Opinion
00-CV-5425 (JBW), 03-MISC-0066 (JBW)
December 5, 2003
MEMORANDUM, JUDGMENT ORDER
A hearing was held in this matter, primarily to determine whether petitioner was competent at the time of his trial. Counsel for petitioner was appointed by this court. Although provision was made by the court to allow a psychiatric expert to testify on petitioner's behalf at the hearing, petitioner chose not to present such evidence,
The petition for a writ of habeas corpus is denied. This memorandum briefly addresses petitioner's claims.
I. Facts and Procedural History
Petitioner was tried principally for the kidnaping of William McClean IV, a fourteen-year-old boy who was taken at gunpoint from his home by two masked men. The kidnapers escaped with the boy after tying up his family and stealing their car. The McLean family was told that the boy would be killed if the police were contacted. The boy was later forced, while handcuffed to a table, to make a tape recording demanding $200,000 ransom from the family.
The evidence of petitioner's guilt was overwhelming, After one of the kidnapers returned to the McLean home to retrieve the ransom money, he was arrested and told police where the boy and the other kidnaper could be found. The police went to the apartment to which they had been directed and discovered petitioner and the boy. The boy testified at trial that petitioner was one of the kidnapers. Though he had been blindfolded, petitioner allowed him to see his face once he saw police outside the apartment. According to McLean, petitioner then gave him a loaded gun and, in despair about the prospect of returning to prison, asked McLean to shoot him. In addition, petitioner gave a detailed inculpatory statement to detectives confessing to his role in the planning and execution of the crime.
Multiple competency hearings were held before and during the trial. Although doctors were concerned that petitioner was malingering, he was initially found incompetent to stand trial and was not, in fact, tried until nearly 3-1/2 years after he was indicted. At the start of trial, petitioner began behaving irrationally and another competency examination was ordered. The consensus opinion of medical experts was that petitioner was malingering. The trial court deemed him capable of understanding the proceedings and of assisting in his own defense, and therefore competent to stand trial,
Petitioner was convicted of kidnaping in the first degree, robbery in the first degree, burglary in the first degree, robbery in the second degree and grand larceny in the second degree. He was sentenced to a total of 25 years to life in prison.
His conviction was affirmed by the Appellate Division. Leave to appeal to the New York Court of Appeals was denied. A motion to vacate the judgment of conviction was denied by the trial court. Leave to appeal the denial of the section 440 motion to the Appellate Division was denied. No further state collateral proceedings were initiated.
In his application for a writ of habeas corpus, petitioner raises the following panoply of claims: (1) his conviction was obtained by trying him while he was unfit to proceed after the issue of his mental capacity to stand trial was decided by a biased judge and in violation of mandatory procedure; (2) his conviction was obtained by the action of an unlawfully constituted jury; (3) he was denied effective assistance of counsel; (4) the trial court abused its discretion and deprived petitioner of his rights to due process, a fair trial and trial by jury when it erroneously failed to suppress petitioner's confession and other Items of evidence, failed to inquire about a sleeping juror and about the unapproved communications of another juror, failed to give appropriate instructions on the prosecution's burden of proof, gave an instruction directing the finding of facts and expressing the court's opinion as to petitioner's guilt, and was biased and partial; (5) the prosecution, trial court and defense counsel knowingly used and allowed perjured testimony and fabricated evidence against petitioner at trial, in violation of his right to a fair trial; (6) New York State's failure to enact provisions on rules of law precluding an expert witness from expressing opinions on the ultimate questions denied petitioner his right to due process, equal protection of laws, fair trial and trial by jury; (7) petitioner was denied his right to a speedy trial, to due process, and to equal protection of laws where he was committed and held for 3-1/2 years as incompetent to proceed, and trial did not start until 5 years after arrest; (8) section 730.50 of the New York Criminal Procedure Law (fitness to proceed) is on its face an unconstitutional bill of attainder; (9) he was denied fundamental fairness, due process of law and a competent, independent and impartial tribunal where he was indicted, prosecuted, convicted and sentenced for non-existent offenses; (10) the sentence (a) was imposed under statutory and other provisions, conditions and terms invalid under the international laws and the United States Constitution; (b) is cruel, unusual, inhuman, degrading, arbitrary, discriminatory and grossly excessive and disproportionate under international laws and the Constitution; (c) was vindictively inflicted for petitioner's exercise of his right to trial and sentence allocution; and (d) unlawfully and improperly imposed consecutive terms of imprisonment and sentences of nonexistent charges; and (11) he was denied his right to appeal his conviction and to due process and equal protection.
