James BERRY, Petitioner-Appellant, v. Robert E. ERCOLE, Respondent-Appellee, 391 F. App'x 87

SUMMARY ORDER Petitioner-Appellant James Berry was sentenced on June 11, 2001 following a state court jury trial to an aggregate term of 35 years’ imprisonment. On September 11, 2006, petitioner filed pro se for a writ of habeas corpus arguing, inter alia, that he suffered ineffective assistance of counsel with respect to defense attorney Allan Brenner’s advice (or alleged lack thereof) relating to petitioner’s decision to reject a plea offer before his trial.

The state court denied the motion, stating that the “defendant’s claim of ineffective assistance of counsel is ... factually and legally unsupported.” J.A. 57. After filing in federal court, the petition was referred to United States Magistrate Judge Theodore Katz who issued a Report and Recommendation on December 19, 2008 recommending that the petition be granted as to trial counsel’s alleged ineffectiveness at the time Berry rejected the plea offer. On May 12, 2009, the district court issued an Opinion and Order declining to adopt Judge Katz’s recommendation and denying the petition. This appeal followed.

We assume the parties’ familiarity with the relevant additional facts and procedural history of the case. Though Judge Katz’s analysis was admirably thorough, after review of the record and the district court’s extensive opinion below, we are satisfied that the petition must be rejected because petitioner has failed to demonstrate constitutionally defective assistance of counsel pursuant to Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984).

Under Strickland’s two-prong test, petitioner “must (1) demonstrate that his counsel’s performance fell below an objective standard of reasonableness in light of prevailing professional norms; and (2) affirmatively prove prejudice arising from counsel’s allegedly deficient representation.” Carrion v. Smith, 549 F.3d 583, 588 (2d Cir.2008) (internal quotation marks omitted). “To satisfy the first prong — the performance prong — the record must demonstrate that ‘counsel made errors so serious that counsel was not functioning as the “counsel” guaranteed the defendant by the Sixth Amendment.’ ” Wilson v.

Mazzuca, 570 F.3d 490, 502 (2d Cir.2009) (quoting Strickland, 466 U.S. at 687, 104 S.Ct. 2052). As to the prejudice prong, “[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.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. As a general matter, however, there is a “strong presumption” that the attorney in question provided, if not ideal representation, then at least competent assistance, which obligates the reviewing court to adopt a deferential posture. See id. at 689, 104 S.Ct. 2052.

Moreover, under the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), “petitioner must identify some increment of incorrectness beyond error [in the state court’s decision] in order to obtain habeas relief.” Jones v. West, 555 F.3d 90, 96 (2d Cir.2009).

As evidenced by the record, petitioner here: (1) stated unequivocally at the “no plea” colloquy that he had had a full opportunity to consider the plea offer, but preferred to go to trial, J.A. 19-20; (2) further acknowledged that he could receive a “substantially longer sentence” as a result, id. at 19; (3) was advised that the plea offer was “generous,” id. at 250; (4) was advised in the normal course of attorney Brenner’s practice that the case against him was substantial; (5) was likely informed of his sentencing exposure in the normal course of attorney Brenner’s practice; (6) was advised that the presiding judge had a reputation “as a harsh sen-tencer,” J.A. 245; and (7) evidenced no willingness to plead guilty at any point in the underlying proceedings given his unrelenting protestations of innocence.

We therefore agree with the district court that petitioner has both failed to demonstrate prejudice as required under Strickland and failed to overcome AEDPA’s deference to the underlying state court proceedings because it cannot be said that the state court’s application of Strickland was objectively unreasonable. Thus, for substantially the reasons stated in the district court’s thorough opinion, we hereby AFFIRM the district court’s denial of the habeas petition.