was

riding

subsequently

in

picked

a

car
up

an

with

his

friend

individual

named

Jacob

Rouse,

Brandon

and

who
an

individual whose name petitioner did not know but referred to as
“Tank”.

Petitioner and the others had pulled over and were

throwing bottles out of the car when someone started talking about
getting “jukes,” which meant robbery.

Petitioner claimed that he

has “just laughed” when “jukes” were mentioned. Brandon, Tank, and
petitioner then exited the car, while Rouse remained behind the
wheel.

Tank was carrying a shotgun, Brandon was carrying a silver

handgun, and petitioner was carrying a plastic silver pellet gun.
Petitioner was walking behind Brandon and Tank when he saw a car

-2-

running in a driveway.

Brandon and Tank approached the car, but

according to petitioner, he had changed his mind and so he “backed
off.”

Brandon spoke to the driver of the car, who continued to

drive.

Brandon and Tank then shot at the vehicle, which crashed

into a tree. Brandon, Tank, and petitioner ran back to Jacob’s car
and jumped in, and Jacob drove away.
On

April

7,

2006,

a

Monroe

County

Grand

Jury

voted

an

indictment against petitioner and two co-defendants, Antwon Owens
and Jacob Rouse.

The indictment alleged that Owens had committed

murder in the first degree by intentionally shooting and killing
Scriven in the course of and in furtherance of a robbery or
attempted robbery.

The indictment further alleged that petitioner

and Rouse had committed felony murder (murder in the second degree)
by participating in a robbery or attempted robbery during the
course of which a participant caused Scriven’s death.
A jury trial was held from December 4, 2006, through December
8, 2006, before the Hon. Frank P. Geraci, Jr. At trial, petitioner
elected to testify in his own defense. Petitioner was found guilty
on one county of murder in the second degree.

On January 10, 2007,

he was sentenced to 25 years to life imprisonment.
Petitioner timely appealed to the Appellate Division, Fourth
Department (the “Fourth Department”). On direct appeal, petitioner
argued that: (1) the evidence at trial was insufficient; (2)
petitioner’s

statement

was

involuntary

-3-

and

should

have

been

suppressed; (3) the trial court erred in ruling that petitioner
could

be

cross-examined

regarding

a

prior

youthful

offender

adjudication and a prior adjournment in contemplation of dismissal;
(4) petitioner was denied the effective assistance of counsel; and
(5) the sentence was unduly harsh and severe.

On December 23,

2011, the Fourth Department issued a decision unanimously affirming
the judgment and specifically finding that petitioner’s claim of
ineffective assistance of counsel lacked merit.

See People v.

Peters, 90 A.D.3d 1507 (4th Dep’t 2011).
Petitioner subsequently filed a pro se motion to vacate the
judgment pursuant to C.P.L. § 440.10 in Monroe County Court,
asserting that he was denied the effective assistance of counsel
because: (1) trial counsel failed to offer “impactful” advice
regarding plea offers; (2) trial counsel failed to “investigate
into latent errors of District Attorney’s Affirmation”; (3) trial
counsel failed to investigate relevant witnesses; (4) trial counsel
failed to investigate or prepare a pre-sentence memorandum; (5)
trial counsel failed to fully cross-examine the People’s witnesses;
(6) trial counsel failed to prepare petitioner for his trial
testimony

and/or

sentencing;

and

(7)

discourage petitioner from testifying.

trial

counsel

did

not

The C.P.L. § 440.10 motion

was denied without a hearing by Judge Vincent M. Dinolfo in a
written

decision

and

order

dated

-4-

July

8,

2013.

The

Fourth

Department denied Petitioner’s request for leave to appeal on
October 30, 2013.
III. Discussion
28 U.S.C. § 2254 “authorizes a federal court to grant a writ
only where a state holds a petitioner in its custody in violation
of ‘the Constitution or laws or treaties of the United States.’”
Word v. Lord, 648 F.3d 129, 131 (2d Cir.2011) (quoting 28 U.S.C. §
2254(a)). Because the instant petition post-dates the enactment of
the

Antiterrorism

and

Effective

Death

Penalty

Act

of

1996

(“AEDPA”), which amended 28 U.S.C. § 2254, petitioner can obtain a
writ of habeas corpus only if he can demonstrate that the state
courts’ adjudication on the merits of his ineffective assistance
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.” 28 U.S.C. § 2254(d); see also, e.g.,
Harrington v. Richter, 562 U.S. 86, 98 (2011) (“By its terms
§ 2254(d) bars relitigation of any claim ‘adjudicated on the
merits’

in

state

court,

subject

only

to

the

exceptions

in

§§ 2254(d)(1) and (2).”).
The United States Supreme Court has determined that Strickland
v.