II. AEDPA
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), a federal court may grant a writ of habeas corpus to a state prisoner on a claim that was "adjudicated on the merits" in state court only if it concludes that 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." 28 U.S.C. § 2254(d),
An "adjudication on the merits" is a "substantive, rather than a procedural, resolution of a federal claim," Sellan v. Kuhlman, 261 F.3d 303, 313 (2d Cir. 2001) (quoting Aycox v. Lytle, 196 F.3d 1174, 1178 (10th Cir. 1999)), Under the "contrary to" clause, "a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000) (O'Connor, J., concurring and writing for the majority in this part), Under the "unreasonable application" clause, "a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id. at 413, Under this standard, "a federal habeas court may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Id. at 411. In order to grant the writ there must be "some increment of incorrectness beyond error," although "the increment need not be great; otherwise, habeas relief would be limited to state court decisions so tar off the mark as to suggest judicial incompetence." Francis S, v. Stone, 221 F.3d 100, 111 (2d Cir. 2000) (internal quotation marks omitted).
"[F]ederal law, as determined by the Supreme Court, may as much be a generalized standard that must be followed, as a bright-line rule designed to effectuate such a standard in a particular context." Overton v. Newton, 295 F.3d 270, 278 (2d Cir. 2002); see also Yung v. Walker, No, 01-2299, 2002 U.S. App. LEXIS 28137 (2d Cir. Aug, 1, 2003) (amended opinion) (district court's habeas decision that relied on precedent from the Court of Appeals is remanded for reconsideration in light of "the more general teachings" of Supreme Court decisions). The Court of Appeals for the Second Circuit has also indicated that habeas relief may be granted if a state court's decision was contrary to or an unreasonable application of "a reasonable extension" of Supreme Court jurisprudence. Torres v. Berbary, No. 02-2463, 2003 U.S. App, LEXIS 16167, at *25 (2d Cir. Aug. 7, 2003), Determination of factual issues made by a state court "shall be presumed to be correct," and the applicant "shall have the burden of rebutting the presumption of correctness by clear and convincing evidence," 28 U.S.C. § 2254(c)(1).
III. Exhaustion
In the past, a state prisoner's federal habeas petition had to be dismissed if the prisoner did not exhaust available state remedies as to any of his federal claims. See Rose v. Lundy, 455 U.S. 509, 522 (1989). "This exhaustion requirement is . . . grounded in principles of comity; in a federal system, the States should have the first opportunity to address and correct alleged violations of [a] state prisoner's federal rights." Coleman v. Thompson, 501 U.S. 722, 731 (1991). The exhaustion requirement requires the petitioner to have presented to the state court (both the factual and legal premises of the claim he asserts in federal court," Daye v. Attorney General, 696 F.2d 186, 191 (2d Cir. 1982) (en banc).
Pursuant to AEDPA, a district court may now, in its discretion, deny on the merits habeas petitions containing unexhausted claims-so-called "mixed petitions." See 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the state,"). In addition, the state may waive the exhaustion requirement, but a "State shall not be deemed to have waived the exhaustion requirement or be estopped from reliance upon the requirement unless the State, through counsel, expressly waives the requirement." Id. § 2254(b)(3); see also Ramos v. Keane, No. 98 CIV. 1604, 2000 U.S. Dist. LEXIS 101, at *10 (S.D.N.Y. 2000) (state's failure to raise exhaustion requirement does not waive the issue).
