Bennett v. United States, No. 06-2443 (2d Cir. 2011)
Annotate this CasePetitioner appealed from an order of the district court following an evidentiary hearing on a remand pursuant to United States v. Jacobson, denying petitioner's motion under 28 U.S.C. 2255 to set aside certain convictions on the ground of ineffective assistance of counsel. The court held that petitioner's request for an expansion of the certificate of appealability was denied because his submission failed to make a substantial showing of the denial of a constitutional right. The court also held that there was no error in the district court's conclusion that there was no deficient performance by counsel with respect to the failure-to-advise aspect of petitioner's ineffective assistance of counsel claim or his claim that his attorneys overrode his desire to testify. The court saw no basis on the present appeal for concluding, as to any count, that there was any reasonable probability that, had there been objections, the jury would not have found petitioner guilty. Thus, petitioner could not show that the failures to object satisfied the prejudice prong of the Strickland test and this facet of his ineffective-assistance-of-counsel claim was properly rejected. Accordingly, the judgment of the district court was affirmed.
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