More specifically, petitioner argues that his defense counsel
waived an opening statement, did not request a
Sandoval hearing to obtain a ruling as to the admissibility of
defendant's prior crimes, did not present any witnesses, and
did not object to either the prosecutor's closing statements or
the court's instructions to the jury. Petitioner also insists
that counsel did not raise objections to improper questions,
and was unable to employ the basic principles involved in
defending a criminal charge.
In Strickland, the Supreme Court stated that "[t]he 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." 466 U.S. at 686, 104 S.Ct. at
2064. Respondent claims that defense counsel protected
Ballard's rights fully and faithfully. Lardner requested and
participated in pre-trial hearings, noted objections during the
hearings and the subsequent trial, cross-examined the
prosecution's witnesses, presented defense witnesses during the
hearings, attempted to clarify Ballard's name change, gave a
closing address to the jury, made jury charge requests, and
"strenuously objected," see Tr. 437, to the introduction of
Ballard's prior convictions. The trial record clearly indicates
that defense counsel's conduct both before and during trial
comported with the adversarial nature of a criminal proceeding,
and that counsel provided adequate, effective, and meaningful
In sum, this Court finds that defense counsel provided
petitioner with the effective assistance of counsel guaranteed
by the Sixth Amendment. Accordingly, petitioner's argument that
he was denied effective assistance of counsel is rejected.
B. Free Exercise and Equal Protection Claims
Petitioner contends that he was prosecuted for exercising his
religious beliefs and that his conviction is tantamount to
religious persecution. He claims to be a soldier in the Army of
his Lord, and that his actions were performed in accordance
with his obedience to God.
The First Amendment to the Constitution protects an
individual's right to freely exercise his or her religious
beliefs. The government may intrude upon an individual's
exercise of his religious beliefs only upon a showing of a
compelling and overriding governmental interest. Hernandez v.
Commissioner of Internal Revenue, 490 U.S. 680, 699, 109 S.Ct.
2136, 2148-2149, 104 L.Ed.2d 766 (1989); Hobbie v. Unemployment
Appeals Comm'n of Fla., 480 U.S. 136, 141, 107 S.Ct. 1046,
1049, 94 L.Ed.2d 190 (1987); Thomas v. Review Bd., Indiana
Employment Security Div., 450 U.S. 707, 718, 101 S.Ct. 1425,
1432, 67 L.Ed.2d 624 (1981).
The Supreme Court has repeatedly held that a claim of
religious freedom cannot be used as a shield for unlawful
behavior. See Cantwell v. Connecticut, 310 U.S. 296, 60 S.Ct.
900, 84 L.Ed. 1213 (1940); see also Wisconsin v. Yoder,
406 U.S. 205, 92 S.Ct. 1526, 32 L.Ed.2d 15 (1972); Gillette v.
United States, 401 U.S. 437, 91 S.Ct. 828, 28 L.Ed.2d 168
(1971); Thomas v. Collins, 323 U.S. 516, 65 S.Ct. 315, 89 L.Ed.
430 (1944). In Cantwell, the Court acknowledged the freedom to
believe, but cautioned that "[n]othing we have said is intended
even remotely to imply that, under the cloak of religion,
persons may, with impunity, commit frauds upon the public." 310
U.S. at 306, 60 S.Ct. at 904.
Likewise, New York law has refused to give First Amendment
protection to people who use their religious belief as a smoke
screen for their illegal behavior. Article I, section 3 of the
Constitution of the State of New York provides that:
The free exercise and enjoyment of religious
profession and worship, without discrimination or
preference, shall forever be allowed in this state
to all mankind; and no person shall be rendered
incompetent to be a witness on account of his
opinions on matters of religious belief; but the
liberty of conscience hereby secured shall not be
so construed as to excuse acts of licentiousness,
practices inconsistent with the peace or safety of
The evidence adduced at trial established that petitioner's
promises to cure the complainants' spiritual problems were
deliberate lies made with fraudulent intent. Even if
petitioner's religious beliefs were bona fide, Ballard still
does not present an adequate defense for the crimes for which
he was convicted. Recently, in Employment Division, Department
of Human Resources v. Smith,