IV. Procedural Bar
A federal habeas court may not review a state prisoner's federal claims if those claims were defaulted in state court pursuant to an independent and adequate state procedural rule, "unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will insult in a fundamental miscarriage of justice," Coleman, 501 U.S. at 750, In determining whether a procedural bar is sufficient to preclude habeas review, a federal court must consider as "guideposts" the following:
(I) whether the alleged procedural violation was actually relied on in the trial court, and whether perfect compliance with the state rule would have changed the trial court's decision; (2) whether state caselaw indicated that compliance with the rule was demanded in the specific circumstances presented; and (3) whether petitioner had "substantially complied" with the rule given "the realities of trial," and, therefore, whether demanding perfect compliance with the rule would serve a legitimate governmental interest.Cotto v. Herbert, 331 F.3d 217, 240 (2d Cir. 2003) (quoting Lee v. Kemna, 534 U.S. 362 (2002)).
If a state court holding contains a plain statement that a claim is procedurally barred then the federal habeas court may not review it, even if the state court also rejected the claim on the merits in the alternative. See Harris v. Reed, 489 U.S. 255, 264 n. 10 (1989) ("a state court need not fear reaching the merits of a federal claim in an alternative holding" so long as it explicitly invokes a state procedural rule as a separate basis for its decision).
When a state court says that a claim is "not preserved for appellate review" and then rules "in any event" on the merits, such a claim is not preserved. See Glenn v. Bartlett, 98 F.3d 721, 724-25 (2d Cir. 1996). When a state court "uses language such as `the defendant's remaining contentions are either unpreserved for appellate review or without merit,' the validity of the claim is preserved and is subject to federal review," Fama v. Comm'r of Corr, Svcs., 235 F.3d 804, 810 (2d Cir. 2000), Where "a state court's ruling does not make clear whether a claim was rejected for procedural or substantive reasons and where the record does not otherwise preclude the possibility that the claim was denied on procedural grounds, AEDPA deference is not given, because we cannot say that the state court's decision was on the merits." Su v. Filion, No. 02-2683, 2003 U.S. App. LEXIS 13949 at *15 n. 3 (2d Cir. July 11, 2003) (citing Miranda v. Bennett, 322 F.3d 171, 178 (2d Cir. 2003)). This congeries of holdings leaves it an open question whether there are "situations in which, because of uncertainty as to what the state courts have held, no procedural bar exists and yet no AEDPA deference is required." Id V. Ineffective Assistance of Counsel
The Counsel Clause of the Sixth Amendment provides that a criminal defendant "shall enjoy the right . . . to have the Assistance of Counsel for his defence." U.S. Const, amend, VI, This right to counsel is "the right to effective assistance of counsel." McMann v. Richardson, 397 US. 759, 771 n, 14 (1970) (emphasis added). The Supreme Court has explained that in giving meaning to this requirement we must be guided by its purpose-"to ensure a fail-trial"-and that therefore the "benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial cannot be relied on as having produced a just result," Strickland v. Washington, 466 U.S. 668, 686 (1984). In order to prevail on a Sixth Amendment claim, a petitioner must prove both that counsel's representation "fell below an objective standard of reasonableness" measured under "prevailing professional norms," id. at 688, and that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different," id. at 694. See also Wiggins v. Smith, 539 U.S. ___, No, 02-311, slip op. at 8-10 (June 26, 2003); United States v. Eyman, 313 F.3d 741, 743 (2d Cir. 2002). A "reasonable probability" is "a probability sufficient to undermine confidence in the outcome," Strickland, 466 U.S. at 694.
