UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

THIS SUMMARY ORDER WILL NOT BE PUBLISHED IN THE FEDERAL

REPORTER AND MAY NO T BE CITED AS PRECEDENTIAL AUTHORITY TO

THIS OR A NY OTH ER CO UR T, BUT MAY BE CALLED TO THE ATTENTION OF

THIS OR ANY OTHER COURT IN A SUBSEQUEN T STAGE OF TH IS CASE, IN

A RELATED CASE, OR IN ANY CASE FOR PURPOSES OF COLLATERAL

ESTOPPEL OR RES JUDICATA.

At a stated term of the United States Court of Appeals for the Second Circuit, held at

the United States Courthouse, Foley Square, in the City of New York, on the 30th day of

January, two thousand six.

PRESENT: HONORA BLE REENA RAGGI,

HONORA BLE PETER W. HALL,

Circuit Judges,

HONORA BLE EDWARD R. KORMAN,1

District Judge.

RICHARD LOVE, JR.,

Petitioner-Appellant,

v. No. 03-2307

FRAN K M cCRA Y, SUPERINTEND ENT,

LIVINGSTON CORRECTIONAL FACILITY,

Respondent-Appellee.

APPEARING FOR APPELLANT: BARRY M. FALLICK, Rochman Platzer

Fallick Sternheim Luca & Pearl, LLP,

New York, New York.

APPEARING FOR APPELLEE: CHELSEA CHAFFEE, Assistant Attorney General (Robin A. Forshaw, Deputy Solicitor General for Criminal Matters, on the brief), for Eliot Spitzer, Attorney General of the State of New York, New York, New York.

Appeal from the United States District Court for the Northern District of New Y ork (Thomas J. McAvoy, Judge).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the judgment of the district court, entered on March 12, 2003, is hereby AFFIRMED.

Petitioner Richard Love, Jr. appeals the denial of his petition for a writ of habeas corpus, which sought to vacate his 1998 New York State conviction for second degree burglary, fourth degree larceny, and petit larceny on the ground that it was obtained in violation of his Sixth Amendm ent right to the effective assistance of counsel. Specifically, Love faults his trial counsel for failing to use a composite sketch to impeach a prosecution witness's in-court identification of him as the perpetrator of the charged crimes.2 We assume the parties' familiarity with the facts and the record of prior proceedings, which we reference only as necessary to explain our decision.

Where, as in this case, a district court denies a writ of habeas corpus on the record developed in the state court, we review its ruling de novo. See Anderson v. Miller, 346 F.3d 315, 324 (2d Cir. 2003). Like the district court, however, we accord deferential review to the state court's rejection of the petitioner's ineffective assistance claim on the merits. See 28 U.S.C. § 2254(d)(1). To secure habeas relief, petitioner "must do more" than convince this court that he satisfies the two-part standard for ineffective assistance claims established in Strickland v. Washington,466 U.S. 668, 687-694 (1984). Bell v. Cone,535 U.S. 685, 698-99 (2002). "Rather, he must show that [the state court] applied Strickland to the facts of his case in an objectively unreasonable manner." Id. at 699; see also Eze v. Senkowski, 321 F.3d 110, 123-24 (2d Cir. 2003) (holding that New York standard for ineffective assistance announced in People v. Baldi, 54 N.Y.2d 137, 147, 444 N.Y.S.2d 893, 898 (1981), is "not contrary to Strickland under § 2254(d)(1)"). Love fails to satisfy this stern test.

Strickland itself establishes "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." 466 U.S. at 689. It imposes on a defendant the burden to "overcome the presumption that, under the circumstances, [counsel's] challenged action might be considered sound trial strategy." Id. (internal quotation marks omitted). The presumption operates with particular force when the conduct at issue relates to counsel's conduct of cross-examination. "Decisions about `whether to engage in cross-examination, and if so to w hat extent and in what manner, are . . . strategic in nature' and generally will not support an ineffective assistance claim." Dunham v. Travis, 313 F.3d 724, 732 (2d Cir. 2002) (quoting United States v. Nersesian, 824 F.2d 1294, 1321 (2d Cir. 1987)) (omission in original); see also Eze v. Senkowski, 321 F.3d at 132. This case presents no exception to this general rule.

The purported impeachment value of the composite sketch and its accompanying text was the suggestion that the prosecution's lead identification witness had provided an initial description of the burglar that differed in certain respects from Love's actual appearance.

The record, however, demonstrates that defense counsel successfully elicited the fact of this discrepancy on his cross-examination of the witness without need for the sketch. Counsel's performance cannot be deemed objectively unreasonable because he failed to pursue cumulative impeachment. See United States v. Stewart, Nos. 04-3953 & 04-4081, 2006 U.S.

App. LEXIS 271, at *105 (2d Cir. Jan. 6, 2006); United States v. Wong, 78 F.3d 73, 82 (2d Cir. 1996).

Berryman v. Morton, 100 F.3d 1089 (3d Cir. 1996), and Harris v. Senkowski, 298 F.

Supp. 2d 320 (E.D.N.Y. 2004), relied on by Love, are not to the contrary. In those cases, counsel totally failed to cross-examine witnesses with respect to prior inconsistencies.

Precisely because, in this case, counsel did establish the identification discrepancy for the jury through the witness's own testimony, Love cannot demonstrate that he was prejudiced by counsel's failure to make this same point through the composite sketch, regardless of whether that omission was a product of calculated strategy or negligent oversight. See Strickland v. Washington, 466 U.S. at 694. Indeed, Love's inability to demonstrate prejudice is reinforced by independent corroborative evidence that he was trespassing in the immediate vicinity of the burglary crime site at the relevant time. Much less can Love demonstrate that the state court's rejection of his ineffectiveness challenge w as objectively unreasonable in light of Strickland.

The March 12, 2003 judgment of the district court is hereby AFFIRMED.

FOR THE COURT: ROSEANN B. MACKECHNIE, CLERK By:

1 The Honorable Edward R. Korman, Chief Judge of the United States District Court for the Eastern District of New York, sitting by designation.

2 This court's certificate of appealability also allowed Love to pursue a Brady challenge to his conviction based on a claim that the prosecution had improperly withheld the composite sketch from defense counsel. In his brief to this court, Love concedes that this argument lacks record support because the state court, after a hearing, specifically found that defense counsel had been provided with a copy of the composite sketch before trial. See 28 U.S.C. 2254(e)(1) (requiring federal habeas court to accord a presumption of correctness to state court's factual determinations). Accordingly, we deem the Brady point waived. See Norton v. Sam's Club, 145 F.3d 114, 117 (2d Cir. 1998).