US. at 694; see also Wiggins, 123 S.Ct. at 2535, 2542 (upholding the Strickland analysis).
Petitioner’s claims do not undermine confidence in the trial court’s finding of guilt.

Petitioner argues that because a .380 bullet killed Harris, the trial court’s outcome is
undermined. Petitioner’s contention, however, is consistent with the evidence adduced at trial.
The evidence showed that at least two guns, a nine-millimeter and a revolver, were present at the
scene and that at some point Petitioner either possessed each gun or possessed a gun, the identity
of which is unclear. The evidence also showed that a nine-millimeter could fire both nine-
millimeter as well as .380 bullets.

Petitioner also contends that trial counsel’s failure to call an expert to explore the effects
of heroin withdrawal on Benson prejudiced him. Petitioner argues that had an expert explored
Benson’s heroin withdrawal, it would have undermined Benson’s confession. Petitioner also
asserts that Benson admitted to lying to the police so that the police would release him.
Petitioner has no evidence to support his claims. In light of the trial court’s credibility
determination regarding Benson, this Court cannot find that the lack of an expert witness
prejudiced the outcome so as to call into question the trial’s result. Id.

Moreover, Petitioner’s numerous bits of impeachment evidence also fail to cast doubt on
the trial’s result. (The Court will only address those claims it finds most compelling.) Among
Petitioner’s sixteen bits of evidence, Petitioner asserts that Tanya Freeman originally told the
police that a person named “Bear” was suspected of shooting Harris while Island was merely a
witness, and that Freeman originally neglected to mention Island’s entry into the house. This
evidence, however, is reconcilable with the events of the day, namely, that Petitioner and the

others were trying to create the appearance that a rival gang shot Harris. Under the

13



evidence, and (3) failed to object to certain evidence and to impeach the witnesses. Petitioner
also claimed that appellate counsel was ineffective because he did not present these issues on
direct appeal. The Circuit Court of Cook County denied the petition for post-conviction relief,
and the Illinois Appellate Court subsequently affirmed the holding. The Illinois Supreme Court
then declined review of Petitioner’s case.

Pursuing relief under 28 U.S.C. § 2254, Petitioner now brings eight claims before the
Court. Petitioner asserts denial of his federal constitutional rights on the following grounds: (1)
the State did not prove Petitioner’s guilt beyond a reasonable doubt, (2) Petitioner’s counsel was
ineffective because he did not object to the admission of Benson and Sisson’s prior consistent
statements, (3) the trial court incorrectly based its finding of guilt on Benson and Sisson’s
improperly admitted prior consistent statements, (4) Petitioner’s counsel was ineffective for
failing to present evidence of Benson and Sisson’s prior inconsistent evidence, (5) the trial court
incorrectly recalled Nicole Freeman’s testimony while making its finding of guilt, (6) Petitioner’s
counsel was ineffective because he did not properly investigate Petitioner’s case and interview
material witnesses, (7) Petitioner’s counsel was ineffective for failing to introduce impeachment
evidence, and (8) Petitioner’s appellate counsel was ineffective for failing to present issues 6
and 7 on direct appeal. The Court will now address Petitioner’s claims.

ANALYSIS

A petitioner is entitled to a writ of habeas corpus if the State is holding the petitioner
pursuant to a state court judgment obtained in violation of the Constitution, laws, or treaties of
the United States. 28 U.S.C. § 2254(a). A court may not issue a writ of habeas corpus for any

claim adjudicated on the merits in state court unless the state decision was (1) “contrary to, or



influenced the trial judge’s credibility determination. Accordingly, the Court denies Claim 3 on
the merits.

Cc. The Trial Judge’s Misstatement of Freeman’s Testimony Did Not
Violate Petitioner’s Constitutional Rights

Petitioner asserts denial of his Sixth Amendment right to a fair trial because the trial court
incorrectly recalled Nicole Freeman’s testimony in reciting the basis for Petitioner’s conviction.
Nicole Freeman testified that Benson and Petitioner both entered the house after the shooting,
overtumed the furniture and looked around. Freeman also testified that Petitioner essentially
stated, “We got him.” Petitioner argues that because the trial judge misquoted the testimony as “I
got it,” the trial court denied Petitioner a fair trial.

