Mohamed v. Portuondo
Mohamed v. Portuondo
Opinion of the Court
SUMMARY ORDER
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the memorandum and order of the district court be and it hereby is AFFIRMED.
Petitioner Hassan Mohamed (“Mohamed”) appeals from a March 26, 2004 memorandum and order of the district court denying his petition for a writ of habeas corpus. Mohamed argues that he was denied effective assistance of counsel when his trial attorney failed to request a hearing pursuant to Massiah v. United States, 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246 (1964), to ascertain whether the People’s jailhouse informant had spoken to Mohamed and gotten additional,
We review de novo a district court judgment denying habeas relief. Sellan v. Kuhlman, 261 F.3d 303, 308 (2d Cir. 2001). Section 2254(d) of Title 28, United States Code, sets forth the standards for federal habeas review of state court decisions. In pertinent part, the statute 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—
(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[.]
28 U.S.C. § 2254(d)(1).
A Sixth Amendment ineffective assistance of counsel claim “necessarily invokes federal law that has been ‘clearly established’ by the Supreme Court within the meaning of AEDPA.” Sellan, 261 F.3d at 309. At issue here is whether the state court unreasonably applied clearly established law. When making the “unreasonable application” inquiry, a federal court “should ask whether the state court’s application of clearly established law was objectively unreasonable.” Williams v. Taylor, 529 U.S. 362, 409, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). For an application to be objectively unreasonable, “[s]ome increment of incorrectness beyond error is required.” Francis S. v. Stone, 221 F.3d 100, 111 (2d Cir. 2000). Whether a state court’s decision is unreasonable, moreover, must be assessed in light of the record before the court. Holland v. Jackson,-U.S. -, 124 S.Ct. 2736, 2737, 159 L.Ed.2d 683 (2004). See also Miller-El v. Cockrell, 537 U.S. 322, 348, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003).
Preliminarily, we note respondent’s concern with holding an evidentiary hearing where, as here, petitioner was arguably not diligent in developing an adequate factual record below. 28 U.S.C. § 2254(e)(2) (prohibiting the district court from holding an evidentiary hearing where the “applicant has failed to develop the factual basis of a claim in State Court”). See also Williams v. Taylor, 529 U.S. 420, 432, 120 S.Ct. 1479, 146 L.Ed.2d 435 (2000) (where a petitioner fails to develop the factual record, 28 U.S.C. § 2254(e)(2) prohibits an evidentiary hearing unless the statute’s other stringent requirements are met). We need not examine the propriety of holding the evidentiary hearing, however, since the case may be disposed of on the merits. Acid v. Bennett, 296 F.3d 58, 64 (2d Cir. 2002).
To prevail, Mohamed must demonstrate that his counsel performed deficiently and that the deficiency caused actual prejudice. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). We agree with the district court that petitioner has failed to establish prejudice, i.e., a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 U.S. at 694. As
For the foregoing reasons, we AFFIRM the memorandum and order of the district court denying the petition for a writ of habeas corpus.
Reference
- Full Case Name
- Hassan MOHAMED v. Leonard PORTUONDO
- Status
- Published