Washington,

466

U.S.

668

(1984),

-5-

qualifies

as

“clearly

established law” for purposes of reviewing ineffective assistance
claims under AEDPA. Rosario v. Ercole, 601 F.3d 118, 123 (2d Cir.
2010) (citing Williams v. Taylor, 529 U.S. 362, 390-91 (2000)). The
Strickland test comprises two necessary components: a deficient
performance, and resulting prejudice. Strickland, 466 U.S. at 687.
Therefore,

this

unreasonably

Court

applied

must

determine

Strickland

if

state

courts

Petitioner’s

to

the

case.

See Harrington, 562 U.S. at 101 (“The pivotal question is whether
the state court’s application of the Strickland standard was
unreasonable.

This

is

different

counsel’s performance fell below

from

asking

whether

defense

Strickland’s standard.”). In

Harrington, the Supreme Court emphasized the extremely high bar set
by Strickland in conjunction with § 2254(d):
The standards created by Strickland and § 2254(d) are
both “highly deferential,” and when the two apply in
tandem, review is “doubly” so[.] The Strickland standard
is a general one, so the range of reasonable applications
is substantial. Federal habeas courts must guard against
the danger of equating unreasonableness under Strickland
with unreasonableness under § 2254(d). When § 2254(d)
applies, the question is not whether counsel’s actions
were reasonable. The question is whether there is any
reasonable argument that counsel satisfied Strickland’s
deferential standard.
Harrington, 562 U.S. at 105 (internal quotations and citations
omitted; emphasis supplied).
Here, petitioner has made the following arguments in support
of his ineffective assistance of counsel claim: (1) counsel failed
to investigate the People’s assertion that petitioner’s brother,

-6-

Silas Peters, told police petitioner had admitted to him that he
participated in Scriven’s murder; (2) counsel failed to properly
advise petitioner regarding two plea offers; (3) counsel failed to
properly advise petitioner regarding his trial testimony; (4)
counsel failed to effectively cross-examine Shannon McCaffrey; (5)
counsel failed to call Billie Jo Pullen as a defense witness; (6)
counsel failed to “contest the People’s case”; (7) counsel failed
to object to admission of photographs of the decedent; (8) counsel
failed to file a pre-sentence memorandum; and (9) counsel failed to
challenge Investigator Benjamin’s credibility. See Docket 13 at 35.

The Court considers each of these arguments below.
A.

Statement of Silas Peters

Petitioner

asserts

that

his

trial

counsel

failed

to

investigate the People’s assertion that his brother, Silas Peters,
had informed the police that petitioner confessed involvement in
attempted robbery/murder to him.

Specifically, in an affirmation

submitted in response to an omnibus motion filed by petitioner’s
trial counsel, then-District Attorney Michael C. Green stated that
there was probable cause to arrest petitioner on April 3, 2006,
because police were aware he had confessed to his brother.
Docket No. 13 at 96.
Peters

denies

having

See

In an affidavit dated March 12, 2013, Silas
told

involvement in the crime.

police

that

Id. at 66.

-7-

his

brother

confessed

Petitioner has submitted no evidence that trial counsel failed
to investigate the veracity of the police’s claims.

Silas Peters’

affidavit does not address at all whether trial counsel spoke to
him, not has petitioner provided any other facts from which the
Court

could

conclude

that

counsel

failed

to

investigate.

Petitioner’s argument therefore fails the first prong of the
Strickland test.

See Burton v. Phillips, 303 F. App’x 954, 956 (2d

Cir. 2008) (claim failed the first prong of Strickland where party
“adduced no evidence to support his claim that trial counsel failed
to conduct a reasonable investigation”).

It is entirely possible

that trial counsel spoke with Silas Peters and concluded either
that he was not credible or that there were other, strategic
reasons not to challenge the People’s assertion, and plaintiff has
provided no evidence to the contrary.

