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August 27, 1991


The opinion of the court was delivered by: Wexler, District Judge.


Petitioner Abraham Ballard, a/k/a Lawrence Upchurch, petitions this Court for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons set forth below, petitioner's application is denied.


Petitioner was indicted by a grand jury and charged with: three counts of grand larceny in the second degree, in violation of section 155.40 of the New York Penal Law, two counts of grand larceny in the third degree, in violation of section 155.35 of the New York Penal Law, and five counts of fortune telling in violation of section 165.35 of the New York Penal Law. These charges arose out of petitioner's conduct in Suffolk County, New York, where he solicited and received payment for "spiritual services" at various times and in various amounts from Clover Virgo, Doreen Killebrew, Lorraine Hendricks, Theraline Dixon, and Anita Turner, (collectively "complainants").

At trial, the prosecution established its case, in part, by calling the five complainants as witnesses. The complainants all testified that Ballard convinced them that they, or their loved ones, were affected by curses and that he could remove these curses for large sums of money. Each of the complainants paid Ballard for his "services." Ballard indicates that he has the ability to ward off evil spirits and maintains that his services were performed in accordance with his service to God. Following a jury trial, Ballard was convicted of all the charges.

On September 8, 1986, the New York State Supreme Court, Suffolk County, imposed indeterminate sentences of three to six years on each of the second degree grand larceny counts; two to five years on each of the third degree grand larceny counts; and sentences of 90 days on each of the five fortune telling counts. The court also imposed a mandatory surcharge of one hundred dollars. On October 24, 1988, the appellate division affirmed the conviction, 143 A.D.2d 919, 533 N.Y.S.2d 558. Petitioner brought a motion to reargue his direct appeal to the appellate division, which was denied on February 21, 1989. Leave to appeal to the New York Court of Appeals was subsequently denied on April 5, 1989.

Currently, petitioner alleges the following nine grounds in support of his petition: (a) that he was deprived of his constitutional right to the effective assistance of counsel; (b) that he was deprived of the right to a fair and impartial jury trial; (c) that his rights, under the First and Fourteenth Amendments, to the free exercise of religion and the equal protection of the law were violated; (d) that prosecutorial misconduct deprived him of a constitutionally fair trial; (e) that evidence of prior bad acts was improperly admitted, resulting in a constitutionally unfair trial; (f) that at trial there was an unconstitutional shift in the burden of proof; (g) that the prosecution failed to prove him guilty beyond a reasonable doubt; (h) that the jury's verdict was against the weight of the evidence; and (i) that the sentence was harsh, excessive, cruel, and inhuman under the Eighth Amendment.

Petitioner has exhausted all the remedies available to him in the state court system, as is required in a federal habeas proceeding. See 28 U.S.C. § 2254(b). However, respondent contends that petitioner is procedurally barred from obtaining habeas relief for the majority of his claims, and that all nine claims are nevertheless without merit. For the reasons set forth below, this Court finds that, although petitioner is not procedurally barred from raising his claims, each of the grounds advanced in support of the petition are without merit.


A petitioner is procedurally barred from seeking habeas relief on the basis of a claim not properly preserved in state court unless he provides an adequate justification excusing this error and demonstrates that prejudice has resulted from the alleged violation for which relief is being sought. Wainwright v. Sykes, 433 U.S. 72, 86-87, 97 S.Ct. 2497, 2506-2507, 53 L.Ed.2d 594 (1977); see also Reed v. Ross, 468 U.S. 1, 11, 104 S.Ct. 2901, 2907-2908, 82 L.Ed.2d 1 (1984). In other words, a claim not properly preserved is barred from consideration by a federal habeas court absent a showing of "cause and prejudice." Wainwright, 433 U.S. at 87, 97 S.Ct. at 2507.

Respondent argues that petitioner herein is procedurally barred from seeking habeas review of the claims involving objections to the prosecutor's closing remarks and to the Court's jury instructions. Respondent correctly asserts that petitioner's trial counsel did not object to either the prosecutor's closing remarks or the court's jury charge. Thus, respondent concludes that habeas review may not be had for these grounds because they were not properly preserved at trial.