The trial judge’s minor misstatement did not deny Petitioner a fair trial. The Court agrees
with the Illinois Appellate Court that the judge’s misstatement was inconsequential.

Accordingly, the Court denies Claim 5 on its merits.

Il. The Illinois Appellate Court Did Not Unreasonably Apply Strickland v. Washington
to Claims 2 and 4

On direct appeal, Petitioner made two claims of ineffective assistance of counsel.
Petitioner argued that counsel was ineffective for failing to object to the prior consistent
statements of Benson and Sisson. Petitioner also claimed that counsel was ineffective for failing
to present evidence of Benson and Sisson’s prior inconsistent statements that cast doubt on
Benson and Sisson’s credibility.

In order to prevail on his ineffective assistance of counsel claim, Petitioner must satisfy
the mandates of Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674

(1984). Under Strickland, a claim of ineffective assistance of counsel is established when a



The Court, however, can only address whether Petitioner procedurally defaulted his
claims if the State has not waived its procedural default defense. See Kurzawa v. Jordan, 146
F.3d 435, 440 (7" Cir. 1998); see also Henderson v. Thieret, 859 F.2d 492, 498 (7" Cir. 1988)
(finding the State waived the procedural default defense for some claims where the State raised
the defense for other claims). Because the State has raised the defense of procedural default only
with respect to Claims 6-8, the State has waived this defense for Claims 1, 3, and 5. See
Henderson, 859 F.2d at 498. Accordingly, the Court now turns to the merits of these claims.
IL Claims 1, 3, and 5 Fail on the Merits

A. A Rational Trier of Fact Could Have Found Petitioner Guilty Beyond
a Reasonable Doubt

Petitioner first contends that the State failed to prove Petitioner’s guilt beyond a
reasonable doubt. In order to warrant habeas relief, Petitioner must show that no rational trier of
fact, viewing the evidence in the light most favorable to the prosecution, could have found the
essential elements of first-degree murder beyond a reasonable doubt. See Jackson v. Virginia,
443 U.S. 307, 319 (1979). Petitioner has not met this burden.

Petitioner argues that the State based its case on inconsistent accounts of the incident as
provided by incredible witnesses, Benson and Sisson. Petitioner asserts that Benson’s confession
resulted from the withdrawal Benson, a known heroin addict, experienced when the police
questioned him for nineteen hours. Petitioner contends that Benson lied to the police so that they
would release him and he could get high again. Sisson also told police that Petitioner shot

Harris. Sisson, however, later retracted that statement when speaking with a representative from



involved an unreasonable application of, clearly established federal law as determined by the
Supreme Court of the United States,” or was (2) “based on an unreasonable determination of the
facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d)(1) &
(2). Additionally, a court presumes correct the state court’s factual findings, unless a petitioner
presents clear and convincing evidence to the contrary, 28 U.S.C. § 2254(e)(1).

Before a court may address the merits of a habeas petition, however, the petitioner must
have provided the state courts with a full and fair opportunity to review his claims. Boerckel v.
O'Sullivan, 135 F.3d 1194, 1196 (1998), (citations omitted). That is, a petitioner must have
exhausted his state remedies, see 28 U.S.C. § 2254(b), (c), and may not have procedurally
defaulted any of his claims during the state court proceedings. See O'Sullivan v. Boerckel, 526
USS. 838, 842-43 (1999).
1 The State Has Waived Procedural Default as a Defense to Claims 1, 3, and 5

The Petitioner has not provided Illinois a full and fair opportunity to review Claims 1, 3,
and 5. Fair presentation of federal claims to a state court occurs when the petitioner’s state court
filings (1) rely on federal cases, (2) rely on state cases conducting a federal constitutional
analysis, (3) invoke specific constitutional provisions, or use unmistakable constitutional terms,
and (4) present operative facts falling “well within the mainstream of constitutional litigation.”
Rittenhouse v. Battles, 263 F.3d 689, 696 (7" Cir. 2001) (internal quotation omitted); Verdin v.
O'Leary, 972 F.2d 1467, 1473-74 (7" Cir. 1992). When a petitioner’s state court filings,
however, fail on all four of these grounds, as they do here, a petitioner has not fairly presented his
federal constitutional claims to the state court. Moleterno v. Nelson, 114 F.3d 629, 634 (7" Cir.

1997).