Significantly, the record

indicates that plaintiff initially voluntarily spoke with police
and that other witnesses beside Silas Peters had incriminated him.
The People made reference to Silas Peters’ statements only as an
alternate

argument

as

to

See Docket No. 13 at 96.
cannot

conclude

that

the

the

existence

of

probable

cause.

Under these circumstances, the Court
state

court

unreasonably

applied

Strickland in denying petitioner’s claim.
B.

Advice Regarding Plea Offers

Petitioner claims that the District Attorney offered two plea
deals to him, one before trial for 15 years to life if he would
agree to testify against his co-defendants, and one after the
-8-

commencement

of

trial

for

“25

years

flat.”

According

to

petitioner, his counsel failed to offer him “impactful” advice
concerning these alleged plea offers.

Docket No. 1 at 6; Docket

No. 13 at 3.
Petitioner’s claim fails the first prong of Strickland for the
fundamental

reason

that

there

is

no

evidence

(aside

from

petitioner’s self-serving, after-the-fact statements) that any plea
offers ever existed.

To the contrary, petitioner has attached to

his amended petition a letter dated October 24, 2013, from him to
his trial counsel, in which he asks whether a plea offer was ever
made and, if so, what it was.

See Docket No. 13 at 101.

Trial

counsel sent a responsive letter to petitioner in which he stated
that he had no record of a plea offer ever having been made and
that, had such an offer been made, he would have immediately
conveyed it to petitioner.

Id. at 102.

In another letter dated

March 29, 2013, trial counsel stated that no reduced offer was ever
made and that the only “plea” option was a plea to the charge.
at

105.

Trial

counsel

further

explained

that

he

had

Id.
told

petitioner that the only alternative to trial was a plea to the
charge, and that because of the high profile of the matter, it
would have been “political suicide” for the district attorney to
offer any lesser deal.

Id. Petitioner’s current claim that he was

offered two different plea offers is plainly contradicted by the
record, and the Court is not required to accept his uncorroborated,
self-serving

testimony

as

sufficient
-9-

evidence

to

support

an

ineffective assistance of counsel claim.

See, e.g.,

Grullon v.

United States, 2004 WL 1900340, at *6 (S.D.N.Y. Aug.24, 2004) (“In
considering an ineffective counsel claim, a court need not accept
a petitioner’s uncorroborated, self-serving testimony as true.”).
Moreover, even assuming that there were plea offers made in
this matter, petitioner’s own allegations belie his claim of
ineffective assistance. Where a plea offer is made, defense counsel
“must give the client the benefit of [his] professional advice on
this crucial decision of whether to plead guilty.” Purdy v. United
States, 208 F.3d 41, 44 (2d Cir. 2000) (internal citation omitted).
“As part of this advice, counsel must communicate to the defendant
the terms of the plea offer . . . and should usually inform the
defendant of the strengths and weaknesses of the case against him,
as well as the alternative sentences to which he will most likely
be exposed.”

Id.

(internal citations and quotations omitted).

However, “the ultimate decision whether to plead guilty must be
made by the defendant.”

Id.

Here, petitioner alleges that his counsel “laid out the
possibilities

of

[petitioner’s]

case,

told

[him]

the

general

likelihood of . . . winning the case, and . . . said [he] should
consider taking the plea.”

Docket No. 13 at 50.

Petitioner

specifically alleges that counsel told him about the potential
sentence should he be convicted.

Id.

Indeed, it appears that

petitioner’s sole complaint is that his counsel failed to advocate
strongly enough that he take the alleged plea. However, the Second
-10-

Circuit

has

expressly

held

that

counsel

is

not

required

to

specifically advise a client “to either plead guilty or not.”
Purdy, 208 F. 3d at 46.

In short, petitioner’s claim that trial

counsel did not “advise [him] on the importance of taking the plea
offer” (Docket No. 13 at 59) fails on its face to rise to the level
of ineffective assistance.
C.

Advise Regarding Trial Testimony

Petitioner also contends that trial counsel failed to properly
advise him regarding whether or not to take the stand in his own
defense

and

failed

to

properly

prepare

him

to

testify.