The performance and prejudice prongs of Strickland may be addressed in either order, and "[i]f it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Id. at 697. In evaluating the prejudice suffered by a petitioner as a result of counsel's deficient performance, the court looks to the "cumulative weight of error" in order to determine whether the prejudice "reache[s] the constitutional threshold." Lindstadt v. Keane, 239 F.3d 191, 202 (2d Cir. 2001). The court must also keep in mind that "a verdict or conclusion only weakly supported by the record is more likely to have been affected by errors than one with overwhelming record support." Strickland, 466 U.S. at 696, "The result of a [criminal] proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel cannot be shown by a preponderance of the evidence to have determined the outcome." Purdy v. Zeldes, No. 02-7468, 2003 U.S. App. LEXIS 2053, at *18 (2d Cir. Feb. 6, 2003) (quoting Strickland, 466 U.S. at 694). Ineffective assistance may be demonstrated where counsel performs competently in some respects but not in others, See Eze v. Senkowski, 321 F.3d 110, 112 (2d Cir. 2003).
As a general matter, strategic choices made by counsel after a thorough investigation of the facts and law are "virtually unchallengeable," though strategic choices "made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation," Strickland, 466 U.S. at 690-91, Counsel, in other words, "has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary," Id. at 691. Where counsel fails to make a reasonable investigation that is reasonably necessary to the defense, a court must conclude that the decision not to call an expert cannot have been based on strategic considerations and will thus be subject to review under Strickland's prejudice prong. See Pavel v. Hollins, 261 F.3d 210, 223 (2d Cir. 2001) (counsel ineffective in a child sexual abuse case where his failure to call a medical expert was based on an insufficient investigation); Lindstadt, 239 F.3d at 201 (same). The Court of Appeals for the Second Circuit has recently gone so far as to imply that all of counsel's significant trial decisions must be justified by a sound strategy-a significant raising of the bar that would appear to require an unrealistic degree of perfection in counsel. See Eze, 321 F.3d at 136 (remanding to district court for factual hearing because it was "unable to assess with confidence whether strategic considerations accounted for . . . counsel's decisions").
There is "a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 689.
Each factual claim made in support of an allegation of ineffective assistance of counsel must be fairly presented to a state court before a federal habeas court may rule upon it. See Rodriguez v. Hoke, 928 F.2d 534, 538 (2d Cir. 1991) (dismissing petition as unexhausted where petitioner's claim of ineffective assistance of counsel alleged more deficiencies before the habeas court than were presented to the state court, because "[t]he state courts should have been given the opportunity to consider all the circumstances and the cumulative effect of all the claims as a whole" (quotation omitted)). Where an additional factual claim in support of the ineffective-assistance allegation merely "supplements" the ineffectiveness claim and does not "fundamentally alter" it, dismissal is not required. Caballero v. Keane, 42 F.3d 738, 741 (2d Cir. 1994). Each significant factual claim in support of an ineffective-assistance allegation premised on appellate counsel's deficient performance must be exhausted. See Word v. Lord, No. 00 CIV. 5510, 2002 U.S. Dist. LEXIS 19923, at *34-*35 (S.D.N.Y. Mar. 18, 2002) (Magistrate's Report and Recommendation).
VI. Certificate of Appeal ability
A certificate of appeal ability may be granted with respect to any one of petitioner's claims only if petitioner can make a substantial showing of the denial of a constitutional right, Petitioner has a right to seek a certificate of appealability from the Court of Appeals for the Second Circuit. See 28 U.S.C. 2253; Miller-El v. Cockrell, 123 S.Ct. 1029 (2003), The court has taken into account the rule of section 2253(c)(3) of Title 28 of the United States Code that a certificate of appealability "shall indicate which specific issue or issues satisfy the [substantial showing of the denial of a constitutional right] required by paragraph (2)." See also Shabazz v. Artuz, No, 02-2320, 2003 U.S. App, LEXIS 14450, at *15 (2d Cir. July 18, 2003).
This opinion complies with Miranda v. Bennett, 322 F.3d 171, 175-77 (2d Cir. 2003), and Rule 52 of the Federal Rules of Civil Procedure.