On direct appeal, the Illinois Appellate Court held that the trial court properly admitted
Benson and Sisson’s prior consistent statements to police pursuant to Section 5/115-2 of the
Illinois Code of Criminal Procedure. Under Section 5/115-2, prior consistent statements are
admissible if the declarant testifies at the trial, the declarant is subject to cross-examination
concerning the statement, and the statement is one of identification made after perceiving the
person. Benson and Sisson did testify at Petitioner’s trial, they were subject to cross-
examination, and the statements at issue concern their identification of Petitioner after perceiving
him. As a result, the Illinois Appellate Court held that the trial court properly admitted these
statements.

Because the admissibility of evidence in a state criminal trial is generally a matter of state
law, United States ex rel. Lee v. Flanigan, 884 F.2d 945, 953 (7" Cir. 1989), this Court can only
review Petitioner's claim if the error was “of such magnitude as to deny fundamental fairness.”
United States ex rel. Bibbs v. Twomey, 506 F.2d 1220, 1223 (7" Cir. 1974). Specifically, the
state court’s ruling must be so prejudicial that it compromised the petitioner’s due process rights
to a fundamentally fair trial thereby creating the likelihood that an innocent person was
convicted. See Dressler v. McCaughtry, 238 F.3d 908, 914 (7 Cir. 2001); Pierson v. O'Leary,
959 F.2d 1385, 1389 (7" Cir. 1992).

The admission of Benson and Sisson’s prior consistent statements did not result in the
denial of fundamental fairness. First, the trial court properly admitted Benson and Sisson’s
statements under Illinois law as made clear by the Ilinois Appellate Court. Second, Benson and
Sisson’s prior consistent statements, although probative, had a limited effect on the trial judge’s

determination. It is clear from the record that Benson and Sisson’s in-court testimony primarily



* Minute Order Form ( y
. ' | Untitéd States District Court, Northern District of Dlinois

Name of Assi Sitting Judge if Oth
a Maghe we 1 Amy J. St. Eve then Asthned Judge
CASE NUMBER 01C 53 DATE 8/14/2003
CASE Island vs. Briley
TITLE
[in the following box (a) indicate the party filing the motion, e.g., plaintiff, defendant, 3rd party plaintiff, and (b) state briefly the nature
MOTION: of the motion being presented.]
DOCKET ENTRY:

(1) Qa Filed motion of [ use listing in “Motion” box above.]

(2) Oo Brief in support of motiondue

(3) oa Answer brief to motion due___. Reply to answer briefdue__.

(4) oO Ruling/Hearingon__setfor__at

(5) o Status hearing[held/continued to] [set for/re-set for]on__—set fora

(©) oOo Pretrial conference[held/continued to] [set for/re-set for]on__—setfor__—s——sat__—.
(7) i) Trial[set for/re-set for]on___—_at

(8) Qo [BenclyJury trial] [Hearing] held/continuedto at

(9) Oo This case is dismissed [with/without] prejudice and without costs[by/agreement/pursuant to]

OOFRCP4(m) CLocal Rule 41.1 CIFRCP41(a)(1) CIFRCP41(a)(2).

for a writ of habeas corpus is denied.

(= Na

(il) [For further detail see order attached to the original minute order.]

qo) oi {Other docket entry] Enter Memorandum Opinion and Order. Petitioner Michael Island’s petition

No notices required, advised in open court.

No notices required. number of notices

Notices mailed by judge’s staff.
Notified counsel by telephone.
oS | Docketing to mail notices,

AUG 15 2003
date docketed

~Y | Mail AO 450 form. .unoa sorwisia SA =
Copy to judge/magistrate judge. yua3
eG:G Wd 1) SMV EO ue
courtroom
nif acs quiigno0u wos OTN U
Date/time received
-_central Clerk's Office rrading deputy initials



(“[T]he state court’s decision must have been more than incorrect or erroneous. The state court’s
application must have been ‘objectively unreasonable”).

The Illinois Appellate Court found that Petitioner could not prove that his counsel’s
deficiencies prejudiced him. That is, Petitioner could not “demonstrat[e] a reasonable probability
that, but for counsel’s unprofessional errors, the result of the proceeding would have been
different” because the State presented a strong case against him. Significantly, statements made
by several witnesses -- Benson, Sisson, Freeman, and Freeman’s daughter Nicole -- contradicted
Petitioner’s version of the events.