Specifically, petitioner argues that trial counsel advised him that
he had the right to testify if he chose, but did not explain
whether such testimony would be helpful.

Petitioner further

alleges that, once he had decided to testify, defense counsel
failed to properly prepare him.
A criminal defendant has a fundamental right to testify in his
own defense, and counsel is required to advise his client of that
right.

See United States v. Caracappa, 614 F.3d 30, 48 (2d Cir.

2010).

“[T]he ultimate decision whether to take the stand belongs

to the defendant, and counsel must abide by the defendant’s
decision on this matter.”

Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.

1997).
“[T]he burden of ensuring that the defendant is informed of
the nature and existence of the right to testify ... is a component
of the effective assistance of counsel.”
-11-

Chang v. United States,

250 F.3d 79, 83 (2d Cir. 2001).

Here, it is undisputed that trial

counsel informed petitioner of his absolute right to testify on his
own behalf.

Moreover, the record strongly supports the conclusion

that petitioner affirmatively and voluntarily decided to exercise
that right.

In the papers he submitted to the state court,

petitioner affirmed that he “wanted to testify.”

Docket 13 at 82.

Additionally, in a sworn affidavit dated April 8, 2013, petitioner
stated that he believed testifying at trial would help him.
59.

Id. at

The essence of petitioner’s argument seems to be that trial

counsel should have aggressively persuaded him not to testify (see,
e.g., Docket No. 1 at 6 (alleging counsel “failed to discourage
[petitioner] from testifying”)), but it is well-established that
defense counsel must honor his client’s decision with respect to
whether or not to testify on his own behalf.
by

petitioner

would

itself

assistance of counsel.

potentially

The course suggested

have

been

ineffective

See, e.g., Edwards v. Superintendent,

Southport C.F., 991 F. Supp. 2d 348, 373 (E.D.N.Y. 2013) (defense
lawyer allegedly used fear and manipulative tactics to prevent
client

from

testifying

professional competence).

was

arguably

outside

the

range

of

Petitioner acknowledges that trial

counsel informed him of his right to testify on his own behalf and
respected his decision in that regard.

The Court thus finds that

petitioner has failed to establish that counsel’s performance was
deficient.

-12-

With respect to petitioner’s claim that counsel failed to
properly prepare him to testify, the sole factual argument offered
by petitioner is that counsel “failed to inform [him] on how [his]
character would be attacked when [he] took the stand. . . .”
Docket No. 13 at 60.

This vague allegation is insufficient to

establish ineffective assistance of counsel.

Notably, petitioner

does not claim that his attorney failed to inform him that his
character would be attacked, just that counsel did not explain
exactly how that would occur.

A lawyer is not required, nor could

he reasonably be expected, to foresee the precise form that crossexamination will take.

Petitioner has also offered no details

regarding the information provided by counsel, nor has he suggested
what counsel should have done differently.

See Knox v. Rock, 2013

WL 474754, at *7 (W.D.N.Y. Feb. 6, 2013) (finding ineffective
assistance of counsel claim meritless where petitioner failed to
explain how counsel should have prepared him to testify); Rodriguez
v.

Uhler,

2017

WL

354180,

at

*11

(S.D.N.Y.

Jan.

24,

2017)

(“[petitioner’s] occasionally combative tone on cross-examination
does not establish that defense counsel’s performance in preparing
him

to

testify

fell

below

an

objective

standard

of

reasonableness”).
Additionally, the record shows that petitioner’s counsel
attempted to limit cross-examination.

Specifically, petitioner’s

counsel made a motion pursuant to People v. Sandoval, 34 N.Y.2d 371
(1974) to prevent the People from cross-examining petitioner about
-13-

his prior criminal history.
his efforts failed.

It is not trial counsel’s fault that

Under these circumstances, the Court cannot

conclude that the state court’s application of Strickland was
unreasonable.
D.

Cross-Examination of Shannon McCaffrey

Petitioner contends that counsel failed to properly crossexamine witness Shannon McCaffrey.

Although petitioner offers no

detail to support this claim in his current papers, in the papers
he submitted to the state court, he made it clear that he believed
counsel

should

have

spent

more

time

attacking

McCaffrey’s

credibility.
“[T]he

conduct

of

examination

and

cross-examination

is

entrusted to the judgment of the lawyer,” and a court “should not
second-guess

such

decisions

unless

there

is

no

strategic

or

tactical justification for the course taken.” United States v.
Luciano, 158 F.3d 655, 660 (2d Cir. 1998).