VII. Analysis of Claims
As an initial matter, petitioner offers several reasons that the review standards of AEDPA should not be applied in this proceeding. He argues that AEDPA is unconstitutional because, inter alia, the statute (1) precludes relief premised on international law, making habeas proceedings "a meaningless adjudicatory ritual"; (2) turns the Supreme Court into a "super-legislature"; (3) "arbitrarily obstruct[s] and delay[s] the access to judicial remedies"; and (4) would have an impermissibly retroactive effect because the crimes of conviction were committed before the effective date of the Act, Petitioner's Memorandum of Law at 3, 5, 8, 13.
Because all of petitioner's claims fail under the de novo standard of review applied below, his challenge to the applicability of AEDPA in the instant proceeding is moot. For the same reason, it is unnecessary to determine whether each of petitioner's claims has been exhausted. Under both the pre- and post-AEDPA standards his claims are meritless. Most of the claims deserve only scant discussion.
It should also be noted that petitioner has filed, inter alia, a 112-page single-spaced habeas corpus application and a 54-page double-spaced memorandum of law in support of the petition. This court has studied these papers and has attempted to fairly reflect the substance of petitioner's claims in this memorandum. No other claim raised by petitioner but not specifically addressed in this memorandum is anything hut frivolous. See Sumner v. Mata, 449 U.S. 539, 548 (1981) ("a court need not elaborate or give reasons for rejecting claims which it regards as frivolous or totally without merit").
A
Petitioner first claims that his conviction was obtained by trying him while he was unfit to proceed after the issue of his mental capacity to stand trial was decided by a biased judge and in violation of mandatory procedures under New York law.
It is well-settled that the "criminal trial of an incompetent defendant violates due process," Medina v. California, 505 U.S. 437, 453 (1992). This "prohibition is fundamental to an adversary system of justice," Drape v. Missouri, 420 U.S. 162, 172 (1975)), In determining whether a criminal defendant is competent to stand trial, the trial court must consider "whether he has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding-and whether he has a rational as well as factual understanding of the proceedings against him," Dusky v. United States, 362 U.S. 402, 402 (1960), The trial court has an independent duty to assure that a defendant is competent to stand trial and to order a hearing, sua sponte, on the question of a defendant's fitness to stand trial where doubt is raised. Pate v. Robinson, 383 U.S. 375 (1966). The duty to protect a defendant from being tried while incompetent persists throughout trial, so, "even when a defendant is competent at the commencement of his trial, a trial court must always be alert to circumstances suggesting a change that would render the accused unable to meet the standards of competence to stand trial." Drops, 420 U.S. at 181,
Subsequent to petitioner's arrest a hearing was conducted to determine whether he was fit to proceed. Two state psychiatrists that had interviewed petitioner concluded that he was competent to stand trial but malingering. See Feb. 25, 1992 Hr'g Tr. A defense psychiatrist concluded that petitioner was not competent. Because the state psychiatrists had not been privy to petitioner's voluminous medical records before issuing their opinions, the trial court asked the experts to reconsider in light of the additional evidence. When the hearing was reconvened, one of the state psychiatrists had changed his opinion and concluded that petitioner was not competent. See Mar. 10, 1992 Hr'g Tr. The trial court found that petitioner was not competent and committed petitioner to a psychiatric hospital.
About three years later, petitioner was found competent by doctors at the hospital and returned to court, At a suppression hearing, defense counsel sought another competency examination to determine if petitioner was fit to proceed, See Apr, 19, 1996 Hr'g Tr. at 12, Prior to the request, petitioner had engaged in a lengthy and cogent colloquy with the court. Immediately after the request was made and the trial court evinced skepticism about petitioner's lack of ability to understand the nature of the proceedings and assist in his defense, petitioner on cue interjected with a non-sequitur, stating, `This is a problem. He was Jewish. I wanted to explain to you, he was Jewish, and the Jewish just bombed Lebanon yesterday and they killed one-hundred people and this is a problem, okay. They are against me." Id. at 17. The trial court reasonably believed petitioner to be malingering, refused the motion for a competency hearing, and set the trial to begin the following week.