The Court cannot say that the Illinois Appellate Court unreasonably applied the
Strickland analysis to Petitioner’s claims on direct appeal. Petitioner could not prove prejudice,
the second prong of Strickland, in the face of the State’s overwhelming evidence against him.
Accordingly, the Court denies Petitioner’s petition for a writ of habeas corpus for Claims 2
and 4.

IV. Claims 6-8 Are Not Procedurally Defaulted

Petitioner also asserts ineffective assistance of trial counsel on the following grounds:
(1) that trial counsel failed to properly investigate Petitioner’s case and failed to interview
material witnesses (claim 6), and (2) that trial counsel failed to introduce available impeachment
evidence at trial (claim 7). Petitioner also asserts ineffective assistance of appellate counsel for
failure to raise Claims 6 and 7 on direct appeal.

The Court first addresses the State’s assertion that Petitioner procedurally defaulted these
claims for failing to reply to a Finley motion during post-conviction proceedings and failing to

appeal the denial of his post-conviction claims. The State has not carefully reviewed the record.

11



Petitioner proves both (1) that his counsel’s performance was objectively deficient and (2) that
his counsel’s deficient performance prejudiced him. Jd. Under the performance prong,
Petitioner must show that his counsel’s representation fell below an objective standard of
teasonableness. Jd. at 687-88. Under the prejudice prong, Petitioner must establish that “there is
a reasonable probability that, but for counsel’s unprofessional errors, the result of the Proceeding
would have been different.” Jd. at 694. Petitioner must satisfy both of these prongs to prevail on
his ineffective assistance of counsel claim. Se id. at 697.

Under Section 2254(d), this Court is limited to asking whether the Llinois Appellate
Court’s Strickland analysis was “contrary to, or involved an unreasonable application” of
Strickland. See 28 U.S.C. § 2254(d)(1). A state court decision is “contrary to” Supreme Court
precedent if the decision is “diametrically different,” “mutually opposed,” or “substantially
different from the relevant precedent.” Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495,
146 L.Ed.2d 389 (2000); see also Wiggins v. Smith, 123 S.Ct. 2527, 2534-35 (2003). Even if the
state court decision is “contrary to the federal court’s conception of how Strickland ought to be
applied in that particular case, the decision is not ‘mutually opposed’ to Strickland itself.”
Williams, 529 U.S. at 406.

Additionally, in determining whether the Illinois Appellate Court unreasonably applied
Strickland, this Court is limited to asking whether the Court’s application was objectively
unreasonable, id. at 409-410. Moreover, “an unreasonable application of federal law is different
from an incorrect application of federal law.” Id. at 410 (emphasis in original). Thus, this Court
cannot issue a writ if merely concludes the Illinois Appellate Court was incorrect; the Illinois

Appellate Court must have been unreasonable. Jd. at 411; see also Wiggins, 123 S.Ct at 2535

10


the Public Defender’s Office. If Sisson had not testified to Petitioner’s shooting of Harris at
Petitioner’s trial, Petitioner argues that Sisson would have faced perjury charges.

The Illinois Appellate Court, which reviewed the evidence in the light most favorable to
the prosecution, found that the evidence overwhelmingly proved Petitioner’s guilt. Significantly,
the court pointed to the trial judge’s awareness of the factors casting doubt on Benson and
Sisson’s credibility: their gang affiliations, their involvement with the crime, and their prior
inconsistent statements. Accordingly, the Illinois Appellate Court deferred to the trial judge’s
determination because the judge was in a superior position to observe the witnesses’ demeanor
and evaluate their credibility.

Tn viewing the evidence in a light most favorable to the State, the Illinois Appellate
Court’s decision is consistent with the facts and circumstances of this case. It is a reasonable
application of Jackson v. Virginia, 443 U.S. 307, 319 (1979). Because Petitioner has failed to
meet his burden of establishing that the Illinois Appellate Court applied the facts of his case in an
objectively unreasonable manner, the Court rejects Petitioner’s request for habeas relief in
Claim 1. See Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002) (per curiam).

