The opinion of the court was delivered by: John D. Roberts United States Magistrate Judge
FINAL RECOMMENDATION REGARDING AMENDED PETITION FOR RELIEF PURSUANT TO 28 U.S.C. § 2254 (Docket No. 15)
The Petitioner filed his Amended Petition for Relief at Docket 15. Briefing by the parties was filed at Dockets 56 and 65 with Petitioner's Reply at Docket 66. The Magistrate Judge's Initial Recommendation was filed at Docket 67. Defendant filed his objections to the Initial Recommendation at Docket 68 with Respondent's Objections at Docket 69 and Reply at Docket 70. The Magistrate Judge has reviewed the relevant pleadings and recommends the Court deny Petitioner's request for relief. The matter has been sufficiently briefed and does not require an evidentiary hearing. This Recommendation is the Final Recommendation on this matter.
Petitioner's habeas application is based on 28 U.S.C. § 2254(d) which states:
(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; 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.
In this respect, Petitioner asserts two arguments for consideration: 1) ineffective assistance of counsel at trial in violation of the Sixth Amendment to the U.S. Constitution and 2) the denial of Mr. Zeciri's right to testify in violation of the Fifth, Sixth and Fourteenth Amendments to the U.S. Constitution.*fn1 The Petitioner does not, however, identify how the State Courts' decisions regarding these previously asserted grounds for relief resulted in an unreasonable application of the law or a decision based on unreasonable determination of the facts. In accordance with 18 U.S.C. 2254(e), the State Courts' determinations of the facts are "to be presumed to be correct" unless the defendant is able to rebut the determinations with clear and convincing evidence.*fn2
Petitioner illuminates facts in his Brief, Reply and Objections suggesting
that Mr. Zeciri was deprived of effective counsel in that he needed an interpreter but was denied an interpreter by his trial counsel, and that Mr. Zeciri was denied the right to testify at his trial.*fn3 The standard for ineffective assistance of counsel claims comes from the case Strickland v. Washington.*fn4 Strickland established a two-prong test where a defendant must show not only that his attorney's representation was deficient but also that the attorney's representation prejudiced his cause.*fn5 The defendant bears the burden of establishing that his attorney's performance was "so deficient that it fell below an objective standard of reasonableness."*fn6
With respect to judicial scrutiny of an attorney's performance, the court must be "highly deferential" and "every effort [must] be made to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time."*fn7 This means that a defendant must overcome the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance."*fn8
In order for a defendant to establish prejudice, he must demonstrate that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different."*fn9 A reasonable probability is one "sufficient to undermine confidence in the outcome."*fn10 Elaborating on the threshold, Strickland states:
It is not enough for [a defendant] to show that the errors had some conceivable effect on the outcome of the proceedings. Virtually every act or omission of counsel would meet that test, and not every error that conceivably could have influenced the outcome undermines the reliability of the result of the proceedings.*fn11
A court may first examine whether a defendant shows sufficient prejudice prior to engaging in an evaluation of whether ...