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UNITED STATES EX REL. HARRINGTON v. RYAN

April 12, 1996

UNITED STATES OF AMERICA ex. rel. ISAAC HARRINGTON, Plaintiff,
v.
WILLIAM D. O'SULLIVAN and JAMES E. RYAN, 1 Defendants.



The opinion of the court was delivered by: BUCKLO

 Following a 1993 bench trial in the Circuit Court of Cook County, the petitioner, Isaac Harrington, was convicted of first degree murder and sentenced to 22 years imprisonment. Mr. Harrington petitions this court for a writ of habeas corpus pursuant to 28 U.S.C. ยง 2254. For the following reasons, the petition is denied.

 After his conviction, Mr. Harrington appealed to the state appellate court. The Assistant Public Defender appointed to represent Mr. Harrington filed a motion for leave to withdraw as appellate counsel pursuant to Anders v. California, 386 U.S. 738, 18 L. Ed. 2d 493, 87 S. Ct. 1396 (1967). Petitioner filed a pro se brief in opposition to his counsel's motion, primarily alleging ineffective assistance on the part of his trial counsel. *fn2" The appellate court addressed Mr. Harrington's ineffective assistance of counsel arguments under Strickland v. Washington, 466 U.S. 668, 80 L. Ed. 2d 674, 104 S. Ct. 2052 (1984), and concluded that Mr. Harrington failed to establish either prong of the inquiry set forth in Strickland. Upon finding "no issues of arguable merit," the appellate court permitted the public defender to withdraw and affirmed the judgment of the circuit court.

 Mr. Harrington then petitioned for leave to appeal to the Illinois Supreme Court. Petitioner argued that the appellate court should not have applied the prejudice prong of the Strickland test. In addition, Mr. Harrington submitted the brief he filed in opposition to his appellate counsel's Anders brief which raised the ineffective assistance of counsel issues. *fn3" The Illinois Supreme Court denied Mr. Harrington's petition for leave to appeal on June 1, 1995.

 In his habeas corpus petition, Mr. Harrington asserts five grounds for relief. Claim one alleges ineffective assistance of counsel, stating that his trial attorney failed adequately to develop alibi evidence. Claim two asserts that the state's witnesses were not credible and provided conflicting testimony, thereby denying petitioner due process. Claims three and four are practically the same, both alleging that trial counsel was ineffective in failing to develop an alibi defense during trial and, in particular, closing argument. In his fifth claim, Mr. Harrington argues that the state appellate court should not have applied the prejudice prong of the Strickland test when it reviewed his ineffective assistance of counsel allegations.

 Ineffective Assistance of Counsel

 In claims one, three, and four, Mr. Harrington asserts that he was denied his sixth amendment right to effective assistance of counsel. To prevail on an ineffective assistance of counsel claim, a petitioner must prove

 
1) that counsel's representation fell below an objective standard of reasonableness (the "performance" prong) and 2) that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different . . . (i.e., that the deficient performance prejudiced the defense) (the "prejudice" prong).

 Harvey v. McCaughtry, 11 F.3d 691, 693 (7th Cir. 1993) (quoting Strickland v. Washington, supra, 466 U.S. at 687, 688, 694); United States v. Olson, 846 F.2d 1103, 1107-08 (7th Cir. 1988). A party attempting to prove ineffective assistance of counsel "bears a heavy burden." Hockett v. Duckworth, 999 F.2d 1160, 1165 (7th Cir. 1993). "Indeed, we expect that few petitioners will be able to pass through the 'eye of the needle' created by Strickland." Sullivan v. Fairman, 819 F.2d 1382, 1391 (7th Cir. 1987).

 
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.

 Id. (quoting Strickland v. Washington, supra, 466 U.S. at 694).

 Petitioner claims that his trial counsel's failure to call alibi witnesses, introduce other alibi evidence at trial, and summarize that evidence in closing argument, constituted ineffective assistance of counsel. After conducting a thorough investigation, however, counsel's strategic choices are "virtually unchallengeable." Sullivan v. Fairman, supra, 819 F.2d at 1391 (quoting Strickland v. Washington, supra, 466 U.S. at 690-91). The decision by counsel following investigation not to pursue an alibi defense

 
is precisely the kind of strategic choice, made by a competent, experienced and well-trained lawyer that a court should not ...

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