Here, petitioner’s

defense at trial was essentially that he was a bystander who had
not participated in any robbery or attempted robbery.

In cross-

examining McCaffrey, defense counsel focused on the fact that she
was unfamiliar with the details of the shooting - that she did not
know who the participants were, that she did not know what the car
looked like, and so forth. In other words, it appears that counsel
made a strategic decision to cast doubt on McCaffrey’s second-hand
testimony

not

by

directly

attacking

her

illustrating the gaps in her knowledge.
-14-

credibility,

but

by

This is a legitimate

strategic decision by counsel, and the state court thus reasonably
found that it did not rise to the level of ineffective assistance.
See Hill v. Bradt, 2015 WL 5692818, at *3 (W.D.N.Y. Sept. 28, 2015)
(“The fact that defense counsel’s questioning may not have elicited
the answers that would have been most beneficial to petitioner’s
case

does

not

mean

that

counsel’s

questioning

amounted

to

ineffective assistance, but rather speaks to the strength of the
evidence against petitioner in this case.”).
E.

Failure to Call Billie Jo Pullen

Petitioner argues that defense counsel should have called
Billie Jo Pullen as a witness.

Pullen apparently informed trial

counsel that she wished to be a character reference for petitioner,
and trial counsel informed her that he would call her if necessary.
“Counsel’s
witnesses-even

decision
ones

that

as

to

might

whether
offer

to

call

exculpatory

specific

evidence-is

ordinarily not viewed as a lapse in professional representation.”
United States v. Best, 219 F.3d 192, 201 (2d Cir. 2000)(internal
quotation omitted).

Particular deference is afforded to counsel’s

decision regarding whether to call a character witness.

See

Jelinek v. Costello, 247 F. Supp. 2d 212, 289 (E.D.N.Y. 2003)
(“Whether or not to call a character witness is eminently a
tactical decisions that another court is not in a good position to
second-guess.

Absent an extraordinary showing by the petitioner,

such a claim will not merit a finding that trial counsel performed
below the constitutional minimum.”).
-15-

Petitioner has made no

showing in this case that the failure to call Pullen was outside
the bounds of professional conduct and has therefore failed to show
deficient performance by counsel.
F.

Failure to “Contest the People’s Case”

In his amended petition, petitioner claims that trial counsel
failed to “contest the People’s case.”

Docket No. 13 at 4.

The

sole specific deficiency identified by petitioner in connection
with this claim is that trial counsel should have “challenged” the
testimony of an eyewitness who stated that it could not have been
petitioner who he saw, because the individual he saw was lightskinned.

Id.

“[V]ague and conclusory allegations of ineffective assistance
of counsel are insufficient to overcome the strong presumption that
counsel’s

conduct

falls

within

the

wide

range

of

reasonable

professional assistance.” Smith v. Ercole, 2010 WL 6595338, at *22
(N.D.N.Y. June 16, 2010) (internal quotation omitted).

The broad

claim that trial counsel failed to contest the People’s case is
precisely such a vague and conclusory allegation.

With regard to

the specific issue of the eyewitness testimony, petitioner has
offered no explanation as to what he believes trial counsel should
have done. On cross-examination, the witness in question testified
that

he

did

not

see

petitioner,

that

he

did

not

recognize

petitioner as having been present immediately after the shooting,
and that petitioner was not the man he had described.

In other

words, this witness’s testimony supported petitioner’s claim that
-16-

he had stayed away from the car and was not a participant in the
attempted robbery.

It is not clear what more petitioner believes

counsel could or should have done.
G.

Failure to Object to Photographs

During petitioner’s trial, post-mortem photographs of Scriven
were

admitted

into

evidence.

Petitioner

describes

these

photographs as “gruesome and highly prejudicial” and contends that
trial counsel should have objected to their admission.

Docket No.

13 at 4.
“Under well-established New York law, the trial court has
discretion as to whether to introduce photographs of homicide
victims.”

Hill, 2015 WL 5692818, at *8.