In Harris v. Reed, 489 U.S. 255, 109 S.Ct. 1038, 103 L.Ed.2d 308 (1989), the Supreme Court declared that "a procedural default does not bar consideration of a federal claim on either direct or habeas review unless the last state court rendering a judgment in the case `clearly and expressly' states that its judgment rests on a state procedural bar." Id. at 263, 109 S.Ct. at 1039 (quoting Caldwell v. Mississippi, 472 U.S. 320, 327, 105 S.Ct. 2633, 2638-2639, 86 L.Ed.2d 231 (1985)). In the instant case, the last state court which rendered a judgment on the issues presented was the appellate division. Although the petitioner's claims were "fairly presented" to the New York Court of Appeals, the Court did not render a judgment on the claims when it denied leave to appeal. Udzinski v. Kelly, 734 F. Supp. 76, 81 (E.D.N.Y. 1990); see also Rahming v. Kelly, No. 89-2620, 1989 WL 101919 (S.D.N.Y. Aug. 28, 1989) (LEXIS, GenFed library, Dist. file).

The appellate division was presented with all of the constitutional issues currently asserted. In its opinion, People v. Ballard, 143 A.D.2d 919, 533 N.Y.S.2d 558 (1988), the court only addressed Ballard's arguments that the evidence adduced at trial was insufficient to sustain the jury verdict and that his First Amendment rights were violated. The court concluded its opinion by stating:

  We have examined the defendant's remaining
  contentions, to the extent that they are properly
  preserved for appellate review as a matter of law
  (CPL 470.05[2]), and find them to be without
  merit. Review of those arguments which were not
  properly preserved is not warranted in the
  interest of justice. The judgment under review is
  accordingly affirmed.

Id. 533 N.Y.S.2d at 559.

Thus, the appellate division failed to delineate which issues were procedurally barred and which issues were properly preserved. Therefore, this Court finds that the appellate division did not "clearly and expressly" rely on procedural default grounds to dismiss petitioner's prosecutorial misconduct and improper instruction claims. See Harris, 489 U.S. at 263, 109 S.Ct. at 1039. Accordingly, this Court must reach the merits of the claims.


A. Ineffective Assistance of Counsel

It is well established that an indigent criminal defendant is guaranteed the right to counsel. N.Y. Const., art. I, § 6; People v. Koch, 299 N.Y. 378, 381, 87 N.E.2d 417, 418 (Ct.App. 1949); Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). It is equally well settled that an indigent defendant is not entitled to a choice of counsel should he be dissatisfied with the attorney assigned to him unless the defendant can demonstrate "good cause" for the court to assign different counsel. See, e.g., United States v. Burkeen, 355 F.2d 241 (6th Cir.), cert. denied sub nom. Matlock v. United States, 384 U.S. 957, 86 S.Ct. 1582, 16 L.Ed.2d 553 (1966); People v. Medina, 44 N.Y.2d 199, 404 N.Y.S.2d 588, 593, 375 N.E.2d 768, 772-773 (Ct.App. 1978). The justification for assigning new counsel is "most compelling" if the defendant can demonstrate that "counsel is unable to provide the defendant effective assistance, as, for example, by reason of professional incompetence or the existence of a personal impediment which handicaps his or her professional performance." People v. Sawyer, 57 N.Y.2d 12, 453 N.Y.S.2d 418, 422, 438 N.E.2d 1133, 1137 (Ct.App. 1982), cert. denied, 459 U.S. 1178, 103 S.Ct. 830, 74 L.Ed.2d 1024 (1983).

Petitioner herein was assigned John Lardner of the Legal Aid Society of Suffolk County to represent him at trial. Lardner's request to be relieved of the assignment was denied. Petitioner requested that the court assign him a new attorney and this request was also denied. Petitioner asserts that he and Lardner had fundamental differences in their religious ideologies and that counsel was neither prepared nor willing to defend him.

An indigent defendant may not delay trial by finding fault with his assigned counsel absent a showing of how the alleged fault would adversely affect the defendant's representation. People v. Arroyave, 49 N.Y.2d 264, 425 N.Y.S.2d 282, 286, 401 N.E.2d 393, 396-397 (Ct.App. 1980). To that end, it appears rather fundamental that a defense attorney can effectively represent a person with religious beliefs different from his own. Likewise, an assigned counsel who unsuccessfully requests to be relieved from his duty is not incapable of providing effective legal assistance. Petitioner has not demonstrated how the defense counsel's alleged "impediments" precluded him from rendering effective ...

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