Appeal from a order of the United States District Court for the Southern District of New York (Kenneth Conboy, Judge), dismissing a petition for a writ of habeas corpus.
Feinberg and Cardamone, Circuit Judges, and Charles M. Metzner, District Judge.*fn*
CHARLES M. METZNER, Senior District Judge.
Petitioner appeals from an order denying his second petition for habeas corpus relief. 28 U.S.C. § 2254.
George Arce was convicted of murder and conspiracy in 1974 and was sentenced to a term of 25 years to life. His conviction was upheld on appeal by the New York Appellate Division. People v. Arce, 51 A.D.2d 1043, 381 N.Y.S.2d 328 (2d Dept. 1976). The Court of Appeals unanimously affirmed the convictions against a challenge to the sufficiency of the evidence and prosecutorial misconduct. People v. Arce, 42 N.Y.2d 179, 397 N.Y.S.2d 619, 366 N.E.2d 279 (1977). Arce then filed a petition for a writ of habeas corpus in the United States District Court which raised not only the issues presented to the state Court of Appeals, but an additional one which claimed violation of the rule set forth in Sandstrom v. Montana, 442 U.S. 510, 61 L. Ed. 2d 39, 99 S. Ct. 2450 (1979). This petition was denied. Arce v. Henderson, 477 F. Supp. 71 (S.D.N.Y. 1979), aff'd, 636 F.2d 1200 (2d Cir.), cert. denied, 451 U.S. 914, 68 L. Ed. 2d 305, 101 S. Ct. 1989 (1980).
Thereafter, Arce filed a petition pursuant to Article 440 of the New York Criminal Procedure Law seeking post-conviction relief alleging a claim of ineffective assistance of trial and appellate counsel for the first time, a claim that a witness recanted her testimony after trial, demonstrating that evidence was fabricated, his Sandstrom claim, and other claims. The New York Supreme Court denied Arce's motion on the grounds that appellant had waived his claims by failing to raise them on direct appeal, or by failing to raise them in a timely manner. The Appellate Division denied Arce leave to appeal.
Arce then filed this petition for a writ of habeas corpus in which he renewed the claims that the state court had deemed to be procedurally forfeited, including the claims of ineffective assistance of trial and appellate counsel. The Magistrate's report on this petition, adopted by the district court, found that appellate counsel was not ineffective and therefore the alleged ineffectiveness could not constitute cause to excuse the procedural default. Arce v. Smith, 710 F. Supp. 920, 932-33. (S.D.N.Y. 1989). The court dismissed the petition after applying the test set forth in Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), to determine whether counsel's performance was deficient, and if so, whether the deficient performance prejudiced the defense so as to deprive Arce of a fair trial.
We affirm the dismissal of Arce's petition.
On this appeal three questions are presented by Arce for review:
1. Whether Arce's state court conviction violated his sixth amendment right to the effective assistance of counsel.
2. Whether the recantation of a key prosecution witness necessitates a hearing, and, if the recantation is found credible, a new trial must be ordered.
3. Whether cause and prejudice excuses the procedural default of the Sandstrom error.
Arce alleges numerous errors committed by counsel to justify a finding of ineffective assistance of counsel. The claimed errors are that trial counsel prevented Arce from testifying on his own behalf; that trial counsel failed to pursue an alibi defense that Arce was in Washington, D.C. the day of the killings; that trial counsel failed to object to comments made by the prosecutor during summation; that trial counsel failed to object to a jury instruction ruled unconstitutional by the Supreme Court six years later in Sandstrom v. Montana, supra ; that trial counsel's ...