“‘[P]hotographs of a

corpse are admissible even though they portray a gruesome spectacle
and may tend to arouse passion and resentment against the defendant
in the minds of the jury.’” Id.
N.Y.2d 356, 369–70 (1973)).

(quoting People v. Pobliner, 32

The photographs in this case are not

particularly graphic or gruesome, and petitioner has not identified
any reason why they were inadmissible.

Counsel cannot be faulted

for failing to make an objection without sound basis in the law.
H.

Failure to File a Pre-sentence Memorandum

Trial counsel did not submit a pre-sentence memorandum to the
trial court.

In a letter dated March 19, 2013, trial counsel

stated that he did not submit such a memorandum because “[t]here
was no compelling mental or physical disability . . . of which
Lucious suffered, or any family/social/educational situation that
-17-

would be so compelling, that would have effected the ‘fairness’ of
the trial process, or change the sentence ultimately imposed by
Judge Geraci.

There are times that a pre-sentencing memorandum

would be far less than helpful, if it has the effect of hardening
the judge’s view of what sentence to impose.”

Docket No. 13 at

106.
Under New York law, “either the defendant or the prosecutor
may submit a pre-sentence memorandum setting forth any information
that is pertinent to sentencing.” Williams v. Allard, 2007 WL
2572103, at *3 n.9 (N.D.N.Y. Aug. 31, 2007).

Failure to submit a

pre-sentence memorandum does not generally constitute ineffective
assistance of counsel. See United States v. Flemings, 668 F. Supp.
304, 306 (S.D.N.Y. 1987) (“Although it is true that counsel did not
file a presentence memorandum, this omission does not constitute
ineffective assistance of counsel. Indeed, it is the Court’s
experience

that

memoranda.”).

defense
Here,

attorneys

trial

counsel

rarely
argued

file
at

presentence

sentencing

for

leniency, pointing out that petitioner did not personally harm
Scriven, that petitioner’s parents were elderly and unlikely to
survive

a

lengthy

prison

sentence,

that

petitioner

had

been

attending college and attempting to better himself, and that
petitioner came from a good family and was part of the community.
“The comments made at sentencing show that counsel’s conduct did
not fall below an objective standard of reasonableness.” Bethea v.
Walsh, 2016 WL 258639, at *25 (E.D.N.Y. Jan. 19, 2016).
-18-

I.

Investigator Benjamin’s Credibility

Finally,

Petitioner

states

in

his

petition

that

“[u]pon

information and belief, Investigator Benjamin’s credibility has
been subsequently impeached by charges brought against him in
another case.”

Docket No. 13 at 5.

Petitioner does not expand on

this alleged fact, nor has he explained how or why this relates to
his claim of ineffective assistance of counsel.

Again, “vague and

conclusory allegations of ineffective assistance of counsel are
insufficient to overcome the strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance.”
omitted).

Smith, 2010 WL 6595338, at *22 (internal quotation
Without more, petitioner’s claim that Investigator

Benjamin’s credibility was suspect simply does not establish that
his trial counsel was ineffective.
J.

Lack of Prejudice

For all the reasons discussed above, the Court concludes that
petitioner’s counsel’s performance was not deficient.

However,

even assuming arguendo that it were, petitioner has also failed to
establish prejudice.

The evidence against him at trial was quite

strong, and included his written statement that he participated in
the attempted robbery/shooting. See, e.g., Kliti v. Savage, 2013 WL
1192777, at *18 (E.D.N.Y. Mar. 22, 2013) (relatively minor errors
by counsel are not prejudicial under Strickland where the evidence
against petitioner is strong and includes inculpatory statements)
(collecting

cases).

Petitioner
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has

failed

to

establish

a

significant likelihood that the alleged errors of trial counsel
impacted the ultimate outcome of his case, and therefore cannot
establish prejudice.

His petition is also subject to denial on

this ground.
IV. Conclusion
For the foregoing reasons, petitioner’s request for a writ of
habeas corpus is denied on the merits, and the amended petition
(Docket No. 13) is dismissed.

Because Petitioner has failed to

make a substantial showing of the denial of a constitutional right,
see

28

U.S.C.

§

2253(c)(2),

the

Court

declines

to

issue

a

certificate of appealability.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________________
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

June 28, 2017
Rochester, New York

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