Swaby v. New York, 613 F. App'x 48

Jermaine Swaby was convicted in 2002 in Kings County, NY, of second-degree murder for shooting Shane Reynolds five times; sentenced to 25 years-to-life. Swaby conceded shooting but claimed self-defense after a fistfight and an altercation outside a nightclub.
On direct appeal and state collateral attack under N.Y. Crim. Proc. Law § 440.10, Swaby argued ineffective assistance of trial counsel Michael C. Harrison for multiple failures, including not consulting a forensic expert and eliciting prior-robbery knife use.
The state courts denied relief; Swaby filed a federal habeas petition under 28 U.S.C. § 2254. The district court found some performance deficiencies but no Strickland prejudice and denied habeas relief, granting a limited certificate of appealability on the forensic-expert and robbery-evidence issues; the Second Circuit allowed argument on cumulative error.
The contested evidence: eyewitness testimony that Swaby shot Reynolds almost immediately after Reynolds left the club and continued firing after Reynolds fell; forensic testimony showing five head shots with some downward trajectories.
The central defense strategy at trial was justification (self-defense); trial counsel relied on discovery (autopsy, ballistics) and chose not to call a forensic expert, a choice the district court initially found deficient but the Second Circuit treated as presumptively strategic.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Failure to consult/retain a forensic expert	Swaby: counsel unreasonably failed to investigate/retain a forensic expert, undermining self-defense proof	State: counsel reasonably chose a strategy that made expert testimony unnecessary or harmful	No habeas relief; state court’s rejection of performance claim was not an unreasonable application of Strickland under AEDPA
Introduction of prior-robbery/knife evidence	Swaby: counsel elicited prejudicial prior-robbery evidence, constituting deficient performance	State: any elicitation was not sufficiently prejudicial to meet Strickland prejudice prong	No habeas relief; cumulative effect did not undermine confidence in outcome
Prejudice under Strickland (would outcome differ)	Swaby: a forensic expert would have created reasonable probability of different verdict by discrediting eyewitness/forensics consistency	State: strong eyewitness testimony and corroborating witnesses plus ballistics made reversal unlikely	No prejudice shown; overwhelming evidence of guilt supported denial of relief
Cumulative error claim	Swaby: combined deficiencies (expert omission + prior-robbery revelation + other conduct) undermined confidence in verdict	State: even combined, errors were not constitutionally ineffective or sufficiently prejudicial	Denied; cumulative effect did not satisfy Strickland’s prejudice requirement

Strickland v. Washington, 466 U.S. 668 (assessment of counsel effectiveness requires deficient performance and prejudice)
Harrington v. Richter, 562 U.S. 86 (AEDPA deference and doubly deferential review of state-court ineffective-assistance rulings)
Yarborough v. Gentry, 540 U.S. 1 (strategic decisions presumed reasonable; counsel need not investigate every matter)
Hinton v. Alabama, 571 U.S. 263 (failure to appoint/obtain expert may be deficient where counsel is unaware of ability to secure funds/expert)
Jones v. West, 555 F.3d 90 (Second Circuit standard for de novo habeas review)
Gersten v. Senkowski, 426 F.3d 588 (standard for showing reasonable probability jury would reject key testimony)