B. The Trial Judge’s Admission of Benson and Sisson’s Prior Consistent
Statements Does Not Amount to a Denial of Fundamental Fairness

Petitioner contends that he was denied his Sixth Amendment right to a fair trial because
the trial court improperly considered Benson and Sisson’s prior consistent statements that they
made to the police. Petitioner asserts these inadmissible statements improperly corroborated
Benson and Sisson’s testimony at Petitioner’s trial. Petitioner further argues that the absence of

these statements may have changed the outcome of his trial.



these actions in order to disguise the nature of Harris’ shooting. They said the Mickey Cobras
wanted to create the appearance that another gang, the Black Stones, had actually shot Harris.

When the police arrived at the scene, an unidentified man approached them and told the
officers that Petitioner was responsible for Harris’ death. The police searched for Petitioner and
eventually found him five blocks away. The police then questioned Petitioner, Benson, and
Freeman. Eventually, Benson confessed to his involvement and identified Petitioner as the
shooter. The police subsequently arrested the Petitioner.

On appeal, Petitioner made five claims. Petitioner asserted that: (1) the State did not
prove his guilt beyond a reasonable doubt, (2) either Petitioner’s counsel was ineffective for
failing to object to the admission of Benson and Sisson’s prior consistent statements or the trial
court committed plain error in admitting the statements, (3) Petitioner’s counsel was ineffective
for failing to present evidence of Benson and Sisson’s prior inconsistent statements to
demonstrate that Benson and Sisson were not credible witnesses, (4) the Petitioner was denied a
fair trial because the court incorrectly recalled Nicole Freeman's testimony concerning
Petitioner’s statement regarding reentering Harris’ home, and (5) the trial court improperly
denied Petitioner’s motion to quash his arrest. The Illinois Appellate Court affirmed his
conviction, and the Illinois Supreme Court subsequently declined review of Petitioner’s case.

Petitioner then sought relief through post-conviction proceedings. There, Petitioner
asserted three claims of ineffective assistance of counsel and three claims of ineffective
assistance of appellate counsel. Petitioner also claimed that his sentence was excessive.
Petitioner alleged that counsel was ineffective because he (1) did not properly investigate the

case and failed to interview material witnesses, (2) failed to present available impeachment



circumstances, Freeman’s first statement to police is not only understandable but fails to
undermine the trial court’s outcome. Petitioner cannot show that but for his counsel’s alleged
errors, the result of the trial would have been different.

Petitioner also asserts that Two Screws simultaneously fired at Harris from below the
front porch. The fatal wound, however, was to Harris’ head, not the front of his person. Thus,
this piece of evidence is in accord with the trial court’s result.

Petitioner also claims that Harris’ wound would show stipling if Harris’ shot was inflicted
within two feet of his person. Although the evidence placed Petitioner near Harris’ person, the
evidence produced at trial did not so restrict Petitioner's placement as to require that he stood
exactly within two feet of Harris. Consequently, Petitioner’s claim regarding the nature of
Harris’ gunshot wound also fails to cast doubt on the trial court’s finding of guilt.

Having considered these and Petitioner’s remaining bits of impeachment evidence, the
Court holds that Petitioner’s claims fail to undermine the trial court’s outcome. Therefore,
Petitioner’s claims fail the second prong of the Strickland analysis. Because Petitioner needs to
fulfill both prongs of Strickland to establish a claim of ineffective assistance of counsel, the
Court need not examine whether Petitioner’s representation at trial was objectively deficient.
Further, because Petitioner cannot make the required showing of prejudice for his claims of
ineffective assistance of trial counsel, Petitioner’s claim of ineffective assistance of appellate
counsel also fails. Accordingly, the Court denies Petitioner’s petition for habeas review of

Claims 6-8.

14



Mickey Cobras. Harris served as a police lookout for the Mickey Cobras while they sold
narcotics. At Petitioner’s trial, Charles Benson and Roddrick Sisson, members of the Mickey
Cobras, testified that members of the gang had met to plan the murder of Harris. The Mickey
Cobras wanted to retaliate against Harris for stealing a gun from them. Benson and Roddrick
testified that Petitioner attended this meeting. While Benson and Sisson’s testimony conflicted
with respect to the details of that meeting, both testified that they agreed Petitioner would shoot
Harris.

The evidence clearly placed Petitioner at Harris’ home at the time of the murder,
Petitioner admitted that he was at Harris’ home. He testified that he was discussing plans for
Harris, Harris’ common law life Tanya Freeman, and her two daughters Nicole and Moshanique,
to move into Petitioner’s building. Freeman testified, however, that this discussion had actually
occurred two weeks before Harris’ murder.