During jury selection, petitioner apparently would begin to rock back and forth whenever the jury was in the room but at no other time, During the prosecutor's opening statement, petitioner stood up, began taking off his clothes, and shouted, "In God we trust, I am God," Trial Tr. at 198. The trial court again indicated that he believed petitioner to be malingering, but granted the motion for an examination and adjourned the trial. A psychiatrist interviewed petitioner that evening. The next day a second psychiatrist arrived at the court and examined petitioner in the closed courtroom. Both psychiatrists then testified before the court and concluded that petitioner was malingering. Defense counsel asked the court to hold the trial in abeyance while the doctors generated a written report, but the court determined that the statutory language prescribing the methods for ascertaining competency did not require a written report, at least not in the unique circumstances attending the instant case, where both psychiatrists happened to be present in the courtroom and were able to testify to their conclusions in person. Petitioner was found competent to proceed.
The trial court was well aware of petitioner's prior history of mental disease and that he had been found incompetent to stand trial in the past. The court, in an abundance of caution, ordered a competency examination and hearing even though it was convinced that petitioner was a malingerer. The psychiatrists who examined petitioner likewise concluded that he was playacting and that he was fit to proceed, Under these circumstances, the trial court's actions were appropriate.
Contrary to petitioner's contention, cross-examination of the doctors did not reveal the inadequacy of their examinations of petitioner. Nor was their partial reliance on observations from prison guards inappropriate. That petitioner was recorded as having given some incoherent and nonsensical answers to questions from the psychiatrists does not establish his incompetence if, as the doctors determined, petitioner was malingering,
That the court may have erred, as a matter of state law, by proceeding in the absence of written reports from the psychiatrists docs not suffice to establish a due process violation of federal constitutional dimension. See Harris v. Kuhlmann, 346 F.3d 330, 353 (2d Cir. 2003) (noting that a pretrial suppression hearing at which defendant's competency was addressed was constitutionally sufficient, in lieu of a formal competence hearing, to determine fitness to proceed to trial).
Habeas corpus relief on these claims is not warranted.
B
Petitioner next claims that his conviction was obtained by an unlawfully constituted jury. Respondent fairly characterizes petitioner's claim as contending a denial of due process as a result of the trial court (1) refusing his request that the voir dire be recorded; (2) excusing a selected member of the jury; (3) excusing a sworn member of the jury; (4) excusing the jurors from the courtroom while counsel made their selections; (5) questioning the jurors as a group, rather than individually. He also contends that counsel was ineffective during the jury selection.
First, there was no request by counsel that the questioning of jurors be stenographically recorded. The request was for recordation of the selection of jurors, which was done, Second, his contention that a selected member of the jury was excused is convincingly explained by respondent, as a stenographic lacuna. Third, the court acted within its discretion when it dismissed a sworn juror, with the consent of both the prosecutor and defense counsel, after the juror belatedly informed the court that he had pressing business concerns that could not be avoided. Fourth, petitioner's contention that New York's procedural law for the selection of alternate jurors was violated does not raise a claim of federal constitutional dimension that might warrant habeas relief. Fifth, petitioner demonstrates no claim of constitutional dimension arising from the decision of the trial court to allow jurors to be questioned as a group rather than individually.
Petitioner also claims that trial counsel was ineffective during jury selection because he purposely attempted to seat a juror who was hostile to the insanity defense that was to be offered at trial. The contention that counsel sought to sabotage petitioner's case is not credible. Counsel made a strategic decision in opting to seat the juror and that decision will not be second-guessed.
The remaining miscellany of complaints with respect to this broad claim are without merit. Habeas corpus relief on these claims is not warranted.