After dinner, Petitioner and Harris went onto the porch. Benson, Sisson and other
Mickey Cobras also were present. Benson and Sisson testified that they saw Petitioner shoot
Harris. Freeman and her daughter, Nicole, who remained inside, testified that they heard shots
coming from the porch. Freeman further testified that Petitioner ran into the house carrying a
gun and screaming, “Stones, the Stones are shooting.” Freeman asked Petitioner where Harris
was and Petitioner said he was coming inside. When Freeman walked onto the porch, she saw
Harris lying on the porch bleeding. Initially, Freeman did not see anyone else, Freeman then
saw Benson shooting into the air and screaming “Black Stones.” Sisson and Two Screws,
another Mickey Cobra who also had a gun, were outside as well. Two Screws and Sisson yelled

“Black Stones” from a vacant lot across the street. Benson and Sisson testified that they took


IN THE UNITED STATES DISTRICT COURT "
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION OCKETED
AUG 1 5 2003

UNITED STATES OF AMERICA, ex rel.
MICHAEL ISLAND,

Petitioner,
No. 01 C 0053

MARK A, PIERSON,

wesw we rere wr YS

Respondent.
MEMORANDUM OPINION AND ORDER

AMY J. ST. EVE, District Judge:

Following a bench trial, the Circuit Court of Cook County convicted Petitioner Michael
Island of first-degree murder on October 16, 1995, and subsequently sentenced Petitioner to
forty-five years’ imprisonment. Both the Illinois Appellate Court and the Illinois Supreme Court
affirmed Petitioner’s conviction on direct appeal. Petitioner then filed a petition for post-
conviction relief. The Circuit Court of Cook County summarily dismissed Petitioner’s claims,
and the Illinois Appellate Court and Illinois Supreme Court affirmed the dismissal. Petitioner
now seeks a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The State, on
behalf of Mark Pierson, Warden of the Hill Correctional Center (“Respondent”), contends that
Petitioner’s claims are procedurally defaulted, non-cognizable for habeas review, or without
merit. For the reasons stated herein, the Court denies Island’s petition.

BACKGROUND
On October 10, 1993, Aaron Harris was shot and killed on his front porch. Harris, a

member of the Vice Lords, a Chicago street gang, worked “security” for Petitioner’s gang, the


Petitioner did appeal his post-conviction claims through the Ilinois Supreme Court. In addition,
the Illinois Appellate Court, notwithstanding Petitioner’s failure to respond to the Finley motion,
addressed the merits of Petitioner’s claims: “We have carefully reviewed the record in this case
and the aforesaid brief in compliance with the mandate of Pennsylvania v. Finley and find no
issues of arguable merit.” People v. Michael Island, No. 1-99-0234 (IIl.App.Ct. Apr. 5, 2000).
In fact, the Illinois Appellate Court’s decision on the merits convinced Judge Norgle earlier in
this case that Petitioner’s habeas petition was timely when the Stated attempted to dismiss the
case on those grounds. Accordingly, the Court rejects the State’s contention and proceeds to the
merits of Claims 6-8.

V. Claims 6-8 Fail the Strickland Analysis

Petitioner argues that trial counsel was ineffective because he did not investigate the
inconsistency between the recovery of .380 bullet from Harris’ brain and the presence of only 9
mm shell cartridges at the scene. He further argues that trial counsel was ineffective for failing to
call an expert to explore the effects of heroin withdrawal on Benson’s statements to the police
and for failing to introduce available impeachment evidence. Petitioner also asserts that
appellate counsel was ineffective for failing to bring these claims on direct appeal.

The Court need not address the first prong of the Strickland analysis because Petitioner’s
claims cannot meet the second prong of Strickland. That is, Petitioner cannot prove that
counsel’s deficiencies prejudiced him. See Strickland, 466 U.S. at 692. As noted above,
Petitioner must demonstrate that a reasonable probability exists 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.” Strickland, 466

12



CONCLUSION

For the foregoing reasons, the Court denies Island’s petition for a writ of habeas corpus.

Dated: August 14, 2003 (he ¢

AMY J. ST. EVE
US. District Court Judge

15