C
Petitioner claims that he was denied effective assistance of counsel for a variety of reasons including, among many other contentions in this dense 44-page section of his petition, that counsel failed to effectively suppress his confession, physical evidence and identification testimony; failed to give an appropriate summation; and failed to sufficiently object to the prosecutor's summation and the trial court's jury charge.
It is unnecessary to address these claims, each of which contains multiple ancillary claims, in detail. Counsel is not to blame, for example, for the failure of the court to suppress petitioner's confession-on grounds including that he was not read his Miranda rights in Romanian, that he was tricked into signing a Miranda card, that the Miranda card was misleading because it was typed in small print, that he never actually made a confession, and that he was coerced into making a confession-since there was no legitimate basis in the facts for suppression of the statement. The decision about what witnesses to call and what evidence to introduce was strategic in nature. The trial court's jury charge and the prosecutor's closing arguments were unobjectionable.
Habeas corpus relief on the myriad claims of ineffective assistance of trial counsel is not warranted.
D
Petitioner claims that the trial court abused its discretion and deprived petitioner of his rights to due process, a fair trial and trial by jury when, inter alia, it erroneously failed to suppress petitioner's confession and other items of evidence, failed to inquire about a sleeping juror and about the unapproved communications of another juror, failed to give appropriate instructions on the prosecution's burden of proof, gave an instruction directing the finding of facts and expressing the court's opinion as to petitioner's guilt, and was biased and partial,
None of these unrelated claims has merit. There was no legitimate ground for suppressing the confession or other items of evidence. The "unapproved discussion" of the case was between a juror and defense counsel, who met incidentally and did not discuss the case. The incident was fully aired in open court and was innocuous. The "sleeping juror" issue was addressed properly at trial. The trial court's instructions on the burden of proof were appropriate, and the court did not direct the jury, either explicitly or implicitly, to find certain facts. Nor did the trial court express its opinion about petitioner's guilt or innocence. The trial court acted professionally, impartially and in an unbiased manner at all points of the trial
Granting of the writ is not warranted on any of these claims,
E
Petitioner claims that the prosecution, trial court and defense counsel knowingly used and allowed perjured testimony and fabricated evidence against petitioner at trial, in violation of his right to a fair trial. Petitioner's allegation of widespread perjury is rejected. Minor inconsistences within and among prosecution witnesses is no indication of intentional falsehood. Petitioner's claim that evidence was falsified is not unsupported by any credible proof Habeas corpus relief on this claim is not warranted.
F
Petitioner claims that New York State's failure to enact provisions on rules of law precluding an expert witness from expressing opinions on the ultimate questions denied petitioner his right to due process, equal protection of laws, fair trial and trial by jury. Although Rule 704(a) of the Federal Rules of Evidence precludes such opinion testimony, the rule is not of a constitutional nature. Petitioner has not stated a federal constitutional claim that might warrant granting of the writ,
G
Petitioner claims that he was denied his right to a speedy trial, to due process, and to equal protection of laws where he was committed and held for 3-1/2 years as incompetent to proceed, and trial did not start until 5 years after arrest,
The right to a speedy trial is guaranteed by the Sixth Amendment, See U.S. Const, amend. VI ("hi all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial. . ."). This right is fundamental and thus imposed on the states by the Due Process Clause of the Fourteenth Amendment. Klopfer v. North Carolina, 386 U.S. 213, 223 (19(57). Determination of whether mere has been a constitutional violation requires consideration of "1) whether the `delay before trial was uncommonly long' . . .; (2) `whether the government or the criminal defendant is more to blame for that delay;' (3) `whether, in due course, the defendant asserted his right to a speedy trial' . . .; and (4) the prejudice sustained by the defendant as a result of the delay. United Stares v. Gutierrez, 891 F. Supp. 97, 100 (E.D.N.Y. 1995) (quoting Doggett).
The delay in trying petitioner was almost entirely due to the court's granting of petitioner's motion to declare him unlit to stand trial. He was not denied a speedy trial. Habeas corpus relief on this claim is not warranted.
H
Petitioner claims that section 730.50 of the New York Criminal Procedure Law (setting forth the rules for determining fitness to proceed) is on its face an unconstitutional bill of attainder, A constitutionally proscribed bill of attainder is "a law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial" Nixon v. Adm'r of Gen, Servs., 433 U.S. 425, 468 (1977) (emphasis added). No legislative enactment was directed specifically at petitioner. Habeas corpus relief on this claim is not warranted,
I
Petitioner claims that he was denied fundamental fairness, due process of law and a competent, independent and impartial tribunal where he was indicted, prosecuted, convicted and sentenced for non-existent offenses. Petitioner was convicted of offenses that are defined in the New York Penal Law and that do exist. To the degree petitioner is claiming that his guilt was not proven beyond a reasonable doubt, the relevant question for this court is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979), Petitioner "bears a very heavy burden" when challenging the legal sufficiency of the evidence in a state criminal conviction. Einaugler v. Supreme Court, 109 F.3d 836, 840 (2d Cir. 1997). To the degree petitioner claims the verdict was against the weight of the evidence, such a claim does not present a federal constitutional issue,
Petitioner's confession and the testimony of his victim are alone sufficient to have established each element of each of the crimes of conviction beyond a reasonable doubt. Habeas corpus relief on this claim is not warranted.
J
Petitioner claims that the sentence (a) was imposed under statutory and other provisions, conditions and terms invalid under the international laws and the United States Constitution; (b) is cruel, unusual, inhuman, degrading, arbitrary, discriminatory and grossly excessive and disproportionate under international laws and the Constitution; (c) was vindictively inflicted for petitioner's exercise of his right to trial and sentence allocution; (d) unlawfully and improperly imposed consecutive terms of imprisonment and sentences of non-existent charges.
The assertion that a sentencing judge abused his or her discretion in sentencing is generally not a federal claim subject to review by a habeas court. See Fielding v. LeFevre, 548 F.2d 1102, 1109 (2d Cir. 1977) (citing Tawnsend v. Burka 334 U.S. 736, 741 (1948)). A challenge to the term of a sentence is not a cognizable constitutional issue if the sentence falls within the statutory range. Write v. Keane, 969 F.2d 1381, 1383 (2d Cir. 1992). Federal courts have traditionally deferred to state legislature with respect to sentencing matters. See Ewing v. California, 123 S.Ct. 1179 (2003) (sentence of 25 years to life in prison for stealing three golf clubs by a recidivist not cruel and unusual); Lockyer v. Andrade, 123 S, Ct, 1166 (2003) (sentence of 25 years to life in prison for stealing $150-worth of videotapes not cruel and unusual).
The imposition of the sentences that were imposed on petitioner, as well as the order that some should run consecutively, finds sanction in New York statutory law. Petitioner's total sentence was not cruel and unusual in a constitutional sense, Habeas corpus relief on this claim is not warranted.
K
Finally, petitioner claims he was denied his right to appeal his conviction and to due process and equal protection. His complaint stems from a series of pro se demands that he made of the Appellate Division even though he was represented by appellate counsel. The Appellate Division allowed petitioner to file a pro se supplemental brief but did not grant him, for example, a second extension to file the brief out of time. Petitioner was able to file a 52-page supplemental brief which the Appellate Division considered. The Appellate Division acted within its discretion in denying a host of petitioner's further requests-such as his motion to present oral argument in person, Petitioner was not denied an effective appeal. Habeas corpus relief on this claim is not warranted,
L
No other claim made or which might have been made is more than frivolous.VIII. Conclusion
The petition for a writ of habeas corpus is denied,
No certificate of appealability is granted with respect to any of petitioner's claims, petitioner having made no substantial showing of the denial of a constitutional right.
SO ORDERED.